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NH: Public pool can’t ban sex offender

PORTSMOUTH — City Attorney Robert Sullivan confirmed he recently met with a group of people who are concerned because a registered sex offender has been using the Portsmouth Indoor Pool.

The pool, located near the high school, is used by community members and youth and school swim teams.

After the meeting, Sullivan said, he reached out to the American Civil Liberties Union of New Hampshire to get its input.

“The actions which the city might be able to take or which the city might be prevented from taking would be dictated by the particular aspects of the situation,” Sullivan said this week.

Gilles Bissonnette, the legal director of the ACLU of New Hampshire, said he told Sullivan that it would be “unconstitutional” for the city to bar the registered sex offender from using the pool, just because he’s a sex offender.

“The concern in these types of cases is that there is an equal protection clause problem,” Bissonnette said Tuesday. “That would be the case if regular members of the public are able to access these public facilities but a sex offender is precluded from accessing these facilities. The sex offender would be being treated unequally.”


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I think they’ve simplified this too much.

It’s much more than an Equal Protection issue, because equal protection only covers the same people in the same circumstances. A convicted person on the registry is not the same as a person that never committed a crime.

The real issue is that being on the sex offender registry has nothing to do with being dangerous, since you are on it for an arbitrary length of time due to an arbitrary list of charges and there is no requirement that you are deemed dangerous to be on it. Therefore, it’s more of a substantive due process issue because if you’ve never had a process to judge your level of dangerousness and for how long you are dangerous, then the registry is irrelevant and can’t be used to deny you anything that a regular person would have access to. That’s how it becomes an “equal protection” issue with the lack of “substantive due process” to come to any conclusion about you and what needs to be done to protect the public from you.

Well said. Thanks

@Chris F:
Without getting too far into things, I disagree some with your Equal Protection stance. But, that’s neither here nor there. What interests me about the whole situation is that there are two previous cases (Dover & Franklin) where the restrictions were struck as violating Equal Protection.

It seems NH might be a nice place for RCs to live, as they seem to address things somewhat rationally:
Bill prohibiting residency restrictions:
Some ML provisions unconstitutional:
Online IDs unconstitutional:
Franklin lawsuit:
(I couldn’t readily find the Dover lawsuit.)

I also got a bit of a chuckle out of the suggestion that citizens need to use their precious registry if they want to know if there’s a “bad man” at the pool. For once, the onus is put on the citizen to do exactly what they registry is purported to be for: “Any family member who might be concerned that a sex offender is swimming in the pool ‘can go to the sex offender registry, insert Portsmouth and see all the registered sex offenders,’ [ACLU-NH legal director] Bissonnette said.” Gee, you mean Nanny State won’t do every single thing to keep us in bubble wrap?

When they pass these laws they say all SOs are a danger to public
When they decide what crimes equal what time on reg they apply it to a law before the person breaks it, and they consider the law to be non punitive.
So in order to show due process you first have to show the reg law is punitive.
If you can show law is punitive then you would have the right to have the facts of how dangerous you are to the public prove or dis prove you should or shouldn’t be on a reg.
This why PA has still not changed the way they designate an SVP in their new bill because they are banking on their belief that there is no punitive aspects of commitment of an SVP under SORNA. Even though the court has put a halt to SVP designations.
When we can show that all aspects of a registry are punitive then we can show we have the right to prove how dangerous we are.

How should Courts prove whether someone is “dangerous?” Specifically, how will Courts prove whether a person will re-offend, presumably ‘dangerously,’ in the future?

Would love your thoughts, please comment.x