Georgia Supreme Court strikes down Georgia sex offender law

The Georgia Supreme Court today struck down a critical portion of Georgia’s Sex Offender Registration law by declaring its residency restrictions unconstitutional. In Mann v. Georgia Department of Corrections, the Court held that the statute unconstitutionally forces individuals to move whenever a new child care facility, church or school happens to move within 1,000 feet of the person’s previously permissible residence.

Anthony Mann is a registered sex offender who in 2002 pleaded nolo contendere in North Carolina to the offense of taking indecent liberties with a child. In August 2003, he got married and he and his wife purchased a home in Clayton County, Georgia. At the time it was purchased, the home complied with Georgia’s sex offender residency restrictions as it was not “within 1,000 feet of any child care facility, church, school or area where minors congregate.” Additionally, in October 2004, Mann became a part-owner and day-to-day operator of a barbecue restaurant that similarly was in compliance with the statute (the statute also prohibits Mann from being “employed by any business or entity that is located within 1,000 feet of an area where minors congregate”).

At some point thereafter, child care facilities were erected within 1,000 feet of Mann’s home and business. Mann’s probation officer demanded that he quit the barbecue business and remove himself from his home or be subject to arrest on felony charges.

Mann filed a civil suit in Clayton County Superior Court alleging that the statute’s residency and employment restrictions constitute an unconstitutional government taking of his property in violation of the Fifth Amendment to the U.S. Constitution. The Court partially agreed holding that forcing Mann to give up his home without providing compensation was unconstitutional, but that the Constitution did not prohibit the government from forcing him to find new employment.

The Court was particularly troubled by the legislature’s failure to include a “move-to-the-offender” exception that would allow a person who establishes residency or accepts employment in a permissible location to stay there when a new child-related establishment moves nearby (the statutes in Alabama, Iowa and other states contain this type of exception). Without this exception, the Court reasoned that “there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.”

Essentially, the statute amounts to an unconstitutional taking of a person’s property when it forces an offender who owns his residence in a permissible location to move when a new child-related establishment moves in. An individual who rents his residence does not have the same constitutionally protected property interest as a landowner. The Court also found that Mann’s interest in his barbecue business was not protected by the Constitution either. Although the statute directly deprives Mann of his right to work on site at the restaurant, it does not compel him to relinquish his ownership interest or to relocate the business in order to maintain his interest in it.

Over the last two years, our firm has been asked to handle many sex offender registration cases similar to the one decided today. The decision will not only affect our current clients, but will likely open the door to future litigation to address the rights of others, like Mann, that had been forced to leave their homes as a result of this law.

The decision today puts an end to a sixteen month campaign where the state forced thousands of people out of their homes–many of them were landowners like Mann. There are also many criminal prosecutions, for violations of these restrictions, that will now undoubtedly be dismissed.

Several proponents of the statute have criticized the decision fearing “that now convicted felony sex offenders are free to live anywhere they want to in Georgia.” In reality, though, the legislature will most likely take their first opportunity in January to amend the statute by adding the “move-to-the-offender” exception that has been adopted by other states. Doing so will likely satisfy the Supreme Court and allow the state to enforce a modified version of these residency restrictions next year.

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