The City of Lewisville's defense attorney responded to the Duarte Civil Rights lawsuit with a motion to dismiss, claiming in part that the Duartes didn't have standing to sue. The City seems to be claiming that because the Duartes do not live within 1,500 foot "buffer zone", they are not subject to its restrictions. It would seem that if government passes a law with severe punishment as a consequence for doing something that one considers to be a civil right, then by this standard, one's rights to do that thing are not violated until one tries to exercise the right and then is punished for it. The City's motion also says that the family does not suffer since they are not sex offenders and thus can live anywhere they want in Lewisville, as long as their father is not with them.
Another interesting point the City's defense seems to make is that the ordinance is not "banishment", going to great lengths to point out that it is not punitive, but rather protective of children. Yet in the same motion, they have this:
"Notably, child sex offenders are free to travel into or through, and move about within, the buffer zone, and the ordinance does not restrain or disable plaintiff A. Duarte, as he is still able to own or lease property for business, or conduct business or work at any location within the zone. He simply cannot establish a residence within a buffer zone. This relatively limited restraint does not constitute punishment, but rather, is a minor, indirect effect on the plaintiff"
So, we're only restricting them to protect the children, but see, look, we're not really restricting them that much.
There is a lot more to it, and it seems to be a lot of procedural legal mumbo-jumbo, but I'm posting it here so that you legal types can read it.
I still think the ordinance was a bad idea, and we could have saved the money by just dropping it.
What has happened so far to date is that the parties went back and forth on the motion to dimiss, and a federal magistrate has recommended dismissal on the basis of lack of standing. Ironically, because Duarte has not BROKEN the law, the magistrate says he has no standing to sue. If he had simply broken the law and moved into an apartment for a day, called the police on himself, and gotten a fine, then they say he'd have a right to sue. The magistrate also found no constitutional right for a person to live in a city they can otherwise afford to live in, and no constitutional right for a person to live with his family, and no harm done to the family in having to forgo living with him in the same city.
I think this citation from the Duarte response of the Supreme Court decision MedImmune v Genetech, just about sums it up:
“Our analysis must begin with the recognition that, where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat — for example, the constitutionality of a law threatened to be enforced. The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction.”
Here is the recommended order, and the Duarte response.
Originally posted 5/4/2012, re-topped 9/24/2012