Apr 24, 2013 8:36 AMBy Carol Moran
Nearly two dozen homeless sex offenders have filed federal lawsuits challenging Southampton Town, Suffolk County and New York State laws that prohibit them from living near schools, playgrounds and daycare centers once they are released from prison, and require that they register with law enforcement agencies for life.
A federal judge has consolidated the suits, at least 10 of which were filed during the past two months and with each defendant seeking $25 million in damages, under one lawsuit and with 42-year-old Troy Wallace as the lead plaintiff. In 1992, Mr. Wallace, then 20, was convicted in Suffolk County Criminal Court of sexually abusing a 15-year-old girl.
He served six months in prison after a plea deal, and is currently on parole for an unrelated burglary conviction. His wife and 16-year-old daughter now live in Central Islip, but because their home is located near a licensed day care center, he takes a bus to the homeless sex offender trailer in Riverside each night to sleep. Under the same guidelines, he is allowed to stay at his home during the day, when the daycare facility is open, but must vacate his home at night, when the center is closed.
"I have a home, I have a wife, I have a child—and I can't reside in my household with them," he said during an interview on Monday.
Last year, Mr. Wallace filed a lawsuit alleging that the state, town and county restrictions on where convicted sex offenders can reside violate the U.S. Constitution by retroactively punishing them, according to a copy of the complaint. The Constitution prohibits ex post facto law, or the creation of any law that increases the punishment for a crime after it was committed. The suit also challenges Megan's Law, passed in New York in 1995 and requiring that the offenders register their home addresses with local law enforcement authorities, charging that it is unconstitutional for the same reason.
The complaint also alleges that state law overrides the local housing restrictions, which are much tighter and place additional limits on where the offenders can live once they are released from prison. Under state law, convicted sex offenders on probation or parole, or whose victims were under the age of 18, are prohibited from living within 1,000 feet of a school or daycare center. A Suffolk County law passed in 2006 prohibits offenders from residing within a quarter mile of such facilities. A town law passed in 2007 extends that distance to a mile of a school and 2,000 feet of a daycare center. No such laws were on the books when Mr. Wallace was convicted.
He also has 20 months left on parole and, if the local restrictions are eventually overturned, he could return home, he said.
"The only way out is to actually fight these laws," Mr. Wallace said, adding that only those who are adversely affected will challenge the government. "But I'm not afraid anymore—I want my life back," he said.
Mr. Wallace, who works as a personal trainer, enrolled for a semester at Briarcliffe College in Patchogue to study law. But when administrators received a letter in the mail notifying them of his level two sex offender status, they dismissed him from the school. He is now taking Christian ministry classes online.
He continued to study law on his own, eventually feeling confident enough to file the suit without an attorney. He also aided the other offenders with their legal paperwork.
"My drive is I want my life to have a sense of normalcy—not so much for myself, but for my daughter," he said. "She never asked for this."
Amol Sinha, the director of the Suffolk County Chapter of the New York Civil Liberties Union, said such strict residency restrictions provide the “illusion of safety,” though they do little to protect the community. “The residency restrictions and registries essentially serve to punish people multiple times for the same act and divert resources from law enforcement tactics that would serve to protect the public,” he said in a recent interview.
Mr. Wallace echoed those points: "The numbers are not going to lie, but the politicians will."
Such residency restrictions have been challenged and overturned by courts throughout the state and nation. Southampton Town resident Duane Moore, who was convicted in 1982 of raping a 17-year-old girl in Nassau County, filed a similar suit in 2010 against Suffolk County, Southampton Town and the Southampton Village Police Department and Village Mayor Mark Epley, arguing that the local restrictions "amount to a sentence of banishment." Mr. Moore, who lived in Southampton Village at the time, states in his complaint that Village Police are included as defendants because they are responsible for enforcing the county’s residency restrictions.
County and town officials have said they expect the judge to rule in favor of the plaintiff. On March 8, Judge Joseph F. Bianco ordered that a decision on Mr. Moore's case be delayed pending the outcome of similar suit making its way through the Second Appellate Term of the State Supreme Court and challenging Nassau County's residency restrictions. In 2009, a Nassau County District Court judge ordered that the county's residency restrictions barring sex offenders from residing within 1,000 feet of a school were preempted by state law and were thus invalid. The county has appealed the decision.
Southampton Town Attorney Tiffany Scarlato said she expects a decision in the next few months, though she said she could not comment further, citing the ongoing litigation.
Bruce A. Barket, the attorney from Garden City who is representing Mr. Moore, could not be reached for comment.
The litigation filed by Mr. Wallace lists the following entities and people as defendants: Southampton Town and Southampton Town Police, Suffolk County and the Suffolk County Department of Social Services, the New York State Department of Social Services, New York State and Susan Westergaard, who oversees the county's sex offender trailer program.
Calls placed to David Arntsen, an attorney from the firm Devitt Spellman Barrett LLP in Smithtown, who is representing the town defendants, were not returned.
Additionally, calls placed to the Suffolk County Attorney and the New York State Attorney General’s office were also not returned.
Some Suffolk County legislators have blamed the tight restrictions for the county's homeless sex offender population. There are about 1,000 registered offenders in the county, about 40 of which are homeless and now sleep in two trailers, both in Southampton Town and overseen by the Suffolk County Department of Social Services (DSS). One is located in the shadow of the county jail in Riverside while the other is near the Suffolk County Police shooting range in Westhampton.
"DSS will have a much easier job finding housing for the homeless sex offenders," Suffolk County Legislator Jay Schneiderman said on Monday, speculating on what would happen if the local restrictions are eventually overturned. "The trailer population will be cut at least in half, if not more. Many have places they could live if those laws were overturned. They're homeless by virtue of the law."
In February, the Suffolk County Legislature approved a sex offender monitoring program, dubbed the Community Protection Act, that proponents claimed would be the strongest in the nation. The plan vowed to close the two trailers and relocate the homeless sex offenders to the county’s existing shelters, with no more than one offender per facility. Additionally, proponents promised to keep offenders separate from families, though they have not explained how that would be accomplished.
Mr. Schneiderman said he hopes that process will be complete, and the trailers closed, by Memorial Day.
Vanessa Baird-Streeter, a spokesperson for Suffolk County, did not return calls seeking comment.
Mr. Wallace has drafted a complaint that he also plans to file in federal court challenging the Community Protection Act, championed by Parents for Megan's Law, a nonprofit organization, again for preempting the state laws and for allegedly violating sex offenders' rights by employing "trackers" to monitor their locations and actions. The suit also alleges that Parents For Megan's Law lists level one sex offenders, those determined have the least risk of recidivism, on its website, which is illegal in New York.
Laura Ahearn, executive director for the organization, did not return calls seeking comment.
"I'm going to continue to fight," Mr. Wallace said. "I'm not going to stop until I am back home."