Peabody is expected to pass an ordinance this month that would further restrict the everyday lives of convicted sex offenders, but the city is hoping not to end up in court over the matter like neighboring Lynn.
“I looked into Lynn’s ordinance a great deal,” said Peabody Mayor Ted Bettencourt, “and I feel the ordinance we’re putting forth right now will withstand any legal challenge.”
The American Civil Liberties Union of Massachusetts is suing Lynn over its 2010 ordinance that bans Level 2 and 3 sex offenders from living within 1,000 feet of a school or park, calling it unconstitutional. The number of sex offender plaintiffs being represented by the ACLU has grown in the case in recent months, from five to 16, according to James Lamanna, Lynn city attorney.
John Reinstein, senior legal counsel for the ACLU of Massachusetts, said the restrictions infringe on civil liberties and don’t reduce child sexual assaults.
“Residency restrictions are not doing what people are trying to get them to do, which is improve public safety,” Reinstein said. “We’re making across-the-board decisions and imposing a punishment that is quite severe.”
The lawsuit could set a statewide precedent, and is being monitored by some 30 cities and towns that have restrictions on where sex offenders can live or visit.
As recently as last month, Attorney General Martha Coakley’s office warned towns adopting similar bylaws that they could be ruled unconstitutional and have yet to be tested in the state appellate courts.
The suit states that Lynn’s ordinance bans sex offenders from living in 95 percent of the city, but city officials dispute that percentage, saying the percentage is lower.
“It’s banishment,” Reinstein said. “It means you can’t live in the entire town, and that in turn concedes the authority of one town to determine sex offenders have to live elsewhere.”
Reinstein also argues the restrictions can encourage offenders not to register their addresses with police, as required by state law, because they can’t find affordable housing without violating the residency rule. However, Lynn officials said there is a provision allowing offenders to live within restricted zones if they’re staying with an immediate family member, or owned a home there before the ordinance went into effect.
“If this ordinance can prevent even a single case of child molestation, then it’s worth it,” said Tim Phelan, Lynn City Council president.
Everett and Revere also have residency restrictions in place. Everett’s ordinance prohibits Level 3 sex offenders — those classified to be at a high risk of reoffense — from living within 1,000 feet of a school, day care, park, or recreational facility.
Revere’s residency restriction prohibits Level 3 sex offenders from living within 1,000 feet of a school or from visiting a library, unless they are in the building with their own children.
Peabody is not adopting a residency restriction, but has drafted an ordinance that would ban both Level 3 and Level 2 sex offenders — those classified as a moderate risk of reoffense — from visiting places where children congregate, such as parks and schools. It is expected to be adopted by the City Council Nov. 15, after it was unanimously approved by the council’s Legal Affairs Committee last month.
Peabody’s proposed ordinance is modeled after the one in New Bedford, Bettencourt said. It states sex offenders could be arrested or face fines for visiting a designated “child safety zone,” which include parks, schools, libraries, recreational centers, day cares, churches, pools, or gymnasiums. Exceptions include if sex offenders are attending a youth event for their own child, visiting a school to vote, or in a church during designated worship hours.
Supporters of the restrictions, such as Brandi Carpenter, a Peabody School Committee member, said cities and towns are being forced to legislate how to handle sex offenders because state and federal lawmakers aren’t doing a good enough job.
“I think the cities and towns are way ahead of the law,” she said. “The fact that they let pedophiles out [of prison] and categorize them as highly reoffendable is ridiculous. They’re not doing what they should be doing to protect people, so the cities and towns are doing it.”
Julie Potter of Lynn, a mother of two, said sex offenders give up certain rights when committing their crimes.
“Because he made that choice . . . I think he lost the right to live within a certain amount of feet of what entices him the most,” she said.
Potter is referring to her former neighbor, Richard Galzerano, 58, a Level 3 sex offender who purchased a home on Daytona Road in Lynn last year. He was convicted in 2008 of enticing a child under the age of 16 and is now living in Peabody, according to the Sex Offender Registry Board.
The ACLU suit was sparked after publicity surrounding Galzerano’s case, when the city began fining him $300 per day for violating the ordinance last December. His attorney, David Grossack, said Galzerano is fighting the fines in court.
“We believe the [ordinance] has no rational relationship to legitimate government purpose,” Grossack said. “It is so punitive that it really violates basic human rights, and there’s absolutely no evidence that children or anyone is at risk because of Mr. Galzerano.”
Galzerano is not a plaintiff in the ACLU’s lawsuit, Grossack said. According to the Essex district attorney’s office, Galzerano is also facing trial in Lynn District Court on Jan. 10 for failing to register as a sex offender when he moved into his Lynn home in September 2011.
Phelan, the Lynn city councilor, said Galzerano lived in a “perfect triangle” of access to children: Shoemaker Elementary School, Gowdy Park, and a private day-care center all are within 1,000 feet of the home.
Galzerano now lives on Lynn Street in Peabody, on the Lynn line and across the street from Lakeshore Park, a recreational area on Browns Pond.
“That raises my eyebrows and causes suspicion,” Phelan said. “You’d be naive to think otherwise.”
Galzerano could not be reached for comment. He still owns the Lynn house, according to city property records, but is not allowed to live there.
“I still see him,” Potter said. “He moved, but he’s at the residence every day. He just doesn’t sleep there.”
Lynn has volunteered to stop enforcing its sex offender residency rules until the ACLU lawsuit is completed, according to Lamanna. He said the ACLU will likely seek a court order for Lynn to stop enforcing the law at a hearing this month.
Reinstein, the ACLU attorney, said the effectiveness of residency restrictions is “not borne out by statistics,” and there are several studies to back up his assertion.
In Iowa, after a statewide residency restriction took effect in 2005, the number of child sexual assaults actually increased, from 913 cases in the year prior to the law’s implementation to 928 and 1,095 cases the following two years, respectively, according to a 2008 study by the Iowa Department of Human Rights.
According to the US Department of Justice, 93 percent of sexually abused children are harmed by family members, close friends, or acquaintances.
But that statistic doesn’t matter much to Jessica O’Hara of Peabody, a mother of three who helped launch the Peabody ordinance after repeatedly seeing two Level 3 offenders at her children’s baseball games and a local library.
“I know that 90 percent of the abused children are molested by relatives, but my feeling is we should protect the other 10 percent,” O’Hara said.Dan O’Brien can be reached at email@example.com.