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Irvine’s Pervs in the Park Ordinance is Unconstitutional

One of the platforms that Irvine Republicans ran on in November’s election was how Council member Larry Agran weakened a county ordinance to protect kids in Irvine’s park against child sexual predators and child pornographers complete with a nasty hit piece with a photo of a hooded pervert stalking little kids. That pervert was later revealed to be political communicator Jim Bieber in Frank Mickadeit’s piece on election night (and why Frank would cheer a piece that painted a picture of unsafe Irvine parks is beyond me).

And Republicans savaged OC DA Tony Rackauckas for doing a robocall to say there was no such problem of sexual predators in Orange County much less Irvine.  And Republicans jumped down Rackauckas’ throat for the crime of disputing what they said about Agran and company.

Last week, with only one arrest under this ordinance in Irvine, an Orange County Superior Court struck down Irvine’s ordinance as unconstitutional.

In an email received by OC Weekly, the details showed:

 Everett Dickey, Judge of the Superior Court, sustained the demurrer to the Irvine ordinance on all grounds – preemption, vagueness, and overbreadth. The complaint against Mr. Nguyen charging him with a violation of Irvine’s Child Safety Zone ordinance was DISMISSED.

In sum, on November 27, 2012, the Superior Court of Orange County ruled that Irvine’s Child Safety Zone ordinance is void and unenforceable because it is unconstitutional and the subject area (sex offenders) is preempted by State Law. Judge Dickey agreed with all of the legal arguments raised by Mr. Nguyen.

Judge Dickey’s ruling is wholly consistent with the November 15, 2012, ruling of the Appellate Division of the Superior Court in which the Appellate Division determined that the similar County of Orange Ordinance is void. (see, Superior Court file People v. Godinez, case number 30-2011-00530069] and OC Weeklyarticle “[UPDATED with OCDA Reaction:] Orange County Pervs-in-Parks Ban Violates State Constitution: Judicial Panel)”)

It should be noted that Judge Dickey’s ruling is likewise consistent with the Superior Court ruling in People v. Randolph Carr, case number 12CM05955, declaring Tustin’s similar park ordinance unconstitutional.

Now while Irvine Republicans savaged Tony Rack for doing the Robocall in the first place, we’ll note that the DA wrote and approved the original quote that appeared on the mailer. Tony Rack talking out of both sides of his mouth?
So as an Irvine parent, who lives a hop, skip and a couple of jumps from five exceptional parks, should I worry that Irvine will be overrun with Child Sexual Predators and Child Pornographers who will roam our parks without worrying about getting arrested because the Irvine ordinance was ruled constitutional?  I mean Irvine Republicans said this was the case.  This was the effect of Agran’s vote to weaken their ordinance and now that a judge has tossed it out,what protection do we have?  Bet Irvine loses it’s safest city designation over this.
Council member Jeff Lalloway, who championed the Irvine Ordinance, said, “I am disturbed by an activist court finding the Ordinance to be preempted by California Law. In my opinion, Irvine and other cities should be allowed to govern our parks, especially when it comes to protecting the most vulnerable in our society.”
It strikes me that the Lalloway and Rackaukas, both lawyers, should have done more homework to make sure this ordinance wasn’t going to face a constitutionality test. And now that it’s failed, did the Republicans just give a green light to sexual predators in Irvine’s parks?  This ordinance was plainly more about politics than actual safety.

According to an August report by NCMEC, Prevent Abuse Now, Criminal Justice Agency, even if the County’s and Irvine’s ordinance were constitutional, it covers a small sector of child sexual predators actually prey on new victims.

  • The average re-conviction rate for a child molester is 20 percent
  • California isn’t among the top eight states with the highest rate of sex offenders
  • 60 percent of sexually molested boys were molested by someone they knew
  • 80 percent of sexually molested girls were molested by someone they knew.
The percentages mean your kids are more at risk of being molested at a Family Reunion that they are in an Irvine City Park.
The New York Times covered this issue in detail back in May, citing Orange County as a petri dish for these new laws. From the Times story:

The proliferation of such restrictions reflects the continued concerns of parents and lawmakers about potential recidivism among sex offenders. But it has also increasingly raised questions about their effectiveness, as well as their fairness.

Opponents have dismissed “child safety zones” as unenforceable, saying they are designed to make politicians look tough on crime and drive sex offenders from the area, not make children safer.

“These are cheap laws that can be passed to make people feel good,” said Charles P. Ewing, author of “Justice Perverted: Sex Offense Law, Psychology, and Public Policy.”

Irene Pai, a lawyer with the Orange County public defender’s office, said “child safety zones” give parents a false sense of security, punishing many offenders who are not dangerous without actually stopping predators from entering parks.

Ms. Pai said she had a stack of cases involving people who were arrested for urinating in public in the 1970s and pleaded guilty to indecent exposure without realizing they would have to register as sex offenders.

“The very notion that a park ordinance could in any way protect children, more than an attentive caregiver’s presence or any other way we protect our children, is absurd,” she said. 



  1. Ltpar Ltpar December 3, 2012

    Dan, please explain to us just how the invalidation of an City Ordinance would have an impact on Irvine’s status as America’s Safest City? By the way, we have never had a major issue with sexual deviates flooding Irvine parks and will not have in the future?

    • Dan Chmielewski Dan Chmielewski Post author | December 3, 2012

      Pat, didn’t you read the mailer sent by the Choi campaign; we’re going to be overrun with pervs and child pornographers because Larry Agran weakened the Irvine Ordinance. Now that it’s unconstitutional, they are going to invade our parks and go after our kids. Don’t blame me, blame your side for putting out that mailer and then savaging Tony Rack for doing a robo call saying that wouldn’t happen

  2. Jeff Gallagher Jeff Gallagher December 3, 2012

    I’m no lover of pedos but I find it interesting that conservatives who espouse the Constitution want to abrogate the rights of every individual who does not toe the line. There are way too many laws on the books that give a false sense of security, in this case to parents, about their community. As parents, we are the first (and sometimes only) line of defense between our children and the dangers that lurk out there.

    Ltpar, Irvine will remain one of the safest cities in America even though this useless law was dissolved by the courts because it was unnecessary to implement in the first place. I seriously doubt predators look at the local ordinances before they violate the law.

    • Ltpar Ltpar December 3, 2012

      Jeff, I agree with you on this one. All to often politicans jump on the band wagon to creat additional rules and regulations where there is already sufficient law in place. In my opinion, having enforced the law, the Irvine Ordinance is one that was not needed.

  3. Robert Curtis Robert Curtis December 3, 2012

    I tire of all this BS about us registered sex offenders. That’s right I’m a registered sex offender (misdemeanor not involving a child 12 years ago). Look people after probation, therapy and time served we’ve paid their debt to society and just want to be apart of society again. Me? I’m a registrant but for some reason it’s okay for me to work alone with women in my salon, but I can go to the park with my son? Wait I assault a woman in a salon yet it’s okay for me to continue being alone with women, but I can’t go to the park with my son? Am I a danger? No, not after the GRINDER of therapy, responsibility and accountability. It was in great part due to the DA’s office and the probation department that I am the person I am today. Just last year I received a US Congressional award for community service for helping cancer patients and the homeless. I needed that kick in the pants I got from the DA and his colleagues in the probation department. The issue is why do we have a registry when we have systems and professionals that drive those systems that do a good job? WE got away from trusting our professionals that are there every day for us. It’s really sad. I was once lost, but today society itself seems to be. Well, that’s how this old soldier sees it!

    • Ltpar Ltpar December 4, 2012

      Robert, there are exceptions to every rule and if your life description is accurate, you may well be one of them. However, somewhere around 97% of sex offenders are subject to recidivism. Those are the people parents worry about. I congratulate you on straighening up your life and wish you the best for the future.

  4. Eric Knight Eric Knight December 7, 2012

    Dan, interesting article. As the original dissenter to the proposed law in March, 2011, at the OC Board of Supervisor meetings, I outlined point by point in how the law violated so many tenets of both state and federal constitutonal amendments and clauses. The DA, of course, was undeterred and indicated that the law would, indeed, pass constitutional muster. Using his clout, Tony Rackauckas then did the city circuit, strong-arming cities into creating their own ordinance. Fine. All you rich cities have barrels of cash lying about in this Obama boom economy to pay for lawyers, both on your side and the side of offenders when they win, as well as damages. Not gloating, but a very strong “I told you so” is in order so we know where to go from here.

    And where is that? We look at the numbers. EVERY person arrested since the ordinance wave started was not arrested for a sex offense, but for normal park activity that was illegal because of their registration status. To wit, 0.000% (go as many decimals as you with) of registered sex offenders re-offended with another sex offense, which would have been HEAVILY reported on if it were the case.

    Finally, the “97% recidivism rate” is utter hogwash. US DOJ statistics put the figure at 3.5% to 5.3%, depending on arrest or conviction, of registrants charged with another sex offense. In fact, the latest figure from the California Sex Offender Research board, questionably cited by the DA himself, cites a 1.9% rate, or less than one out of every fifty registered sex offenders reoffend with another sex offense.

    • Dan Chmielewski Dan Chmielewski Post author | December 7, 2012

      No one wants sexual predators in our parks. Even if they aren’t in our parks, they are in malls, on the streets and in commercial property. Education, parental involvement are key in keeping kids safe. Online threats actually pose a much greater danger to kids.

  5. Robert Curtis Robert Curtis December 13, 2012

    Online dangers? Really? Ever wonder what your teen is looking at online? If not them then their friends. In time our kids are going to look at us as idiots! When they grow up they’ll change all these BS laws.

    Another thing people I saw a joke on facebook about online:

    The internet is where men are men, women are men and kids are cops posing as kids.

    Truth is a funny thing!

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