Tuesday, April 10, 2012
Registered sex offender files lawsuit against Lewisville
Aurelio Duarte and his family hope to recoup money spent on living in a motel instead of a rental property.
A local man, and registered sex offender, recently filed a lawsuit stating that a city ordinance is unconstitutional.
Aurelio Duarte is a convicted sex offender. Last month, his lawyer Richard Gladden filed a lawsuit against Lewisville in the U.S. District Court. The lawsuit is alleging that the city ordinance that prohibits registered sex offenders from living within 1000 feet of areas "frequented" by children such as public parks, public or private schools, or day care centers, is unconstitutional.
"These ordinances are just a way to banish people that city council members don't like, people who are undesirable," Gladden, said.
Duarte, his wife and two daughters currently live in an extended stay motel, which is the only residency they say they've been able to find.
Gladden said the ordinance is unconstitutional for the following reasons:
It is unconstitutional because it is retroactive. The ordinance was enacted after Duarte's misconduct.
It is unconstitutional because it imposes successive punishment. Gladden said the ordinance's restriction on residency is another punishment for Duarte.
It is unconstitutional because Duarte has a liberty interest and each member of his family has a liberty interest to live with each other anywhere they choose. Gladden said the city has not made any attempt at justifying the ordinance. He said under the due process clause, the city should have to give Duarte notice as to weather or not he poses a threat, so "some reasonable person" can determine Duarte's threat level before the city prohibits his family from living together.
Finally, Gladden said the ordinance is unconstitutional because it states that if a registered sex offender is on probation in a state district court in Denton County, and a judge finds they are not a threat, they may qualify for exemption from the ordinance. Gladden said the ordinance doesn't provide the same opportunity for Duarte, which is a violation of the equal protection clause of the 14th amendment.
"This is irrational. I can't even envision why someone on probation should be given better treatment than someone who has completed probation," Gladden said.
Duarte has eight years left to register as a sex offender. In 2004, Gladden was caught attempting to solicit sex from a minor online. He was placed on probation, but in 2007 was found to have violated the terms of his probation so he served three years in prison.
"Back in 2004, Duarte was more or less entrapped. He was working as a computer technician trying to repair someone else's computer. He kept getting popups asking him to engage in a conversation and after a while began talking to the person," Gladden said. "He kept refusing to meet the underage female in person, but he did have an inappropriate conversation with her. He then found out that the person was an undercover officer."
The Duarte family said they have looked for a home in Lewisville. The family looked for a home for six weeks and was in contact with the Lewisville Police Department on "a daily basis" asking whether certain addresses complied with the ordinance, according to Gladden.
"The family has been living in the motel since June 2010. They have been looking for an attorney to file this suit for quite some time, but there are not a lot of lawyers comfortable with filing this sort of suit," Gladden said.
Gladden said almost every city in the area has a similar ordinance, so moving to another city isn't really an option for the Duartes.
"Also, Mrs. Duarte has lived in Lewisville her whole life. The children have also lived here their whole lives," Gladden said. "Their younger daughter is 13 and moving to another city would be a disruption for her. They want to live in Lewisville, it's their home."
The Duartes are seeking damages for the last two years of living in the motel. The suit is also asking the court to declare the ordinance unconstitutional.
"We want the court to prohibit the city from enforcing this in the future. We're also asking for attorney's fees from the city," Gladden said.
Now that the lawsuit has been filed, the defendant or the city of Lewisville is given a certain amount of time to file a written response stating if it admits or denies the factual claims and if it admits or denies the legal theory behind claims being made.
James Kunke, community relations and tourism director, said the city has no comment except to confirm that it has been notified of the lawsuit.
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