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Tenth Circuit: No Sex Offender Ban for Albuquerque Libraries

By Robyn Hagan Cain | Last updated on

The Tenth Circuit Court of Appeals reluctantly sided with a registered sex offender this week in a facial challenge to an Albuquerque law that prohibited registered sex offenders from entering the City's public libraries.

Because the City failed to present any evidence as to the reasons or justification for its ban, the court had no choice but to affirm the district court's grant of summary judgment in favor of John Doe, the sex-offender appellee.

Doe brought a facial challenge under the First and Fourteenth Amendments to the Albuquerque public library sex offender ban. After denying Albuquerque's motion to dismiss the case, the district court granted summary judgment in favor of Doe, concluding that the ban burdened Doe's fundamental right to receive information under the First Amendment, and that the City failed to sufficiently controvert Doe's contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum.

Albuquerque appealed both the motion to dismiss and summary judgment ... sort of.

Relying on a mistaken interpretation of case law regarding facial challenges, Albuquerque decided that it had no burden to do anything in response to Doe's summary judgment motion. The City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.

But Albuquerque's understanding of its obligation in a facial challenge summary judgment appeal was wrong. (Sidebar: Really, Albuquerque? Was this the first time you've faced this issue?)

The Tenth Circuit Court of Appeals noted that if the City had actually presented evidence, the sex offender ban might have survived. The court wrote, "We recognize the City's significant interest in providing a safe environment for its library patrons, especially children." Since the court is bound by the record and the law, however, it affirmed the district court's decision.

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