Niagara Gazette — In several bodies of law, New York State regulates Level 3-registered offenders who are serving parole or probation only. Thus the Zone Act goes further — and that’s become a legal problem for Niagara County, according to Joerg. A series of state and federal court rulings find that local laws similar to the Zone Act are “pre-empted” by the state, meaning once the state Legislature has made law, localities are not free to exceed it. “Only the state, through the Department of Parole, can enforce regulations on sex offenders,” Joerg said. “Localities cannot make their own rules. We are left with the framework by the state.”
Wojtaszek, an attorney who works in criminal justice, co-authored the 2008 Zone Act and said he knew at the time it was going further than state law, but believed it would pass constitutional muster. The act identified a public interest in local law enforcement keeping an eye on offenders who were no longer being supervised by the state through parole or probation, he said.
The risk to the county in enforcing an illegal law is that it gives rise to lawsuits by sex offenders, Joerg said. An illegal law produces illegal arrests and illegal imprisonment, in other words, grounds for monetary “damage” claims.
“If an arrest is illegal, the citizenry is not helped,” Joerg said. “It opens us up to giving them money on top of what they’ve already done.”
The county has in fact already been sued twice over the Zone Act. A suit several years ago was tossed out of court on a technicality, by Judge Richard C. Kloch Sr. Another suit was filed last year, by a man with family in North Tonawanda who claimed the county’s radius restriction made him unable to establish residence and thus blocked his release from jail. Joerg said the county petitioned for dismissal of that suit this past December and Judge Catherine Panepinto has yet to rule on the petition. The plaintiff has since been released from jail, Joerg added. Residents who addressed the Zone Act not only opposed its repeal, they urged the legislature to raise the radius restriction and/or stand up to the state.
Two thousand feet would be the rule were it up to Ron Anderluh, representing the Niagara Street Business Association and himself personally, he said.
“If it turns into lawsuits, maybe we need to get tougher, better lawyers to fight the suits,” Nicholas D’Agostino added.