Pervert Banned from Swimming Pool Wins Procedural Due Process Lawsuit

I can get as high-minded the next guy.  The Constitution applies equally to everyone.  Government cannot act arbitrarily.  [Insert some quotes from James Madison and Thomas Jefferson.]

But if you're a middle-aged dude creeping on children, then the state should be able to ban you from a swimming pool without a hearing or any articulable legal standards.  No one is sending this pervert to prison.  Instead, a bunch of people who didn't want a middle-aged dude staring at their kids got him banished - not from the polis, just from the pool.

In June 2007, Kennedy purchased a pool token from the CRC for $10.... “[A]ll” of the lifeguards “observed [Kennedy] . . . at the pool watchingthe kids[,]” and that they “all felt uncomfortable around him[.]” Couzins specifically described how lifeguard Jenny Sallee saw Kennedy “trying to . . . throw a ball with [a boy] or follow him into the woods[.]” “[M]ultiple parents at the pool” also approached Couzins to communicate “that they felt uncomfortable with [Kennedy’s] presence” at the pool.
The creepster was told to stay away from the pool.  He sued.  He won.  Kennedy v. City of Cincinnati (CA6) (here).

Apply City of Chicago v. Morales, 527 U.S. 41 (1999), the panel wrote:
Assuming that Kennedy’s version of the facts are true, defendants have barred Kennedy from entering any property deemed a part of the City of Cincinnati’s recreational system, which presumably encompasses more than its public pools, and certainly encompasses more than Mt. Washington pool. “The City’s action isreminiscent of a partial banishment, which serves to expel [Kennedy] from certain portions of City property[.]”  Doe v. City of Lafayette, 377 F.3d 757, 780 (7th Cir. 2004)(en banc) (Williams, J., dissenting) (citing Smith v. Doe, 538 U.S. 84, 98 (2003)) (discussing banishment as a measure historically recognized as punishment). Thus, itis clear that Kennedy had a liberty interest “to remain in a public place of his choice”and that defendants interfered with this interest. Morales, 527 U.S. at 54.
Read the rest of the opinion, which is a nice summary of procedural due process cases.

As with most things, there is irony in the concern over the creeper.  Folks, if anyone rapes your child, it's going to be you or someone you know.  The statistics bear that out every time.  There's a tenfold greater risk that an acquaintance, friend, or relative is going to perv on your kids.

If anything, the swimming pool weirdo poses no real danger precisely because he's so creepy.  A middle-aged white male wearing jorts at a swimming pool is going to have all eyes on him.

Thus, the parents wanted protection from psychic harm.  They were revolted to know that some dude was probably filling up his fantasy library with their children.  Hey, I get it.  I support the death penalty for child molesters.  Criminal lawyers who represent child molesters should note that the Excessive Fines provision of the Eighth Amendment does not apply to legal fees...So if you're going to take those cases, make them pay up.

That said, no child was in any concrete danger.  Indeed, those children are in much more danger every time they get dropped off at the sitter's - more so when the sitter is your loving Uncle Ed.

Life is danger.  Life is risk.  Be rational about what you fear.  Stranger Danger is overstated.  It's the people you (think you) know who are going to hurt you.

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