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In Doe v. Boston Police Commissioner, decided Friday, the Supreme Judicial Court held that a level three sex offender was entitled to a hearing before  MGL c.6, s.178K (2)(e) (barring level three offenders from rest homes) could be applied against him.

“Even assuming that some level three sex offenders in long-term care facilities pose a danger to other residents, others–perhaps especially those who have no history of assaults against adult victims–pose no particular danger to the population the policy aims to protect and are fully capable of contributing positively to rest home communities…. In light of the further encroachment on the plaintiff’s liberty and property interests imposed by the statute that places limitations on where he may reside, which is further heightened by his circumstances, the plaintiff must have an opportunity to establish that he poses minimal risk to the community the statute was intended to protect and, if removed from the rest home, will likely become homeless and expose himself to significant harm.”

“In order to protect his liberty and property interests in continued residence in the rest home–to which he was admitted and where he chooses to live–the plaintiff is entitled to a meaningful opportunity to be heard before § 178K (2) (e ) may be enforced against him. Because the statute does not provide for, or permit, such an individualized determination, as applied to the plaintiff it violates due process of law under the Fourteenth Amendment to the United States Constitution and arts. 10 and 12 of the Massachusetts Declaration of Rights. The matter is remanded to the county court where a declaration shall enter stating that, as applied to the plaintiff, G.L. c. 6, § 178K (2) (e ), does not comport with the due process clause of the Fourteenth Amendment and arts. 10 and 12, and cannot be enforced against him.”

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