AYER -- A newlywed couple filed suit Sept. 5 in Middlesex Superior Court against the town of Ayer and Ayer Police Chief William Murray. John King, 39, a convicted Level-3 sex offender, and his wife, Ashley King, pregnant with the couple's first child, have leveled multiple tort and civil-rights claims against Ayer.
Married March 9 and expecting a baby in late October, the Kings are living in the basement of Ashley's parents' Harvard home. The Kings will be in Middlesex Superior Court on Monday, Oct. 1, seeking a preliminary injunction to prevent Ayer police from enforcing the town's newly-enacted sex offender residency bylaw against John King and allow him to live on 6 Whitcomb Ave in Ayer.
The Kings seek damages against Murray and the town for loss of consortium, mental anguish and emotional distress and embarrassment, damage to reputation, and compensation for John King's criminal defense following his May arrest by Ayer police. The Kings seek costs and attorneys' fees for their civil suit.
The Kings also are asking the court to strike down Ayer's sex-offender residency bylaw as unconstitutional.
Overwhelmingly approved at fall Town Meeting on Oct. 24, 2011, the Ayer sex offender residency bylaw aims to prohibit Level 2 and 3 sex offenders from establishing residence within 1,000 feet of several types of locations, including public parks, senior housing projects and school bus stops. Offenders living within those zones before the bylaw was enacted are grandfathered, or exempted, within their current address unless they reoffend.
Before a town bylaw can take effect, it must undergo review by the attorney general's office. The office issued a seven-page letter on Feb. 21 in which it struck no portion of the Ayer bylaw.
However, the attorney general's office warned Ayer town counsel that it conducts only a "facial review" of such bylaws. The attorney general's office advised that sex offender-restricting bylaws may still face federal or state constitutional challenge.
"No Massachusetts appellate court has yet reviewed sex offender restrictions similar to what Ayer proposes," wrote Assistant Attorney General Kelli Gunagan. "It should also be noted that the Supreme Judicial Court has repeatedly held that the Massachusetts Constitution puts greater restrictions on the exercise of police powers than the United States Constitution. Thus, it is possible for sex offender restrictions to be found constitutional under the federal Constitution, but unconstitutional under the Massachusetts Constitution."
Town Counsel Joyce Frank echoed the attorney general's office's warning in her two-page cover letter addressed to then-Selectman Chairman Gary Luca and the members of the board. "If challenged in court and subject to factual scrutiny as to its application, any such bylaw could be subject to disapproval as violative of constitutional rights."
"The court is the branch that's tasked with saying what is and is not constitutional," said the Kings' lawyer, Eric Tennen of Swomley & Tennen in Boston. "The attorney general's office gives advice. If the town wants to rely on that, that's fine."
Was proper notice made?
John King claims he properly notified the Ayer Police on April 19 that he intended to move to 6 Whitcomb Avenue in Ayer. The house was purchased by his in-laws for Ashley's use in June 2011.
State law requires offenders to provide advance notice to police departments in communities where they intend to live or work. Tennen said King filled out the necessary form and satisfied the advance notice requirements on April 19.
Tennen calls Murray's actions thereafter stall tactics. The Whitcomb Avenue home is within 1,000 of both Pirone Park and the Pond Street elder housing project. But Tennen says Murray also knew the town's sex offender residency bylaw was not yet in full effect.
On the final page of the attorney general office's letter, a bold-typed note advises the town that the bylaw does not take effect until it's properly posted. The posting hadn't yet occurred. Murray lobbied the selectmen in a strongly-worded April 20 email.
Murray referenced a man who visited the department the day before. Without naming King, Murray's description of the man matched King's physical characteristics as posted on the state's Sex Offender Registry Board's website. Murray noted the man was a white male, with brown hair and green eyes, 6 feet, 6 inches tall and 300 pounds (the SORB site now notes King weighs 225 pounds).
Murray also implored that "this man" has a history of "violent/property crimes!"
"The neglect of the town clerk has seriously jeopardized the safety of this community and the officers of the Police Department," wrote Murray. "We now have a behemoth of a Level 3 offender with violent and unpredictable tendencies living at 6 Whitcomb Avenue!"
"This offender may have moved to town regardless of the bylaw but having it in place would certainly have given him pause to consider his choice and would have reduced the choices of where he could reside," wrote Murray.
Tennen said the stall tactic to delay King was Murray's request that King produce two postmarked letters indicating King had established 6 Whitcomb Avenue as his residence. Tennen blasted the request as nonsensical since King didn't yet live at 6 Whitcomb Avenue.
"If you're homeless, you can still register. If the police said, 'OK I need you to verify you're homeless -- with what? So obviously that cannot be a prerequisite to register," said Tennen. "They were trying to make him jump through hoops that you're not supposed to go through so they can say 'the law's now there and you can't live where you want to live.'"
Ultimately, Ayer Town Clerk John Canney posted the bylaw in five public places, triggering the bylaw on April 24. While King indicated to Murray that he now had the postmarked letters requested in-hand, King claims Murray "unlawfully and wrongly" advised King that the town had enacted the town's restrictive bylaw earlier that day and that King would now be prohibited from living at 6 Whitcomb Ave.
Asked if he thinks Murray's email to the selectmen illustrates a malicious intent to keep King out of the house, Tennen said "I think it shows intent and how he's dealing with John. I certainly think it's relevant."
Murray's email was published by Nashoba Publishing this spring. Tennen said the email will be among his discovery requests to be filed at a later date.
On May 1, Murray told selectmen during an open meeting that he'd "dodged the bullet" with the enactment of the bylaw.
King was subsequently arrested by the Ayer Police on May 15 for allegedly residing at 6 Whitcomb Ave. in violation of the state's SORB law. Tennen declined to comment on that open criminal matter but did offer that, while there is some area of "overlap," the lawsuit stands separate from the criminal matter.
King's address on the SORB website is cited as 32 Myrick Lane in Harvard -- a home owned by Ashley King's parents -- William and Sharon McHugh. The McHughs also own the 6 Whitcomb Ave. address as trustees of the "SBAJ Realty Trust."
No dollar amount has been demanded at this point. Tennen said his clients' greatest concern at this point is to move into their Ayer home before their baby arrives in late October.
"I don't know if you have any children. If you do, you know what it's like to get ready for, and have, a child," said Tennen. "And then to do that in the basement of a home without a working bathroom under the spotlight that this has all brought to them? Those aren't conditions in which to raise a newborn -- it's just awfully stressful to even think about having to be there."
"Their home in Ayer, which is only one mile away, has space and rooms for a family," said Tennen.
Tennen argues the risk of harm to the town is "negligible" when compared against the harm to his clients. Furthermore, Tennen said such bylaws often miss the intended mark.
"Sex offender residency restrictions are not effective at reducing sex crimes, do not protect children, and may actually serve to undermine public safety by destabilizing former offenders so that they become homeless," wrote Tennen in his pleadings.
Tennen said there's no evidence to suggest such bylaws result in reduced recidivism in offenders. "In fact, the evidence we have points in the other direction. Residency restrictions create all sorts of problems that don't help anyone."
Tennen said the bylaws spark homelessness, separation from families, increased instability and stressors that could provoke a convicted offender to be literally and figuratively pushed to the fringes of society.
"A great example is this case. Ayer says no Level 2 or 3 offenders can live within pretty much most parts of town," said Tennen. "So for John, the bylaw drives them to live in another place. He's living a mile away from his home. So does Ayer really think they've now achieved some safety just by his move a mile away?"
Instead, Tennen said the public would have been better served to have King live in town, abiding by the state's registration laws. "You'd think his registration would give everyone notice."
But Tennen said even the Sex Offender Registration Board public notice system causes problems. "These laws or bylaws are usually directed at protecting children. If that's the case, you want to target those who've offended against children," said Tennen. And for John King, Tennen says, "That's not his past."
The SORB website states King was convicted in 2001 of rape and indecent assault and battery on a person "aged 14 or older." Tennen said the title of the conviction applies to crimes where the victim is aged "14 to infinity."
"That's part of the problem with creating any law that generalizes and does not make individual determinations. But that's what you're left with, a wide, sweeping thing putting people in a net who shouldn't be there," said Tennen.
Nashoba Publishing sought comment on Tuesday from Town Administrator Robert Pontbriand, selectmen Chairman Jim Fay and Murray. Fay had no comment and referred questions to Pontbriand, who didn't immediately respond.