APPLE VALLEY, Minn. -- Three convicted sex offenders have filed a class-action lawsuit against Apple Valley contending an ordinance imposes retroactive punishment by banishing them from living nearly anywhere in the city.

The civil lawsuit filed this week in U.S. District Court in Minneapolis seeks injunctive relief, which would stop the city from enforcing the ordinance. The plaintiffs also seek damages for the “harm they have suffered” as a result of the city enforcing the ordinance.

Apple Valley is among nearly 90 cities, townships or counties in Minnesota with residency restrictions for sex offenders, according to the Department of Corrections. But in recent years the restrictions have been challenged in West St. Paul and elsewhere.

The Apple Valley ordinance passed by the city council in February 2017 makes it illegal for certain convicted sex offenders to live within 1,500 feet of schools, parks, playgrounds, churches that provide educational programs, childcare centers and “sexually oriented” businesses.

The ordinance applies to Level 3 sex offenders, who are considered the highest risk for re-offending, or to those who have committed an offense in which the victim was younger than 16 years of age.

The group’s attorneys contend that the ordinance violates the Constitution because it applies retroactively to people whose offenses occurred prior to the ordinance being put in place.

According to the lawsuit, more than 90% of the residential properties in Apple Valley are off-limits under the ordinance’s restrictions.

City Administrator Tom Lawell said Friday the city has not been served with a copy of the lawsuit and therefore is not able to comment.

The spread of restrictions

“Predatory offender ordinances,” as they are often called, have been a recent phenomenon in Minnesota.

In 2006, Taylors Falls became the first city in Minnesota to pass residency restrictions for sex offenders.

Before 2015, when Brooklyn Center passed an ordinance, no metro-area cities restricted where sex offenders could live. After Brooklyn Center enacted its ordinance, Columbia Heights and other nearby Anoka communities quickly followed suit.

But over the past three years, the number of cities passing ordinances more than doubled. East-metro cities enacting ordinances in 2016 or 2017 include South St. Paul, Farmington, Hastings, Inver Grove Heights, Little Canada, Mounds View, Newport and Rosemount.

The plaintiffs

The Apple Valley group is represented by Adele Nicholas, a Chicago civil rights attorney who brought similar action against West St. Paul and in other cities across the U.S.

They are not named in the lawsuit, only referred to as “John Doe, 1, 2 and 3.”

In an interview Friday, Nicholas said the city is trying to force “John Doe 3” out of his home, even though the 44-year-old does not meet the ordinance’s definition of a “designated offender.”

The man’s third-degree criminal sexual conduct conviction in 2017 involved a woman with whom he was in a relationship at the time. He was not sentenced to prison for his offense and not assigned a risk level.

In October 2019, he bought a townhouse in Apple Valley, and moved in with his wife, step-daughter and son. Two months later, the lawsuit alleges, an Apple Valley police officer called him and said he is prohibited from remaining in his home and that if he does not move out, he will be charged with violation of the ordinance and have his probation revoked.

“We think that, in addition to the ex post facto claim that all of our clients have, John Doe 3 also has a Fourth Amendment claim, which essentially says they are interfering with his lawful right to possess his own property without any legal basis to do so,” Nicholas said.

West St. Paul case

Nicholas and her co-counsel, Mark Weinberg, represented Level 1 sex offender Thomas Wayne Evenstad, who in August 2017 sued West St. Paul over its 2016 ordinance that restricted where he could live. Evenstad received $84,000 as part of a settlement agreement approved by U.S. District Court Chief Judge John Tunheim.

But a few months before the agreement Tunheim granted Evenstad’s motion for a preliminary injunction that prevented the city from enforcing the ordinance against him. Tunheim concluded that Evenstad likely would prevail with his lawsuit in trial because the ordinance is “significantly more restrictive than those upheld by the 8th Circuit.”

That led to West St. Paul amending its ordinance, loosening the restrictions. It now applies only to Level 2 and Level 3 offenders whose crimes involved children, not to Level 1 offenders or those whose crimes involved adults. Also, group homes were eliminated from a 1,200-foot restriction.