Peter Nelson v. Town of Paris

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2435
PETER NELSON ,
Plaintiff-Appellant,
v.
TOWN OF PARIS ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:20-cv-1100 — Lynn Adelman, Judge.
____________________
A RGUED F EBRUARY 23, 2023 — DECIDED A UGUST 16, 2023
____________________
Before SYKES , Chief Judge, and R OVNER and LEE, Circuit
Judges.
LEE, Circuit Judge. The Town of Paris is a small, rural com-
munity in Kenosha County, Wisconsin. In 2008, Paris enacted
its “Sex Offender Residency Restrictions” ordinance, limiting
where certain sex offenders—referred to as “designated of-
fenders”—could live within the town. See TOWN OF P ARIS,
WIS. C ODE OF O RDINANCES, §§ 10-19–10-25 (2022) (the
“O RDINANCE”). As relevant here, the ordinance prohibits

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2 No. 22-2435
designated offenders from living within 6,500 feet of certain
protected locations where children are known to congregate
(we will call this the “protected locations restriction”). It also
prohibits designated offenders from living within 6,500 feet
of any other designated offender (we will call this the “desig-
nated offenders restriction”). Id. § 10-21(1)(a)–(b).
Peter Nelson, a former Paris resident and designated of-
fender, was cited for violating the ordinance’s designated of-
fenders restriction. He filed suit under 42 U.S.C. § 1983, argu-
ing that the ordinance—both facially and as applied—violates
his constitutional right to substantive due process under the
Fourteenth Amendment, as well as Article I’s prohibition on
ex post facto laws. The district court granted summary judg-
ment against Nelson and in favor of Paris on both claims. See
Nelson v. Town of Paris, 616 F. Supp. 3d 844 (E.D. Wis. 2022).
Nelson appeals.
Applying the analysis espoused in Smith v. Doe, 538 U.S.
84 (2003), we hold that Paris’s restriction prohibiting desig-
nated offenders from living within 6,500 feet of protected lo-
cations does not violate the Constitution’s Ex Post Facto
Clause because it is not “so punitive either in purpose or ef-
fect” as to negate Paris’s nonpunitive intent for the restriction.
Id. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)).
But based on the record before us, we cannot conclude the
same about Paris’s restriction prohibiting designated offend-
ers from living within 6,500 feet of each other. We therefore
remand this issue to the district court for further factual de-
velopment. As for Nelson’s due process claim, because he
concedes the ordinance is rationally related to Paris’s legiti-
mate interest in protecting children, we affirm the district
court’s dismissal of that claim.

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No. 22-2435 3
I. BACKGROUND
A. The Ordinance
Paris enacted the “Sex Offender Residency Restrictions”
ordinance in 2008 and amended it in 2018.1 It applies only to
“designated offenders,” defined as “any person who is re-
quired to register under Section 301.45 and 301.46, Wisconsin
Statutes, for any sexual misconduct or violation as a result of
being a repeat sexual offender, sexual offender who has used
physical violence in committing an offense or who has preyed
upon children.” O RDINANCE § 10-20(2). The stated intent of
the ordinance is not to punish designated offenders, but to
“promote, protect and improve the health, safety and wel-
fare” of Paris’s citizens “by creating areas around locations
where children regularly congregate in concentrated num-
bers” wherein designated offenders “are prohibited from es-
tablishing residency.” O RDINANCE § 10-19(3). It is also Paris’s
stated intent to impose the residency restrictions to “provide
protection to children … by minimizing immediate access and
proximity to children and thereby reducing opportunity and
temptation for recidivism.” Id. Paris determined that the re-
strictions would address its “compelling need to protect chil-
dren where they congregate or play in public places.” Id.
As relevant here, the ordinance imposes two discrete resi-
dency restrictions. The protected locations restriction
1 The 2018 amendments are not relevant to this appeal. Those amend-
ments, made in response to Hoffman v. Village of Pleasant Prairie,
249 F. Supp. 3d 951 (E.D. Wis. 2017), included “provid[ing] due process
for an appeals process by appointing an appeal board consisting of three
Paris residents and one alternate.” At that time, Paris also created a “Pro-
tected Locations map.”

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4 No. 22-2435
prohibits designated offenders from establishing a residence
“within six thousand five hundred (6,500) feet of a Protected
Location.” Id. § 10-21(1)(a). “Protected Locations” are defined
as any school property, day care center, library, park, recrea-
tional trail, playground, athletic field used by children, place
of worship, swimming pool, specialized school for children
(e.g., gymnastics or dance academy), and any other place des-
ignated by Paris as a place where children congregate. Id. § 10-
20(6). Although these locations are broadly defined, Paris has
specifically designated only ten Protected Locations (such as
the local school, preschool, and town hall). See Map of Pro-
tected Locations, ECF No. 31-3. The ordinance does provide a
significant exception: a designated offender will not be held
in violation of the ordinance if a new Protected Location
opens within 6,500 feet of that person’s already established
and registered residence. O RDINANCE § 10-21(6)(c).
The ordinance also establishes the designated offenders
restriction. This restriction prohibits designated offenders
from residing “within a six thousand five hundred (6,500) foot
radius of an existing [residence] of another Designated Of-
fender.” Id. § 10-21(1)(b).
Maps that depict the scope of the designated offenders re-
striction, as well as of the collective effect of the two re-
strictions, were produced in litigation. See Map of Designated
Offenders Locations, ECF No. 31-4; Map of All 6,500-Foot Ex-
clusion Zones, ECF No. 31-5. A designated offender who vio-
lates the ordinance faces a daily fine of $500. O RDINANCE § 10-
24.

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No. 22-2435 5
B. Peter Nelson
In June 2017, Nelson and his wife moved to the Bristol Mo-
tel, a 12-unit motel in Paris providing both nightly rentals and
longer-term leases. The motel is not within 6,500 feet of any of
Paris’s protected locations. But in June 2019, to Nelson’s sur-
prise, he received a letter from the town notifying him that he
was violating the ordinance because another designated of-
fender lived within 6,500 feet of the motel. Nelson had never
known about, met, or spoken to this other offender, who was
one of three other designated offenders living in Paris.
Nelson sought an exemption through the appeals process
provided by the ordinance, id. § 10-25, but his exemption was
denied, and he later received a $500 citation from the Kenosha
County Sheriff. Because he and his wife were unable to find
another affordable home within Paris that complied with both
provisions of the ordinance, they moved out of Paris to nearby
Racine, Wisconsin, where they currently reside.
C. The Ordinance’s Impact
In addition to the Bristol Motel, Paris has two other multi-
unit motels that provide long-term rentals: the 11-unit Paris
Motel, and the 21-unit Oasis Motel. Of these three motels, the
Bristol Motel and the Paris Motel are unavailable to desig-
nated offenders. Although neither is located within 6,500 feet
of a protected location, both are within 6,500 feet of another
designated offender’s residence.
The motels are the only multi-unit residences within Paris.
The remaining housing stock in Paris is predominantly single-
family homes. Indeed, approximately 75% of Paris is zoned as
agricultural parcels, which, absent permission from the Wis-
consin Department of Agriculture, may accommodate only

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6 No. 22-2435
one single-family house. The average market value of homes
in Paris is $388,000, and the average of a home on an agricul-
tural parcel is $426,600.
At the time Nelson filed his lawsuit, the combined effect of
the two residency restrictions put 70.4% of Paris’s total land
area and 58.5% of its residential units off-limits to designated
offenders. But this does not paint a complete picture of the
restrictions’ impact. As soon as a designated offender estab-
lishes a residence in one of the 41.5% of allowable residential
units, a new 6,500-foot buffer zone is automatically created
around that residence. That means, for example, that only one
of the 21 units of the Oasis Motel is available for a designated
offender. Once a single designated offender takes up resi-
dence in one of the motel’s 21 units, the remaining 20 imme-
diately become off-limits.2 And if and when another desig-
nated offender establishes a residence in whatever allowable
residences remain, the percentage of allowable residences de-
creases materially.
II. DISCUSSION
We review the district court’s order granting summary
judgment to Paris de novo, viewing all facts and making all
reasonable inferences in the light most favorable to Nelson.
Hope v. Comm’r of Ind. Dep’t of Corr., 9 F.4th 513, 523 (7th Cir.
2021).
2 By our calculation, in this example, the combined effect of the Ordi-
nance’s residency restrictions puts at least 61.8% (not 58.5%) of Paris’s res-
idential units off-limits to designated offenders—leaving at most 32.8% of
the available housing stock for these individuals.

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No. 22-2435 7
A. Ex Post Facto Clause
The United States Constitution prohibits any state from
passing ex post facto laws—those that “retroactively alter the
definition of crimes or increase the punishment for criminal
acts.” Collins v. Youngblood, 497 U.S. 37, 43 (1990). Thus, a law
violates the Constitution if it is both retroactive and penal in
nature. Koch v. Village of Hartland, 43 F.4th 747, 748 (7th Cir.
2022).
Both parties agree that, under our decision in Koch, the or-
dinance is retroactive because it “applies to [citizens] con-
victed for acts committed before the provision’s effective
date.” 43 F.4th at 752 (quoting Weaver v. Graham, 450 U.S. 24,
31 (1981)). Accordingly, the only question before us is
whether the ordinance is punitive.
In answering this question, we look to the Supreme
Court’s decision in Smith, which sets forth a two-part inquiry.
First, we ask “whether the legislature intended to enact a pu-
nitive, rather than civil, law.” Hope, 9 F.4th at 530 (citing Smith,
538 U.S. at 92). If we find that “the intention of the legislature
was to impose punishment, that ends the inquiry”—the law
is penal. Smith, 538 U.S. at 92. On the other hand, if we deter-
mine that the legislature intended the law to be a civil one, we
do not stop there. We proceed to assess whether the law is “so
punitive either in purpose or effect as to negate [the legisla-
ture’s] intention to deem it civil.” Id. (cleaned up).
This inquiry requires the consideration of five factors:
whether the law (1) “has been regarded in our history and tra-
ditions as a punishment”; (2) “imposes an affirmative disabil-
ity or restraint”; (3) “promotes the traditional aims of punish-
ment”; (4) “has a rational connection to a nonpunitive

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8 No. 22-2435
purpose”; or (5) “is excessive with respect to this purpose.” Id.
at 97 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–
69 (1963)). The factors are “neither exhaustive nor dispositive,
but are useful guideposts.” Id. (cleaned up). Moreover, the Su-
preme Court has “expressly disapproved” focusing on “the
effect that [the law] has on a single individual.” Seling v.
Young, 531 U.S. 250, 262 (2001) (citing Hudson v. United States,
522 U.S. 93 (1997)). Put another way, “an ‘as-applied’ analysis
would prove unworkable” because “[s]uch an analysis would
never conclusively resolve whether a particular scheme is pu-
nitive.” Id. at 263. Therefore, while our analysis may be in-
formed by the ordinance’s impact on Nelson, we must con-
sider whether the ordinance is punitive on its face.
Nelson rightly concedes that Paris intended its ordinance
to be a civil regulatory scheme. See Smith, 538 U.S. at 92 (“Be-
cause we ordinarily defer to the legislature’s stated intent,
only the clearest proof will suffice to override legislative in-
tent and transform what has been denominated a civil remedy
into a criminal penalty.”) (cleaned up). Here, the stated intent
of the ordinance is to protect children, and it expressly dis-
claims any intent to impose additional punishment on sex of-
fenders. O RDINANCE § 10-19(3). Given the significant defer-
ence owed to legislatures, we take Paris at its word. We will
only question it if our review of the Smith factors leads us to
conclude, by the “clearest proof,” that the ordinance is so pu-
nitive in purpose or effect as to undermine the veracity of the
claim. See Smith, 538 U.S. at 92.
Before embarking on that analysis, however, we note as a
prefatory matter that Paris’s ordinance is severable.
O RDINANCE § 10-23. Although we cannot ignore their

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No. 22-2435 9
combined impact, the two restrictions do not necessarily rise
and fall together. We now turn to the five Smith factors.3
1. Historical and Traditional Forms of Punishment
A civil scheme may be punitive when it resembles tradi-
tional forms of punishment: those that “h[o]ld the person up
before his fellow citizens for face-to-face shaming or expel[]
him from the community,” such as “public shaming, humili-
ation, and banishment.” Smith, 538 U.S. at 98. The law need
not impose burdens identical to a traditionally recognized
form of punishment, so long as the burdens sufficiently re-
semble those typically associated with that punishment. See
Does #1-5 v. Snyder, 834 F.3d 696, 703 (6th Cir. 2016) (law was
“not identical to any traditional punishments” but met “the
general definition of punishment” and had “much in com-
mon” with banishment, public shaming, and probation).
Here, Nelson argues that the ordinance resembles the tradi-
tional punishments of supervised release and banishment.
a) Supervised Release
The Supreme Court acknowledged in Smith that a compar-
ison between sex offender restriction laws and supervised re-
lease “has some force.” 538 U.S. at 101. Nevertheless, we have
3 Paris argues repeatedly that it did not “intend” to punish designated
offenders. But the entire purpose of the Smith analysis is to look beyond
the legislature’s intent—which Nelson concedes for appeal was not pe-
nal—and to evaluate whether the law is so punitive in effect such that it
negates any such non-punitive intent. Smith, 538 U.S. at 92–93; see also
Hudson, 522 U.S. at 104 (“The fact that petitioners’ ‘good faith’ was consid-
ered in determining the amount of the penalty to be imposed in this case
is irrelevant, as we look only to the ‘statute on its face’ to determine
whether a penalty is criminal in nature.”) (quoting Kennedy, 372 U.S. at
169).

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10 No. 22-2435
rejected such an argument twice, and we see no reason to veer
from our precedents here. See Hope, 9 F.4th at 531–32; see also
Vasquez v. Foxx, 895 F.3d 515, 521 (7th Cir. 2018), overruled on
other grounds by Koch, 43 F.4th at 756. As in those cases, Paris’s
restrictions control only where designated offenders may live;
they do not control any other aspects of their lives, such as
where they may work or congregate, or with whom they can
interact. See, e.g., Vasquez, 895 F.3d at 521. Moreover, as we
noted in Hope, a key characteristic of supervised release is the
supervisor’s ability to seek revocation of the release based on
the original offense. 9 F.4th at 531–32. By contrast, a desig-
nated offender’s violation of the ordinance does not subject
him to revocation, but instead to a separate $500 fine unteth-
ered to his original offense. Accordingly, in keeping with our
prior holdings in Hope and Vasquez, we hold that neither the
protected locations restriction nor the designated offender re-
striction resembles the traditional punishment of supervised
release.
b) Banishment
A civil scheme resembles the traditional punishment of
banishment when it forces individuals to leave their commu-
nities or to have difficulty finding a new one. See Smith,
538 U.S. at 98; Vasquez, 895 F.3d at 521. In Vasquez, we con-
cluded that Illinois’s sex offender residency statute, which
proscribed child sex offenders from knowingly residing
within 500 feet of a “day care home” or “group day care
home,” did not amount to banishment because it “merely
ke[pt] child sex offenders from living in very close proximity
to places where children are likely to congregate; it d[id] not
force them to leave their communities.” 895 F.3d at 518, 521.
We followed that same line of reasoning in Hope, concluding

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No. 22-2435 11
that the difference between Indiana’s 1,000-foot restriction at
issue there and the 500-foot restriction in Vasquez was “not
constitutionally significant” because it did not render Indi-
ana’s statute “any more similar to banishment.” Hope, 9 F.4th
at 531.
Relying on these cases, the district court determined that
Paris’s restrictions do not amount to banishment because
“[e]ven with the restrictions in place … more than 40% of the
Town’s housing stock [is] available,” making it at most “diffi-
cult” for sex offenders to find housing in Paris. Nelson,
616 F. Supp. 3d at 851. Moreover, the district court noted,
Paris’s ordinance is less restrictive than those at issue in
Vasquez and Hope in some ways, because it provides that indi-
viduals who have established residency need not move if a
new protected location opens within 6,500 feet of their resi-
dence. Id. at 852.
Nelson argues that Vasquez and Hope should not control
here. As he sees it, unlike in those cases, the collective effect
of the two restrictions eliminates the only affordable, long-
term rental units in Paris (i.e., the three motels). This, he as-
serts, effectively banishes designated offenders who are likely
unable to afford a single-family home within the town. Nel-
son also contends that the ordinance amounts to banishment
because it makes it impossible for more than a few designated
offenders to live in Paris, given that no offender can live
within 6,500 feet (i.e., 1.23 miles) of another offender (or a pro-
tected location) in a town that is only roughly six-by-six miles.
We are not persuaded that the protected locations re-
striction, on its own, rises to the level of banishment. We
acknowledge that a buffer of 6,500 feet is six and a half times
larger than the one we allowed in Hope. But the inquiry is not

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12 No. 22-2435
limited to the mere size of the restriction, but how the re-
striction affects an offender’s ability to live in the town. Here,
the protected locations restriction, taken alone, impacts less
than 30% of the total housing stock of Paris and leaves the
three motels available to designated offenders. Although the
radius of the residency restriction may border on being exces-
sive and is much larger than any we have addressed, it does
not have the effect of banishing designated offenders from the
town. This is particularly so given the exception in the ordi-
nance that allows designated offenders to remain in their res-
idences if a new protected location opens nearby.
The designated offenders restriction, on the other hand,
looks much more akin to banishment. On its face, this re-
striction—whether taken alone or in combination with the
protected locations restriction—creates a possible future in
which no new offenders will be permitted to live within Paris
at all, because any available residences will be within 6,500
feet of another designated offender (or a protected location).
It is true that the restriction will not oust designated offenders
from their current homes in Paris, but as the Supreme Court
explained, banishment traditionally means that a person
“could neither return to their original community nor … be
admitted easily into a new one.” Smith, 538 U.S. at 98 (emphasis
added) (citation omitted); accord Hope, 9 F.4th at 531; Vasquez,
895 F.3d at 521. The designated offenders restriction creates a
ceiling on the number of designated offenders that may be
able to reside in Paris and, therefore, has a direct impact on
the ability of designated offenders to move into Paris. As for
this restriction, the first factor favors Nelson.

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No. 22-2435 13
2. Affirmative Disabilities or Restraints
Next, we consider whether the restrictions subject desig-
nated offenders to an “affirmative disability or restraint.” This
factor focuses on how the effects of the law are felt by those
subjected to it. Smith, 538 U.S. at 99–100. “If the disability or
restraint is minor and indirect, its effects are unlikely to be
punitive.” Id. at 100. The paradigmatic example of an affirm-
ative disability or restraint is imprisonment—a physical re-
straint. Id.
In the context of residency restrictions, some courts have
found that the inability or substantial difficulty in selecting or
changing residences due to the restriction may be considered
a direct and substantial restraint. See Doe v. Miami-Dade
County, 846 F.3d 1180, 1185 (11th Cir. 2017); see also Snyder,
834 F.3d at 703 (restrictions on where offenders may live,
work, and loiter, as well as requiring in-person registration,
“are direct restraints on personal conduct”); Hoffman, 249 F.
Supp. 3d at 958 (restrictions limiting designated offenders to
ten percent of Village’s land area, most of which was non-res-
idential, were “severe restraints”). Recognizing that “[t]he
boundaries of this factor are undefined,” however, we have
declared that “very few burdens are significant enough to tip
the scale” of this factor in favor of the challenger. Hope, 9 F.4th
at 532.
Neither of the restrictions at issue impose any burdens sig-
nificant enough to “tip the scale” in favor of Nelson. The only
restraint imposed by the restrictions—whether taken together
or in isolation—relates to where a designated offender may
live. The ordinance does not, for example, force offenders to
leave their homes if a new protected location opens within
6,500 feet of their established residence. See Vasquez, 895 F.3d

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14 No. 22-2435
at 518, 522 (finding no affirmative disability or restraint where
plaintiffs were forced to move after a new child day care
opened within 500 feet of their homes). Indeed, it does not
force offenders to leave their homes at all, let alone impose an
explicit ban on new offenders moving into Paris. See Hoffman,
249 F. Supp. 3d at 958 (permanently banning offenders who
were neither residents of the town at the time of their most
recent offense nor at the time the ordinance was passed). Nor
does it restrict where designated offenders can work or re-
quire offenders to appear in person to register. See Snyder,
834 F.3d at 703. And it does not otherwise “restrain activities
sex offenders may pursue but leaves them free to change jobs
or residences.” Smith, 538 U.S. at 100. This factor favors Paris.
3. Promoting Traditional Aims of Punishment
The next factor does not sway us one way or the other. As
we—and many other courts—have noted, determining
whether sex offender residency restrictions promote the tra-
ditional aims of punishment provides little value to the over-
all Smith inquiry. This is because all such regulations inevita-
bly overlap with the traditional aims of punishment, such as
deterrence, retribution, or incapacitation. See Smith, 538 U.S.
at 102 (“Any number of governmental programs might deter
crime without imposing punishment.”); Hope, 9 F.4th at 533
(noting we have been “unpersuaded that … residency re-
strictions … further[] traditional punitive aims” because they
have the “obvious aim” of protecting children); Snyder,
834 F.3d at 704 (the law’s “very goal is incapacitation insofar
as it seeks to keep sex offenders away from opportunities to
reoffend”); Hoffman, 249 F. Supp. 3d at 958 (this factor “is of
limited importance because punishment goals often overlap
with legitimate civil regulatory goals”). Accordingly, this

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No. 22-2435 15
factor typically favors the municipality where such “punitive
aims” flow naturally from the civil scheme’s nonpunitive
goals.
That is precisely the case here. Paris’s ordinance pursues
its legitimate interests in protecting children through resi-
dency restrictions that seek to deter recidivism. This factor fa-
vors Paris as to both restrictions, although we afford it little
weight for the reasons noted.
4. Rational Connection to Nonpunitive Purpose
“Whether the law has a ‘rational connection to a nonpuni-
tive purpose’ is ‘a most significant factor in our determination
that the statute’s effects’ are not punitive.” Hope, 9 F.4th at 533
(quoting Smith, 538 U.S. at 102). Our inquiry begins with iden-
tifying a nonpunitive purpose and then determining whether
the ordinance’s requirements are rationally connected to that
purpose. Id. We will not fault the legislature for lacking a
“close or perfect fit” with its nonpunitive aims, so long as any
imprecision in the ordinance “does not suggest that the Act’s
nonpunitive purpose is a ‘sham or mere pretext.’” Smith,
538 U.S. at 103 (quoting Kansas, 521 U.S. at 371 (Kennedy, J.,
concurring)).
The goal of Paris’s ordinance is to protect children from
harm. Specifically, its stated intent is to “promote, protect and
improve the health, safety and welfare of the citizens of the
Town by creating areas around locations where children reg-
ularly congregate in concentrated numbers wherein certain
sex offenders and sex predators are prohibited from establish-
ing residency.” O RDINANCE § 10-19(3). It also seeks “to pro-
vide protection to children in the Town by minimizing imme-
diate access and proximity to children and thereby reducing

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16 No. 22-2435
opportunity and temptation for recidivism,” and to “protect
children where they congregate or play in public places.” Id.
Protecting children is a legitimate nonpunitive purpose,
and Nelson concedes for the purposes of appeal that the re-
strictions at issue have a rational connection to that purpose.
Given that Nelson provides no basis for us to question the
stated rationale of the ordinance, we find this factor to favor
Paris as to both restrictions.
5. Excessive With Respect to Nonpunitive Purpose
Instead of challenging the ordinance’s rational connection
to its purpose of protecting children, Nelson places his stock
in the final factor, arguing that the restrictions are excessive
with respect to that purpose. At this step, which is related to
the fourth factor, see Vasquez, 895 F.3d at 522, we do not ask
“whether the legislature has made the best choice possible to
address the problem it seeks to remedy.” Smith, 538 U.S. at
105. Rather, “[t]he question is whether the regulatory means
chosen are reasonable in light of the nonpunitive objective.” Id.
(emphasis added).
We begin with the protected locations restriction. Nelson
acknowledges that courts have regularly upheld these types
of restrictions for various distances. E.g., Vasquez, 895 F.3d at
522 (upholding a 500-foot restriction); Hope, 9 F.4th at 534 (up-
holding a 1,000-foot restriction); Doe v. Miller, 405 F.3d 700,
722–23 (8th Cir. 2005) (upholding a 2,000-foot restriction). But
Nelson argues that there is no precedent for upholding a
6,500-foot restriction and that the town has failed to show that
such a large radius is necessary or that it would be effective in
promoting its aims. In response, Paris correctly notes that it
need not provide empirical evidence of efficacy to support its

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No. 22-2435 17
legislative decisions. See F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 315 (1993) (“[A] legislative choice is not subject
to courtroom fact-finding and may be based on rational spec-
ulation unsupported by evidence or empirical data.”). In-
stead, Paris gives three reasons to justify the scope of its pro-
tected locations restriction: the rural nature of the town, the
frequent travel of children within the town without adult su-
pervision, and the lack of police presence in the town.
We see no need to parse Paris’s rationales with a fine-
toothed comb. Rather, we are persuaded by the fact that
Paris’s 6,500-foot protected locations restriction, taken alone,
impacts less than 30% of the available housing stock in Paris.
That leaves over 70% of the town’s residential units—includ-
ing its affordable long-term rental motels—available to desig-
nated offenders. While Nelson is correct that (as far as we can
tell) no court has ever upheld, let alone had an opportunity to
evaluate, a 6,500-foot residency restriction, he has failed to
show by the “clearest proof” that such a buffer around the ten
protected locations in Paris is constitutionally excessive. In-
deed, we suspect that if this were the only restriction at issue,
we would not be here today. Thus, we find the excessiveness
factor to favor Paris as to this restriction.
The designated offenders restriction, however, is a differ-
ent story. Unlike the protected locations restriction, there is
no precedent for this type of residency restriction, and the rec-
ord offers no explanation why prohibiting designated offend-
ers from residing within 6,500 feet of one another would safe-
guard Paris’s children, particularly given the safeguards al-
ready in place by the protected locations restriction.
In enacting the ordinance, Paris did determine that sex of-
fenders were “extremely likely” to recidivate in “locations

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18 No. 22-2435
close to their residences.” O RDINANCE § 10-19(2). We defer to
these legislative findings. See Frank v. Walker, 768 F.3d 744, 750
(7th Cir. 2014); see also United States v. Kebodeaux, 570 U.S. 387,
395–96 (2013); Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180,
195 (1997). But, even if these findings were true and even if, as
Paris suggests, residential proximity might allow greater in-
teraction between designated offenders which, in turn, might
lead to greater recidivism (a debated proposition), it is en-
tirely unclear from this record what this restriction adds to the
security the protected locations restriction already provides
to the town’s children. See Turner Broad. Sys., Inc. v. F.C.C.,
512 U.S. 622, 664 (1994) (“That the Government’s asserted in-
terests are important in the abstract does not mean, however,
that the [regulation at issue] will in fact advance those inter-
ests.”).4
Accordingly, after drawing all reasonable factual infer-
ences in Nelson’s favor, we conclude that disputed facts exist
as to whether the designated offenders restriction is reasona-
bly related to Paris’s legitimate interest in protecting its chil-
dren.
In summary, we conclude that Nelson has failed to estab-
lish by the “clearest proof” that Paris’s protected locations re-
striction violates the Constitution’s prohibition on ex post
facto laws. Nelson has established, however, that the desig-
nated offenders restriction resembles the traditional form of
4 Paris’s Town Board Chairperson, John Holloway, did testify after
the fact that Paris’s reason for the designated offenders restriction was to
minimize the interaction and proximity of offenders in order to avoid any
“encouragement of continued antisocial behavior.” But Paris admits there
is no evidence or reason to believe that forcing offenders to live certain
distances apart has any reasonable relation to recidivism rates.

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No. 22-2435 19
banishment because it effectively establishes a ceiling beyond
which no designated offender could ever reside in Paris. And
the factual record, as it currently stands, leaves genuine dis-
putes of fact as to the reasonableness of this restriction when
considered against Paris’s stated goal of protecting its chil-
dren. We therefore remand this case to the district court for an
evidentiary hearing and further consideration of the desig-
nated offenders restriction. See Turner Broad., 512 U.S. at 668
(remanding for factual development where the “paucity of
evidence” precluded determination as to the constitutionality
of the challenged statute).
B. Substantive Due Process
The remaining issue is easily dispatched. Nelson argues
that the ordinance violates his substantive right to due pro-
cess protected by the Fourteenth Amendment. He acknowl-
edges that his claim is subject to rational basis review because
he does not allege that the ordinance infringes on any funda-
mental right. Nevertheless, he urges us to apply some level of
heightened scrutiny, arguing that sex offenders are a despised
minority.
We rejected this exact argument in Vasquez. 895 F.3d at
524–25. There, when asked to apply heightened scrutiny to
the residency restrictions at issue, we declined to do so, ex-
plaining that because “[t]he residency statute [wa]s facially
neutral and advance[d] a compelling government interest:
protecting children from recidivism by child sex offenders,”
heightened scrutiny did not apply. Id. at 525. We find the same
to be true here. There is no facial animus toward sex offenders
in the ordinance, the purpose of which is to protect children.
Therefore, only rational-basis review is appropriate. And
given that Nelson concedes that the ordinance is rationally

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20 No. 22-2435
related to Paris’s interest in protecting children, his due pro-
cess claim necessarily fails.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Paris on Nelson’s
Fourteenth Amendment claim and his Ex Post Facto Clause
claim to the extent it applies to the protected locations re-
striction, O RDINANCE § 10-21(1)(a). But we hold that the dis-
trict court erred in granting summary judgment in favor of
Paris on Nelson’s Ex Post Facto Clause claim as it applies to
the designated offenders restriction, O RDINANCE § 10-21(1)(b).
We therefore VACATE in part and REMAND to the district
court for proceedings consistent with this opinion.

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