Portsmouth, New Hampshire, indoor pool. Credit: Portsmouth Herald file photo

Portsmouth, New Hampshire, city attorney Robert Sullivan confirmed he recently met with a group of people who are concerned because a registered sex offender has been using the Portsmouth Indoor Pool.

The pool, located near the high school, is used by community members and youth and school swim teams.

After the meeting, Sullivan said, he reached out to the American Civil Liberties Union of New Hampshire to get its input.

“The actions which the city might be able to take or which the city might be prevented from taking would be dictated by the particular aspects of the situation,” Sullivan said this week.

Gilles Bissonnette, the legal director of the ACLU of New Hampshire, said he told Sullivan that it would be “unconstitutional” for the city to bar the registered sex offender from using the pool, just because he’s a sex offender.

“The concern in these types of cases is that there is an equal protection clause problem,” Bissonnette said Tuesday. “That would be the case if regular members of the public are able to access these public facilities but a sex offender is precluded from accessing these facilities. The sex offender would be being treated unequally.”

Bissonnette stated that even though “sex offenders are an incredibly unpopular group,” that doesn’t mean a city can “ban a person outright from public places.”

“Certainly if there was a credible allegation that the individual has committed an offense,” the city might be able to take action, “but that doesn’t seem to be the case here,” he added.

Police Chief Robert Merner said Tuesday, “Legally, if he’s not committed a crime, there’s not a whole lot we can do. That’s why we have people registered as sex offenders,” he said.

Merner added, no one has “brought any complaints to me” about the presence of the sex offender at the pool.

He believes it’s something “for parents to be aware of,” but the sex offender “could just be a swimmer.”

Bissonnette said an effort to ban someone from a public pool because they’re a registered sex offender would be illegal, similar to residency restrictions Dover and Franklin previously had for sex offenders.

“They were struck down as violating the equal protection clause,” Bissonnette said. “Any restriction that infringes upon a sex offender using a public pool would probably suffer the same fate.”

“A pool restriction is so similar,” he added.

Any family member who might be concerned that a sex offender is swimming in the pool “can go to the sex offender registry, insert Portsmouth and see all the registered sex offenders,” Bissonnette said.

The New Hampshire Registration of Criminal Offenders is found at business.nh.gov/nsor.

Bissonnette said if there are any concerns about safety they can be “addressed in a much more narrowly tailored way than excluding someone from a public place.”

The Portsmouth indoor pool is owned by the city of Portsmouth but operated by Save the Portsmouth Indoor Pool as part of a partnership between the city and the non-profit.

Rus Wilson, the city’s Recreation Director, declined to comment and directed all questions to Sullivan.

Yvonne Cedergren, the pool’s manager, also directed all questions to Sullivan.

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