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Legal dilemma seen in prosecuting pedophile

Sweeping restraining order may not stand up to constitutional challenge, experts say.

August 15, 2007|Richard Winton and Andrew Blankstein | Times Staff Writers

Self-proclaimed pedophile Jack McClellan was arrested this week for allegedly violating a judge's restraining order intended to protect children and put their parents at ease. But within hours, he was back on the street and in front of the television cameras.

McClellan was then arrested again for the same offense and is now being held on $150,000 bail.

But keeping McClellan behind bars may prove more difficult, legal experts said. McLellan talks openly about his fetish for young girls but has never been convicted of child molestation.

"The dilemma for law enforcement is always whether a particular line has been crossed," said retired Los Angeles Police Det. Jim Brown, who has investigated hundreds of child molestation cases. "When these guys molest children, the law is clear. Where the law gets fuzzy is in the world of pictures and words."

McClellan, 45, was charged Tuesday with violating a court order after his arrest the day before outside a UCLA child development building. Los Angeles County Superior Court Judge Melvin Sandvig on Aug. 3 issued a sweeping temporary restraining order against McClellan, barring him from coming within 10 yards of any child in California.

McClellan was released on his own recognizance a few hours after his arrest. But he was rearrested when he returned to the UCLA campus and was seen being interviewed by a local television news station.

Following Tuesday's hearing, McClellan's bail was raised from $5,000 to $150,000. The judge granted the bail increase in part because of allegations from prosecutors that McClellan had a 1999 conviction on drug-related charges, said Frank Mateljan, spokesman for the city attorney's office.

McClellan also was ordered to stay 100 yards away from the UCLA campus. A trial date was set for Sept. 11.

But legal experts said the breadth of Sandvig's order would not hold up to a constitutional challenge under the 1st Amendment.

Loyola Law School professor Laurie Levenson said a person cannot be locked up just because authorities believe they are likely to commit a crime.

"He is obviously not a good person," Levenson said. "Preventive detention, however, is not part of the law."

Anthony Zinnanti, one of two Santa Clarita attorneys who sought the restraining order against McClellan on behalf of their daughters and other minors, said McClellan's blatant violation of the order suggests the Washington native's mental state may be in question.

"He is a narcissist," Zinnanti said. "But underneath it he is really sick. He cannot control his impulses."

Local authorities first became aware of McClellan through his website several months ago. On the website, which has been taken down, McClellan spoke of how much he enjoyed watching little girls and listed places where this could be done.

This was not the first time he caught the attention of law enforcement agencies.

Detectives with the Snohomish County Sheriff's Department in Washington state had been aware of McClellan and his website for at least two years, spokeswoman Rebecca Hover said. But they never found any evidence to make an arrest or pursue criminal charges.

"Detectives monitored his website," Hover said. "But we didn't find any evidence of criminal activity, so we didn't open any investigation."

She said the only other legal action she was aware of involved a local school district that sought a no-trespassing order against McClellan.

A spokesman for the Bellingham Police Department in Whatcom County, Wash., said authorities there put out a bulletin warning about McClellan earlier this year, after he was seen photographing children at civic events. But they too found no evidence of any crime being committed.

For the same reason, Eugene Volokh, a UCLA law professor, said that the injunction against McClellan wasn't "going to stand up as a means to keep him away from children."

Specifically, the order bans McClellan from stalking minors or loitering near them, or from taking photos without their parents' permission, Volokh said. It won't stand constitutional challenges because it is too restrictive of his freedom of speech and movement, he said.

Unlike a federal court order, which must be complied with until overturned, an order issued by a California court can be challenged on constitutional grounds during any criminal contempt case, Volokh said.

"If he takes pictures of kids in public view, they cannot stop him," he said. "He may be a guy to be concerned about, but it is not enough."

There has to be probable cause that the individual committed a crime, Volokh said.

"This man is obsessed with this," he said of McClellan. "He is willing to ruin his life. It is clearly spooky. But it is legal to advocate pedophilia and not act on it."

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richard.winton@latimes.com

andrew.blankstein@latimes.com

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