Federal Judge Enjoins Enforcement of Sex Offender Premises Restriction

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A federal judge has permanently enjoined all North Carolina district attorneys from enforcing G.S. 14-208.18(a)(3), the law intended to prohibit certain sex offenders from being at places where minors gather for regularly scheduled educational, recreational, or social programs.

The case is Doe v. Cooper, No. 1:13CV711 (M.D.N.C. Dec. 7, 2015). In it, five registered sex offenders filed a lawsuit in the Middle District of North Carolina challenging the constitutionality of all three premises restrictions of G.S. 14-208.18. As many readers know, that law has three subdivisions that spell out three types of places certain registered sex offenders may not “knowingly be”:

(a)(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.

(a)(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.

(a)(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

The plaintiffs, all registered sex offenders subject to G.S. 14-208.18, brought their claims under 42 U.S.C. § 1983, alleging that the law is unconstitutionally overbroad, vague, and violative of their procedural due process rights. The crux of their complaint is that they aren’t sure where they can and can’t go. They have been told by various prosecutors, law enforcement officers, and probation officers that, among other things, they may not:

  • Attend a G-rated movie;
  • Eat at a fast food restaurant that has an attached play area;
  • Go to an office supply store that is within 300 feet of a fast food restaurant that has a play area; or
  • Go to church.

 

Some of the plaintiffs are on the registry for crimes against children. At least one is not.

The case has been percolating for a couple years (I mentioned an earlier order in the case, 40 F. Supp. 3d 657, here).  The plaintiffs named Attorney General Cooper and all North Carolina district attorneys as defendants in the case. The matter is before United States District Judge James Beaty in the Middle District, whose latest order is a ruling on the parties’ cross motions for summary judgment. The order is summarized below.

Subdivision (a)(3) is unconstitutionally vague. The court granted the sex offender-plaintiffs’ motion for summary judgment on the vagueness of the restriction on places where minors gather for regularly scheduled programs. Judge Beaty wrote that the law gives no guidance as to how “regularly” a program must occur or how many minors must gather to trigger the prohibition. Concluding that the provision cannot stand, the court enjoined every prosecutor in the state from enforcing it against the plaintiffs and all other persons similarly situated.

Subdivisions (a)(1) and (a)(2) are not unconstitutionally vague. The court denied the sex offender-plaintiffs’ motion for summary judgment as to the vagueness of subdivisions (a)(1) and (a)(2), and granted the defendants’ motion with respect to those subdivisions. In other words, the restriction covering dedicated children’s facilities and the 300-foot rule survive. The court rejected the plaintiffs’ argument that those prohibitions fail to give offenders fair notice of what places are off limits, batting aside hypotheticals involving a lone baby-changing station, “a children’s museum at the top of a skyscraper,” and a “church with a nursery that has extraordinarily thick walls.” The court acknowledged that the prohibitions are harsh, but concluded that they are not unconstitutionally vague, and that prosecutors may therefore continue to enforce them. (The opinion offers a particularly thoughtful explanation of how the surviving provisions operate in practice, including how the 300-rule was not intended to criminalize offenders’ “fleeting presence” in a prohibited radius while passing through a public roadway.)

Subdivision (a)(2) might be unconstitutionally overbroad. The court denied both parties’ motions for summary judgment with respect to the plaintiffs’ claim that the 300-foot rule is overbroad in violation of the First Amendment. In general, a law can be deemed facially invalid if a party can show that it punishes a substantial amount of protected free speech, judged in relation to its plainly legitimate sweep. The burden is on the government to show that the statute is narrowly tailored to serve a significant governmental interest. The court concluded that there is, up to this point, a disputed record on the issue of narrow tailoring—particularly when it comes to offenders who committed crimes against adult victims. The parties are directed to address that question at trial. If the court concludes, based on those factual findings, that subdivision (a)(2) is overbroad, then it, like subdivision (a)(3), could be severed from the law.

What’s next?  For now, pending prosecutions under G.S. 14-208.18(a)(3) must cease, and the Attorney General’s office has advised prosecutors to tell law enforcement not to bring future charges under that subdivision. The order does not speak directly to defendants already convicted under the law, but I can imagine a motion for appropriate relief citing Judge Beaty’s analysis in support of a claim that the defendant was convicted under an unconstitutional statute. Prosecutions under G.S. 14-208(a)(1) and (a)(2) may continue, but note that (a)(2) prosecutions may be subject to future limitation depending on the outcome of the trial.

 

18 comments on “Federal Judge Enjoins Enforcement of Sex Offender Premises Restriction

  1. So, I am still not clear about whether or not a sex offender can attend church. Most all churches have nurseries and Sunday school classes. Must it only be a NC Certified daycare/nursery for this subdivision to be violated? Does this judgement imply that an offender may not attend church after all? In the recent NC appellate ruling, the judge stated that being within 300 feet of the church was a violation of the law b/c of there being a dedicated child area. Again, as you stated, very different take on the 300 feet rule, so I really don’t know the answer.

  2. Ok. Just read the judge’s entire opinion and I am clear now that a registered sex offender may not attend church if within 300 ft of the nursery inside the church or maybe even Sunday school classes. Judge recommends finding other means for worship such as a church without areas deemed for primary use by and supervision of minors, worship at a pastor’s home or in a jail as offered by one sheriff in NC. Still doesn’t clarify the appellate ruling recently where the judge ruled that a SO couldn’t be within 300 feet of the entire campus that housed a nursery…instead of 300 feet of the actual nursery. These opinions differ. Who trumps whom?

  3. Will we get updates if either party appeals?

  4. Sue, if you are confused and unsure, imagine how those subject to these capricious laws feel when their very liberty is at stake if they guess wrong. There are very few absolutes in any area of life, but this situation has one. There is absolutely no evidence in support of residency restrictions as a public safety tool.

  5. This ruling does not prohibit other means of challenging the validity of the law. For instance, if this is declared punishment (as I believe it should be), then it can be challenged by those convicted prior to the law being passed as being an ex post facto punishment.
    If this is challenged as being intrusive upon the freedom of religion portion of the amendment, then perhaps it can be declared unconstitutional on that basis.
    However, this law is by itself absurd. To ban a person from being in the area of a place which is primarily for the use of children, like a school, even when the children are not present, is ridiculous.

  6. Seems to me that gs-14-208a1 and a3 are basically the the same law. Just written a little bit different so they can prosecute anyone they want. Cannot see how any of this law is constitutional. Section a1 list specific places but yet says not limited to just these places. How is that not vaugh? The whole registry is illegal. It’s supposed to be reglatory and non punitive. Maybe back in the day when it went to the Alaska supreme court maybe it was. That is not the case today! I would rather be on probation which is considered a punishment then on the registry which is not considered a punishment. At least on probation you know where you stand. Punishment is written by the court at the time of sentence. The registry is punishment written by any politician that needs a vote or more money and power. They need to start locking up politicians!

  7. The church prohibition violates religious freedoms. It should be directly challenged as a gross violation of civil rights.

  8. I just have to sit back and comment on these ludicrous laws because there is NO common sense in any of this. Many people convicted of a sex offense have healthy, happy children, so any interpretation, no matter the qualifications of the ones creating these laws, should prevent or inhibit any human being from acting in a positive role as a parent.

    • I accepted a plea arrangement in 2007 after waiting over two years to go to trial and then being advised that it would be at least one more year before actually being tried. In the courts sentencing records, all references of the victim being a minor were left unmarked; the special conditions for sex offenses contains two sections, one for “regular offenders” and the other for offenders with minor victims, it is under the “regular offenders” section where it states im to register as a regular sex offender.
      I have recently been charged with violating the protected premises law section a1 for attending my step-sons honor roll awards ceremony with my wife, and for attending (with my wife) his winter concert held in the evening at a local high school. The complaint was filed by my step-sons father, his wife and mother.
      I have or had one year left before being able to petition for removal from the offender registry.
      Now my stepson faces the possibility that his primary “father – figure” of the past eight years could have to go away.
      How is this not punishment, not only for myself and the other “the marked” who are trying to raise their children, but for our children and families as well? I’ve had several other educated individuals and two lawyers review the courts record and all agree I shouldn’t have any restrictions, yet now I’ve been charged. how can anything involving any of these laws not be considered vague or punitive at this point?
      Thank you, by the way for this blog, this is the ONLY source of changes ore information of interest related to offender laws that is available to offenders. The state ensures that they have our addresses, but in nine years has not sent a single notification to changes in the law that have occurred, and provides no resources for offenders to ensure they understand the laws that affect them.

  9. can an offender go to agricultural fair and be in the areas that have no children’s rides? can he go with his own children/

  10. […] post picks up where this prior post left off. It is the latest chapter in Doe v. Cooper, No. 1:13CV711 (M.D.N.C.), a case in […]

  11. It is to bad, most, including the judiciary of America, are blind to the broader implications upholding such laws have for the future of all society.

    It is now acceptable to deem a law for “protection” and take away people’s liberties. Not just from the day the law goes into affect, but can go back in time! These laws need not be based on any factual evidence, differentiate between felons and misdemeanors, or provide any due process.

    Think about that for a moment…

  12. […] discussed the trial court orders in Doe in two previous posts. The first post, here, covers the order issued in December 2015, 148 F. Supp. 3d 477 (M.D.N.C. 2015), in which the court […]

  13. […] offenders could not be present in any place used by children. Its hazy, sweeping regulations were interpreted to forbid former offenders from attending G-rated movies, eating at fast food restaurants with […]

  14. The sex offender registry is a sad indictment against American society. It illustrates the hypocrisy, hysteria, and willingness to violate sacred American freedoms. Welcome to the American police state.

    It is the American way to marginalize and subjugate people in order to create second class citizens. It is in the American modus operandi. It allows certain citizens to comfort themselves in a blanket of perceived moral superiority.

    The reality of this country versus it self perception is as far as the east is from the west. There is a reason mass shootings have gone from once a year to once a month to every week. There is reason riots, uprisings and protests have become so intense and frequent. There is a reason anti-American sentiment is gaining so much momentum abroad and at home. America and American life is decadent, immoral, and hypocritical.

  15. […] 40 F. Supp. 3d 657 (M.D.N.C. 2014), to the judge’s injunctions of portions of the law (here and here), to the General Assembly’s amendment of the law in response to the federal court […]

  16. […] offenders could not be present in any place used by children. Its hazy, sweeping regulations were interpreted to forbid former offenders from attending G-rated movies, eating at fast food restaurants with […]

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