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.