The United States Court of Appeals for the Fourth Circuit issued its opinion in Doe v. Cooper yesterday. A unanimous panel of the court affirmed a decision from Middle District of North Carolina finding two parts of G.S. 14-208.18—North Carolina’s premises restrictions for certain sex offenders—unconstitutional.
If it feels like we’ve been talking about Doe v. Cooper on the blog forever, it’s because we have been. Previous posts have followed the case from the trial judge’s ruling on a preliminary injunction, 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 decisions (here).
With those prior posts available, I’ll skip a full recap of the procedural history of this case. It is, in short, a federal civil rights lawsuit in which five sex offenders sued the governor, the attorney general, and every elected district attorney in the state to block enforcement of the sex offender premises restrictions on constitutional grounds.
The sex offenders won in the trial court; a federal district judge in the Middle District concluded that portions of the law were indeed unconstitutional. Subdivision (a)(2) of G.S. 14-208.18—the so-called 300-foot rule—was invalidated as overbroad under the First Amendment. Subdivision (a)(3)—the rule that banned covered offenders from any place where minors gathered for “regularly scheduled” programs—was deemed vague as a matter of constitutional due process. Subdivision (a)(1), which bars covered offenders from child-focused places like schools and children’s museums, passed constitutional muster and continues to be good law.
The State of North Carolina appealed the Middle District ruling on subdivisions (a)(2) and (a)(3) to the Fourth Circuit. The Fourth Circuit affirmed the lower court decision, agreeing that those portions of the law are unconstitutional.
Or perhaps I should say were unconstitutional. As noted above, the legislature has already revised them, effective September 1, 2016, in response to the infirmities found by the trial court. So, this latest decision does not directly apply to the revised law (something the opinion itself notes in footnote 1). Still, the latest opinion is well worth a look, as it will inform the analysis of whether other sex offender restrictions—including revised G.S. 14-208.18—can stand.
So what did the court say? As to subdivision (a)(3), the appellate court concluded that the law preventing certain sex offenders from going any place where minors gather for “regularly scheduled educational, recreational, or social programs” was unconstitutionally vague in violation of the Due Process Clause. The court rejected the State’s argument that, when read in pari materia (alongside the rest of the law), the provision has a “core” that clearly defines what places are off limits. Even read in context, the court said, this part of the law has two problems that just can’t be overcome.
First, there is no guidance as to how frequently a child-focused program must occur for it to be considered “regularly scheduled” within the meaning of the law. Second, the reference to places “where minors gather” does not make clear whether it applies to gatherings of minors alone or also to mixed groups of minors, as it provides no explanatory examples. As a result, neither ordinary citizen nor law enforcement officer could reasonably determine what activity is criminalized by subdivision (a)(3).
As to subdivision (a)(2) (the 300-foot rule), the Fourth Circuit held that it was overbroad under the First Amendment. Applying intermediate scrutiny to the content-neutral restriction, the panel considered whether the law advanced an important government interest without burdening more speech than necessary to do so.
Nobody contested that government interest part; protecting minors is important. But when it came to the burden on speech, the court said the State failed to show how a restriction applicable to some offenders whose crimes were against adults actually helped protect kids. The record did not include any “data, social science or scientific research, legislative findings, or other empirical evidence” showing that adult-victim sex offenders posed an elevated risk to children that justified a restriction on being near them. Slip op. at 26.
So, these two portions of the old law are unconstitutional. What difference does that make, knowing that the revised law has been in place since September?
Well, first of all, the decision means that the revisions to G.S. 14-208.18 that kicked in September 1 remain in place. Had the Fourth Circuit stayed or overturned the Middle District, an effective date clause in S.L. 2016-102 would have kicked in to repeal the amendments to subdivision (a)(2) and (a)(3) and reinstate the former version of the law. I suppose that could still happen if the State appeals and the Supreme Court overturns the Fourth Circuit. But barring that, carry on applying the amended version of the law described here.
About that amended law. Is it constitutional under the framework set out by the Fourth Circuit? As you may recall, subdivision (a)(2) was “fixed” by making the 300-foot rule applicable only to (1) offenders on the registry for crimes committed against victims under 18, and (2) covered adult-victim offenders for whom “a finding has been made in any criminal or civil proceeding that the person presents, or may present, a danger to minors under the age of 18.” By limiting that portion of the law to only those adult-victim offenders specifically found to present a danger to minors, the revised law appears to address the “fit” problem that doomed the original version of the law in Doe v. Cooper. (It’s not clear to me when or how that dangerousness finding will be made. I suppose prosecutors may argue for it when an adult-victim offender is sentenced, among other possibilities.)
But note that the dangerousness finding only applies with respect to subdivision (a)(2). It does not apply to revised subdivision (a)(3), meaning the prohibition on being places where minors frequently congregate applies to covered adult-victim offenders without any individualized determination that they pose a risk to children. The original subdivision (a)(3) was invalidated on vagueness grounds so the court did not have to reach the question of whether it also violated the First Amendment. It strikes me as possible that revised (a)(3) could be challenged on First Amendment grounds, to the extent that it suffers from the same “fit” problem as original (a)(2).
Speaking of subdivision (a)(3), it remains to be seen whether the revised law will be deemed sufficiently less vague than its predecessor. As I noted in an earlier post, I think “frequently congregate” is probably less vague than “regularly scheduled,” but it’s by no means crystal clear. The best thing the revised law has going for it is probably that it includes a list of example places that are off limits (libraries, arcades, amusement parks, pools), as the lack of examples seemed especially important to the court in Doe v. Cooper. See Slip op. at 19.
Finally, I thought I would mention that the premises restrictions aren’t the only North Carolina sex offender restriction in the midst of First Amendment litigation. The commercial social networking ban (G.S. 14-202.5) is also being challenged. As you may know, the court of appeals struck the ban on First Amendment grounds in State v. Packingham, 229 N.C. App. 293 (2013), but the decision was later reversed by the Supreme Court of North Carolina, 368 N.C. 380 (2015). Well, the Supreme Court of the United States granted cert in the case in October. The social networking ban, which focuses on sites that permit minor children to become members, applies to all North Carolina sex offenders, not just those whose victims were children. It will be interesting to see how the high court’s analysis in Packingham will track with the latest decision from the Fourth Circuit. If Doe v. Cooper is appealed, perhaps the justices could consider the cases together.