Portion of Sex Offender Premises Restriction Held Unconstitutional

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Happy New Year! I feel like I spent most of 2012 talking about Justice Reinvestment. Let’s start 2013 with a more agreeable subject—like sex offenders.

In one of its final rulings of 2012, the court of appeals held in State v. Daniels that a portion of the law limiting where some registered sex offenders may go is unconstitutionally vague. In Daniels, the defendant was charged with two counts of violating G.S. 14-208.18(a)(3), which makes it a Class H felony for certain sex offenders to knowingly be “at any place where minors gather for regularly scheduled educational, recreational, or social programs.” The charges stemmed from two visits by the defendant to county parks. In the first, the defendant came to the park to meet his daughter, who was watching a tee ball game at one of the park’s youth baseball fields. In the second, the defendant was playing softball on an adult ball field at a park that also had a youth field.

In his defense, the defendant filed a motion to declare G.S. 14-208.18 unconstitutional on a mix of First Amendment and due process grounds. The trial court granted the motion, declaring that G.S. 14-208.18(a)(3) is unconstitutionally overbroad because it infringes on the defendant’s freedoms of association and religion, and unconstitutionally vague in that it fails to put people of ordinary intelligence on notice of the precise conduct the law prohibits. The trial court further declared G.S. 14-208.18(a)(2), the 300-foot rule described here, unconstitutional, as the facts of the case could have implicated that provision as well. Having deemed the statute unconstitutional, the judge dismissed the charges against the defendant.

The State made three arguments on appeal.

  • First, that the trial court lacked authority to rule on G.S. 14-208.18(a)(2), the 300-foot rule, because the defendant had only been charged with a violation of subdivision (a)(3);
  • Second, that the defendant lacked standing to challenge the constitutionality of the law on its face; and
  • Third, that in any event the premises restrictions in question are neither unconstitutionally overbroad nor vague.

As to the first argument, the court of appeals agreed with the State. The defendant was charged only under G.S. 14-208.18(a)(3), and the trial court thus lacked jurisdiction to rule on the constitutionality of subdivision (a)(2). The court noted that the legislation enacting G.S. 14-208.18 included a severability clause, indicating the General Assembly’s intent to create three separate and independent offenses. So, Daniels did not resolve any of the constitutional or interpretive questions surrounding the 300-foot rule.

Having limited the scope of its review to G.S. 14-208.18(a)(3), the court went on to consider whether the defendant had standing to mount a facial challenge to that part of the law. The court concluded that he did not, as a person bringing a facial challenge must “establish that no set of circumstances exists under which the act would be valid.” Slip op. at 19 (citing State v. Thompson, 349 N.C. 483, 491 (1998)). Because there are particular activities which are unambiguously prohibited by G.S. 14-208.18(a)(3)—such as a covered sex offender actually going onto a baseball field where children have regularly scheduled games, which the court said would clearly be covered—the defendant could at best challenge the law as applied to the facts of his case.

And so the court reviewed those facts. To recap, in one count the defendant was accused of being “out kind of close to the parking lot area” at a county park that had a youth ball field, and in the other he was accused of playing softball on an adult softball field adjacent to a youth tee ball field. In both instances, the court concluded that it would not be clear to a reasonable person whether these areas “near” or “adjacent” to youth fields were “places where minors gather” within the language of G.S. 14-208.18(a)(3), and thus held that the law was unconstitutionally vague as applied to both incidents.

After Daniels, it appears that vagueness challenges to G.S. 14-208.18(a)(3) can best be avoided by taking a narrow reading of the word “place” in that subdivision. The prohibited “place” is not the entire county park, but rather the particular portion of it where regularly scheduled activities for children actually occur. The same rationale would logically to extend to other locales. For example, the relevant prohibited “place” at a community college that has educational programs for minors would likely be the particular buildings or perhaps even particular classrooms where those programs occur, not the entire campus. Every place and situation is different, of course, so it is hard to offer crystal clear guidance based on Daniels alone.

Daniels did not answer the frequently asked question of whether minors must actually be gathered at the place in question while the sex offender is there in order for the subdivision (a)(3) crime to occur. The court noted that minors were present during both of the defendant’s park visits, but that fact did not appear to play a critical role in the court’s analysis.

Finally, although the trial court struck the law under both the First Amendment and as a matter of due process, the court of appeals deemed the law unconstitutional on the latter grounds alone. Thus, Daniels does not resolve any of the freedom of religion or freedom of association issues raised by sex offender premises restrictions, which I know continue to percolate through the trial division, and which appear in the newspaper from time to time.

8 comments on “Portion of Sex Offender Premises Restriction Held Unconstitutional

  1. This law is overly broad and vague. The sex offender registry is also unconstitutional. They are getting away with this by saying the Registry is civil and non punitive. How can any rational person agree
    With that. It has allowed the government to unconstitutionally extend
    Punishment and probation without due process. They are free to make these vague laws at any time and apply them to everyone on the Registry even though they have already completed their sentence. These laws give the police the power to arrest anyone on the Registry for any or no reason at all. This man challenge this new Jim Crow Law and won. I applaud him! We need to keep attacking these government wrongs or they will continue to make laws . One day on of these unconstitutional laws may affect you or one of your family members.

    • His charges occurred in new jersey not north carolina,they truly do not have any jurisdiction over him he needs to go back to New Jersey to come off of the sex offender registry

  2. My husband was convicted in 1998 in New Jersey and had his probation transferred to NC. He has been trying to have his name removed from the sex offender registry for 2 years. He has had no charges filed against him since he registered as a sex offender, but the DA office has even attempted to set a date for him to petition the court. He was arrested last night because he got a Facebook account 3 weeks ago, which is being challenged in NC as unconstitutional. If he had been allowed to petition the court when we started sending requests to the DA office, none of this would be valid. Basically North Carolina is screwing him over and he has done everything that was required of him.

    • I move to another state, my crime was in north Carolina, my ten years have passed, the state im in is saying that I need to go back to NC to come off of the registry. My crime was in 2000, before this new law come in effect, I suggest we all put our shame of our crimes behind us and stand together and fight for our right on which we were convicted under. The intent my have been civil but the in but the out come is more punishmenton a certain group of people which is unconstitutional in all states it’s time to stand up and let’s be heard…

  3. Due process and ex post facto also applies for civil laws as well……

  4. My husband was convicted in NC in 2002 for having oral sex with a 15 year old who lied about her age. He was 19. We have 3 children which are 15. 12. 8 and he has not been able to do anything with them like going hiking or camping at a national park. He has never been able to take them trick or treating. Basically what I am saying there should be laws for each tier that a sex offender is registered at. I cannot find any clear definded laws on what offender can and cannot do. We cannot go to church because how many churches do not have a play ground or a Sunday school class which violates the 300 feet rule. In the constitution we have the right for religion and people are trying to get their life together but they can’t go to church to do it. The state is all about rehabilitation of offenses but they keep punishing them. Murders get off with less punishment than tier 1 sex offenders. Maybe soon he will be able to do stuff with his grandchildren cause it don’t look like they are going to change anything. I wish I could find the laws clearly online. If anyone has a website for this please let me know.

  5. My husband is a sex offender and baseball has been his whole life he made a mistake and now can’t even play baseball on a all adult team at a all adult softball complex which it was no kids and his po has violated him for being at a regular baseball field/public park…..this is in Tennessee by the way…wat will happen if I have the proof he needs

  6. My son was charged when he was 19 with having g sex with a girl that told him she was older .that has been 9 yr now .he has to register as a sex offender in south Carolina.for the rest of his life .I find this unconstitutional.murders get off with less than this ..if anyone could help us get this law changed .I am lion hear me roar

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