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. Continue reading
Tag Archives: 300 foot rule
The General Assembly amended G.S. 14-208.18, the law that makes it a Class H felony for certain registered sex offenders to go certain places. The changes are a response to Doe v. Cooper, a federal case in which the trial judge enjoined every district attorney in the state from enforcing the parts of the law he found to be unconstitutional. Today’s post takes a look at the revised law. Continue reading →
The North Carolina law making it a felony for some sex offenders to go within 300 feet of certain locations intended for children is unconstitutionally overbroad under the First Amendment. Last week, a federal judge permanently enjoined all North Carolina district attorneys from enforcing the law. Continue reading →
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. Continue reading →
Last week the court of appeals decided another case involving the sex offender premises restriction in G.S. 14-208.18. The defendant was convicted of being within 300 feet of a church preschool. Continue reading →
The premises restrictions of G.S. 14-208.18 have been in the news again lately. Here in Chapel Hill, a registered sex offender charged with being unlawfully on the premises of the public library had the charge dismissed on constitutional grounds. Meanwhile, the Graham County Sheriff made national headlines went he sent a letter to every registrant in the county prohibiting them, under the 300-foot rule, from going to church. The constitutional issues raised by these scenarios are interesting, but my first reaction in both cases was this: That law doesn’t apply to all registered sex offenders! Continue reading →
An amended statute and a recent case improve our understanding of places sex offenders cannot live and go in North Carolina.
First, the statute. Under G.S. 14-208.16, a registered sex offender may not reside within 1,000 feet of a school or child care center. The law has always defined “child care center” by reference to G.S. 110-86(3), which defines a child care center as “an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.” “Child care,” in turn, is defined as a “program or arrangement where three or more children less than 13 years old, who do not reside where the care is provided, receive care on a regular basis of at least once per week for more than four hours but less than 24 hours per day from persons other than their guardians or full-time custodians, or from persons not related to them by birth, marriage, or adoption.” G.S. 110-86(2). The definition then goes on to exclude 11 types of care, like certain home care arrangements, recreational programs, and drop-in care at a place like a gym or church. In short, it’s a very specific definition that excludes some things that many people would probably think are covered.
Legislation signed into law by the governor on June 24, 2014, S.L. 2014-21 (H 777), amends G.S. 14-208.16 to fill one perceived gap in the statute. The amendment provides that the term “child care center” does, for purposes of the sex offender residency restriction, include “permanent locations of organized clubs of Boys and Girls Clubs of America.” The amended definition applies to all persons registered or required to register on or after June 24, 2014, but does not apply to a person who established his or her residence prior to that date. That grandfather clause allows an otherwise prohibited person to continue living in a residence near a Boys and Girls Club if he or she established the residence before the law came into effect. For a discussion of how a residence is “established,” see this prior post.
(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;
(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 (1) that are located in malls, shopping centers, or other property open to the general public; or
(3) At any place where minors gather for regularly scheduled education, recreational, or social programs.
In State v. Simpson, decided yesterday by the court of appeals, the defendant, a registered sex offender, was found sitting on a bench near the batting cage and ball field at Cub Creek Park in Wilkesboro. An off-duty officer saw him there and called the police. He was arrested and charged under option (2) above—being within 300 feet of any location intended primarily for the use, care, or supervision of minors that is located on premises that are not intended primarily for minors. (I discussed the “location within a place” nature of the 300-foot rule in this prior post.)
The court of appeals rejected the defendant’s argument that the State’s indictment was defective because it failed to specify that the place (the park) within which the prohibited location (the batting cage and ball field) was located was not intended primarily for the use, care, or supervision of minors. Naming the park was enough to give the defendant sufficient notice of the accusation.
As to the substance of the charge, however, the court agreed with the defendant that the batting cage and ball field were not shown to be locations intended primarily for use by minors. Batting cages and ball fields are of course used by minors—there was even testimony that children were in line at the cage while the defendant was there. But unlike the prohibited locations explicitly listed in the statute (playgrounds and children’s museums, for example), it is not self-evident that batting cages and ball fields are intended primarily for minors. Unless the State shows some “special circumstances” to the contrary, they are presumably intended to be used by adults, too.
Simpson helps clarify our understanding of what sort of “location within a place” triggers the 300-foot rule, but questions will surely remain. For some locations the primary intended use will be a close call, like some swimming pools, athletic facilities, arcades, and areas within bookstores to name a few. In light of Simpson, the parties should be prepared to show facts about the location (the typical clientele, the décor, the depth of the pool, the dimensions of the field, the type of games or books present, etc.) that help demonstrate the primary intended use.
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.