The 300-Foot Rule Goes to Church

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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.

The case is State v. Fryou. In it, the defendant was charged with a violation of G.S. 14-208.18(a)(2)—the 300-foot rule described here—for entering a Presbyterian church that has a preschool. The preschool was deemed a location “primarily for the use, care, or supervision of minors,” located on a broader premises, the church, that is not intended primarily for the use care or supervision of minors.

The first issue in the case was whether the 300-foot rule applied to the defendant at all. As discussed here, the restrictions in G.S. 14-208.18 do not apply to all registered sex offenders, but only to (1) those on the registry for offenses listed in Article 7A of Chapter 14 of the General Statutes; and (2) those “where the victim of the offense was under the age of 16 years at the time of the offense.” G.S. 14-208.18(c). The defendant in Fryou was on the registry for a federal child pornography offense, so he would be covered under the law only if his victim was under 16 at the time of his crime (a federal pornography crime isn’t listed in Article 7A). However, the federal crime covers pornography depicting children up to age 18, so it wasn’t clear from the conviction alone that the defendant fell within the coverage of G.S. 14-208.18.

The defendant argued that the court should be limited to the elements of the conviction offense when determining whether G.S. 14-208.18 applies. Under that approach, the defendant would not be covered, because the victims portrayed in the pornography he possessed could, according to the elements of the offense, theoretically have been 16 or 17 years old. The State countered that eligibility should be gauged based on the facts of the defendant’s specific crime—that is, whether his victims were actually under 16. And the defendant in this case apparently stipulated to that.

The court of appeals concluded that the language of G.S. 14-208.18 clearly and unambiguously allows for a facts-based approach to determining the law’s applicability. In other words, the defendant’s registration crime need not have an element requiring the victim to have been under 16 in order for the law to apply to him. Because the court in this context found that a fact-based approach is approach is proper, the defendant’s stipulation to the age of the victim in his case was effective, and the 300-foot rule applied.

(As an aside, I continue to think that the important issue is the age of the victim at the time of the defendant’s offense, because that is what G.S. 14-208.18(c)(2) says. As I mentioned here, that will often be a difficult determination to make in a child pornography case.)

Having determined that the premises restriction applies, the court moved on to the defendant’s constitutional objections. He first argued that the law was “unconstitutionally broad on its face” because it “criminalizes a substantial amount of constitutionally protected conduct.” Slip op. at 15. However, because the defendant did not “identify a specific constitutional amendment or provision, state or federal, upon which his argument as to unconstitutional overbreadth could be based,” the court rejected his argument. The court acknowledged that constitutional arguments—including First Amendment speech and expression arguments—might theoretically exist, but concluded that the defendant didn’t actually raise them.

The court also rejected the defendant’s argument that the 300-foot rule was unconstitutionally vague as applied to him, saying that the statute “may be many things, but it is not vague.” Id. at 21. The court concluded that the statute “plainly prohibits him from being within 300 feet of any premises, no matter its purpose, if within that premises there is any location intended primarily for the use, care, or supervision of minors.” Id. at 19 (internal quotations omitted).

Though the court described that rule as “plain” and “clear,” I will say—for whatever it may be worth—that I had not read the law that way. I understood it to say that when there is a location primarily for minors inside a broader place that is not for minors, you draw a 300-foot radius around the location for minors (not around the place that contains it), and that is where the offender may not go. So, for example, in the case of a shopping center that has a play area for children, the law would allow the offender to go to the shopping center, but not to the parts of it that are within 300 feet of the play area. The court appears to read the law to say that the offender may not go within 300 feet of the entire shopping center, because it contains a play area. My colleague John Rubin interprets the rule yet another way. In his view, the prohibited radius begins with the interior location for minors, but never extends beyond the boundaries of the place that contains it. Of course, the distinction doesn’t matter in Fryou, because the football-field-sized radius around the preschool—wherever it was, exactly, within the church—would likely render the entire church off limits. BannerElkPresbyterian(In fact, I’m sure it would. Banner Elk Presbyterian Church happens to be located near a football field, which makes it easy to use Google Maps to get a sense of the scale of the prohibited area.) My point is that people of ordinary intelligence read the law differently.

Though Fryou involved a church, the case did not focus on the constitutionality of G.S. 14-208.18 with respect to a defendant’s First Amendment right to participate in religious services. The defendant did not raise the issue. That’s likely because he didn’t go to the church to worship, but rather to ask the pastor to support a program to provide Christmas presents to children of inmates. The issue may, however, come to the fore in a federal case involving G.S. 14-208.18 that is working its way through the Middle District of North Carolina. The district judge’s ruling on the plaintiffs’ motion for preliminary injunction in that case is available at 40 F. Supp. 3d 657 (M.D.N.C. 2014).

3 comments on “The 300-Foot Rule Goes to Church

  1. I can’t say I’m entirely surprised by this ruling. Even though the inmate was there to speak to clergy he wasn’t there to engage in worship services. I would be interested to see a ruling had the offender actually been there for worship services, or for religious reasons (consulting with clergy about spiritual matters or something), and see if the courts ruling was different.

    I feel like if the courts ruling doesn’t change to allow worship or spiritual guidance to be sought out by offenders that’s a pretty serious violation of their rights. A fair amount of churches have preschools or daycare programs attached to them and a 300 foot rule would make them completely off limits to parishioners who are offenders.

  2. I was going to write a post about the vagueness in the mens rea element (do you have to know that there’s a kid’s area in the premises, or just that the premises is there?), when I realized the following, more interesting fact, which I verified on Google Maps.

    The front door of the Guilford County Courthouse in Greensboro appears to sit a little less than 300′ from the front door of the United Methodist Church, which I know has a day care in it. In fact, the handicapped ramp entrance for the courthouse is directly across the street from the church, probably less than 75′. AND, the Federal courthouse is right next door to the church.

    According to the letter of this law, it is a felony for any covered sex offender to come to court in Greensboro.

  3. […] 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 […]

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