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Fourth Circuit Holds North Carolina Sex Offender Restrictions Unconstitutional

by Matt Clarke

On November 30, 2016, the U.S. Court of Appeals for the Fourth Circuit affirmed a federal district court’s judgment that portions of the North Carolina sex offender restrictions statute were unconstitutional.

John Does #1 through #5 (collectively, the “Does”) are persons who have been convicted of a sex offense and subject to sex offender restrictions under North Carolina law. With the assistance of Chapel Hill attorney Paul Moore Dubbeling, they filed a federal civil rights lawsuit against North Carolina’s attorney general, governor and 30 district attorneys challenging the constitutionality of N.C. Gen. Stat. § 14-208.18(a)(2) and (a)(3). The statute restricts the movement of individuals who were convicted of a violent sex offense or a sex offense with a victim younger than 16. A violation of the statute is a Class H felony with a presumptive sentence of 20 months in prison.

The Does argued that the statute prevented them from participation in core First Amendment activities, such as attending town council meetings, going to church, visiting government offices, and observing their children’s recreational or educational activities. The district court ruled that the two subsections of the statute at issue were unconstitutional and permanently enjoined enforcement of them. North Carolina appealed.

Subsection (a)(2) prohibited the Does’ presence 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….” This would include many, if not all, churches, libraries, malls, shopping centers, and fast food restaurants, together with any location within 300 feet of them. The district court ruled that the subsection was facially overbroad in violation of the First Amendment.

 The Fourth Circuit framed the question as follows: “whether subsection (a)(2) is overbroad because it applies to all restricted sex offenders, not just those who pose a danger to minors or are likely to pose such as danger.” Since the subsection implicated protected First Amendment activities, the Court had to determine the applicable level of scrutiny. The parties agreed that the subsection was content neutral, so it was subject to intermediate scrutiny. To withstand that level of scrutiny, the statute must materially advance an important or substantial governmental interest by redressing past harms or preventing future ones.

The appellate court agreed with the lower court that the State failed to meet its burden of proof.  The Court concluded that the State failed to show how “its application to offenders with only adult victims—responds at all to the State’s legitimate interest in protecting minors from sexual assault.” Consequently, the Court concluded it was unconstitutionally overbroad in violation of the First Amendment because it applied to all restricted sex offenders, not just the ones who may pose a danger to minors.

Subsection (a)(3) prohibited the Does’ presence “at any place where minors gather for regularly scheduled educational, recreational, or social programs.” The district court ruled that the language was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.

The Court of Appeals affirmed the district court’s ruling that the language of subsection (a)(3) was so vague that “a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is ‘regularly scheduled’ or (2) what places qualify as those ‘where minors gather.’” This is because the statute provides no guidance on how frequently a program must be scheduled to be “regularly scheduled” or how many minors must be at a location and how often for it to be a place “where minors gather,” or even whether mixed gatherings of adults and minors such as church qualify. Therefore, the Fourth Circuit ruled the subsection was unconstitutionally vague and thus violated the Due Process Clause. The Fourth Circuit affirmed the judgment of the district court. See: Doe v. Cooper, 842 F.3d 833 (4th Cir. 2016).  

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