Professional Documents
Culture Documents
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6026
JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE
#5,
Plaintiffs Appellees,
v.
ROY A. COOPER, III, Attorney General of the State of North
Carolina; FRANK PARRISH, District Attorney, District 01;
SETH EDWARDS, District Attorney, District 02; KIMBERLY ROBB,
District Attorney, District 03A; SCOTT THOMAS, District
Attorney, District 03B; ERNIE LEE, District Attorney,
District 04; BEN DAVID, District Attorney, District 05;
MELISSA PELFREY, District Attorney, District 06A; VALERIE
ASBELL, District Attorney, District 06B; ROBERT EVANS,
District Attorney, District 07; BRANSON VICKORY, District
Attorney, District 08; SAM CURRIN, District Attorney,
District 09; WALLACE BRADSHER, District Attorney, District
09A; COLON WILLOUGHBY, JR., District Attorney, District 10;
VERNON STEWART, District Attorney, District 11A; SUSAN
DOYLE, District Attorney, District 11B; BILLY WEST, District
Attorney, District 12; JON DAVID, District Attorney,
District 13; LEON STANBACK, District Attorney, District 14;
PAT NADOLSKI, District Attorney, District 15A; JAMES
WOODALL, JR., District Attorney, District 15B; KRISTY
NEWTON, District Attorney, District 16A; JOHNSON BRITT, III,
District Attorney, District 16B; PHIL BERGER, JR., District
Attorney, District 17A; RICKY BOWMAN, District Attorney,
District 17B; DOUG HENDERSON, District Attorney, District
18; ROXANN VANEEKHOVEN, District Attorney, District 19A;
GARLAND YATES, District Attorney, District 19B; BRANDY COOK,
District Attorney, District 19C; MAUREEN KRUEGER, District
Attorney, District 19D; REECE SAUNDERS, District Attorney,
District 20A; TREY ROBISON, District Attorney, District 20B;
JIM O'NEILL, District Attorney, District 21; SARAH KIRKMAN,
District Attorney, District 22A; GARRY FRANK, District
Attorney, District 22B; TOM HORNER, District Attorney,
District 23; JERRY WILSON, District Attorney, District 24;
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No. 16-1596
JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE
#5,
Plaintiffs Appellees,
v.
ROY A. COOPER, III, Attorney General of the State of North
Carolina; FRANK PARRISH, District Attorney, District 01;
SETH EDWARDS, District Attorney, District 02; KIMBERLY ROBB,
District Attorney, District 03A; SCOTT THOMAS, District
Attorney, District 03B; ERNIE LEE, District Attorney,
District 04; BEN DAVID, District Attorney, District 05;
MELISSA PELFREY, District Attorney, District 06A; VALERIE
ASBELL, District Attorney, District 06B; ROBERT EVANS,
District Attorney, District 07; BRANSON VICKORY, District
Attorney, District 08; SAM CURRIN, District Attorney,
District 09; WALLACE BRADSHER, District Attorney, District
09A; COLON WILLOUGHBY, JR., District Attorney, District 10;
VERNON STEWART, District Attorney, District 11A; SUSAN
DOYLE, District Attorney, District 11B; BILLY WEST, District
Attorney, District 12; JON DAVID, District Attorney,
District 13; LEON STANBACK, District Attorney, District 14;
PAT NADOLSKI, District Attorney, District 15A; JAMES
WOODALL, JR., District Attorney, District 15B; KRISTY
NEWTON, District Attorney, District 16A; JOHNSON BRITT, III,
2
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Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cv-00711-JAB-JLW)
Argued:
Decided:
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N.C.
Gen.
Stat.
14-208.6(4);
id.
14-208.7(a).
For
Carolina
restricts
their
movement
relative
to
certain
(2015). 1
John
challenged
Does
#1
these
through
statutory
#5
(collectively,
restrictions
as
the
either
Does)
overbroad,
The
and
permanently
enjoined
enforcement
of
section
14-
I.
We begin with an overview of North Carolinas sex offender
registration laws.
1, 2016.
and all
version.
in this
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sex offense, and who live in North Carolina, must register with
the sheriff of the county where the person resides.
Gen. Stat. 14-208.7(a).
See N.C.
county
registered
registration,
sex
circumstances.
id.,
offenders
are
the
movements
restricted
in
of
all
certain
registered
sex
offenders
are
it
shall
be
unlawful
for
any
subject
to
additional
registered
offender
whose
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any offense where the victim was younger than sixteen at the
time of the offense (restricted sex offenders) to knowingly
be at any of the following locations:
(1)
(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 subdivision (1) . . .
that are located in malls, shopping centers, or
other property open to the general public.
(3)
Id. 14-208.18(a).
Those limitations on restricted sex offenders are subject
to certain exceptions.
Id. 14-208.18(d).
Class
felony
conviction
7
carries
Id. 14with
it
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See
id. 15A-1340.17.
II.
A.
The Does are restricted sex offenders.
is
no
longer
supervised release.
under
any
type
of
probation,
parole,
or
to
attorney.
number
Those
of
restrictions
restrictions
set
included
by
a
the
district
prohibition
on
J.A. 137.
violent
As
sex
result
offense,
of
his
and
given
conviction,
John
probationary
Doe
#2
was
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J.A.
69.
John
Doe
#2
has
received
conflicting
such
as
Skype.
In
like
fashion,
he
was
also
other
places,
including
fast
food
restaurant
with
an
softball
league
games
(given
the
fields
proximity
to
playground equipment).
In 2002, John Doe #3 was convicted of committing indecent
liberties with a minor, a violation of N.C. Gen. Stat. 14202.1, and he served four years in prison.
Assembly,
given
its
proximity
to
the
North
Carolina
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weekends
in
suspended
sentence
intermittent
months of probation.
of
thirty
confinement,
months,
and
spent
completed
He
ten
thirty
In addition, he claims he
Doe
#5
was
convicted
in
2009
of
two
counts
of
day
sentences
supervised probation.
and
completed
eighteen
to
of
months
participate
significantly
in
However, he is
his
childrens
has
programs
for
children.
Finally,
John
Doe
#5
is
construction
company,
sometimes
performs
projects
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B.
The
Does
Carolinas
filed
this
Governor;
Roy
action
against
Cooper,
Pat
North
McCrory,
Carolinas
North
Attorney
to
the
unconstitutionally
United
vague,
States
in
Constitution,
violation
of
the
and
Fourteenth
the
208.18(a)(1).
judgment
to
Does
overbreadth
Later,
the
the
State
vagueness claim.
on
claim
district
the
Does
as
court
to
section
granted
section
14-
summary
14-208.18(a)(1)
appeal.
The
parties
filed
cross
motions
for
summary
judgment
strong
indicia
language,
of
such
unbounded in scope.
as
vagueness
places
to
where
subsection
minors
(a)(3),
gather,
was
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of
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examples.
subsection
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Further,
(a)(3)s
the
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district
reference
court
to
pointed
regularly
out
that
scheduled
U.S.C. 1292(a)(1).
The
district
court
denied
the
Does
motion
for
summary
not
overbroad
to
the
extent
it
generally
county
fairs,
the
General
Assembly[,]
religious
J.A. 169. 3
services,
Stated another
way, the district court held that, even though subsection (a)(2)
incidentally restricted the Does access to certain locations
where activities protected by the First Amendment would occur,
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it
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was
not
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overbroad
with
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respect
to
the
particular
place
restrictions.
However, the district court also determined that a genuine
issue of material fact existed as to whether subsection (a)(2)
was
overbroad
in
that
it
could
burden
less
First
Amendment
restricted
sex
offenders.
J.A.
173.
The
district
who
pose
little
or
parties
[did]
not
no
risk
J.A. 174.
thoroughly
to
minors,
then
the
Accordingly, because
address[]
th[e]
crucial
offenders
who
committed
offenses
not
involving
minors
J.A. 176-77.
judgment
overbreadth.
on
the
issue
of
subsection
(a)(2)s
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courts
view,
significantly
of
core
First
subsection
(a)(2),
although
impaired
restricted
sex
Amendment
rights
without
In the
facially
offenders
taking
into
In
Amendment
service
or
activities,
congregating
in
such
some
as
attending
public
fora,
religious
regardless
of
interest
in
protecting
14
minors,
but
concluded
the
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As a
State
timely
appealed
that
judgment.
We
have
III.
We review de novo the district courts rulings concerning
the constitutionality of a state statute.
(a)(3)
is
unconstitutionally
vague
and,
thus,
part,
the
Fourteenth
any
Amendment
person
of
provides
life,
that
In
[n]o
liberty,
or
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prohibited,
encourages
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or
is
so
seriously
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standardless
discriminatory
that
it
authorizes
enforcement.
Martin
or
v.
The prohibition of
alike
with
ordinary
notions
of
fair
play
and
the
noted
restricted
sex
earlier,
offender
subsection
may
not
(a)(3)
knowingly
states
that
be . . . [a]t
a
any
or
social
When
programs.
read
alongside
N.C.
Gen.
Stat.
subsections
14-
(a)(1)
and
are
construed
nevertheless
in
pari
interrelated
materia.
and
Appellants
must
therefore
Opening
Br.
be
10-11.
When read that way, the State concludes, [n]o ordinary person
would read [section] 14-208.18(a) in its entirety and be unclear
as to the meaning of subsection (a)(3).
Br. 11.
When
Appellants Opening
the
constitutional
vagueness
doctrine,
the
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normative
standard
conduct.
Coates
(1971).
and
v.
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those
City
that
of
specify
Cincinnati,
no
402
standard
U.S.
611,
of
614
without
question
application
question.
in
Parker
to
certain
marginal
v.
Levy,
activities,
situations
417
U.S.
may
733,
even
be
755-56
though
close
(1974).
have
clearly
constitutional
applications.
See
See id.
theory
because
that
there
is
vague
some
provisions grasp.
provision
conduct
Id.
that
is
constitutional
clearly
falls
merely
within
the
Subsection
within . . . [its]
grasp,
id.,
because
it
fails
to
17
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principal
problems
are
evident
in
subsection
(a)(3)
or
(1)
reasonable
a
law
person,
enforcement
whether
program
whether
officer,
for
restricted
cannot
minors
is
In
sex
reasonably
regularly
157-59.
Moreover,
although
not
necessary
to
our
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determining
whether
scheduled.
For
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program
example,
for
District
minors
Attorney
is
regularly
Todd
Williams
J.A. 159.
subsection
(a)(3)s
where
minors
gather
State
attempts
to
overcome
these
deficiencies
by
In
into
it
the
list
of
places
specifically
included
in
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United States v.
Directly
conspicuously
omits
subsection (a)(1).
to
any
that
list
point,
of
subsection
examples,
in
(a)(3)
contrast
to
to
subsection
(a)(2).
We
must
presume
the
Commr, 642 F.3d 459, 463 (4th Cir. 2011) ([W]hen a statute
includes
another,
particular
a
court
language
can
in
one
section
assume . . . that
but
the
omits
it
omission
in
was
(N.C.
Ct.
App.
2009)
(When
legislative
body
includes
if
into
we
were
to
subsection
read
(a)(3),
subsection
other
(a)(1)s
problems
list
would
of
arise.
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its
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provisions,
so
that
no
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part
will
be
inoperative
or
556 U.S. 303, 314 (2009); accord State v. Coffey, 444 S.E.2d
431,
434
(N.C.
1994).
Reading
subsection
(a)(1)s
list
of
the
incorporated
by
examples
listed
reference
into
subsection
subsection
(a)(1)
(a)(2)
--
For
and
schools,
But,
those same places also are place[s] where minors gather for
regularly
scheduled
programs.
educational,
Id. 14-208.18(a)(3).
recreational,
or
social
the
limits
of
the
proscribed
place[s]
then
(a)(1)
into
it
and,
thereby,
diminishing
or
subsuming
the
could
reasonably
determine
21
what
activity
was
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criminalized
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by
subsection
Pg: 22 of 30
(a)(3).
As
consequence,
that
not
err
in
granting
summary
judgment
as
to
subsection
(a)(3).
B.
The
State
separately
challenges
the
district
courts
violation
subsection
promotes
of
the
(a)(2),
a
First
the
Amendment.
State
substantial
was
As
required
government
the
to
interest
proponent
prove
that
of
that
it
would
be
the
overbreadth
doctrine,
if
law
punishes
and
unless
limiting
construction
or
partial
Virginia
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Hill
v.
Colorado,
530
U.S.
703,
732
(2000).
itself
will
significantly
compromise
recognized
First
Members of the
v.
Comm.
for
Indus.
Org.,
307
U.S.
496,
515
See
(1939)
(Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and,
time
out
of
mind,
have
been
used
for
purposes
of
assembly,
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offender.
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analyzing
overbreadth,
we
initially
identify
(a)(2)
activities,
our
implicates
first
content neutral.
task
is
protected
to
First
determine
the
Because
Amendment
whether
it
is
512
(4th
Cir.
2002).
Conversely,
if
the
statute
was
Rather, it merely
may
engage
First Amendment.
in
certain
activities
protected
by
the
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past
harms
or
preventing
future
ones.
Giovani
Carandola, Ltd. v. Fox, 470 F.3d 1074, 1082 (4th Cir. 2006).
addition, it must have the right fit.
In
United States v.
the
parties
renewed
cross
motions
for
summary
judgment, the district court put the State on notice that its
limited evidence was inadequate to meet its burden of proof.
Yet, the State explicitly declined to introduce any additional
evidence.
of citations to a list of cases in which sex offenders had reoffended after a prior conviction. 5
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State
tries
to
overcome
its
lack
of
data,
social
Appellants Suppl.
Hollie, 103 Cal. Rptr. 3d 633, 637-39 (Cal. Ct. App. 2010).
Other cases cited by the State suggest, for example, that a
restricted sex offender may develop and retain an attraction for
a particular individual.
See State v. Smith, 687 S.E.2d 525,
527 (N.C. Ct. App. 2010). None of these cases suggest with any
degree of reliability that offenders with only adult victims are
more likely to reoffend with minors.
26
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fact,
the
States
own
evidence
belies
its
appeal
to
In
its brief, the State cites three North Carolina cases, State v.
Smith, 687 S.E.2d 525 (N.C. Ct. App. 2010); State v. Tyson, 672
S.E.2d 700 (N.C. Ct. App. 2009); and State v. Smith, 568 S.E.2d
289
(N.C.
deviants
rather
Ct.
choose
than
attraction
App.
the
akin
2002),
victims
age
to
of
that
for
based
the
of
the
upon
victim
husband
proposition
that
sexual
opportunity/vulnerability
or
and
level
wife.
of
romantic
Appellants
basis
to
justify
subsection
(a)(2)s
sweeping
27
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restrictions. 7
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victim, there was no evidence in any case that the defendant had
ever been convicted of a previous sex offense.
Similarly, the State cannot rest its case on the conclusory
assertion that minors would be more exposed to harm without
[this] prohibition than with it.
Br.
10.
Without
empirical
data
other
similar
credible
evidence, it is not possible to tell whether subsection (a)(2) - and specifically its application to offenders with only adult
victims -- responds at all to the States legitimate interest in
protecting minors from sexual assault.
Finally, although the State cites United States v. Staten,
666 F.3d 154 (4th Cir. 2011), to bolster its appeal to common
sense, that case is inapposite.
reasoning
case
common
sense
and
law
fully
support[ed]
to
common
sense
in
Id. at 161.
Staten
only
However, our
bolstered
the
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proof
science
in
the
form
of
research.
data
See
generated
id.
at
from
164-65
relevant
(discussing
in
incumbent
protecting
upon
the
minors
State
from
to
sexual
prove
crimes,
subsection
it
was
(a)(2)
was
Nevertheless,
for reasons not apparent from the record, the State failed to
produce evidence to carry that burden.
whether
subsection
(a)(2)
could
Thus, irrespective of
have
met
constitutional
Coakley,
573
U.S.
__,
134
S.
Ct.
2518,
2539-40
(2014)
at
other
clinics,
or
at
other
times
in
Boston,
in
at
683
([I]ntermediate
scrutiny
places
the
burden
of
29
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IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED
30