Federal court guts NC premises statute, permanently enjoins prosecutions

By ROBIN VANDERWALL . . .

Frustrated by the state’s refusal to offer any facts supporting its “conjectural” and “anecdotal” evidence defending section a(2) of North Carolina’s premises statute (N.C.G.S. § 14-208.18), Senior District Court Judge Beatty ruled on April 22, 2016 that the Does v. Cooper case filed two years ago in the Middle District (federal) Court is resolved without a trial. Having previously struck section a(3) as constitutionally vague, Judge Beatty found a(2) overbroad in burdening the First Amendment rights of registered citizens. Judge Beatty also permanently enjoined the state from prosecuting either under section a(2) or a(3). Judge Beatty had previously ruled section a(1) constitutionally sound (this portion of the statute bans registrants from being “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.”).

I found it interesting that Judge Beatty cites the dissent in the recent Packingham case decided by the NC Supreme Court in November (which is presently before the US Supreme Court pending cert). That case had nothing to do with proximity or presence, but Judge Beatty cites to language contained therein regarding the impact of internet restrictions on the First Amendment rights of affected citizens. Indeed, he spends a fair amount of time throughout his Memorandum Opinion and Order rooting his Judgment in cases related more to internet restrictions than presence or proximity restrictions. Judge Beatty makes repeated mention of his surprise at the state’s refusal to provide factually based statistics regarding recidivism. And he signals fairly strongly that he finds the Packingham majority completely out of touch.

I have included some excerpts from the opinion below for those of you who don’t have the time to read the full opinion:

Sex offenders have First Amendment rights. (Id. at 43.) The restrictions in subsection (a)(2) greatly burden those First Amendment rights by inhibiting the ability of restricted sex offenders to go to a wide variety of places associated with First Amendment activity.

North Carolina “may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245, 122 S. Ct. 1389, 1399, 152 L. Ed. 2d 403 (2002) (internal citations omitted).

Subsection (a)(2) places restrictions on offenders who have never committed a sexual crime against a minor. Moreover, no finding of dangerousness is required for a restricted sex offender to be subjected to subsection (a)(2)’s prohibitions. Merely committing one of the crimes listed in N.C. Gen. Stat. § 14-208.18(c) subjects the individual to the panoply of First Amendment burdens entailed by subsection (a)(2). The mere fact of a conviction of one of the crimes listed in the statute, by itself, is not enough to establish dangerousness to minors.

To use an expression utilized by the District of Nebraska, North Carolina, in this instance, has used a blunderbuss rather than a scalpel in its effort to protect children.

… In fact, Defendants have made no evidentiary showing at all regarding the rate at which sex offenders recidivate.

. . .Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.