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Doe v. Cooper

United States Court of Appeals, Fourth Circuit

November 30, 2016

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; JAY GAITHER, District Attorney, District 25; ANDREW MURRAY, District Attorney, District 26; LOCKE BELL, District Attorney, District 27A; RICK SHAFFER, District Attorney, District 27B; RONALD MOORE, District Attorney, District 28; BRAD GREENWAY, District Attorney, District 29A; GREGORY A. NEWMAN, District Attorney, District 29B; MICHAEL BONFOEY, District Attorney, District 30, Defendants-Appellants, and PAT MCCRORY, Governor of the State of North Carolina, Defendant. 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; JAY GAITHER, District Attorney, District 25; ANDREW MURRAY, District Attorney, District 26; LOCKE BELL, District Attorney, District 27A; RICK SHAFFER, District Attorney, District 27B; RONALD MOORE, District Attorney, District 28; BRAD GREENWAY, District Attorney, District 29A; GREGORY A. NEWMAN, District Attorney, District 29B; MICHAEL BONFOEY, District Attorney, District 30, Defendants-Appellants, and PAT MCCRORY, Governor of the State of North Carolina, Defendant.

          Argued: September 21, 2016

         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

          Matthew L. Boyatt, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants.

          Paul Moore Dubbeling, P.M. DUBBELING PLLC, Chapel Hill, North Carolina, for Appellees.

         ON BRIEF

          Roy Cooper, North Carolina Attorney General, Hal F. Askins, Special Deputy Attorney General, William P. Hart, Jr., Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants.

          Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

         Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Traxler joined.

          AGEE, CIRCUIT JUDGE

         The State of North Carolina requires persons convicted of certain reportable sex offenses to register as "sex offenders." See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).[1]

         John Does #1 through #5 (collectively, the "Does") challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment. The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14-208.18(a)(2) and section 14-208.18(a)(3). For the reasons set out below, we affirm the judgment of the district court.

         I.

         We begin with an overview of North Carolina's sex offender registration laws. Persons with a "reportable conviction" of a sex offense, and who live in North Carolina, must register "with the sheriff of the county where the person resides." See N.C. Gen. Stat. § 14-208.7(a). During the registration period, which generally lasts for "at least 30 years following the date of initial county registration, " id., the movements of all registered sex offenders are restricted in certain circumstances. For example, a registered sex offender may not "knowingly reside within 1, 000 feet of the property on which any public or nonpublic school or child care center is located." Id. § 14-208.16(a).

         Some registered sex offenders are subject to additional restrictions under section 14-208.18(a). That statute provides that it shall be unlawful for any registered offender whose registration follows a conviction for a violent sex offense[2] or 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) 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 subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public.
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

Id. § 14-208.18(a).

         Those limitations on restricted sex offenders are subject to certain exceptions. For example, a restricted sex offender who is also the "parent or guardian of a student enrolled in a school may be present on school property" to attend a parent-teacher conference, at the request of the school's principal, or "for any other reason relating to the welfare or transportation of the child." Id. § 14-208.18(d).

         Absent one of the statutory exceptions, a restricted sex offender who is "knowingly" at or on a restricted premises is guilty of a Class H felony under North Carolina law. Id. § 14-208.18(h). A Class H felony conviction carries with it a presumptive term of imprisonment of up to twenty months. See id. § 15A-1340.17.

         II.

         A.

         The Does are restricted sex offenders. In 1995, John Doe #1 pleaded guilty to receiving material involving the sexual exploitation of a minor, a violation of 18 U.S.C. § 2252(a)(2). As a result, he served five years in federal prison, but, as of 2003, is no longer under any type of probation, parole, or supervised release. After his release, John Doe #1 attended a church, but eventually was arrested because the church had a child care center within 300 feet of the main congregation hall. The local district attorney initially charged John Doe #1 with a violation of section 14-208.18(a), but the charge was dropped. Afterward, John Doe #1 was allowed to continue attending church subject to a number of restrictions set by the district attorney. Those restrictions included a prohibition on "assisting" with worship services and engaging in any church activities outside of the main worship service. J.A. 137.

         In 2011, John Doe #2 was convicted of misdemeanor sexual battery, a "violent sex offense, " and given a probationary sentence. As a result of his conviction, John Doe #2 was advised by the local sheriff against attending his minor son's educational and recreational activities "just to be on the safe side." J.A. 69. John Doe #2 has received conflicting information from the local sheriff and his probation officer as to whether he can attend his son's sporting events remotely, via technology such as "Skype." In like fashion, he was also advised by his probation officer against visiting a wide variety of other places, including a fast food restaurant with an attached play area, the North Carolina State Fairgrounds, and adult softball league games (given the field's 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. § 14-202.1, and he served four years in prison. John Doe #3 is now employed and his current job responsibilities require him to purchase office supplies. However, the local sheriff advised John Doe #3 he could be arrested for shopping at an office supply store that is within 300 feet of a fast food restaurant with an attached children's play area. Further, John Doe #3 is unsure whether he can drive within 300 feet of some locations while on his way to work or visit the North Carolina State Legislative Building, the meeting place of the North Carolina General Assembly, given its proximity to the North Carolina Museum of Natural Sciences, which may have visiting children.

         John Doe #4 was convicted in 2007 of attempted solicitation of a minor, a violation of N.C. Gen. Stat. § 14-202.3. He received a suspended sentence of thirty months, spent ten weekends in intermittent confinement, and completed thirty months of probation. He currently wishes to attend church, but is concerned doing so might violate section 14-208.18(a) because the church has classes for children. In addition, he claims he cannot attend a town ...


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