Doe v. Cooper

• Decision Date: 07 December 2015
• Docket Number: 1:13CV711
• Parties: John Does 1-5, Plaintiffs, v. Roy A. Cooper III, et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

148 F.Supp.3d 477

John Does 1-5, Plaintiffs,

v.Roy A. Cooper III, et al., Defendants.

1:13CV711

United States District Court, M.D. North Carolina.

Signed December 7, 2015

Paul Moore Dubbeling, P. M. Dubbeling, PLLC, George Glenn Gerding, Gerding Blass, PLLC, Chapel Hill, NC, for Plaintiff.

Harold F. Askins, William P. Hart, Jr., N. C. Department Of Justice, Raleigh, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

BEATY

, United States District Judge

This matter is before the Court on Plaintiffs' Motion for Summary Judgment [Doc. #52] and Defendants' Motion for Summary Judgment [Doc. #49]. Plaintiffs, John Does 1 through 5, seek an injunction prohibiting Defendants, North Carolina Attorney General Roy Cooper and the North Carolina District Attorneys, from enforcing N.C. Gen. Stat. § 14–208.18(a)

. This statute prohibits some registered sex offenders from being in three types of areas associated with the presence of minors. Plaintiffs argue that the statute violates the Due Process Clause and the First Amendment. Defendants, however, argue that the statute is constitutional and seek dismissal of the Plaintiffs' claims.

For the reasons discussed more fully below, the Court holds that the first two parts of the statute, N.C. Gen. Stat. § 14–208.18(a)(1)

and (a)(2), are not unconstitutionally vague. The Court holds that the third part of the statute, N.C. Gen. Stat. § 14–208.18(a)(3), is unconstitutionally vague and therefore the Court will permanently enjoin Defendants from enforcing that part of the statute against Plaintiffs or any other similarly situated person. Given the disputed facts on the record, the Court is currently unable to determine whether N.C. Gen. Stat. § 14–208.18(a)(2) is unconstitutionally overbroad and will leave this issue for determination at trial. Hence, the Court will grant in part and deny in part Plaintiffs' Motion for Summary Judgment and will grant in part and deny in part Defendants' Motion for Summary Judgment.

I. BACKGROUND

Plaintiffs are North Carolina residents who are required to register as sex offenders under North Carolina law.¹ Some individuals required to register as sex offenders in North Carolina are subject to location restrictions pursuant to N.C. Gen. Stat. § 14–208.18

, which prohibits where these individuals can “knowingly be.”²

Section 14–208.18(a)

makes it a crime for these individuals 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) of this subsection 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.

N.C. Gen. Stat. § 14–208.18(a)

. A violation of any of these location restrictions is a Class H felony. Id. § 14–208.18(h).

These restrictions are not absolute: the statute provides some limited exceptions to these restrictions. Section 14–208.18

allows some exceptions for those subject to the location restrictions who are parents or guardians of a minor. Such a parent or guardian can enter a restricted zone in order to provide emergency medical treatment to the minor. Id. § 14–208.18(b). A parent or guardian can also enter school grounds to attend a student conference or for reasons relating to the welfare or transportation of the child, so long as certain notification and supervision requirements are met. See id. § 14–208.18(d). There are also certain exceptions for voting, attending public school, and receiving medical or mental health treatment. See id. § 14–208.18(e) -(g). All five Plaintiffs are subject to the various location restrictions of § 14-208.18 as it is currently being interpreted.

Plaintiff John Doe 1 was convicted in 1995 of one count of receiving material involving the sexual exploitation of a minor in violation of 18 U.S.C. § 2552(a)(2) and served five years in federal prison for that conviction. While in prison, John Doe 1 voluntarily completed the Sex Offender Treatment Program (“SOTP”), which consists of months-long intensive therapy. As of 2003, he was no longer under any type of probation, parole, or supervised release. Prior to 2011, John Doe 1 attended his local church, which contained a monitored child-care center within 300 feet of the main congregation hall. His pastor was “aware of his history” and “approved of” his church attendance. (Am. Compl. [Doc. #28] ¶ 50.) In 2011, an anonymous caller reported John Doe 1's presence at his church's worship service, and he was arrested for violating a subsection of § 14–208.18(a)

. This charge was ultimately dropped and the District Attorney allowed John Doe 1 to attend church, subject to an ad hoc list of restrictions created solely by the District Attorney in John Doe 1's case, including a prohibition on “assisting” with the worship service and engaging in church activities other than attending the main service. (Id. ¶ 56.) John Doe 1 is also concerned that he cannot go to movie theaters showing a “G” rated movie due to the restrictions in subsection (a)(2). (Doe #1 Interrog. Resps. (Redacted) [Doc. #53-2], at 4.)

Plaintiff John Doe 2 was convicted in 2011 of two counts of misdemeanor sexual battery in violation of N.C. Gen. Stat. § 14–27.5A

and was sentenced to five years of probation. “Per stipulation,” the terms of John Doe 2's probation do not include any restriction on his ability to attend his minor son's educational or recreational activities. (Am. Compl. [Doc. #28] ¶ 62.) John Doe 2 desires to participate in these activities, but the State has informed John Doe 2 that § 14–208.18(a)'s proscriptions override the lack of restrictions in his probation terms. Furthermore, John Doe 2 is unsure of the meaning or extent of § 14–208.18(a)'s prohibitions. He has been told by his probation officer that he is not permitted in a wide variety of places, including a fast food restaurant with an attached play area, the North Carolina High School State Championship baseball game, the North Carolina State Fair grounds, his two nieces' high school graduation ceremonies, and adult softball league games (because of the field's proximity to playground equipment). (Doe #2 Interrog. Resps. (Redacted) [Doc. #53-3], at 4-6.)

Plaintiff John Doe 3 was convicted in 2002 of committing indecent liberties with a minor in violation of N.C. Gen. Stat. § 14–202.1

and served four years in prison in the North Carolina Department of Adult Corrections. While in prison, John Doe 3 volunteered for, and successfully completed, the state-administered Sex Offender Accountability and Responsibility (“SOAR”) program, which consists of approximately 600 hours of therapeutic treatment.³ Since his release from prison, John Doe 3 has been steadily employed. As part of his current job, he is required to purchase office supplies. The local sheriff's office has advised him that he could be arrested for violating § 14–208.18(a)(2) for shopping in an office supply store that is located within 300 feet of a fast food restaurant that has a children's play area. John Doe 3 is unsure whether he is in violation of the statute by simply driving to work past locations that might be prohibited under § 14–208.18(a)(2). John Doe 3 is also unsure if he can go to the General Assembly because of its proximity to the North Carolina Museum of Natural Sciences (and therefore arguably would be within a restricted zone under subsection (a)(2)) and because children gather at the General Assembly for regularly scheduled programs (and therefore would be within a restricted zone under subsection (a)(3)). (Doe #3 Interrog. Resps. (Redacted) [Doc. #53-4], at 3-4.)⁴

Plaintiff John Doe 4 was convicted in 2007 of attempted solicitation of a minor in violation of N.C. Gen. Stat. § 14–202.3

. He received a suspended sentence of 30 months, served 10 weekends in prison as an intermediate punishment, and completed a 30-month term of probation. John Doe 4 has undergone sex offender treatment and has maintained steady employment since his conviction. He currently wants to attend church, but is concerned that doing so could subject him to arrest and conviction under § 14–208.18(a)(2)

because the church has Sunday School classes for children. He also claims he cannot attend local meetings of his town's aldermen under § 14–208.18(a)(2) and (a)(3) due to the town hall's proximity to the public library (which has a section dedicated to children) and because regularly-scheduled children's activities may occur at the town hall.

Plaintiff John Doe 5 was convicted in 2009 of two counts of misdemeanor sexual battery. He received two suspended 75-day sentences and completed his 18-month supervised probation. The victim in John Doe 5's case was a 30-year-old woman. There have never been any allegations that John Doe 5 has ever engaged in, or has any interest in engaging in, any inappropriate contact with a minor. After his conviction, John Doe 5 was awarded joint custody of his two minor children, but he is unable to participate significantly in his children's education or recreational activities due to the prohibitions of § 14–208.18

. Furthermore, John Doe 5 wishes to attend church, and has the permission of his pastor to do so, but is concerned that doing so could subject him to arrest and conviction under § 14–208.18(a)(2) because the church has Sunday School classes for children. John Doe 5 is also concerned about his ability to perform his job under § 14–208.18's restrictions because his employer performs construction contracts that are sometimes inside areas that may...