Mimesis Law
20 April 2019

4th Circuit: Still No Evidence Residency Restrictions For Sex Offenders Protect Children

December 2, 2016 (Fault Lines) — The 4th Circuit Court of Appeals has affirmed a federal district court’s judgment that North Carolina’s sex offender registry law is unconstitutionally vague and violates the First Amendment.

It’s kind of weird, when you think about it, that groups of people who blare their faith at maximum volume to get elected might try to keep sex offenders away from churches. But that’s what the North Carolina legislature did when it passed a law saying sex offenders can’t “knowingly” be:

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.

Some sex offenders thought it was strange too, so they decided to sue, arguing that the law was unconstitutionally vague and violated their First Amendment right to assemble and worship freely.

Now, from a First Amendment standpoint, the law is clearly content neutral. It doesn’t specify that a sex offender can give some messages but not others. Because the law doesn’t limit particular messages, that means it gets our old friend, the super fuzzy “intermediate scrutiny.” That means that all the State has to do for the law to survive is show that it’s protecting an important interest and that its law is reasonably tailored to that interest.

So you might think it would bring forth some interesting statistics. Are tons of children grabbed off of playgrounds by sexual predators? Do churches have to bar the doors of their Sunday schools to avoid flocks of molestached Chris Hansen interviewees? Unfortunately, those statistics weren’t available. So all North Carolina did in court was tell the judge that sometimes, sex offenders reoffend. The court wasn’t terribly impressed:

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.

So, literally, the judge told them they weren’t going to win with the evidence they had and they decided to shrug their shoulders and roll the dice. Then, on appeal, confronted with a pretty bare record, they figured they’d just resort to that ol’ prosecutorial stand-by, common sense. Common sense, for the record, is typically what a prosecutor mentions to a jury when he wants them to speculate wildly, but feel good doing it. But it doesn’t work so well for the 4th Circuit, who pointed out that “neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof.”

North Carolina ran into a particularly high hurdle when it had to establish to the court that sex offenders with adult victims are more likely to hurt children. To establish this proposition, it used three North Carolina appeals cases which apparently somehow held that sex offenders target based on vulnerability, rather than age. Except none of the three dealt with someone who had a previous adult victim and attacked a minor. And even if they had, the State has more than 20,000 sexual registrants affected by the prohibition. The fact that they could only find three cases that even tangentially supported their point is better evidence for the plaintiffs than for North Carolina.

As for the vagueness portion of the decision, the Court pointed out that it’s damn hard to know what it means for children to be “regularly scheduled” to be at a particular place. Churches and daycare centers might be obvious choices, sure, but what about the site of a yearly Christmas parade? Children’s attendance there would be “regular” in the dictionary definition of the term, meaning predictable and recurrent. Statutes like this suggest a legislative shrugging of the shoulders, figuring that it’s better that the statute be too broad than miss even one possible danger.

So great, the Court makes a good decision striking down a portion of North Carolina’s sex offender statute, and in the meantime, another portion awaits review at the Supreme Court. And it’s great that they noticed there was really no evidence in favor of the broad prohibitions of the bill.

But wouldn’t it have been great if there had been some adults in the room when the legislature passed this bill? If lawmakers demanded hard evidence before passing new “civil restrictions” designed for maximum onerousness? It shouldn’t be a court’s job to have to scrounge around for any bits of fact that might support a serious limitation of civil rights.

Ultimately, what North Carolina’s bill shows us is that, while we should be paying some attention to sex offender registrants, we should be paying a hell of a lot more to the people who put them on that list.

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  • andrews
    3 December 2016 at 1:50 pm - Reply

    I think the problem, at least in part, is that the legislators are not keeping up with the times. Laws such as this were probably appropriate back in the early days. But things change.

    Now that we have speedy horses and wagons, a 3000′ limit seems kind of quaint. Horses can pull wagons that distance in just a few minutes, and a single rider can cover the ground even more rapidly. Either the law must bar convicts from possessing horses, or the distances must be adjusted commensurately.

    Think of the children!