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December 1, 2016

Fourth Circuit panel rejects North Carolina's efforts to defend constitutionally hinky provisions of state sex offender rules

The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here).  In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws.  Here is how the unanimous opinion gets started:

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).

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.

Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11.  But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence.  In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.

December 1, 2016 at 09:42 AM | Permalink


The office where I work is now researching an interesting sex offender registration issue. Defendant was convicted in Maryland of statutory rape and served 18 months in jail, before being released on probation for 8.5 more years. Pursuant to defendant's plea agreement and sentence, he was required to register as a sex offender for 10 years following his release from jail. When defendant subsequently moved to Kentucky, he had to register as a sex offender under Kentucky law, which provides for registration for either 20 years or life. The Dept.of Adult Probation and Parole says defendant must remain registered in Ky. for LIFE! Defendant has now been out of jail for 12 years, so his original 10 year term of registration required by his plea agreement and sentence has expired. Defendant believes that Ky. should give FULL FAITH AND CREDIT to his Maryland plea agreement and judgment, and end his Ky. sex offender registration too. We have filed an administrative appeal on this basis, and are awaiting a hearing. Defendant owns a substantial business, and says that if Ky. doesn't respect his 10 year registration deal from Maryland, he will sell his home here and move back to Maryland, and cease paying any Ky. income taxes on his substantial income.

Posted by: Jim Gormley | Dec 1, 2016 3:57:27 PM

The "piece-meal system" of vague and non-basis registry requirements that vary from state to state need to be completely over-hauled.
As is North Carolina, when the requirements are so vague that the entities that put them in place to begin with don't understand what they mean, it's time for change!

Posted by: kat | Dec 2, 2016 9:54:46 AM

"The 'piece-meal system' of vague and non-basis registry requirements that vary from state to state need to be completely over-hauled."

For uniformity, Congress should have required states mirror federal law when setting up their SOR's. They should have tied law enforcement grant money to the requirement, and any state that wanted, or needed the money, would have mirrored the federal law.

Posted by: Huh? | Dec 6, 2016 6:56:36 PM

"...lack of data, social science or scientific research, legislative findings, or other empirical evidence..." and "... the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence." These words should be strongly emphasized in every case up to and including the USSC, and should form the basic foundation for repeal of every sex offender law in every state.

Posted by: oswaldo | Dec 11, 2016 9:29:55 AM

Jim Gormley | Dec 1, 2016 3:57:27 PM:

Why is Registration ever mentioned in any plea agreement or sentencing? If it were truly a "civil regulation" then it would never be mentioned. If it were truly "regulation", states could change the duration, etc. all they liked at any time and they do, of course.

Posted by: FRegistryTerrorists | Dec 14, 2016 11:34:37 AM

All Americans know that the Registries are not really for "public safety", "protecting children", or any of those other lies. There are no legitimate governments that have them. No government that has them should be supported. Their law enforcement employees should not be supported. None of their employees should be supported. People who support them should not be supported.

Families that are listed on Registries: Take back America. It belongs to you and not to people who clearly are not Americans. Those people are attacking your families and attempting to reduce the quality of your lives. They think it is okay to affect your life. They are harassing terrorists. So the reverse should be done to them. Take the life that you want and do not worry about how they are affected. When you are dealing with illegitimate terrorists, war is the answer.

Posted by: FRegistryTerrorists | Dec 14, 2016 11:35:51 AM

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