John Doe #1 v. Roy Cooper, III

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00711-JAB-JLW. [999977834]. [16-6026, 16-1596]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6026

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;

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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.

No. 16-1596

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,
2

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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.

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:

September 21, 2016

Decided:

November 30, 2016

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

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

ARGUED: Matthew L. Boyatt, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants.
Paul Moore Dubbeling,
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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.

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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

locations where minors may be present.

relative

to

certain

See id. § 14-208.18(a)

(2015). 1
John
challenged

Does

#1

these

through

statutory

#5

(collectively,

restrictions

as

the

either

“Does”)

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

208.18(a)(2) and section 14-208.18(a)(3).

of

section

14-

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

1

Section 14-208.18 was amended effective September
This case involves the 2015 version of that statute,
references to section 14-208.18 herein are to the 2015
The provisions of the amended statute are not at issue
case.
5

1, 2016.
and all
version.
in this

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sex offense, and who live in North Carolina, must register “with
the sheriff of the county where the person resides.”
Gen. Stat. § 14-208.7(a).

See N.C.

During the registration period, which

generally lasts for “at least 30 years following the date of
initial

county

registered

registration,”

sex

circumstances.

id.,

offenders

are

the

movements

restricted

in

of

all

certain

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

restrictions under section 14-208.18(a).
that

it

shall

be

unlawful

for

any

subject

to

additional

That statute provides

registered

offender

whose

registration follows a conviction for a violent sex offense 2 or

2

A “violent sex offense,” as applicable here, is “[a]ny
offense in Article 7B of [N.C. Gen. Stat.] Chapter [14] or any
federal offense or offense committed in another state, which if
committed in this State, is substantially similar to an offense
in Article 7B of this Chapter.”
N.C. Gen. Stat. § 14208.18(c)(1).
Article 7B of N.C. Gen. Stat. Chapter 14,
entitled “Rape and other Sex Offenses,” includes the offenses
of: first-degree forcible rape, second-degree forcible rape,
statutory rape of a child by an adult, first-degree statutory
rape, statutory rape of a person who is fifteen years of age or
younger, first-degree forcible sexual offense, second-degree
forcible sexual offense, statutory sexual offense with a child
by an adult, first-degree statutory sexual offense, statutory
sexual offense with a person who is fifteen years of age or
younger, sexual activity by a substitute parent or custodian,
sexual activity with a student, and sexual battery. See id. §§
14-27.21 through 14-27.33.
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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 parentteacher 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.
208.18(h).

A

Class

H

felony

conviction
7

carries

Id. § 14with

it

a

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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

supervised release.

under

any

type

of

probation,

parole,

or

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

attorney.

a

number

Those

of

restrictions

restrictions

set

included

by
a

the

district

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,
sentence.

a

“violent
As

a

sex

result

offense,”
of

his

and

given

conviction,

a

John

probationary
Doe

#2

was

advised by the local sheriff against attending his minor son’s
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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. § 14202.1, 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.

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John Doe #4 was convicted in 2007 of attempted solicitation
of a minor, a violation of N.C. Gen. Stat. § 14-202.3.
received

a

weekends

suspended

in

sentence

intermittent

months of probation.

of

thirty

confinement,

months,

and

spent

completed

He
ten

thirty

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 council meeting, since the town hall is in
close proximity to the public library, which has a dedicated
children’s section.
John

Doe

#5

was

convicted

in

2009

of

two

counts

of

misdemeanor sexual battery, for which he received two suspended
seventy-five

day

sentences

supervised probation.

and

completed

eighteen

to

of

Following his conviction, John Doe #5 was

awarded joint custody of his two minor children.
unable

months

participate

significantly

in

However, he is
his

children’s

educational or recreational activities due to the restrictions
imposed by section 14-208.18(a).

In addition, like John Does #1

and #4, John Doe #5 wishes to attend church, but is concerned
that his presence may violate section 14-208.18(a) because the
church

has

programs

for

children.

Finally,

John

Doe

#5

is

concerned he may violate the statute while working, because his
employer,

a

construction

company,

sometimes

performs

inside areas that may be covered by section 14-208.18(a).
10

projects

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B.
The

Does

this

Governor;

Carolina’s

filed

action

Roy

against

Cooper,

Pat

North

McCrory,

Carolina’s

North

Attorney

General; and each of North Carolina’s elected district attorneys
(collectively, the “State”).

They challenged each subsection of

section 14-208.18(a) as overbroad, in violation of the First
Amendment

to

the

unconstitutionally

United

vague,

States

in

Constitution,

violation

Amendment’s Due Process Clause.

of

the

and

Fourteenth

They requested declaratory and

injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. § 2201.
The district court granted the State’s Rule 12(b)(6) motion
and dismissed

the

208.18(a)(1).
judgment

to

Does’

overbreadth

Later,
the

the

State

vagueness claim.

on

claim

district
the

Does’

as

court

to

section

granted

section

14-

summary

14-208.18(a)(1)

The Does do not challenge these rulings on

appeal.
The

parties

filed

cross

motions

for

summary

judgment

regarding the alleged vagueness and overbreadth of subsections
(a)(2) and (a)(3).

The district court held subsection (a)(2)

was not unconstitutionally vague.
found
noting

strong

indicia

language,

of

such

unbounded in scope.

as

vagueness
“places

However, the district court
as

to

where

subsection
minors

(a)(3),

gather,”

was

And, unlike the other subsections of the

statute, subsection (a)(3) was not informed by any specific list
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examples.

subsection

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Further,
(a)(3)’s

the

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district

reference

court

to

pointed

“regularly

out

that

scheduled”

activities was too vague for an ordinary person to determine its
application.

Accordingly, the district court ruled subsection

(a)(3) was unconstitutionally vague as violative of due process
and permanently enjoined its enforcement.

The State immediately

appealed the district court’s permanent injunction of subsection
(a)(3).

We have jurisdiction of that appeal pursuant to 28

U.S.C. § 1292(a)(1).
The

district

court

denied

the

Does’

motion

for

summary

judgment on the separate, remaining issue of whether subsection
(a)(2) was overbroad and granted the State’s cross motion in
part.
(a)(2)

As the district court set out in its opinion, subsection
was

not

overbroad

to

the

extent

it

generally

“prohibit[ed] them from going to a variety of places, including
libraries, museums, parks, recreation centers, theaters, state
or

county

fairs,

the

General

Assembly[,]

movies, and certain private homes.”

religious

J.A. 169. 3

services,

Stated another

way, the district court held that, even though subsection (a)(2)
incidentally restricted the Does’ access to certain locations
where activities protected by the First Amendment would occur,

3

We have omitted internal quotation marks, alterations, and
citations here and throughout this opinion, unless otherwise
noted.
12

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it

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was

not

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overbroad

with

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respect

to

the

particular

place

restrictions.
However, the district court also determined that a genuine
issue of material fact existed as to whether subsection (a)(2)
was

overbroad

“in

that

it

could

burden

less

First

Amendment

activity by taking into account the individual dangerousness of
certain

restricted

sex

offenders.”

J.A.

173.

The

district

court noted “an inquiry into dangerousness” was proper “in that
if subsection (a)(2) burdens the First Amendment rights of sex
offenders

who

pose

little

or

statute could be overbroad.
“the

parties

[did]

not

no

risk

J.A. 174.

thoroughly

to

minors,”

then

the

Accordingly, because

address[]

th[e]

crucial

issue” of “whether applying [subsection (a)(2)] to restricted
sex

offenders

who

committed

offenses

not

involving

minors

furthers [North Carolina’s] interest in protecting minors,” the
district court denied the motions for summary judgment and set
that issue for trial.

J.A. 176-77.

Before trial, the parties filed renewed cross motions for
summary

judgment

overbreadth.

on

the

issue

of

subsection

(a)(2)’s

As recited in the district court’s opinion, at a

status conference on the motions:
The
Court
expressed
to Defendants
that
their
evidentiary showing up to that point was likely
inadequate to carry their burden of showing that
subsection
(a)(2)
furthers [North
Carolina’s]
interest in protecting minors from sexual crimes
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without burdening substantially more speech than
necessary, particularly as their showing related to
adult-victim offenders.
Hence, the Court asked
Defendants if there was additional evidence they
wished to obtain and provide to the Court in support
of
their
Renewed
Motion
for
Summary
Judgment.
Defendants stated that they would rely upon the
evidence already provided to the Court and would not
provide additional evidence.
The parties agreed that
a trial was unnecessary, that a trial would merely
duplicate the evidence already presented, and that the
Court should resolve the remaining issue as a matter
of law based upon the evidence that had been
presented.
Suppl. J.A. 155.
The district court then granted summary judgment to the
Does, holding, on the record before it, subsection (a)(2) was
facially overbroad in violation of the First Amendment.
district
neutral,
exercise

court’s

view,

significantly
of

core

First

subsection

(a)(2),

although

impaired

restricted

sex

Amendment

rights

without

In the
facially

offenders’
taking

into

consideration the dangerousness of the particular offender.

In

other words, subsection (a)(2) was overbroad because it affected
the ability of all restricted sex offenders to engage in core
First

Amendment

service

or

activities,

congregating

in

such
some

as

attending

public

fora,

a

religious

regardless

of

whether a particular restricted sex offender had ever abused
minors or was likely to do so.
The district court agreed the State had a legitimate and
substantial

interest

in

protecting

14

minors,

but

concluded

the

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State failed to meet its burden of proof to show subsection
(a)(2) was narrowly tailored to further that interest.

As a

result, the district court permanently enjoined enforcement of
subsection (a)(2) and entered judgment in the Does’ favor.
The

State

timely

appealed

that

judgment.

We

have

jurisdiction over that appeal under 28 U.S.C. § 1291. 4

III.
We review de novo the district court’s rulings concerning
the constitutionality of a state statute.

See Miller v. Brown,

503 F.3d 360, 364 (4th Cir. 2007).
A.
The State first challenges the district court’s ruling that
subsection

(a)(3)

is

unconstitutionally

vague

and,

thus,

violates the Due Process Clause of the Fourteenth Amendment.
relevant

part,

the

Fourteenth

State shall . . . deprive

any

Amendment
person

of

property, without due process of law[.]”
XIV, § 1.

provides
life,

that

In

“[n]o

liberty,

or

U.S. Const. amend.

A state law violates due process if it “fails to

provide a person of ordinary intelligence fair notice of what is
4

The State’s appeal of the district court’s final judgment
came after briefing on its earlier interlocutory appeal
regarding subsection (a)(3) was completed.
The State’s two
appeals were consolidated for purposes of this proceeding, with
the issue of subsection (a)(2)’s overbreadth addressed through
supplemental briefing.
15

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prohibited,
encourages

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or

is

so

seriously

Pg: 16 of 30

standardless

discriminatory

that

it

authorizes

enforcement.”

Lloyd, 700 F.3d 132, 135 (4th Cir. 2012).

Martin

or
v.

“The prohibition of

vagueness in criminal statutes is a well-recognized requirement,
consonant

alike

with

ordinary

settled rules of law[.]”

notions

of

fair

play

and

the

Johnson v. United States, 576 U.S. __,

135 S. Ct. 2551, 2556-57 (2015).
As

noted

restricted

sex

earlier,
offender

subsection
may

not

(a)(3)

“knowingly

states

that

be . . . [a]t

a
any

place where minors gather for regularly scheduled educational,
recreational,
208.18(a)(3).

or

social
When

programs.”

read

alongside

N.C.

Gen.

Stat.

14-

(a)(1)

subsections

§

and

(a)(2), the State contends subsection (a)(3) has a clear “core”
meaning.

Although the State concedes the three subsections of

section 14-208.18(a) “constitute separate offenses,” it posits
“they

are

construed

nevertheless
in

pari

interrelated

materia.”

and

Appellants’

must

therefore

Opening

Br.

be

10-11.

When read that way, the State concludes, “[n]o ordinary person
would read [section] 14-208.18(a) in its entirety and be unclear
as to” the meaning of subsection (a)(3).
Br. 11.
When

Appellants’ Opening

The district court disagreed, and so do we.
applying

the

constitutional

vagueness

doctrine,

the

Supreme Court distinguishes between statutes that “require[] a
person to conform his conduct to an imprecise but comprehensible
16

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normative

standard”

conduct.”

Coates

(1971).

and
v.

Pg: 17 of 30

those

City

that

of

specify

Cincinnati,

“no

402

standard

U.S.

611,

of
614

Statutes falling into the former category have, as the

State terms it, a constitutional “core” in the sense that they
“apply
their

without

question

application

question.

in

Parker

to

certain

marginal

v.

Levy,

activities,”

situations

417

U.S.

may

733,

even
be

a

755-56

though
close
(1974).

Conversely, those statutes that fall into the latter category
are unconstitutionally vague.

The distinction between these two

types of statutes, in some instances, may be somewhat difficult
to decipher.
still

have

Indeed, an unconstitutionally vague statute may
some

clearly

constitutional

applications.

See

Johnson, 135 S. Ct. at 2560-61.
But where a statute specifies no standard, the fact that it
has one or more clearly constitutional applications cannot save
it.
the

See id.
theory

because

Supreme Court precedent “squarely contradict[s]

that

there

is

a

vague

some

provision’s grasp.”

provision

conduct

Id.

that

is

constitutional

clearly

falls

That is the case here.

merely

within

the

Subsection

(a)(3) is unconstitutionally vague, even though some conduct may
“fall[]

within . . . [its]

grasp,”

id.,

because

it

fails

to

“define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in

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a manner that does not encourage arbitrary and discriminatory
enforcement.”
Two

Kolender v. Lawson, 461 U.S. 352, 357 (1983).

principal

problems

are

evident

in

subsection

(a)(3)

which compel the conclusion it is unconstitutionally vague.
particular,
offender
determine

a

or
(1)

reasonable
a

law

person,

enforcement

whether

a

program

whether
officer,
for

a

restricted

cannot

minors

is

In
sex

reasonably
“regularly

scheduled” or (2) what places qualify as those “where minors
gather.”
The district court succinctly explained these deficiencies
with respect to the “regularly scheduled” provision:
The
first
problem
stems
from
the
language
“regularly scheduled.”
The term “regular” means
happening at fixed intervals[, periodic].
Even if a
restricted sex offender or law enforcement officer
knew
precisely
how
often
and
where
the
“scheduled programs” took place, the statute provides
no principled standard at all for determining whether
such programs are “regularly scheduled.”
Notably, subsection (a)(3) provides no examples
to guide restricted sex offenders or law enforcement
as to how frequently the programs would need to occur
in order to be “regularly scheduled.”
In contrast,
subsection (a)(1) provides examples of (a)(1) “places”
and subsection (a)(2) provides examples of (a)(2)
“premises” upon which a “location” or “place” might
be.
This case is distinguishable from other cases
holding
restrictions
that
included
the
word
“regularly” or variants of “frequently” to be not
vague because those restrictions included examples to
clarify which locations were restricted.
J.A.

157-59.

Moreover,

although

not

necessary

to

our

conclusion, the State’s own evidence confirms the difficulty in
18

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determining

whether

scheduled.”

For

a

Pg: 19 of 30

program

example,

for

District

minors
Attorney

is

“regularly

Todd

Williams

admitted subsection (a)(3) “gives no clear guidance” regarding
the frequency with which an activity must be conducted to be
“regularly scheduled.”
Likewise,

J.A. 159.

subsection

(a)(3)’s

“where

language is without defining standards.

minors

gather”

The district court’s

opinion accurately expresses the constitutional issue:
For example, subsection (a)(3) does not explain how
many minors must gather at the place.
Subsection
(a)(3) also does not explain whether a place where
mixed groups of minors and adults gather, such as a
community college that has some high school students
or a church with a congregation of adults and minors,
would be considered a restricted zone under subsection
(a)(3).
As was the case with the term “regularly
scheduled,” subsection (a)(3) is distinguishable from
other instances where similar formulations have been
held to be not vague because those cases involved
general language that was accompanied by examples
rather than general language standing alone.
J.A. 159-60.
The

State

attempts

to

overcome

these

deficiencies

appealing to the in pari materia canon of construction.

by
In

essence, the State contends subsection (a)(3) should be saved by
reading

into

it

the

list

of

places

specifically

included

in

subsection (a)(1) and incorporated by reference in subsection
(a)(2).

That argument lacks merit.

We have “interpreted the principle [of in pari materia] to
mean that adjacent statutory subsections that refer to the same
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subject matter should be read harmoniously.”

United States v.

Broncheau, 645 F.3d 676, 685 (4th Cir. 2011).

But the in pari

materia principle does not apply here by virtue of the structure
of subsection (a)(3) as written by the North Carolina General
Assembly.

Directly

conspicuously

omits

subsection (a)(1).

to

any

that

list

point,

of

subsection

examples,

in

(a)(3)

contrast

to

In addition, subsection (a)(3) contains no

language suggesting that such a list should be read into it, in
contrast

to

subsection

(a)(2).

We

legislature’s omissions to be intentional.

must

presume

the

See, e.g., Jones v.

Comm’r, 642 F.3d 459, 463 (4th Cir. 2011) (“[W]hen a statute
includes
another,

particular
a

court

language
can

in

one

section

assume . . . that

but

the

omits

it

omission

in
was

deliberate.”); N.C. Dep’t of Revenue v. Hudson, 675 S.E.2d 709,
711

(N.C.

Ct.

App.

2009)

(“When

a

legislative

body

includes

particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
the legislative body acts intentionally and purposely in the
disparate inclusion or exclusion.”).

We cannot, therefore, read

by judicial construction into subsection (a)(3) that which the
legislature chose to omit.
Even
examples

if
into

we

were

to

subsection

read
(a)(3),

subsection
other

(a)(1)’s

problems

list

would

of

arise.

“[A] statute should be construed so that effect is given to all
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provisions,

so

that

no

Pg: 21 of 30

part

will

superfluous, void or insignificant[.]”

be

inoperative

or

Corley v. United States,

556 U.S. 303, 314 (2009); accord State v. Coffey, 444 S.E.2d
431,

434

(N.C.

1994).

Reading

subsection

(a)(1)’s

list

of

examples into subsection (a)(3) would effectively make the two
provisions identical, thereby rendering one of those subsections
“superfluous” or “insignificant.”
instance,

the

incorporated

examples

by

listed

reference

into

Corley, 556 U.S. at 314.
in

subsection

subsection

(a)(1)

(a)(2)

--

For
and

schools,

children’s museums, childcare centers, and playgrounds -- are
places “intended primarily for the use, care, or supervision of
minors.”

N.C. Gen. Stat. § 14-208.18(a)(1) & (a)(2).

But,

those same places also are “place[s] where minors gather for
regularly

scheduled

programs.”

educational,

Id. § 14-208.18(a)(3).

recreational,

or

social

Thus, to read subsection

(a)(1)’s list into subsection (a)(3) would be to effectively
swallow subsections (a)(1) and (a)(2), leaving them “only to
define

the

limits

of

the

proscribed

incorporated into subsection (a)(3).
14.

‘place[s]’”

then

Appellees’ Response Br.

Subsection (a)(3) cannot be saved by reading subsection

(a)(1)

into

it

and,

thereby,

diminishing

or

subsuming

the

importance of other clear legislative judgments.
In sum, neither an ordinary citizen nor a law enforcement
officer

could

reasonably

determine
21

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activity

was

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criminalized

Filed: 11/30/2016

by

subsection

Pg: 22 of 30

(a)(3).

As

a

consequence,

that

subsection does not meet the standards of due process because it
is unconstitutionally vague.
did

not

err

in

granting

Accordingly, the district court

summary

judgment

as

to

subsection

(a)(3).
B.
The

State

separately

challenges

the

district

court’s

holding that subsection (a)(2) is unconstitutionally overbroad
in

violation

subsection
“promotes

of

the

(a)(2),
a

First

the

Amendment.

State

substantial

was

As

required

government

the
to

interest

proponent
prove

that

of

that

it

would

be

achieved less effectively absent the regulation” and does not
“burden substantially more speech than is necessary to further
the government’s legitimate interests.”
Racism, 491 U.S. 781, 799 (1989).

Ward v. Rock Against

As we explain below, the

State failed to meet its burden of proof.
1.
Under

the

overbreadth

doctrine,

if

a

law

“punishes

a

substantial amount of protected free speech, judged in relation
to the statute’s plainly legitimate sweep,” then it is invalid
“until

and

unless

a

limiting

construction

or

partial

invalidation so narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression.”
v. Hicks, 539 U.S. 113, 118-19 (2003).
22

Virginia

Any overbreadth must be

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both “real” and “substantial” in order to be constitutionally
deficient.

Hill

v.

Colorado,

530

U.S.

703,

732

(2000).

Although “substantial” overbreadth is not “readily reduced” to a
mathematical formula, “there must be a realistic danger that the
statute

itself

will

significantly

compromise

recognized

First

Amendment protections of parties not before the Court for it to
be facially challenged on overbreadth grounds.”

Members of the

City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789,
800-01 (1984).
Subsection (a)(2) burdens the First Amendment rights of all
restricted sex offenders “by inhibiting the[ir] ability . . . to
go to a wide variety of places associated with First Amendment
activity.”

Suppl. J.A. 158.

For example, subsection (a)(2)

potentially impedes the ability of restricted sex offenders to
access public streets, parks, and other public facilities.
Hague

v.

Comm.

for

Indus.

Org.,

307

U.S.

496,

515

See

(1939)

(“Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and,
time

out

of

mind,

have

been

used

for

purposes

of

assembly,

communicating thoughts between citizens, and discussing public
questions.”).

The issue presented to the district court, and

now on appeal, is whether subsection (a)(2) is overbroad because
it places substantial limitations of movement on restricted sex
offenders without regard to the dangerousness of the individual
23

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Pg: 24 of 30

Put another way, we must decide whether subsection

(a)(2) is overbroad because it applies to all restricted sex
offenders, not just those who pose a danger to minors or are
likely to pose such a danger.
2.
In

analyzing

overbreadth,

we

initially

identify

appropriate level of scrutiny to apply to the statute.
subsection

(a)(2)

activities,

our

implicates

first

“content neutral.”

task

is

protected
to

First

determine

the

Because
Amendment

whether

it

is

“If the regulation was adopted to burden

disfavored viewpoints or modes of expression, a court applies
strict scrutiny.”
507,

512

(4th

Giovani Carandola, Ltd. v. Bason, 303 F.3d

Cir.

2002).

Conversely,

if

the

statute

“was

adopted for a purpose unrelated to the suppression of expression
-- e.g., to regulate conduct, or the time, place, and manner in
which expression may take place -- a court must apply a less
demanding intermediate scrutiny.”

Id. at 512-13; see also Texas

v. Johnson, 491 U.S. 397, 406-07 (1989).
The parties stipulate that subsection (a)(2) is content
neutral and we agree.

The statute does not burden disfavored

viewpoints or certain modes of expression.

Rather, it merely

restricts the time, place, or manner in which restricted sex
offenders

may

engage

First Amendment.

in

certain

activities

protected

Thus, we apply intermediate scrutiny.
24

by

the

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To pass intermediate scrutiny, a statute must “materially
advance[] an important or substantial [government] interest by
redressing

past

harms

or

preventing

future

ones.”

Giovani

Carandola, Ltd. v. Fox, 470 F.3d 1074, 1082 (4th Cir. 2006).
addition, it must have the right “fit.”

In

That is, it cannot

“burden substantially more speech than is necessary to further
the government’s legitimate interests.”

Ward, 491 U.S. at 799.

“[I]ntermediate scrutiny places the burden of establishing the
required fit squarely upon the government.”

United States v.

Chester, 628 F.3d 673, 683 (4th Cir. 2010).
3.
As noted previously, at a status conference held prior to
considering

the

parties’

renewed

cross

motions

for

summary

judgment, the district court put the State on notice that its
limited evidence was inadequate to meet its burden of proof.
Yet, the State explicitly declined to introduce any additional
evidence.

The only “evidence” proffered by the State consisted

of citations to a list of cases in which sex offenders had reoffended after a prior conviction. 5

5

The case law examples relied on by the State do not nudge
the needle in its favor.
For example, in People v. Loy, 254
P.3d 980 (Cal. 2011), the defendant first offended with a minor
victim, then re-offended with an adult victim. See id. at 988.
The facts of that case do not suggest that a restricted sex
offender, who first offends with an adult victim, is likely to
re-offend with a minor victim.
The same is true for People v.
(Continued)
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In its order granting the Does’ renewed motion for summary
judgment, the district court addressed the State’s evidentiary
deficit:
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.
Suppl. J.A. 168.
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.”
Opening Br. 11.

Appellants’ Suppl.

But neither anecdote, common sense, nor logic,

in a vacuum, is sufficient to carry the State’s burden of proof.
See United States v. Carter, 669 F.3d 411, 418-19 (4th Cir.
2012).

Thus, while the State’s argument may be conceptually

Hollie, 103 Cal. Rptr. 3d 633, 637-39 (Cal. Ct. App. 2010).
Other cases cited by the State suggest, for example, that a
restricted sex offender may develop and retain an attraction for
a particular individual.
See State v. Smith, 687 S.E.2d 525,
527 (N.C. Ct. App. 2010). None of these cases suggest with any
degree of reliability that offenders with only adult victims are
more likely to reoffend with minors.

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plausible, it presented no evidence or data to substantiate it
before the district court. 6
In

fact,

the

State’s

own

evidence

belies

its

appeal

“common sense” as an appropriate substitute for evidence.

to
In

its brief, the State cites three North Carolina cases, State v.
Smith, 687 S.E.2d 525 (N.C. Ct. App. 2010); State v. Tyson, 672
S.E.2d 700 (N.C. Ct. App. 2009); and State v. Smith, 568 S.E.2d
289

(N.C.

deviants
rather

Ct.
choose

than

attraction

App.

the

akin

2002),

victims
age
to

of

that

Suppl. Opening Br. 18-19.

for

based
the
of

the
upon

victim
husband

proposition

that

“sexual

opportunity/vulnerability
or
and

level
wife.”

of

‘romantic’
Appellants’

However, 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

6

(a)(2)’s

sweeping

Nor is the State’s appeal to the policy underlying Federal
Rule of Evidence 413 persuasive. That rule provides in relevant
part “[i]n a criminal case in which a defendant is accused of a
sexual assault, the court may admit evidence that the defendant
committed any other sexual assault.” Fed. R. Evid. 413(a). The
State cites Rule 413 as “evidence” that “Congress has clearly
drawn the connection between past sexually assaultive conduct
and the likelihood of future sexually assaultive conduct
regardless of victim age.”
Appellants’ Suppl. Opening Br. 15.
However, the State confuses the rule’s suggestion that sex
offenders are likely to re-offend with the more pointed, and
very different, proposition that sex offenders with only adult
victim offenses are likely to re-offend with a minor victim.

27

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restrictions. 7

Filed: 11/30/2016

Pg: 28 of 30

Although each of these cases involved a minor

victim, there was no evidence in any case that the defendant had
ever been convicted of a previous sex offense.
Similarly, the State cannot rest its case on the conclusory
assertion that minors would be “more exposed to harm without
[this] prohibition than with it.”
Br.

10.

Without

empirical

data

Appellants’ Suppl. Opening
or

other

similar

credible

evidence, it is not possible to tell whether subsection (a)(2) - and specifically its application to offenders with only adult
victims -- responds at all to the State’s legitimate interest in
protecting minors from sexual assault.
Finally, although the State cites United States v. Staten,
666 F.3d 154 (4th Cir. 2011), to bolster its appeal to “common
sense,” that case is inapposite.

In Staten, this Court upheld

18 U.S.C. § 922(g)(9) 8 against

a Second Amendment challenge,

reasoning

case

“common

sense

and

law

fully

support[ed]”

restricting persons convicted of misdemeanor crimes of domestic
violence from possessing firearms.
appeal

to

“common

sense”

in

7

Id. at 161.
Staten

only

However, our
bolstered

the

There currently are more than 21,000 sex offenders
registered in North Carolina.
See Offender Statistics, N.C.
Dep’t of Pub. Safety, http://sexoffender.ncsbi.gov/stats.aspx
(last visited Nov. 29, 2016)(saved as ECF opinion attachment).
8 Section 922(g)(9) prohibits “any person . . . who has been
convicted in any court of a misdemeanor crime of domestic
violence” from possessing a firearm. 18 U.S.C. § 922(g)(9).
28

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government’s already strong case, which was fully supported by
empirical
social

proof

science

in

the

form

of

research.

data

See

generated

id.

at

from

164-65

relevant

(discussing

empirical research supplied by the government).
While all parties agree North Carolina has a substantial
interest

in

incumbent

protecting

upon

the

minors

State

from

to

sexual

prove

crimes,

appropriately tailored to further that interest.

was

(a)(2)

subsection

it

was

Nevertheless,

for reasons not apparent from the record, the State failed to
produce evidence to carry that burden.
whether

subsection

(a)(2)

could

Thus, irrespective of

have

met

constitutional

standards in a different evidentiary setting, the State here
simply failed to meet its burden of proof.
v.

Coakley,

573

U.S.

__,

134

S.

Ct.

See, e.g., McCullen

2518,

2539-40

(2014)

(“Respondents point us to no evidence that individuals regularly
gather

at

other

clinics,

or

at

other

times

in

Boston,

in

sufficiently large groups to obstruct access.”); Chester, 628
F.3d

at

683

(“[I]ntermediate

scrutiny

places

the

burden

of

establishing the required fit squarely upon the government.”).
Accordingly, the district court did not err in granting the
Does’ motion for summary judgment as to subsection (a)(2).

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IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED

30