NATIONAL ASSOCIATION FOR RATIONAL SEXUAL OFFENSE LAWS, ET AL. V. STEIN, ET AL.

Filing 47

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 7/30/2019; that Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint, (ECF No. 40 ), is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NATIONAL ASSOCIATION FOR
RATIONAL SEXUAL OFFENSE LAWS;
NC RSOL; and JOHN DOE,
Plaintiffs,
v.
JOSHUA STEIN, Attorney General of the
State of North Carolina; and DISTRICT
ATTORNEYS LORRIN FREEMAN
(District 10); PAT NADOLSKI (District 15A);
and KRISTY NEWTON (District 16A),
Defendants.

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1:17CV53

MEMORANDUM OPINION AND ORDER
Plaintiffs bring this action, 1 pursuant to 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”),
challenging the constitutionality of five amendments to Article 27A of Chapter 14 of the North
Carolina General Statutes that pertain solely to registered sex offenders. (See ECF No. 33.)
Before the Court is Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint.
(ECF No. 40.) For the reasons stated below, the Court will deny Defendants’ motion.
I.

BACKGROUND
Plaintiffs in this action are John Doe, 2 an individual required to register as a sex

offender in North Carolina, and two non-profit organizations that advocate for such

Plaintiffs initiated this suit on January 23, 2017. (ECF No. 1.) On May 30, 2018, this Court entered an Order
which, in pertinent part, “convert[ed] Defendants’ [pending] motion to dismiss into a motion for a more definite
statement,” and ordered Plaintiffs to submit a more definite statement. (ECF No. 32 at 1, 9, 11.) In response,
Plaintiffs filed their First Amended Complaint for Declaratory and Injunctive Relief (the “Complaint”), which
is the operative complaint. (ECF No. 33.)
1

This Court entered an Order on August 7, 2017 allowing this Plaintiff to proceed under a pseudonym. (ECF
No. 22 at 4.)

2

individuals. (ECF No. 33 ¶¶ 23, 29, 31, 44, 46.) Plaintiff John Doe currently resides in North
Carolina Judicial District 15A and was convicted for sexual assault in 2002. (Id. ¶¶ 22–23.)
Plaintiff National Association for Rational Sexual Offense Laws (“NARSOL”) and Plaintiff
NC

RSOL

(collectively

“Organizational

Plaintiffs”)

are

“voluntary

membership

organization[s]” whose “purpose is to advocate, both legislatively and legally, for the reform
of state and national laws regarding sex offender registries and legal restrictions placed on
registrants . . . and to seek to vindicate the constitutional rights of its members.” (Id. ¶¶ 29–
31, 44–46.) Organizational Plaintiffs’ members include, among others, “current registrants
subject to the provisions of the law challenged [in the Complaint] as violating the Ex Post Facto
clause of the United States Constitution.” (Id. ¶¶ 32, 47.)
“Defendant Joshua Stein is the Attorney General of the State of North Carolina,” who
is “charged with defending the interests of the State in all criminal and civil suits.” (Id. ¶¶ 13–
14.) Defendants Lorrin Freeman, Pat Nadolski, and Kristy Newton (collectively, “Individual
DA’s”) are North Carolina district attorneys for Judicial Districts 10, 15A, and 16A,
respectively, each of whom “are responsible for the prosecution of crimes in their respective
judicial districts.” (Id. ¶ 18.) All defendants have been sued in their official capacities. (Id. ¶¶
13, 18.)
According to Plaintiff’s Complaint, North Carolina passed its first set of statutes
pertaining solely to registered sex offenders (the “registry law”) in 1995. (Id. ¶¶ 8 n.1, 59.) The
registry law is a group of statutes “codified at Article 27A of the North Carolina Criminal
Code,” N.C. Gen. Stat. § 14-208.5 through § 14-208.45. (Id. ¶ 8 n.1.) “Th[e] initial registry
law did no more than create a database of persons who had been convicted of a relatively small

2

number of qualifying offenses.” (Id. ¶ 60.) Under this registry law, among other things:
(i)“[r]egistration terminated automatically after ten (10) years and a person could petition for
removal from the registry”; (ii) “[t]he registry was maintained by the local sheriff and was
available to the public only upon request by a member of the public regarding a specific
individual”; (iii) “[r]egistrants were required to mail in notification of any change of address”;
(iv) “[v]iolation of the registry law was a Class 3 misdemeanor”; and (v) the law “applied to all
persons committing a qualifying offense or who were released from a penal institution after
the effective date.” (Id. ¶¶ 61–64, 66 (citing 1995 N.C. Sess. Laws 545).) Since that time, the
North Carolina legislature has passed a number of amendments to the registry law. (See id. ¶¶
68–116.)
In this action, Plaintiffs challenge the constitutionality of the following amendments to
the registry law:
a. 2006 N.C. Sess. Laws 247 (2005 N.C. HB 1896) mandating
semi-annual, in-person reporting to the local sheriff, giving
the local sheriff the authority to require the registrant to
report at any time, mandating in-person reporting for any
change in registry status, severely restricting where registrants
can live, and banning them from jobs that involve the
“instruction, supervision, or care of a minor”[ ];
b. 2008 N.C. Sess. Laws 117 (2007 N.C. HB 933) lengthening
the registration requirement from ten (10) to thirty (30) years,
shortening the time in which a registrant must report to the
sheriff any changes of information, and banning registrants
from a wide-range of public and private spaces;
c. 2008 N.C. Sess. Laws 220 (2007 N.C. SB 1736) requiring
registrants to notify the sheriff of any “online” identifiers and
authorizing release of that information to companies;
d. 2009 N.C. Sess. Laws 491 (2009 N.C. HB 1117) barring any
registrant from obtaining a “P” or “S” endorsement on their
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driver’s license (“P” for “passenger” and “S” for “school
bus”); and
e. 2016 N.C. Sess. Laws 102 (2015 N.C. HB 1021) reinstituting
the ban on registrants from a wide range of public and private
spaces after 2008 N.C. Sess. Laws 117 was . . . struck down
on First Amendment grounds.
(Id. ¶¶ 8a.–8e.)

Plaintiffs allege that the retroactive application of each of the above

amendments violate the Ex Post Facto Clause of the United States Constitution. (Id. ¶¶ 277–
281.) Defendants move to dismiss Plaintiffs’ Complaint pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. 3 (See ECF No. 40.)
II.

LEGAL STANDARDS
A.

Rule 12(b)(1)

Under Rule 12(b)(1), a party may seek dismissal based on the court’s “lack of subjectmatter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Subject-matter jurisdiction is a threshold issue
that relates to the court’s power to hear a case and must be decided before a determination on
the merits of the case. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479–
80 (4th Cir. 2005). A motion under Rule 12(b)(1) raises the question “whether [the plaintiff]

Defendants’ motion and supporting memorandum state that they also seek dismissal under Rule 12(b)(2) of
the Federal Rules of Civil Procedure based, in part, on their contention that Defendants are not “persons”
under 42 U.S.C. § 1983 and, therefore, they are improper parties to this action. (ECF No. 40 at 1, 2; ECF No.
42 at 3, 5–6.) As Plaintiffs point out in their response brief, (see ECF No. 44 at 2), it appears that Defendants
raise this issue in conjunction with their Eleventh Amendment immunity argument, (see ECF No. 42 at 4–6.)
The Fourth Circuit has acknowledged that “[its] cases have been unclear on whether a dismissal on Eleventh
Amendment immunity grounds is a dismissal for failure to state a claim under Rule 12(b)(6) or a dismissal for
lack of subject matter jurisdiction under Rule 12(b)(1).” Andrews v. Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000).
However, “it would appear that as between Rules 12(b)(1) and 12(b)(2), dismissal based on Eleventh
Amendment immunity is typically treated as [an issue] of subject matter rather than personal jurisdiction.”
Abdus-Salaam v. Bill Maddalon Unique So. Estates, No. 3:11cv410, 2012 WL 1569584, at *4 n.3 (W.D.N.C. May 3,
2012). See Abril v. Virginia, 145 F.3d 182, 184 (4th Cir. 1998) (addressing dismissal on Eleventh Amendment
grounds as dismissal for lack of subject-matter jurisdiction); Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th
Cir. 1998) (same). The Court will therefore consider Defendants’ argument regarding whether they are
“persons” under 42 U.S.C. § 1983 as part of its Eleventh Amendment analysis under Rule 12(b)(1).
3

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has a right to be in the district court at all and whether the court has the power to hear and
dispose of [the] claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir.
2012). The burden of proving subject-matter jurisdiction rests with the plaintiff. McNutt v.
Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). When evaluating a Rule 12(b)(1) motion to dismiss, a court should grant
the motion “only if the material jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). On a motion to dismiss for lack of standing, a court
must construe the complaint in the plaintiff’s favor, accepting as true the factual allegations in
the complaint. Warth v. Seldin, 422 U.S. 490, 501 (1975).
B.

Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
“challenges the legal sufficiency of a complaint,” including whether it meets the pleading
standard of Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2)
requires a complaint to contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), thereby “giv[ing] the defendant fair notice
of what the . . . claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“A district court should dismiss a complaint pursuant to Rule 12(b)(6) if, accepting all
well-pleaded allegations in the complaint as true and drawing all reasonable factual inferences
in the plaintiff’s favor, the complaint does not allege ‘enough facts to state a claim to relief
that is plausible on its face.’” Vitol, S.A. v. Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir.

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2013) (quoting Twombly, 550 U.S. at 570). A claim is plausible when the complaint alleges facts
sufficient to allow “the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Johnson v. Am. Towers, LLC, 781 F.3d 693, 709 (4th Cir. 2015)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A complaint may fail to state a claim upon
which relief can be granted in two ways: first, by failing to state a valid legal cause of action,
i.e., a cognizable claim, see Holloway, 669 F.3d at 452; or second, by failing to allege sufficient
facts to support a legal cause of action, see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350
(4th Cir. 2013).
While a court’s evaluation of a Rule 12(b)(6) motion to dismiss is “generally limited to
a review of the allegations of the complaint itself,” a court may properly consider documents
“attached to a complaint as exhibits.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66
(4th Cir. 2016). Therefore, in addition to considering the Complaint, the Court will also
consider the exhibits attached to the Complaint. See id.
III.

DISCUSSION
A.

Eleventh Amendment Immunity

Defendants first argue that Plaintiffs’ lawsuit is barred by the Eleventh Amendment.
(See ECF No. 42 at 4–6.) Because the Eleventh Amendment acts as a jurisdictional bar, courts
must resolve the issue of Eleventh Amendment sovereign immunity before reaching the merits
of a case. See Edelman v. Jordan, 415 U.S. 651, 677–78 (1974).
Section 1983 provides a cause of action for the deprivation of a constitutional or federal
statutory right by a “person” acting under color of state law. See 42 U.S.C. § 1983. However,

6

“the doctrine of sovereign immunity under the Eleventh Amendment 4 . . . prevent[s] a state
from being sued by one of its own citizens without its consent.” Waste Mgmt. Holdings, Inc. v.
Gilmore, 252 F.3d 316, 329 (4th Cir. 2001) (footnote added). Thus, “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court
“created an exception to this general principle by asserting that a suit challenging the
constitutionality of a state official’s action in enforcing state law is not one against the State.”
Green v. Mansour, 474 U.S. 64, 68 (1985) (citing Ex parte Young, 209 U.S. at 159–60). As
explained by the Supreme Court, “[t]he theory of [Ex parte] Young was that an unconstitutional
statute is void, and therefore does not ‘impart to [the official] any immunity from responsibility
to the supreme authority of the United States.’” Id. (third alteration in original) (quoting Ex
parte Young, 209 U.S. at 159, 160). Therefore, under the Ex parte Young exception to Eleventh
Amendment immunity, a federal court may “issue prospective, injunctive relief against a state
officer to prevent ongoing violations of federal law, on the rationale that such a suit is not a
suit against the state for purposes of the Eleventh Amendment.” McBurney v. Cuccinelli, 616
F.3d 393, 399 (4th Cir. 2010). “The requirement that the violation of federal law be ongoing
is satisfied when a state officer’s enforcement of an allegedly unconstitutional state law is
threatened, even if the threat is not yet imminent.” Waste Mgmt., 252 F.3d at 330.
Moreover, at the motion to dismiss stage, the Court “need only conduct a
straightforward inquiry into whether the complaint alleges an ongoing violation of federal

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
4

7

law.” Constantine, 411 F.3d at 496 (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635,
645 (2002). See S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008) (“For purposes
of Eleventh Amendment analysis, it is sufficient to determine that [the plaintiff] alleges facts
that, if proven, would violate federal law and that the requested relief is prospective.”). In so
doing, the Court “do[es] not consider the merits of [Plaintiffs’] claims; it is enough that the
complaint alleges an ongoing violation of federal law.” Constantine, 411 F.3d at 496. See D.T.M.
ex rel. McCartney v. Cansler, 382 F. App’x 334, 338 (4th Cir. 2010) (“[I]t is sufficient for Plaintiffs’
suit to allege an ongoing violation of federal law; actually proving such an ongoing violation is
unnecessary [at the motion to dismiss stage].”)
Plaintiffs’ Complaint alleges the following:
(i)

that “[t]he provisions of the registry law challenged herein
have been retroactively applied to” Plaintiffs, (ECF No. 33
¶¶ 25, 38, 53);

(ii)

that the burdens imposed by the registry law, along with tis
history, “demonstrate the intent to punish and/or create the
effect of punishment,” (id. ¶ 218);

(iii) that the challenged provision of the registry law “inflict both
directly and indirectly what has been regarded in our history
and traditions as punishment,” (id. ¶ 225);
(iv) that “[t]he provisions of the registry law challenged herein,
both directly and indirectly, impose affirmative disabilities
and restraints on registrants,” (id. ¶ 240);
(v)

that the “registry law is not reasonably related to a legitimate
non-punitive purpose,” (id. ¶ 260);

(vi) that “[t]he extent and duration of registry requirements are
substantially greater than necessary to meet the legislature’s
avowed purpose,” (id. ¶ 262); and

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(vii) that the retroactive application of the challenged provisions
of the registry law “make[s] more burdensome the
punishment imposed for offenses committed prior to the
enactment of that law, (id. ¶¶ 277–281).
If true, these claims allege ongoing violations of the Ex Post Facto Clause 5 which
“prohibits the application of laws that retroactively ‘increase the punishment for criminal
acts.’” United States v. Rooks, 596 F.3d 204, 213 n.10 (4th Cir. 2010) (footnote added) (quoting
United States v. O’Neal, 180 F.3d 115, 121 (4th Cir. 1999)). The Court therefore concludes that
Plaintiffs’ allegations satisfy the Court’s “straightforward inquiry into whether the complaint
alleges an ongoing violation of federal law.” Constantine, 411 F.3d at 496.
Even where the Complaint alleges an ongoing violation of federal law, in order for the
Ex parte Young exception to apply, a “special relation” must exist “between the state officer
sued and the challenged statute to avoid the Eleventh Amendment’s bar.” Waste Mgmt., 252
F.3d at 331 (quoting Ex parte Young, 209 U.S. at 157). See Lytle v. Griffith, 240 F.3d 404, 412
(4th Cir. 2001) (“The [Ex parte] Young exception is limited . . . by its requirement that named
state officials bear a special relation to the challenged statute.”). This “special relation”
“requires proximity to and responsibility for the challenged state action.” Wright v. North Carolina,
787 F.3d 256, 261–62 (4th Cir. 2015) (quoting S.C. Wildlife Fed’n, 549 F.3d at 333).
The Court concludes that Plaintiffs have sufficiently alleged that Defendants have a
special relation to the enforcement of the challenged provisions of the registry law. In the
Complaint, Plaintiffs specifically allege that a violation of the challenged provisions of the
registry law is a felony offense. (ECF No. 33 ¶¶ 88, 131, 168, 221, 244.) With respect to the

The United States Constitution provides that “[n]o state shall . . . pass any . . . ex post facto Law.” U.S. Const.
art. I, § 10, cl. 1.
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Attorney General, Plaintiffs allege that he has statutory authority, “through special
prosecutors, to bring or assist in criminal suits upon request of a district attorney.” (Id. ¶ 13–
17.) As this Court stated in Does 1–5 v. Cooper, “Ex parte Young itself held that the state attorney
general’s duties, which included the right and the power to enforce the statutes of the state,
sufficiently connected him with the duty of enforcement to make him a proper party to an
action challenging a state statute’s constitutionality.” 40 F. Supp. 3d 657, 673 (M.D.N.C. 2014)
(citing Ex parte Young, 209 U.S. at 158–61). Here, as alleged by Plaintiffs, the Attorney General
has the statutory authority to prosecute or assist in the prosecution of criminal actions. (See
ECF No. 33 ¶¶ 14–16; see also N.C. Gen. Stat. §§ 114-2, 114-11.6.) Plaintiffs have thus
sufficiently alleged that the Attorney General has enough of a connection to the enforcement
of North Carolina criminal laws to satisfy the special relation requirement of Ex parte Young
and thereby avoid the Eleventh Amendment bar. See Does 1–5, 40 F. Supp. 3d at 674 (finding
that the Attorney has statutory authority to enforce a violation of the challenged statute and,
“[a]s such, [the] Attorney General . . . is a proper defendant in th[e] lawsuit”); but see McBurney,
616 F.3d at 399–401 (affirming dismissal of Virginia’s Attorney General, in part, because the
Attorney General lacked any specific statutory authority to enforce the challenged statute).
Similarly, with respect to the Individual DA’s, Plaintiffs allege that the Individual DA’s
“each have statutory authority under N.C. [Gen. Stat.] § 7A-61 to prosecute individuals for
violations of registry laws,” and that “[t]he State has not disclaimed any intention of enforcing
[the challenged] provisions of the registry law against either the individual Plaintiffs or the
affected members of NC RSOL.” (ECF No. 33 ¶¶ 19, 21.) The Court concludes that such
allegations are sufficient to show that the Individuals DA’s have proximity to and

10

responsibility for enforcement of the challenged provisions of the registry law. See Wright, 787
F.3d at 261–62.
In light of the above, the Court finds that the Ex Parte Young exception to Eleventh
Amendment immunity applies in this action. Accordingly, Defendants’ motion to dismiss on
this basis will be denied.
B.

Standing

Defendants next argue that “[t]his action nevertheless should be dismissed pursuant to
Rule 12(b)(1) because Plaintiffs lack standing to sue.” (ECF No. 42 at 6.) Under Article III
of the United States Constitution, the jurisdiction of a federal court is limited to cases and
controversies. U.S. Const. art. III, § 2. Standing to sue, therefore, “ensure[s] that federal
courts do not exceed their authority.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To
establish Article III standing at the motion to dismiss stage, Plaintiffs must plausibly allege
that they have: “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs bear the burden of
establishing these elements. Lujan, 504 U.S. at 561. “Where, as here, a case is at the pleading
stage, [Plaintiffs] must ‘clearly . . . allege facts demonstrating’ each element.” Spokeo, 136 S.
Ct. at 1547 (quoting Warth, 422 U.S. at 518). “The standing requirement must be satisfied by
individual and organizational plaintiffs alike.” 6 White Tail Park, Inc. v. Stroube, 413 F.3d 451,
458 (4th Cir. 2005).

“[A]n organizational plaintiff may establish associational standing to bring an action in federal court on behalf
of its members.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005) (internal quotation marks
omitted). Associational standing exists when: “(a) its members would otherwise have standing to sue in their
6

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1. Injury-in-fact
Defendants argue that Plaintiffs’ Complaint lacks “any concrete allegations or facts
implicating that [Plaintiffs] are facing prosecution, but instead . . . only bald statements in the
complaint.” (ECF No. 42 at 8.) Defendants also argue that “Plaintiffs have failed to plead
facts sufficient to allege a credible threat of prosecution by Defendants.” (Id. at 5.) 7 Plaintiffs
argue, in response, that they are “clearly suffering an injury in fact in that they cannot engage
in constitutionally protected activity without an objectively reasonable fear of prosecution.”
(ECF No. 44 at 9 (internal quotation marks omitted).)
To satisfy the first element of standing—injury-in-fact—“a plaintiff must show that he
or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’
and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting
Lujan, 504 U.S. at 560). “The injury-in-fact requirement ensures that plaintiffs have a ‘personal
stake in the outcome of the controversy.’” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018)
(quoting Warth, 422 U.S. at 498). Where, as here, Plaintiffs “seek declaratory and injunctive
relief, they must establish an ongoing or future injury in fact.” Id. The Supreme Court has

own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v.
Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); see White Tail Park, 413 F.3d at 458. “Associational
standing may exist even when just one of the association’s members would have standing.” Retail Indus. Leaders
Ass’n v. Fielder, 475 F.3d 180, 186 (4th Cir. 2007).
Although Defendants appear to make this contention in support of its Eleventh Amendment immunity
argument as well as its standing argument, (see ECF No. 42 at 5–6, 8), the Court will consider this argument in
the context of its standing analysis. See N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999) (“When
a plaintiff faces a credible threat of prosecution under a criminal statute he has standing to mount a preenforcement challenge to that statute.”); Richmond Med. Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795, 804 (E.D.
Va. 1998) (“[T]o fulfill the standing requirement in challenging the constitutionality of a criminal statute, the
plaintiff must allege ‘an intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute,’ and that ‘there exists a credible threat of prosecution thereunder.’” (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979))).
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“repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in
fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 409 (2013) (alteration in original) (quoting Whitmore v. Ark., 495 U.S. 149,
158 (1990)). See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (“[W]e have
permitted pre-enforcement review under circumstances that render the threatened
enforcement sufficiently imminent.”).
As explained by the Fourth Circuit, a plaintiff’s “allegations of a fear and risk of future
arrest can satisfy the injury-in-fact requirement for prospective relief . . . if [1] [P]laintiffs allege
‘an intention to engage in a course of conduct arguably affected with a constitutional interest,
but proscribed by a statute[;] and [2] there exists a credible threat of prosecution thereunder.’”
Kenny, 885 F.3d at 288 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
(1979)). Applying this standard, the Court finds that Plaintiffs have sufficiently alleged an
injury-in-fact. First, Plaintiffs have sufficiently alleged an intention to engage in conduct
currently proscribed by the challenged provisions of the registry law. In particular, Plaintiffs
allege the following:
The Plaintiffs, including NARSOL and NC RSOL on behalf of
their members, wish to engage in conduct proscribed by the
provisions of the registry law challenged herein and are
reasonably concerned that they will be prosecuted for doing so.
...
[Plaintiff] John Doe has been barred from housing due to the
restrictions of 2006 N.C. Sess. Laws 247; banned from libraries,
parks, and numerous other fora due to 2008 N.C. Sess. Laws 117
and 2016 N.C. Sess. Laws 102; has been prevented from
obtaining a “P” endorsement on his driver’s license due to 2009
N.C. Sess. Laws 491; and is hesitant to engage in online discourse
due to 2008 N.C. Sess. Laws 220.
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But for these restrictions, [Plaintiff] John Doe would have
bought housing, would go to the library, parks, and other public
and private fora made off-limits by 2008 N.C. Sess. Laws 117 and
2016 N.C. Sess. Laws 102, would have sought a “P” endorsement
for his driver’s license[s], and would engage in online discourse.
…
James Doe 1 8 has been barred from housing due to the
restrictions of 2006 N.C. Sess. Laws 247; banned from libraries
and political meetings due to 2008 N.C. Sess. Laws 117 and 2016
N.C. Sess. Laws 102; and is hesitant to engage in online discourse
due to 2008 N.C. Sess. Laws 220.
But for these restrictions, James Doe 1 would have bought
housing, would go to the library and attend political meetings,
and would engage in online discourse.
...
James Doe 2 9 has been barred from housing due to the
restrictions of 2006 N.C. Sess. Laws 247; banned from libraries,
parks, and other public fora due to 2008 N.C. Sess. Laws 117 and
2016 N.C. Sess. Laws 102; and is hesitant to engage in online
discourse due to 200[8] N.C. Sess. Laws [220].
But for these restrictions, James Doe 2 would have bought
housing, would go to the library, parks, and other public fora, and
would engage in online discourse.
...

Plaintiff NC RSOL identifies James Doe 1 as a member of its organization who is subject to the challenged
provisions of the registry law, and who has allegedly suffered harm. (ECF No. 33 ¶¶ 34, 36, 38–41.) See So.
Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“[T]o
show that its members would have standing, an organization must ‘make specific allegations establishing that
at least one identified member has suffered or would suffer harm.’” (quoting Summers v. Earth Island Inst., 555 U.S.
488, 498 (2009))).

8

9 Plaintiff NARSOL identifies James Doe 2 as a member of its organization who is subject to the challenged
provisions of the registry law, and who has allegedly suffered harm. (ECF No. 33 ¶¶ 49, 51, 53–56.) See So.
Walk at Broadlands Homeowner’s Ass’n, 713 F.3d at 184 (“[T]o show that its members would have standing, an
organization must ‘make specific allegations establishing that at least one identified member has suffered or would
suffer harm.’” (quoting Summers, 555 U.S. at 498)).

14

John Doe specifically desires to use the public library, go to
movies, sporting events, recreation parks, and other areas made
off-limits to him by [portions of the challenged provisions].
[John Doe] also wishes to engage in political rallies and other
group activities, but cannot as these functions are usually held in
a place made off-limits by [portions of the challenged provisions].
John Doe would exercise these rights if not for the ban imposed
by statute.
Many members of NARSOL and NC RSOL—specifically
including James Does 1 and 2—similarly desire to go to libraries,
public meetings, parks, and the like but cannot because of
[portions of the challenged provisions of the registry law].
Many of these members wish to exercise those rights and would
if not for the ban imposed by the statute.
(ECF No. 33 ¶¶ 20, 27–28, 40–41, 55–56, 163–67.) Given these allegations that Plaintiffs
intend to engage in conduct proscribed by the challenged provisions of the registry law,
Plaintiffs have satisfied the first prong necessary to allege injury-in-fact.
With respect to the second prong of alleging such an injury-in-fact—whether Plaintiffs
face a credible threat of prosecution—“it is not necessary that [Plaintiffs] first expose
[themselves] to actual arrest or prosecution to be entitled to challenge a statute that [they]
claim[ ] deters the exercise of [their] constitutional rights.” Steffel v. Thompson, 415 U.S. 452,
459 (1974). Thus, Defendants’ argument that Plaintiffs fail to allege that they are “facing
prosecution,” (ECF No. 42 at 8), is unavailing. “[T]here is a credible threat of future
enforcement so long as the threat is not imaginary or wholly speculative, . . . or wholly
conjectural.”

Kenny, 885 F.3d at 288 (citations and internal quotation marks omitted).

Moreover, the “[t]hreat of prosecution is especially credible when defendants have not
‘disavowed enforcement’ if plaintiffs engage in similar conduct in the future.” Id. (quoting
15

Driehaus, 573 U.S. at 165). Failure to comply with the provisions of the registry law is a felony.
N.C. Gen. Stat. §§ 14-208.11, 14-208.18(h). (See also ECF No. 33 ¶¶ 88, 131, 168, 221, 244.)
Here, Plaintiffs specifically allege that “[t]he State has not disclaimed any intention of enforcing
the[ ] [challenged] provisions of the registry law against either the individual Plaintiff[ ] or the
affected members of NC RSOL.” (Id. ¶ 21.) Further, Defendants do not contend that they
will not enforce the challenged provisions of the registry law, and this Court “see[s] no reason
to assume otherwise,” Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988). Thus,
Plaintiffs face a credible threat of future arrest or prosecution should they fail to comply with
the provisions of the registry law. Plaintiffs have, therefore, “alleged an actual and wellfounded fear that the [challenged provisions of the registry] law will be enforced against them.”
Id. Accordingly, the Court finds that Plaintiffs have sufficiently alleged an injury-in-fact. See
Does 1–5, 40 F. Supp. 3d at 671–72 (concluding that “where the State has not disclaimed any
intention of enforcing [the challenged provision of the registry law], Plaintiffs need not actually
violate [that statute], or be proactively threatened with prosecution prior to violation, in order
to have standing to challenge its constitutionality.”).
2. Traceability and Redressability
Having sufficiently alleged an injury-in-fact, the Court finds that Plaintiffs clear the
other two hurdles for standing—namely, causation and redressability. To satisfy the causation
requirement, there must be a “causal connection between the injury and the conduct
complained of that is ‘fairly traceable,’ and not ‘the result of the independent action of some
third party not before the court.’” Cooksey v. Futrell, 721 F.3d 226, 238 (4th Cir. 2013) (quoting
Frank Krasner Enters., Ltd. v. Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005)). Redressability

16

is satisfied “where there is a non-speculative likelihood that the injury would be redressed by
a favorable judicial decision.” Id. (internal quotation marks omitted).
Here, despite Defendants’ argument to the contrary, there is a causal connection
between the injury about which Plaintiffs complain—i.e., the fear and risk of future
prosecution by Defendants—and the conduct of which Plaintiffs complain—i.e., the alleged
retroactive punishment in violation of Ex Post Facto clause. With respect to redressability, a
favorable decision from this Court would enjoin Defendants from enforcing the challenged
provisions against anyone, including Plaintiffs. Under such a scenario, Plaintiffs would be able
to engage in conduct proscribed by the challenged provisions of the registry law without fear
of prosecution. The Court therefore concludes that, in addition to having plausibly alleged an
injury-in-fact, Plaintiffs have also alleged sufficient facts to establish causation and
redressability and, thus, standing to sue. As a result, Defendants’ motion to dismiss for lack
of standing will be denied.
C.

Statute of Limitations

Defendants next argue that “[t]he three year statute of limitations for claims brought
under 42 U.S.C. § 1983 bars the Ex Post Facto claims alleged by the [P]laintiffs.” (ECF No. 42
at 12 (emphasis added).) Plaintiffs argue, in response, that “[w]hile the statute of limitations
may work to bar suit claiming a discreet deprivation of rights, it does not insulate the State
from a general constitutional challenge.” (ECF No. 44 at 11.)
The applicable statute of limitations for Section 1983 actions is three years. See Brooks
v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (“[B]ecause the state limitations period
governing a claim for damages for personal injuries applies to a § 1983 action, regardless of

17

the allegations in the complaint, the three-year statute of limitations set forth in N.C. Gen.
Stat. § 1-52(5) . . . controls); Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir.
1991) (“There is no federal statute of limitations for § 1983 claims, so the state limitations
period which governs personal injury actions is applied.”); N.C. Gen. Stat § 1-52(16)
(establishing three-year statute of limitations for personal injury).
Although the applicable limitations period is dictated by state law, the accrual of a
Section 1983 claim is governed by federal law. Nasim v. Warden, Md. House of Corr., 64 F.3d
951, 955 (4th Cir. 1995). “Under federal law[,] a cause of action accrues when the plaintiff
possesses sufficient facts about the harm done to him that reasonable inquiry will reveal his
cause of action.” Id. Pursuant to this rule, it would appear that, consistent with Defendants’
argument, Plaintiffs’ claims began to accrue in 2006, 2008, and 2009—the effective dates for
four of the challenged amendments to the registry law—and, as such, “[t]he three year statute
of limitations for Plaintiffs’ claims [as to those challenged amendments] expired in 2009, 2011,
and 2012, respectively.” (ECF No. 42 at 12.) However, as “an exception to the ordinary
accrual rule[,] . . . the clock on any challenge to the constitutionality of a statute, whose
continued application works an ongoing constitutional violation, starts to run anew, every day
that the statute applies.” Wallace v. New York, 40 F. Supp. 3d 278, 302 (E.D.N.Y. 2014). As
recognized by the Fourth Circuit, “[t]he continued enforcement of an unconstitutional statute
cannot be insulated by the statute of limitations.” Va. Hosp. Ass’n v. Baliles, 868 F.2d 653, 663
(4th Cir. 1989) (alteration in original) (citation omitted). See Poe v. Lynchburg Training Sch. &
Hosp., 518 F. Supp. 789, 794 (W.D. Va. 1981) (“Since the alleged deprivation is of a continuing
nature, the action . . . is obviously not time barred.” (citing Williams v. Norfolk & W. Ry. Co.,

18

530 F.2d 539, 542 (4th Cir. 1975))). Therefore, because Plaintiffs in this action are seeking
prospective relief for the continued enforcement of allegedly unconstitutional amendments to
the registry law, the statute of limitations does not bar Plaintiffs’ claims. Defendants’ motion
to dismiss on this basis will be denied.
D.

Abstention

Defendants next argue that “[t]his Court should abstain from ruling on the
constitutionality of the challenged state laws and dismiss the complaint.” (ECF No. 42 at 14.)
Plaintiffs, on the other hand, contend that this case presents no grounds for the Court to
abstain. (ECF No. 44 at 12.)
The Supreme Court has “often acknowledged that federal courts have a strict duty to
exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716 (1996) (citing cases). See Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976) (explaining that federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given them”). However, “a federal district court is
vested with discretion” to abstain from exercising its jurisdiction “in deference to state court
resolution of underlying issues of state law.” Harman v. Forssenius, 380 U.S. 528, 534 (1965).
“Abstention doctrines constitute ‘extraordinary and narrow exception[s]’ to a federal court’s
duty to exercise the jurisdiction conferred on it.” Martin v. Stewart, 499 F.3d 360, 363 (4th Cir.
2007) (alteration in original) (quoting Quackenbush, 517 U.S. at 716, 728). It is therefore wellsettled that “[a]bstention from the exercise of federal jurisdiction is the exception, not the
rule.” Colorado River, 424 U.S. at 813; Gannett Co. v. Clark Constr. Grp., Inc., 286 F.3d 737, 741
(4th Cir. 2002). The Supreme Court has “carefully defined” the circumstances under which

19

abstention is permissible. Martin, 499 F.3d at 363 (quoting New Orleans Pub. Serv., Inc. v. Council
of New Orleans, 491 U.S. 350, 359 (1989)). The two abstention doctrines which Defendants
appear to contend 10 are applicable are the Pullman abstention doctrine 11 and the Burford
abstention doctrine. 12
Pullman abstention may be invoked where: (1) there is “an unclear issue of state law
presented for decision”; and (2) the resolution of that unclear issue of state law “may moot or
present in a different posture the federal constitutional issue such that the state law issue is
potentially dispositive.” Educ. Servs., Inc. v. Md. State Bd. for Higher Educ., 710 F.2d 170, 174 (4th
Cir. 1983) (internal quotation marks omitted). See Nivens v. Gilchrist, 444 F.3d 237, 245 (4th
Cir. 2006) (“Pullman abstention requires federal courts to abstain from deciding an unclear area
of state law that raises constitutional issues because state court clarification might serve to
avoid a federal constitutional ruling.”). As explained by the Supreme Court, “[b]y abstaining
in such cases, federal courts will avoid both unnecessary adjudication of federal questions and
‘needless friction with state policies.’” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)
(quoting R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941)).
Burford abstention applies in circumstances where “there exists (1) a state-created
regulatory scheme which would be disrupted by federal court review[,] and (2) a speciallycreated forum with specialized competence in that particular area.” Stewart v. Hunt, 598 F.

It is unclear to the Court whether Defendants seek abstention under the Pullman or Burford doctrine.
Nonetheless, because Defendants’ argument on the abstention issue references both doctrines, the Court will
consider whether abstention under either doctrine is appropriate.

10

11

R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).

12

Burford v. Sun Oil Co., 319 U.S. 315 (1943).
20

Supp. 1342, 1349 (E.D.N.C. 1984) (citing Burford v. Sun Oil Co., 319 U.S. 315, 327 (1943)).
“The primary consideration is whether the provision, statute or action to be reviewed in federal
court requires such highly specialized expertise so that it would be better to defer to the state
adjudicative bodies specifically created for handling such matters.” Id.
The Court finds that neither the Pullman nor Burford abstention doctrine is applicable
here. First, with respect to the Pullman abstention doctrine, Plaintiffs’ lawsuit raises no issue
requiring an interpretation or clarification of an unclear state law. Plaintiffs do not contend
that the challenged provisions of the registry law are unclear or ambiguous. Rather, Plaintiffs
mount a facial challenge to the constitutionality of certain provisions of the registry law. (See
ECF No. 33.) “Thus, abstention is not indicated if the state law is clear on its face.” 17A
Charles Alan Wright, et al., Federal Practice and Procedure § 4242, at 331–32 (3d ed. 2007). The
Supreme Court has explained that “[w]here there is no ambiguity in the state statute, the federal
court should not abstain but should proceed to decide the federal constitutional claim.”
Wisconsin v. Constantineau, 400 U.S. 433, 439 (1971). Defendants appear to argue, in part, that
abstention is appropriate here because Plaintiffs’ “specific challenge to the North Carolina
registry laws has not been previously litigated in North Carolina.” (ECF No. 42 at 13.)
However, “when a statute is not ambiguous, there is no need to abstain even if state courts
have never interpreted the statute.” City of Houston v. Hill, 482 U.S. 451, 469 (1987). In essence,
“[s]ince the naked question” before this Court, “uncomplicated by ambiguous language,” is
whether the challenged provisions of the registry law are facially unconstitutional, abstention
from federal jurisdiction is not required. Haw. Hous. Auth., 467 U.S. at 237 (internal quotation
marks omitted).

21

The Court further notes that in a Section 1983 action, “Congress has deliberately
afforded the [S]ection 1983 plaintiff an alternative federal forum.” Pittman v. Cole, 267 F.3d
1269, 1286 (11th Cir. 2001) (quoting Duke v. James, 713 F.2d 1506, 1510 (11th Cir. 1983)). To
that end,
[i]t is not for the courts to withdraw that jurisdiction which
Congress has expressly granted under [S]ection 1983 where such
a withdrawal is contrary to the purpose of Congress in extending
that alternative forum. In this regard, the Pullman doctrine is
narrow and is tightly circumscribed. A federal court must grapple
with difficult constitutional questions that confront it squarely.
The abstention doctrine is an exception to this rule, to be
exercised only in special or “exceptional” circumstances.
Id. (quoting Duke, 713 F.2d at 1510). Given that, as previously stated, this action does not
involve an unclear or ambiguous issue of state law, the resolution of which could potentially
dispose of Plaintiffs’ federal constitutional claim, Pullman abstention is not warranted.
Second, Defendants appear to argue that Burford abstention is appropriate because the
“issues raised in the [Complaint] are based on a constitutional challenge to specific North
Carolina statutory laws which are of substantial importance to the safety of the citizens in
North Carolina and to the State’s ability to exercise its police powers.” (ECF No. 42 at 14.)
“For Burford abstention to be appropriate, however, a ‘complex state regulatory scheme . . . for
which impartial and fair administrative determinations subject to expeditious and adequate
judicial review are afforded’ must also be present.” Meredith v. Talbot Cty., 828 F.2d 228, 232
(4th Cir. 1987) (quoting Browning–Ferris, Inc. v. Baltimore Cty., 774 F.2d 77, 79 (4th Cir. 1985)).
Here, Plaintiffs’ challenge to the constitutionality of certain amendments to the registry law
does not implicate a state administrative proceeding. See Gracious Living Corp. v. Colucci &
Gallagher, PC, 216 F. Supp. 3d 662, 671 (D.S.C. 2016) (“Federal courts usually utilize
22

when they sit in diversity jurisdiction to hear challenges to state agency proceedings.” (citing
Browning–Ferris, 774 F.2d at 77). Nor does the Court find that its adjudication of the federal
claim in this action matter would “unduly intrude upon [a] complex administrative process[ ],”
Martin, 499 F.3d at 364, particularly in this case where “[t]he right alleged is . . . plainly federal
in origin and nature,” McNeese v. Bd. of Educ., 373 U.S. 668, 674 (1963). Under these
circumstances, the Court concludes that Burford abstention is not applicable. Accordingly,
Defendants’ motion to dismiss on abstention grounds will be denied.
E.

Failure to State a Claim pursuant to Rule 12(b)(6)

Finally, Defendants argue that “Plaintiffs fail to plead plausible facts to establish the
legal sufficiency of their Ex Post Facto claims as well as fail[ ] to state a claim for which relief
may be granted and therefore the [Complaint] should be dismissed.” (ECF No. 40 at 2
(emphasis added).) The enactment of Ex Post Facto laws is prohibited by the United States
Constitution. See U.S. Const. art. I § 10, cl. 1 (“No State shall . . . pass any . . . ex post facto
Law.”). An Ex Post Facto law is a “retrospective” law that applies “to events occurring before
its enactment” and which “disadvantage[s] the offender affected by it . . . by altering the
definition of criminal conduct or increasing the punishment for the crime.” Lynce v. Mathis,
519 U.S. 433, 441 (1997) (internal quotation marks omitted).
In this action, Plaintiffs have alleged that the retroactive application of the challenged
amendments to the registry law violate the Ex Post Facto clause. (See ECF No. 33 ¶¶ 277–281.)
Defendants argue that the Complaint fails to state a claim for relief because the challenged
amendments are regulatory and do not impose additional punishment. (See ECF No. 42 at

23

14–22.) In support of their position, Defendants primarily rely on Smith v. Doe, 538 U.S. 84
(2003). (See generally ECF No. 42 at 14–20.)
In Smith, the Supreme Court considered, for “the first time,” whether “a sex offender
registration and notification law constitute[d] retroactive punishment forbidden by the Ex Post
Facto Clause.” Smith, 538 U.S. at 92. There, the Court held that sex offender registration laws
do not violate the Ex Post Facto clause if they establish a civil regulatory scheme rather than
criminal punishment. Smith, 538 U.S. at 92–93. The Supreme Court in Smith established the
framework for considering such Ex Post Facto challenges by adopting a two-part test: (1)
whether the intent of the legislature was to impose punishment; and (2) if not, “whether the
statutory scheme is ‘so punitive either in purpose or effect as to negate [the State’s] intention’
to deem it ‘civil.’’’ Id. at 92 (alteration in original) (quoting Kansas v. Hendricks, 521 U.S. 346,
361 (1997)).
With respect to the first prong, the Court in Smith noted that “‘only the clearest proof’
will suffice to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Id. (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)).
Plaintiffs argue that they have alleged facts “supporting the inference that the challenged
statutes were passed with punitive intent.” (ECF No. 44 at 15–16.) Specifically, Plaintiffs
allege the following:
(i) that as to the challenged provisions, the registry laws “have
changed from a database of criminal convictions to a punitive
regime of affirmative restraint,” (ECF No. 33 ¶ 7; see id. ¶¶ 68–
116);
(ii) that the burdens imposed on registrants “along with the history
of the registry law, demonstrate the intent to punish and/or

24

create the effect of punishment in violation of the Ex Post Facto
clause,” (id. ¶ 218);
(iii) that the challenged provisions “have been codified as part of
Chapter 14 of the North Carolina General Statutes—the North
Carolina criminal code[,] [N.C. Gen. Stat. § 14-208.5 et seq.],”
(id. ¶ 118);
(iv) that, although N.C. Gen. Stat. § 14-208.5 states, in part, that
“‘[t]he General Assembly recognizes that sex offenders often
pose a high risk of engaging in sex offenses even after being
released from incarceration,’ there is no evidence of any studies,
testimony, or other factual basis for this finding in the
legislative record,” (id. ¶ 67 (quoting N.C. Gen. Stat. § 14208.5)); and
(v) that the reporting requirements reflected in the challenged
provisions “are substantially similar to, and in many cases more
burdensome, than the requirements of post-conviction
supervised release imposed on non-registrants,” (id. ¶ 142).
Defendants argue, however, that the State’s legislative intent in enacting the sex
offender registry laws was to develop a civil regulatory reporting system for public safety.
(ECF No. 42 at 16.) In support of this argument, Defendants cite two decisions from the
North Carolina Court of Appeals—In re Hall, 768 S.E.2d 39 (N.C. Ct. App. 2014) and State v.
Pell, 712 S.E.2d 189 (N.C. Ct. App. 2011)—in which that court reiterated that N.C. Gen. Stat.
§ 14-208.5 et seq., which governs the sex offender registration process, is a “non-punitive, civil
regulatory scheme,” and therefore, its application does not violate the Ex Post Facto clause. 13
(See ECF No. 42 at 16 (quoting Hall, 768 S.E.2d at 45–46; Pell, 712 S.E.2d at 190).)

Despite Defendants’ reliance on decisions from the state appellate court, it is well-settled that federal courts
are not bound by state court decisions on federal constitutional issues. See Joseph v. Blair, 482 F.2d 575, 579 n.4
(4th Cir. 1973) (“Although entitled to great respect, and perhaps completely persuasive, the decision of a state
court of last resort is not binding on a federal court on a federal constitutional question raised by persons who
were not parties in the state litigation.”); Grantham v. Avondale, Indus., Inc., 964 F.2d 471, 473 (5th Cir. 1992) (“It
is beyond cavil that we are not bound by a state court’s interpretation of federal law regardless of whether our
jurisdiction is based on diversity of citizenship or a federal question.”); Rural Water Dist. No. 3 v. Owasso Utils.

13

25

As Plaintiffs allege, the challenged provisions of the registry law are codified as part of
Article 27A of the North Carolina General Statutes which states, in pertinent part:
It is the purpose of this Article to assist law enforcement
agencies’ efforts to protect communities by requiring persons
who are convicted of sex offenses or of certain other offenses
committed against minors to register with law enforcement
agencies, to require the exchange of relevant information about
those offenders among law enforcement agencies, and to
authorize the access to necessary and relevant information about
those offenders to others as provided in this Article.
N.C. Gen. Stat. § 14-208.5. On its face, this purpose does not reflect an intent by the State
that its registry laws impose criminal punishment. Given that “considerable deference must
be accorded to the intent as the legislature has stated it,” Smith, 538 U.S. at 93, the Court finds
that Plaintiffs’ allegations fail to satisfy the first prong of the Ex Post Facto inquiry.
Having concluded the Plaintiffs have failed to allege a clear legislative intent to impose
additional punishment, the Court must next consider whether Plaintiffs have plausibly alleged
that the effect of the statutory scheme is so punitive that it negates the State’s intention to
deem it civil. See id. at 92. In analyzing the effects of the challenged provisions of the registry
law, the Supreme Court has instructed the Court to consider five factors: (i) whether the law
“has been regarded in our history and traditions as a punishment”; (ii) whether the law
“imposes an affirmative disability or restraint”; (iii) whether the law “promotes the traditional
aims of punishment”; (iv) whether the law “has a rational connection to a nonpunitive
purpose”; and (v) whether the law “is excessive with respect to this purpose.” Id. at 97. These
Auth., 530 F. Supp. 818, 823 (N.D. Okla. 1979) (“Federal [c]ourts are not bound by [s]tate [c]ourt precedents
on federal questions. The [f]ederal [c]ourts are not bound by [s]tate [c]ourt decisions as to the effect of the
[f]ederal Constitution or . . . [f]ederal [s]tatutes. The [s]tate [c]ourt decision is persuasive authority only.”
(citations omitted)); Speir v. Robert C. Herd & Co., 189 F. Supp. 432, 436 (D. Md. 1960) (stating that the federal
district court “is not bound by decisions of state courts construing the federal constitution”).
26

factors are “neither exhaustive nor dispositive . . . but are useful guideposts.” Id. (citations
and internal quotation marks omitted).
Defendants argue that “Plaintiffs have . . . failed to allege facts, as there exist no facts,
that would render the effect of these laws so punitive as to make them in violation of the Ex
Post Facto Clause.” (ECF No. 42 at 17 (emphasis added).) Plaintiffs’ Complaint alleges, among
other things, that the challenged provisions of the registry law:
(i)

are similar to traditional forms of punishment, namely,
shaming and banishment, (ECF No. 33 ¶¶ 226–36);

(ii)

are “more burdensome than” or “substantially similar to”
restrictions “generally imposed under conditions of
probation, parole, or supervised release,” (id. ¶¶ 237–38);

(iii)

“impose affirmative disabilities and restraints on
registrants” in that they “dictate where registrants may
live”; where they may work; “what jobs they may have”;
and they “prevent registrants from being present in a wide
array of public, limited public, and private fora,” (id. ¶¶
240–43);

(iv)

subject registrants “to random checks by law enforcement
and substantial in-person reporting requirements for
which they are strictly liable under threat of felony
prosecution,” (id. ¶ 244);

(v)

“are substantially greater than necessary,” in terms of
“extent and duration,” to meet the legislature’s stated
purpose, (id. ¶ 262; see id. ¶¶ 261–276); and

(vi)

“requires continued registration long past the period
when there is any meaningful risk of recidivism,” and
applies to individuals “who have been found not to be
dangerous to children, youths, or the public at large”;
“who have never committed an offense against a minor”;
“who have received full treatment and counseling”; and
“who have no risk factors for future recidivism,” (id. ¶¶
264–68).

27

Accepting Plaintiffs’ allegations as true, as the Court must at this stage, 14 the Court
concludes that Plaintiffs have alleged a plausible claim that the challenged provisions of the
registry law are so punitive in effect to violate the Ex Post Facto clause of the Constitution. 15
Because the Court concludes that Plaintiffs have stated a claim upon which relief may be
granted, Defendants’ motion to dismiss Plaintiff’s Complaint for failure to state a claim must,
therefore, be denied.
IV.

CONCLUSION
Based on the above, the Court concludes: (i) that this action is not barred by Eleventh

Amendment immunity, per the Ex parte Young exception; (ii) that Plaintiffs have sufficiently
alleged an injury-in-fact, causation, and redressability and thus have standing to sue; (iii) that
the three-year statute of limitations typically applicable to Section 1983 actions does not bar
Plaintiffs’ claims here seeking prospective relief for the continued enforcement of allegedly
unconstitutional amendments to the registry law; (iv) that neither the Pullman abstention
doctrine nor the Burford abstention doctrine is applicable in this case; and (v) that Plaintiffs
have stated a plausible claim for relief for an alleged violation of the Ex Post Facto clause of
the United States Constitution.

See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993) (“In considering a motion to dismiss, the
court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable
to the plaintiff.”).
14

Having only evaluated the sufficiency of Plaintiffs’ allegations, the Court makes no finding regarding the
merits of Plaintiff’s Ex Post Facto claims.

15

28

For the reasons outlined herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ First
Amended Complaint, (ECF No. 40), is DENIED.
This, the 30th day of July, 2019.

/s/ Loretta C. Biggs
United States District Judge

29