Fourth Circuit to NC: Got some statistical evidence? Anything? Hello? You there?

By David Post . . . In an important decision, the U.S. Court of Appeals for the 4th Circuit on Wednesday struck down [Doe v. Cooperopinion posted here] as unconstitutional under the First Amendment yet another “unconstitutional monstrosity” perpetrated by the North Carolina legislature in its unceasing efforts to make life as miserable as humanly possible for previously convicted (but now ostensibly “free”) sex offenders, and to deprive them of any hope of re-integrating into the communities in which they live.

[Alert Conspiracy readers will recall that the Supreme Court has agreed to review a decision by the North Carolina Supreme Court that rejected a First Amendment challenge to a different section of the N.C. sex offender regulatory scheme — one that imposes criminal penalties on sex offenders who “access … commercial social networking websites” for any reason. Eugene and I have blogged extensively about this case: See here, here, here, and here].

In this case, the statute in question made it a Class H felony (punishable by “a presumptive term of imprisonment of 20 months) for 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. [Or]
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs. NCGS 14-208.18(a).

The court held, first, that the provisions of subsection (3) are unconstitutionally vague; “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3).”

Two principal problems are evident in subsection (a)(3) which compel the conclusion it is unconstitutionally vague. In particular, a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is “regularly scheduled” or (2) what places qualify as those “where minors gather.” …

The term “regular” means happening at fixed intervals. 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.” …

Subsection (a)(3)’s “where minors gather” language is also without defining standards. 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).

Additionally, the court found that subsection (a)(2) could not withstand “intermediate scrutiny” under the First Amendment:

To pass intermediate scrutiny, a statute must materially advance[] an important or substantial [government] interest by redressing past harms or preventing future ones. In addition, it must have the right “fit.” That is, it cannot burden substantially more speech than is necessary to further the government’s legitimate interests.

The burden of establishing the required fit is placed “squarely upon the government,” and North Carolina failed to meet it — by a goodly distance, failing to present any evidence whatsoever that the statute advanced the state’s interest in protecting minors in any way. At trial, the district court “put the State on notice that its limited evidence was inadequate to meet its burden of proof, but the State “explicitly declined to introduce any additional evidence.”

[The State’s] decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. … The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with an appeal to “logic and common sense.” But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof.

[T]he State cannot rest its case on the conclusory assertion that minors would be “more exposed to harm without [this] prohibition than with it.” Without empirical data 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.”

That might seem an unspectacular point; if the State offers no evidence at all that the statutory prohibition does anything to ameliorate the evils at which it is aimed, it cannot possibly satisfy the State’s burden of demonstrating that the statute “materially advances” the State’s interest. It is noteworthy, however, because so many other courts have meekly accepted the “conclusory assertion,” based on “common sense,” that the statute does more good than harm, and does not burden more speech than necessary to accomplish that good. [In the other North Carolina case referred to above, for example, the state presented no evidence that the ban on accessing social networking sites was, in fact, effective in any way at protecting minors — but the North Carolina Supreme Court upheld it anyway].

So kudos to Judges Motz, Traxler and Agee. This is just what the federal courts are supposed to do when constitutional rights are at stake: hold the government’s feet to the fire, and demand that they demonstrate that have a damned good reason for doing what they’re doing.

(Source:The Volokh Conspiracy of The Washington Post.)

someone outside of NARSOL

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12 Thoughts to “Fourth Circuit to NC: Got some statistical evidence? Anything? Hello? You there?”

  1. AvatarEmpirical Evidence specificity is next

    In fact, the Court strongly rejected the assertions of the State of North Carolina that anecdotes, common sense and logic could replace empirical evidence. Based upon this statement alone, Research Triangle in NC should be coughing on what the state thought considering they produce empirical evidence using scientific methods to defeat what is thought of as anecdotes, common sense and logic. (The Research Triangle, commonly referred to as simply The Triangle, is a region in the Piedmont of North Carolina in the United States, anchored by North Carolina State University, Duke University, University of North Carolina at Chapel Hill, and the cities of Raleigh and Durham and the town of Chapel Hill. Wikipedia.)

    Research = Empirical evidence (aka statistical data)

    Next step, provide what are truly worthy empirical evidence generating research methods, e.g. NOT Static-99 solely.

    1. AvatarErika

      Just wanted to clarify my comment about a “Self-ful-filling Prophecy[1]” because I feel that I’m leaving the reader hanging out in space.

      What I mean is that well intentioned politicians/ lawmakers will refuse to accept or even observe the hard cross-validated data simply for political or animosity reasoning but little does he or she realize they are creating great harm on both sides of the fence by increasing the recidivism rates through socially isolating the targets by creating an inescapable panoptic prison to test ones sanity and cause the very thing the law was intended to prevent in addition to harming the present or future children of registrants.

      [1] In his 1948 article Self-Fulfilling Prophecy, Merton defines it in the following terms:

      The self-fulfilling prophecy is, in the beginning, a false definition of the situation evoking a new behavior which makes the original false conception come true. This specious validity of the self-fulfilling prophecy perpetuates a reign of error. For the prophet will cite the actual course of events as proof that he was right from the very beginning.

  2. So please forgive my ignorance but what does all this mean for sex offenders? Are they going to have to change any law’s? Could some make all this easier to understand.

  3. AvatarRajendra

    when will the registry end and all the draconian laws surrounding it?
    I took plea for lower class felony but then they added five years of supervision even though the verdict was the time served. It doesn’t make any sense at all! They don’t allow for international travel and there’s so many restrictions.

    1. AvatarRon

      In my case upon completion of incarceration, the DOC attempted to Petetion the court without my appearance ,while locked up to add a year on to my supervision, the judge denied their request and let the three years stand. Ten years later I was discharged from registering. I have a great argument to nullify the firearms felon restriction.
      After release or was sent from my civilian institution back on duty in the military. I demonstrated my lawful abiding proof that I could be trusted to carry and did, in combat and domeatically. Now for a court to mute my argument would be cumbersome and hard even though my state explicitly bans sex offender restoration, but protects every other post-felon class. It is a strange up on the ante when the class of sex offender is not often comenstruated by tool of force and intimidation. It’s nothing but a personable crush of the nuts of someone so aggrieved in the boughs of lustful legislative chambers plotting on every potential or prospecting pervert. I can see right through these bull snot bureaucrats. Sad dam ass shame!

  4. AvatarIn Search of Liberty

    Thank you 4th Circuit Court of Appeals for not allowing “Bald Assertions” to replace evidence in a court of law and especially, especially, in the making of law by state legislatures. I read the court’s opinion in this case and I was very, very impressed with the court’s reasoning, its discernment AND analysis of the issues at hand and really impressed with the court’s eloquence. I think I like this court’s eloquence little better then Judge Batchelder’s from the 6th Circuit Court of Appeals in Does v. Snyder out of Michigan. I mean the 4th Circuit really broke down NC’s sex offender statutes into little pieces and showed how they did not pass constitutional muster. They did a great job with that.

  5. AvatarAaron

    Does this mean the residency rules are back to 300 feet or still 1000 feet. The politicians know this is a winning topic to keep punishing sex offenders and it gets them elected.

  6. Well I met with my probation officer today and I’m going back to court. We discussesd all of what was going on I even showed him this site and he said I wasn’t suppose to actually be on it. I was only suppose to be on the internet for my business since I do graphic work and ceramic tile work.
    I guess this is another challenge that I have to go thru. It seems they want all sex offenders to be in the dark about their offense.
    I would suggest everybody on here write an article and send it or get your editor of your newspaper to publish something as I think its time now for the American public to know just whats going on this wizard of oZZ thing or hype of all this scheme..
    How unconstitutional it is for all states. I even mentioned to my PO about freedom of speech and this Doe Vs Cooper and he tried to look it up on his phone but didn’t know to much about it but all if this is going to come down the pike soon.
    Believe it or not I don’t even thing one can type in their browser ‘sex offender laws or look up anything about sex offenders when the main thing is they want one to stay away from kids.
    One more example…. from time to time I will get e-mails from some person on yahoo looking for a good time…… of course that is a set up and a ruse I expect. If they do tricks than why not entice someone with a fake e-mail which could turn out to be a cop. I wouldn’t put anything past a cop.

    1. AvatarMaestro

      James Townsend,

      Don’t read too much into those random emails looking for a good time. Everyone gets those. They are “click-bait” for morons who will open the emails, click the links and have a crap ton of viruses and malware attach to their computers for thieves to break into all your person stuff (i.e. bank accounts, etc) and bleed you dry.
      I can’t begin to tell you how many emails per day I get with headings that read: “V I A G R A from Canada at low prices”, “Hi, remember me? We chatted before” and “FREE pharmacy medicines”.
      There is a sucker born every minute who will click these messages and get scammed.

    2. Ah Mr. Maestro. I do remember litter Richard with the fake eye lashes and the long hair and I do remember “Captain Jack will get you high tonight” I believe that was Bennie and the Jets so who was abusing and who was real?

      Now one has to understand that Police are servants of God or Ministers of God if you might say. God is not the author of Confusion.. Now abuse comes in many different forms. So what is vague in your standards or should one give an opportunity if they are representatives of God?

      Now for the 64 thousand dollar question. While my PO might not approve me of being on RSOL it is what it is until it, ain’t want it is?

      And yes there is a sucker born every minute but if you have knowledge, wisdom, and understanding and a little bit of mustard seed faith one can see miracles happen. Answer me this. …. is there no redemption of the sex offender or is it a one shot charley type of abuse?

      RSOL since I have been on it has different people on here with different backgrounds of offenses but RSOL is here to help inform each other that reaches out to this and also gives the opportunities to understand more about the sex offender plight and what they as a group can do to help others.

      Isn’t that what its all about helping others? And when one is helping others that’s a God sent.

  7. AvatarSpeaking of laws.....

    If memory serves me correctly I believe all of the designers of these ridiculous laws, statues and ordinances took an oath to protect the Constitution of the United States. Where is the non-partisan, politically-free and un-opinionated judicial review of these blatantly unconstitutional laws BEFORE it sees the light of day? All of this needless personal damage and waste of taxpayer monies (YOUR MONEY) could be averted by simply instituting a comprehensive judicial review board that carefully scrutinizes any piece of legislature that even hints at reducing personal inalienable rights. This board should be free from ANY outside influence of a political nature. They should be the ones who can legally stand up and say, “Hey guess what? YOU CAN’T DO THAT!” If there is an argument to be made for or against a proposed law then it should happen logically, BEFORE IT IS SUBMITTED FOR SIGNATURES. I’ve got an idea. Why don’t we propose our own legislation and do just that. I bet we could get over 850,000 signatures…….

  8. Fourth Circuit to NC. Got some statistical evidence? Anything Hello? Are you there? I have to hand it to Brenda and her crew. This news came at a crucial time in my ordeal as well as others.

    Now put on your ethical thinking cap. Here goes…Martyr…a person who is killed because of his religion or other belief’s.

    Now in a lot of these ordeals of an internet scheme they wanted us to belief that they were teenagers. Now how can one believe something unless one gets proof to that encounter?
    All of us make mistakes but we as a sex offender seem to be in a class of outcasts. Sure I have argued with my sister about this and I’m sure a lot of others have argued with family members but unless one in in there shoe’s they really don’t understand.
    Heck I wouldn’t mind going 6 months drunk driving that this? But what after probation does anyone have to look for? I think its high time we all stand up. As I told my PO there are over 8 hundred thousand people on the registry and he agreed to that figured. That is a lot of human lives being wasted because of some cop wanted to practice at the art of deception.
    Here is an article you all might want to look up to get a better refresher on all this police and interrogation methods..

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