Breaking: Fourth Circuit holds NC premises statute unconstitutional
By Robin . . . In a broadly worded opinion, the U.S. Court of Appeals for the Fourth Circuit has affirmed a lower court ruling previously holding most of North Carolina’s premises and proximity restrictions applied to registered sex offenders as unconstitutional.
The Court of Appeals held subsection (2) of § 14-208.18 as unconstitutionally overboard and admonished the state for failing to provide evidence to support its intent: “Without empirical data or other similar credible evidence, it is not possible to tell whether subsection (a)(2) . . . responds at all to the State’s legitimate interest in protecting minors from sexual assault.”
The Court of Appeals held subsection (3) of § 14-208.18 as unconstitutionally vague stating that “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized” by the statutory language.
The North Carolina General Assembly enacted a new premises statute which took affect on September 1, 2016. The new statute is set to be challenged in federal court by NCRSOL, National RSOL’s affiliate in North Carolina.
Another Huge Victory! How many does that make this year? The tide is turning.
Yes! Very well put “the tide is turning”
The more onerous (Draconian) laws are when rushed through hysteria driven proclaimations absent of cross-validated empirical data to support (e.g. 2% state recid. rate will be ignored!) its measure in the first place, the more likely it is to fail because it cannot withstand contradicting cross-validation, it’s validity becomes volatile over time, erodes and reaches a point of entropy when it’s premising foundation is based entirely on unsubstantiated heresay which makes it vulnerable to constitutional scrutiny and judicial oversight…
Awesome! Let’s keep the momentum rolling.
Very encouraging!
Nice work Robin! Stay strong through the long war….
No credit deserved here. All the credit is to the attorneys, Glenn Gerding and Paul Dubbeling. And to the John Does who courageously stood up to the state. Credit too for Judge James A. Beaty and the Fourth Circuit panel that heard the appeal. They got it right on this one. This thing is not over though. The state passed a new statute while this decision was pending. We will file a lawsuit in the next several weeks challenging the new premises statute. This will be NCRSOL’s first “real” lawsuit and we are very hopeful for a positive result in view of this ruling today.
Hi Rwvnral,
can you go in detail about the new statute being passed. What this is all about.
Thank you Kari.
You can read about the new law here: http://nationalrsol.org/4367/
KEY WORD here is: “empirical data” or “Hard Cross Validated (very important) Empirical Sciences”
“Are we Burning down the house to roast the pig?” was the talk in Congress among Senators and Reps when discussing the forming of the AWA or SORNA…
EX-POST FACTO THOUGHT EXPERIMENT?
Hypothetical Legal Dicta:
All “punishments [restrictions and requirements]” not just a prison term” should be or should have been listed or enumerated of “what one can cannot do” (Doe – v- Alaska) at the time of sentencing; anything added to it (law at the time) after the fact as part of a sentence for a plea bargain (contract law) would be ex-post facto?
How many people would agree to the “TERMS” of this type of plea bargain which is contractual agreement?
Would you agree to loose all of your enumerated constitutional rights for LIFE?
When would your civil rights be RESTORED?
Where would “LIBERTY INTERESTS” and “DUE PROCESS” “RIGHTS” come in?
Note: Deeply entrenched within the hierarchal design in the archetype of legal dicta “Alford Pleas” do just that; strip most of your constitutional rights which includes the 8TH AMENDMENT among others… This is the ONLY disguishable difference from a Nolo Contender/No Contest Plea.
Erika, I had my rights
Restored and was deregistered in my state of conviction, so does this mean the Alford
Plea is mute in my case ? Since the requirement was removed by operation of law, I would think that it is. I also have one more hill to climb in federal court restoring my right to military retirement, since the military inserted their prerogative to conveniently discharge just short of that maturation.
These draconian disses on people so scorn are
political exacting attempts to stay popular or surviving in the game of serious suck-up!
It should be noted that this opinion was written by
a conservative Republican judge.
We try to keep politics out of these discussions. The country is divided enough, but we can be united here.
Fred –
The point Nick is making though is the presiding Judge is not of a party who usually sides on matters like this for those who are RCs. They usually see the other side and stay there, e.g. SCOTUS where the conservatives usually take the majority and rule with that with misguided facts. The point is important to note as there is a POTUS elect on scene and has promised to nominate conservative constitutional Judges for the bench. If you read about Judge Pryor of the 11th Circuit, who is on the list of potential nominees, you should be scared for what he thinks, feels and wants to see for the country regarding morality, etc.
Nick should be noted for his astute observation and bringing it forth, especially in a very conservative state such as NC.
If this Judge can see the evidence for what it is empirically, then whatever side they are on can lead to possible reasonable conclusions for RCs and not emotional politically charged decisions.
I agree it is a good sign and that Republicans are usually viewed as the tough on crime party, but we most remember that both sides have been involved in passing and upholding laws that make our lives difficult.
There have already been some angry complaints from some people who felt we were leaning in a political direction that they did not agree with. I know how easy it is for tempers to flare when it comes to that. I believe that is the fastest way to divide us when we so badly need to stay together. So I hope we can make an effort to remain as neutral as possible when it comes to politics, at least until things have calmed down.
What does this really mean?
Just my two cents:
It means it will eventually “limit policing powers” in due time to enforce these draconian laws when the precedents are ripe to rule on.
It also means it will have an impact on future challenges compatible to Doe -v- Connecticut on Doe -v- Alaska.
This is a godsend because here we have two Federal Circuit Sister Courts of Appeals agreeing in tandem; a 4th cir. Appeals decision following on the heels of the 6 cir. Appeals decision against these laws not for these laws. These are historical final court case citation precedents unless the United States Supreme Court chooses to intervene by appeal from the moving (defeated) party. If the SCOTUS refuses to hear these cases on Appeal and let them stand as is, then it becomes the “LAW OF THE LAND.”
Congress, State & Local Law Making Officials Including Law Enforcement get there “policing power” from the higher Appeal Courts be it Federal or State Appeals Courts and Supreme Courts. Which (individual States) either adhere too or break away from “stare decisis” (Google it). The United States Supreme Court is were all policing powers flow from unless a State Supreme Court breaks away from stare decisis….
Nice thank you for translating that. Lol I often feel like a fish that swam to far underwater. =|
My comment above “ripe to rule on” I wanted to clarify this a little more:
These 4th. & 6th. cir. decisions act as a precedent and sets the limitation of governments power to Lower Courts (Judicial Branch of Government), Executive & Legislative Branches of Government; hence Local, State and Federal officials.
This makes them a ripe foundation for use by all Law Makers, Lower Courts (Judges), licensed legal professionals & pro per se/persona litigants as a “precedent citation” within that circuits jurisdiction.
Sometimes like in Doe -v- Connecticut, precedents are often burrowed and permissibly accepted by the sister circuits if the issues are identical or too similar to ignore, however if a quantum of the Appeals Circuits come to a disagreement in the future then the United States Supreme Court will most likely rule on the disagreement of the last similar cases because it is “ripe to rule on.”
Hopefully the similar thing will be done with the IML, someday.
There are many registrants who are naturalized US citizens who have their wife, family overseas and as such are having issue about traveling overseas to see them. Even without the IML, the USCIS which handles immigration is denying application for family visas who live overseas for US citizens (naturalized or not).
So really the registrants who were not born here are stuck here alone.
Does this ruling have components that can be used to challenge IML? After all, that law is predicated on the assumption that EVERY RSO traveling abroad is likely a sex tourist or a human trafficker.
This is good news and I do like the part about “intent”. That is the very thing they wanted to charge me for but since do one knows another person’s intent in this type of situation, the police investigator said to me…. your intent was to have sex with a teenage gal……so since they couldn’t come up with the intent they sort of changed it to attempt…… they are slick willly types…
anyway I phoned my PO today to find out the status about this face book thing and their refusal to give me the polygraph test. Was told that my PO would see me Friday to do his monthly check and talk about it. I still want to go to court if possible to get this over with plus I also think early release from probation is an option for one to shoot for along with….. along with deceiving and tricky and all that.
Common sense… no teenage gal is gone to say to you come to my house my parents aren’t home… they don’t say that right off the bat. Even adult women don’t even say that right off the bat.
So I think everybody needs to help their brother out that’s involved in this ordeal. Write a letter to Trump as this is since less and as it is now the sex offender can’t get a job because of the record which is a form of discrimination. Shoot they will let transvestite’s have jobs before us. Its a wacky world but its based on greed and money.
I am not sure just yet, but it appears that federal judiciary is starting to take a real serious look “BEHIND THE CURTAIN” (think ‘Wizard of Oz’ when Dorothy finally looked behind a curtain and found a weasel and not the big faced mean looking guy with the booming voice on fire proclaiming “I am the great and powerful Oz” ). Yes, I think the federal judiciary has finally looked behind the curtain found the weasel. The federal court in Maryland looked behind the curtain and they found it, the federal court in Michigan looked and they found it, now the federal court for North Carolina has looked and they too found it. And now, just like Dorothy, they, the federal judiciary, are not afraid anymore of the big faced guy with the booming voice on fire proclaiming “I am the great and powerful Oz” because they have seen that he is just a weasel.
My opinion is that Appointed Judges tend to follow the Constitution, while elected Judges tend to cater to their voters. That is why we are more likely to see rulings in our favor when we take our cases before appointed federal judges who don’t have to worry about being voted out of their positions for doing what is right instead of what is popular. .
Re: “looking behind the curtain”
“WHEN RATIONALE NO LONGER WITHSTANDS CAREFUL ANALYSIS?”
This compliments the:
IRREFUTABLE/IRREBUTABLE PRESSUMPTION DOCTRINE1 (Doe-v-Snyder)
I found this 2009 LEXIS citation so deeply interesting because of the possibilities it eludes to?
Is this the genesis of reform on the judicial side?
At least from a what I think is starting to occur with Doe -v- Snyder
STARE DECISIS:
“The doctrine of stare decisis is of course ‘essential to the respect accorded to the judgements of the Court and to the stability of the law,’ but it does not compel us to follow a past decision when its rationale no longer withstands ‘careful analysis.’ – Arizona v. Gant, Case No. 07-542 (S. Ct. 4/21/09)
1″The doctrine provides that if a state denies a person or group a right based upon a particular presumption, the presumption must be universally true and there must be no reasonable alternatives available to determine the classification. In plain language, the appellants argue that SORNA denies a person their right to reputation by presuming that a conviction for an enumerated offense means they are likely to sexually recidivate. …” (Doe -v- Snyder, U.S. 6th cir. Court of Appeals) (see also: STATEMENT IN SUPPORT OF ORAL ARGUMENT CASE NO. 15-2346/2486 162 pages.) (see also: INDEX OF EXHIBITS TO THE COMPLAINT 2:12-cv-11194-RHC-DRG)
Citations of interest?
“The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision'”) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U.S., at 855-856; see also id., at 844 (“Liberty finds no refuge in a jurisprudence of doubt”).”