Eleventh Circuit supports NARSOL case: Halloween signs are unconstitutional

By Larry . . . NARSOL is excited to announce that the Eleventh Circuit Court of Appeals handed Butts County Sheriff Gary Long a stinging defeat today. The case is Cory McClendon v. Gary Long, No. 21-10092. This is a long-running case based on events that occurred on Halloween, 2018. At that time, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registrants within the county, warning “STOP” and “No trick or treat at this address.” The sheriff’s office placed these warning signs in front of the listed homes of all registrants in Butts County without considering whether the state had classified any of them as posing an increased risk of recidivism. The deputies collected the signs right after Halloween.

After the warning signs were placed, Sheriff Long posted a message on his official Facebook page, along with a picture of the sign. In his post, he explained that the signs had only been placed in front of the homes of registered sex offenders. His message also erroneously represented that Georgia law forbids registered sex offenders from participating in Halloween. In its decision, the Court concluded, “It is now undisputed, however, that Georgia law does not forbid registered sex offenders from participating in Halloween.” See Opinion at 6.

NARSOL was outraged by Sheriff Long’s actions, and we began searching for legal counsel to challenge what we believed to be an unlawful order. We secured the services of Mark Yurachek, an Atlanta based attorney, who had won a challenge to Georgia’s Global Positioning Systems (GPS) monitoring regime. With Mr. Yurachek’s assistance and funding provided by NARSOL, letters were sent to all registrants in Butts County. Mr. Yurachek’s office identified three good plaintiffs who then sued, seeking to enjoin the sheriff from placing the signs again in 2019.

Sheriff Long explained that he believed the signs were “imperative” to warn the public about the residences of registered sex offenders. Prior to 2018, the sheriff’s office had provided registrants with a flier at Halloween and asked them to place it on their doors. He believed that placing a yard sign out by the road would be more effective because it would prevent children from walking to the door. Long has been sheriff in Butts County since 2013, and he admitted that during his tenure, he did not know of any incidents in Butts County involving registrants on Halloween. In fact, during his six-year tenure as sheriff, there were no issues with any registrants in Butts County having unauthorized contact or reoffending with minors at any time.

The Eleventh Circuit concluded that the district court erred in two ways. First, it determined that a compelled government speech claim requires a finding that a reasonable third party would view the speech as endorsed by the plaintiff. Second, the district court erred by determining that the plaintiffs’ ability to place their own yard signs disagreeing with the warning signs could cure the original violation. The Court stated, “This ignores that the harm here is the forced display of a government message on private property in violation of the right to refrain from speaking at all.” See Opinion at 12-13.

NARSOL is extremely gratified by this decision and believes it validates our mission in challenging law enforcement when they choose to invent requirements that are not part of a statutory scheme. This case took nearly four years to work its way through the trial court and then through the appeals process. We wish to thank the Alliance for Constitutional Sexual Offense Laws (ACSOL) for their help. ACSOL provided an amicus brief which may have been significant in the Court’s final analysis. Sheriff Long vowed at the onset of this case that he would take this all the way to the United States Supreme Court. Butts County officials are now at that point because he has lost yet again. We anticipate that there will be additional challenges to law enforcement agencies who choose to invent and impose their own requirements.

NARSOL wishes to remind Sheriff Long and other law enforcement officials in Georgia that you took an oath to enforce the law. Your office as an elected sheriff does not permit you to make law. If you wish to formulate law, you should consider running for the Georgia General Assembly.

This decision regarding Halloween signs will be discussed in detail on the next episode of the Registry Matters Podcast. We will submit your questions to Larry, and he will answer them to the best of his ability. The podcast is recorded on Saturday evening for distribution the following Monday. We will link to the podcast once it’s released to the public.

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28 Thoughts to “Eleventh Circuit supports NARSOL case: Halloween signs are unconstitutional”

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  1. Facts should matter

    We won’t let law enforcement intimidate us from telling the truth

    Who else is tired of society demanding that we “kid proof” everything?

    1. PubliusNH

      “Kid-proofing” and “Covid-proofing” are all faces of the same evil device to steal liberty and replace it with ‘security.’ But there is no security, only fear. America would have sold its birthright for a bowl of porridge.

  2. WC_TN

    Does this ruling address these Halloween warning signs as a whole or does this specifically target the fact that the signs were posted by the Sheriff without statutory authority?

    If the ruling addresses the sign issue as a whole, this could at least be used as a convincing argument in other appellate districts in new challenges to states who mandate such signs by law, wouldn’t it?

    Buuuuuut….if this ruling specifically targets the signs in this case due to the lack of statutory authority for the Sheriff to post them, couldn’t the state make such a mandate in state law and render the court’s ruling useless?

    1. Dustin

      A couple of years ago, someone in the Georgia assembly wrote a bill to give sheriffs the authority to place signs if they chose, likely in response to the original lawsuit. I don’t think anything came of it – I suspect it was abandoned after Long won his appeal in the district court.

      Regardless, I’m betting that there will be another bill to authorize the signs and forbid registrant participation in Halloween in the next few weeks in response to this decision.

      1. WC_TN

        Yeah. You’re probably right. I expect the same. It’s infuriating when the issues we sometimes win on are ones that the state can simply flip us the bird and legislate their way around our victory in court. You know they do this with maximum glee.

    2. lovewillprevail

      It appears from the opinion, both. So the state adopting a law would still violate the 1st amendment right if I am correctly understanding.

  3. Maestro

    As I stated in a comment on the FAC website, this logic can and should be used against the registry itself. If posting a sign is “compelled speech”, then so is the registry.
    With the advent of the World Wide Web, all you need to do is type in someone’s name and if they don’t have any criminal history, no results of criminality will appear. If they do have a criminal history, you’ll easily be able to click around and see what they were charged and convicted of, along with how much jail time they did (if any). So with that, there is no need for a registry. Searching for someone’s information is not “compelled” because YOU aren’t being FORCED to give that information. It’s being sought. But the registry is FORCED on you requiring all sorts of information outside of just the charge and conviction. So, the registry and any license branding (including passport branding) IS compelled speech. It needs to be argued.

    1. Tim in WI

      FORCED? Not if state has in its possession a standardized waiver of civil rights via plea & record. That signed document means permission given by defendant knowingly. No man can deny the people’s duty to protect itself from attack. IMO the people having a database of known criminal is appropriate given due process, but enslaving man to machine upkeep for life is a bridge to far. Slavery and indentured servitude are historically sever punishment. One judge called it cruel and unusual. I’ll by that for $200.00 Alex.

  4. DB

    Excellent News – However my only assumption now would be that in the near future this sign issue will be pushed as a way to grab votes and put forward as an ordinance which will then render all of this mute and simply add another new law to the books. It saddens me to know that all that ever seams to get accomplished is the poking of the bear.
    The police in my town visit monthly to “verify addresses” without any law supporting such actions. Yes, you do not have to answer the door. However, that just means they’ll keep coming back every day until you do. No, you do not have to give them your license. However, telling an officer no doesn’t go over too well.
    Poke the bear further and it just gets angrier. We are the bottom of the food chain here.

    1. lovewillprevail

      The local municipality has nothing to do with this so them adopting an ordinance is moot. But I bet you are correct. The sheriff will say, I did everything I could to protect you and it was the court’s fault. So vote for me again and I will do my best to protect you. (Of course he will fail to tell the voters he admitted in court since being in office since 2013 no SO’s have even re-offended so he was protecting them from nothing.)

      Per the court opinion, the state, not the local municipality authorize signs in the road right of way. The state can enact a statute to authorize local law enforcement to place signs in the road right of way. But if the sign is government compelled speech, then the sign will violate the 1st amendment.

      And as far as local law enforcement doing the compliance checks of those not on probation or parole, there is no federal law or federal regulations requiring this action. And if the state has no statute or agency regulations requiring this action and if the county has no county court order and if the municipality or township has no adopted ordinance on requiring this action, the yes, it is just a local law enforcement policy.

      Not sure how it is in your state, but where I live if the local law enforcement has this policy, one is not required to comply if not on probation or parole. My local sheriff office stopped its policy of home compliance checks of me once the pandemic started and has not resumed. I am not obligated to comply anyway as I am not on probation or parole.

      1. Jeremy from Indiana

        The fact that none reoffended in his district is actually not the best argument for us because he could easily claim that it was his efforts and policies that “prevented” any reoffenses.

    2. CJB

      DB….Very True…..BUTTTTT, What I Do, is to Make Sure My Adopted Pit Bull is outside grazing in the Yard-He is a Friendly Fellow But Seems to ‘Ward off the Smells of Burnt Bacon’…Then, of Course, they get pissed off and visited me at one of my subcontracting jobs-They asked me to sign something (toilet paper at best), I asked “them’ for the Numerical Codified Statute; ‘They’ did not answer, and I walked away!

      Once Again, Compliance Checks for Those That are not a Ward of the State/Federal Govs, is Made Up PHENOMENA!

  5. Tim in WI

    How often do district courts f#@$up? Very often indeed!
    The main point here was the compelled and unwanted speech on private property. I might place a sign in the Sheriff’s yard citing the Case # and ruling that he lost and big letters saying CONSTITUTION VIOLATORS BEWARE. Better yet a Billboard Ad…wouldn’t be the first time a citizen did that to embarrass local cops.

  6. PubliusNH

    I’m sure that if the sheriff had known that all manner of abuse to the rights of men may be justified by a declaration of ’emergency,’ he would have declared the circumstances of Halloween as exigent necessitating measures to ensure ‘safety’ and ‘security.’ And, no doubt, the court would have all nodded in dumb obsequence as they did when they marched the Japanese off to internment. Perhaps he will return under this guise which has been utilized so profitably of late to subjugate the citizenry. May we pray that men, and women, are delivered from the trance that currently deludes them makes them insensible to evil they perpetuate. But God has his reasons, unsearchable though they be. Till then, let us remain faithful and be blameless and pray for their deliverance.

  7. CherokeeJack

    So I guess the Sheriff there now has to “butt” out of our business on Halloween?

    On a serious note, We will take any win we can get. Nice to have judges who follow the law and understands the constitution. I do not live in that county or even that state but happy for those who do.

  8. Joshua Garsteck

    Thank you so much. Let’s keep the fight until the registry Is gone for good.

  9. Ollie Octopus

    I can’t believe there is some sanity in the courts. I hope the defendants eat Long alive.

  10. A Mistake They Made

    Thank God for judges that still follow the constitution. Now about that compelled free speech issue. Maestro is right I have been screaming this to we are forced to give information under penalty of imprisonment no can do!

  11. NorthEastPA

    Great Win!! Thanks!!

    Forced Speach.

    Wouldn’t the signs in theory be the same thing as a deputy/sheriff instructing a registrant that they must stand out by the road of their house (as where the sign would be placed) and keep repeating out loud –

    “Stop – Warning – Stop No Trick-Or-Treat at this address”

  12. Dr.

    Now if there is a way to empty his pockets ?
    That might effectively stop this from happening again somewhere else,,,

    1. WC_TN

      Definitely! Wouldn’t the ruling against the Sheriff mean that his actions with the signs were carried out in bad faith since he knowingly acted outside statutory authority? Doesn’t an act of bad faith negate qualified immunity? If so, clean the county out for the Sheriff’s actions. THAT’S a lesson that will echo loudly state-wide when you successfully clean the county out over a rogue sheriff abusing registered citizens.

  13. Joshua Duvall

    I hope this decision is a positive sign of things to come

  14. Jeremy from Indiana

    Finally! Some good news! Is that a promise that he’ll take it to the Supreme Court? One of the biggest issues we face as registrants fighting these unconstitutional schemes is that usually one has to be considered in violation and be incarcerated to have any chance of fighting it. Otherwise, the court declares there was direct violation of rights or that the registrant lacks standing. Then, when it goes up the courts, it rarely gets past district courts, therefore only providing relief (if we win) to a specific district. I think some of these people fighting against us know this and that’s why they don’t proceed to the SCOTUS and just take their local loss. I really hope he does take it to SCOTUS. Maybe the court will finally take a look at the registry and realize just how unconstitutional it has grown to be. The Smith v Doe case had incorrect references (frightening and high, 80%) and was also targeting a very limited registry scheme in Alaska that is night and day from the schemes today. We can only hope the court grants cert soon on one of these cases today.

    1. WC_TN

      But we don’t want the SCOTUS to grant certiorari to a case with a very poorly or incorrectly framed argument. If that happens, it will be a huge, practically unrecoverable setback for the cause against the disabilities and restraints built into the registry laws of this nation. Look at the potential damage the Willman case did to the great 6th Circuit ruling in Does v. Snyder against Michigan! The 6th Circuit incorrectly found a duty to register at the federal level even though there’s no such thing as a federal registry. Now with new SORNA regulations being finalized, we have yet to see the full scope of what this could mean in the 6th Circuit.

  15. CJB

    No One Can Place anything on your property without your consent

    Also, it is Trespassing…Also, No One Can Place anything on my residence ever-and if they do, it will be removed immediately and I will sue them for everything under the sun!

    Also, it is Littering as well…So, If this Same Sheriff Tells a ‘Person who is Forced to Register’ to Jump off a Bridge, Is That Person Going to Jump off a Bridge? Probably NOT!

    I just do not understand why people do not stand up in the first place—ZERO TOLERANCE FOR BS!….-they allow sheeeeet to fester!..Stop it in the beginning!

  16. CJB

    Question To All!

    When Was The Last Time a Child Was Abducted on Trick-or-Treat/Halloween?

    I Believe it was in 1973…Someone, Please Help Verify This!

    Juxtaposed To:
    How Many Children Have Been Killed By Drunk Drivers During Trick/Treat/Halloween?
    …I Believe it is over 130, But I cannot find the Citation right now…..

    Something to Ponder About!

  17. David

    Does this case include Florida? Does it affect the same statement that we must post in our doors? With this side in removing the “Sexual Predator” branding on Florida Drivers Licenses?

  18. WC_TN

    Continuation of problem in TN:

    Something being done outside statutory authority is something being done outside statutory authority. That’s the bottom line here. Whether by a “mistake” or on purpose, the end result is the exact same.

    I pray there is something NARSOL can and will do to address this, even if it is sending letters to the special agent in charge of the S.O.R. urging them to make fixing this “coding error” a top priority and placing a notice on the web site warning the public of this error that is resulting in unauthorized and inaccurate information being displayed.

    As I understand it, original charges don’t mean squat once they are reduced by plea bargain.