Federal court guts NC premises statute; Permanently enjoins prosecution
By Robin Vanderwall . . .
Frustrated by the state’s refusal to offer any facts supporting its “conjectural” and “anecdotal” evidence defending section a(2) of North Carolina’s premises statute (N.C.G.S. § 14-208.18), Senior District Court Judge Beatty ruled on April 22, 2016 that the Does v. Cooper case filed two years ago in the Middle District (federal) Court is resolved without a trial. Having previously struck section a(3) as constitutionally vague, Judge Beatty found a(2) overbroad in burdening the First Amendment rights of registered citizens. Judge Beatty also permanently enjoined the state from prosecuting either under section a(2) or a(3). Judge Beatty had previously ruled section a(1) constitutionally sound (this portion of the statute bans registrants from being “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.”).
I found it interesting that Judge Beatty cites the dissent in the recent Packingham case decided by the NC Supreme Court in November (which is presently before the US Supreme Court pending cert). That case had nothing to do with proximity or presence, but Judge Beatty cites to language contained therein regarding the impact of internet restrictions on the First Amendment rights of affected citizens. Indeed, he spends a fair amount of time throughout his Memorandum Opinion and Order rooting his Judgment in cases related more to internet restrictions than presence or proximity restrictions. Judge Beatty makes repeated mention of his surprise at the state’s refusal to provide factually based statistics regarding recidivism. And he signals fairly strongly that he finds the Packingham majority completely out of touch.
I have included some excerpts from the opinion below for those of you who don’t have the time to read the full opinion:
Sex offenders have First Amendment rights. (Id. at 43.) The restrictions in subsection (a)(2) greatly burden those First Amendment rights by inhibiting the ability of restricted sex offenders to go to a wide variety of places associated with First Amendment activity.
North Carolina “may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech.” Cf. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245, 122 S. Ct. 1389, 1399, 152 L. Ed. 2d 403 (2002) (internal citations omitted).
Subsection (a)(2) places restrictions on offenders who have never committed a sexual crime against a minor. Moreover, no finding of dangerousness is required for a restricted sex offender to be subjected to subsection (a)(2)’s prohibitions. Merely committing one of the crimes listed in N.C. Gen. Stat. § 14-208.18(c) subjects the individual to the panoply of First Amendment burdens entailed by subsection (a)(2). The mere fact of a conviction of one of the crimes listed in the statute, by itself, is not enough to establish dangerousness to minors.
To use an expression utilized by the District of Nebraska, North Carolina, in this instance, has used a blunderbuss rather than a scalpel in its effort to protect children.
… In fact, Defendants have made no evidentiary showing at all regarding the rate at which sex offenders recidivate.
. . .Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.
Wow. Just Wow
This is what I consider good news. I certainly hope more federal judges share his desire for actual facts rather than emotions on upcoming cases. That is what we need to see; judges demanding facts before ruling.
Fred, I agree! It seems to be a strong comment about the passing of laws based on political motivation/ emotion rather than fact.
Again I say, “Wow.”
This guy was obviously not up for re-election like several of the KS State judges are who just ruled last week on SO registry not being punishment (you can find the re-election fact over on the CA RSOL website comments sections under the KS State ruling article).
Federal judges are NEVER up for re-election. They are appointed for life. And thank goodness for that. It’s one of the most important strengths of our federal judicial system that United States judges do not have to worry about the unpopularity of their opinions.
Yes, that is true about Federal judges (well, outside the political leanings of the SCOTUS, but that is for another discussion). This is a good comparison of State elected v Federal appointed judicial members and what could happen.
May this Federal precedent start a waterfall of others into the same postivie thinking……
Can we clone this judge?
The sex offender laws will soon become a thing of the past. These laws were instituted out of an outcry of Adam wash and the Megan’s Law and that Lunsford case. Where they for showing favoritism to a few unfortunate situations or just bad or quick thinking on governments’ part?
I’m sure we have all heard of the word incite. A lot of these sex sting operations are inciting one and or enticing one into all this. Tell me one person that isn’t tempted by sex as the main motivator in all this stuff when they go onto an adult chat site?
Did you ever think that those who are suppose to protect and serve are in a sense setting up someone in a fictitious situation. Common sense is common sense. I’m not saying that sexual interludes don’t play in adult chat sites but if an adult is in an adult site that is his responsibility to be there. So along comes the spider which in this case happens to be a fictitious teenage gal and sways one into a conversation. What man is not going to give into this type of pressure, whether induced or enticed?
Government is wrong in these types of ordeals and it is unconstitutional. Police are to protect and serve and not setting up one for the fall. It’s all about money which is bottom line and greed.
Sex has been going on before they started all this madness and government has figured it out that they can make a lot of money but the way the bill of rights and the constitution is written they are abusing all this for their filthy injustice.
James, this ruling certainly gives me a lot of hope that you may be right about the Registry being on the way out.
I am not a victim of a sting operation, but I am aware of someone who is as of last February. He has been locked in the county jail ever since waiting for trial.
My understanding is that he posted an ad on Craigslist looking for a WOMAN and a police officer posing as a 14-year-old contacted him and tempted his interest. This man had been single for a long time and was obviously lonely. I am confident he would never had considered this scenario if the opportunity had never been presented.
That is what these sting operations do, they prey on lonely, frustrated individuals and dangle the bait in front of them. It is exactly the same as fishing and I will bet the officers behind the sting are giving each other high fives after landing that catch. It is a game for them and nothing more.
On top of all that it is a victimless crime. Nobody got hurt. This person I am aware of was facing up to 20 years in prison. Prior to this he had a perfectly clean record and now he has lost his job and will face a life time of hardships for one act of exercising bad judgement as humans do from time to time.
Former Speaker of the House Hasting just got 15 months and no requirement to register after admitting to molesting more than a couple 14 year old boys’ I am disgusted with our justice system and this double standard.
Hastert’s case was not about the abuse he admitted to decades earlier, but financial payment structuring against federal law. Thus, registering is not possible in that situation without going through the court system first in a different case. His 15 mos is 2.5 times more than what was initially thought. There was no double standard here, but a correct following of the law. Your being up in arms over that is not founded. His person in trust position with poor behavior is not to be condoned, but this is not Roman times, Salem witch trials or McCarthyism.
Now, there is a movement afoot today in IL to remove statute of limitations on allegations such as his, similar to PA as well.
Careful what you wish for on removal of the Statute of Limitations….an allegation may come to haunt someone innocently in the future without any foundation because someone theoretically remembered something, but ruin them regardless, which has been seen previously.
Wow. Only the last paragraph of everything I wrote was in regards to the Hastert case, but you sure got all “up in arms” about that. By the way I am well aware of why he was charged, but thank you.
You are technically correct, but then again, Hastert DID admit to abusing them in open court at his sentencing. I find it fascinating how many people on this board want to defend this poor excuse for a human being after what he has collectively done to us as a group. I’m not judging anyone when I say that. I genuinely find it fascinating, though.
Paul – no one is excusing his behavior. He was wrong obviously and will pay for it.
However, people are sticking up for the process in place today, e.g. statutue of limitations and sentencing guidelines within the law the judge had to abide by with some latitude to add extra. Mr. Hastert got what he could get. If people don’t like it, then work to change it, as is being done with the efforts to do away with the registry and now possibly with statute of limitations on matters similar to this also.
Really? Hastert doesn’t have to register? Are you sure? I wouldn’t wish the registry on anyone but this guy should try it out…if only for Karma’s sake.
I was also arrested in an online sting. Craigslist “bait and switch”. Never had a record, no history of sex assault. Searched my computer- nothing illegal. Was on an adult site and answered an ad posted by someone claiming to be an adult. Agreed to meet and wasn’t even sure what i was doing was a crime (or at least not serious) until the SWAT team took me down.
You don’t have to register for payment structuring which was the case he was tried for and sentenced under. He admitted to something that he cannot be tried for and cannot be sentenced for, which is where registry comes in.
From the NY Times, 4/28/15, “Mr. Hastert, whose date to report to prison has yet to be set, was ordered to pay $250,000 in fines, never to contact his victims and to receive sex-offender treatment.”
If you read other info on SOTP, he will have plenty of time to continue facing the music…..
You appear happy with the ruling of the Hasting case No, no registry, but you are missing a couple points here. First of all you are insisting that it was not a sex related charge, which is true, but then where are the grounds for ordering him to sex offender treatment and not contacting his victims? Seconds you are forgetting that in many cases you have to register before being convicted. An accusation alone is enough to get one on the registry.
You are also forgetting that the SOR is NOT supposed to be punishment, therefore it is not considered part of a “sentence” , You go on it because you are a SO whether you are convicted or not.
He will have to undergo “sex offender” treatment even though he doesn’t have to register. Knowing how “enjoyable” treatment has been for most of us, I consider that a small consolation to the fact that he doesn’t have to register.
Fred –
Mr. Hastert will still pay for his misgivings even if he does not have to register.
The judge had the latitude to add a no contact order, which any judge can do with any sentence when there is a personal victim involved, and attending a SOTP, much like sentencing someone to attend an approved alcohol or narcotics recovery program as part of the sentencing even though that is not written into law. Sentencing him to register when no sex offense was tried in court would have been immediately appealed and probably tossed upon appeal.
This is just the process here and what could be done within the sentencing guidelines and the law — don’t like it, then work to change it — just like those who want to do erase the registry and are now talking about doing with the statute of limitations. I don’t give two hoots about Mr. Hastert either. He was a person in trusted position as a education professional, which he abused, and a Congressman, second in line to the Presidency no less where he was a hypocrite. As I said, he will pay for his misgivings, as will everyone will involved, because as the AUSA said “No winners here”
North Caroling cannot and never will be able to defend their made up rates of recidivism or any of the other statistics. Its about time someone put them in their place. North Carolina is a state where if you are accused you are automaticly convicted. I have proof of their making up evidence because they could find no evidence. They needed to be put in their place,but knowing them they will fabricate even more so they can get re-elected, That’s all its about there. They will lose in Packingham case because they cannot find in favor of themselves in that court.
Just when I thought there was no hope left…
Sorry, I don’t get what this mean. Can someone translate what this means in layperson terms? What was won or lost? It sounds like this judge let SOs have a little leeway somehow.
My family and I are watching these laws and registry changes really closely because they affect our family.
It means that a registrants are allowed to move about more-or-less as they wish so long as it’s understood that being ON the premises of a playground, school, nursery, or any other place PRIMARILY INTENDED for the use, care, or supervision of minors continues to be against the law. In simple terms, the 300 foot proximity buffer was invalidated. This, however, does not affect any restrictions on residency which remain in place.
… “In fact, Defendants have made no evidentiary showing at all regarding the rate at which sex offenders recidivate.”
Yeah, you know why? Because if they actually cited what the research says, it would blow the entire lid off of, not only their case, but the need for a registry.
Thank goodness there’s still a remnant of saneness in the judiciary. I am very pleased. No doubt this will be appealed but we must celebrate our victories when we get them.
They put me in five years of post release supervision after my case was time served for two minor felony charges that I agreed to plea to (without my prior knowledge of the supervision part when I took the plea!), and this supervision is more restrictive than the sex offender registry itself.
It seems like there is no Constitutional rights for someone in the post release supervision.
I contacted several human rights organizations including Amnesty International US, UCLA, etc. regarding my situation as I feel that I shouldn’t have been given the five years of supervision after I had fulfilled the punishment in incarceration. But all I got was a copy & paste responses from them. I contacted few lawyers as well, but to no avail. My situation is a little different from most others in the registry and that is I’m a naturalized US citizen and all my family members live outside this country. I have asked multiple times to the supervisor or PO to let me go visit my old and sick parents, but every time I’m given vague answer, which seems like the supervisor was merely putting the responsibility on someone else.
Also I’m given repeated threats for not finding work as I’m not able to pay for the monthly supervision fee. However, when I find work, I was told that they have policy where they call the workplace and tell manager at work about my situation and restriction. Which is a double whammy as most work places don’t want to hire a person in the sex offender registry or with a felony record, and when one does get hired (mostly if a company doesn’t do background checks), the people at the post release supervision are there to ruin the work environment.
Life is really terrible being in this post release supervision and on top of that the supervisor has added more burden that was not required by the judge, like requiring me to attend classes which again require more money payments. The class itself has no ending date. I was told that it would go as long as the supervision goes!
I’ve reached out to a lot of people, lawyers, agencies, and so far my situation hasn’t gotten any better. It’s been like two years since I was released and I’ve fulfilled the terms of the supervision which are like Nazi to say the least. Now Sill there are several years left in this supervision. Who will listen to my pain? Who will listen to this injustice? They push me down, and step on me with their heavy feet with me on the ground, and they give threats that I cannot stand up and walk.
They tie me down, and they pluck my wings, and they give threats that I cannot fly in the air.
I’m sorry Emil. If only your PO could be more helpful. Maybe keep sending written requests and be that “squeaky wheel”? When i’ve needed help from probation sometimes i would call/email several times in a day. Always politely. My impression is that they are very busy and you just have to be persistent.
My lawyer told me that “your PO is God”. It’s true in many ways. They have more authority than the judge and can make or break you. I’ve been lucky to have good PO’s and it’s made my life easier.
Hang in there man!
Emil,
It’s a long-shot (don’t let me give the wrong impression) but usually there is a way to petition to the court after so much time as to possible termination of supervised release. Usually a judge will only consider this if you have served at least half of your time on probation or supervised release.The probation department will object to it (they do for all RSO’s) which probably means either the DA or AUSA will object as well, so a lawyer should write a brief in your favor. You’ll have to show exceptional circumstances as to not only how you have “rehabilitated yourself” but also anything you have done that has gone above and beyond what was required of you. It’s all in a judge’s hands after that. It might be worth a try, though I don’t say this to get your hope’s up. I say it because it is a right you have to have this hearing.
Thank you!!!!!!!!!!!!!
The more I look at this, the more I see that this is like tossing us a small bone as if we we’re rottweilers. Don’t get me wrong; presence restrictions are completely onerous and unconstitutional. They are dangerous because any one of us could inadvertently be in a place that is in a loitering zone (where there is a presence restriction) without doing it deliberately. Merely driving by a school by accident is a statistically probable since none of us are human GPS’s. But a similar case was decided in Michigan by federal judge Robert Cleland (a very conservative judge) and the legislature quickly retooled the bill to fit their needs. The loitering provision was struck down but things haven’t changed much. Don’t get me wrong; this North Carolina judge made a sound ruling. I guess I am just hoping for bigger things. I know, I know, Rome wasn’t built in a day. Nobody ever said that patience was my strongest virtue.
I am happy, though, about the progress made in this case.
Can plaintiffs fighting other state& federal irrational & unconstitutional laws use the wording in this and other rational rulings as support for their SO Reform lawsuits?
Absolutely. Most especially if those plaintiffs are in a federal district court themselves. Federal judges do not always agree or share the same legal theories, but their opinions are recognized as persuasive authority one to another. If you read through Judge Beatty’s Memorandum Opinion and Order, you’ll see that he has relied heavily upon a case from a federal district court in Nebraska that must have been pretty persuasive to him. No doubt the Plaintiffs included this case in their briefs.
Thanks.
Its so funny when you think about these internet sex sting operations and how they are set up. What’s the intent when you go down to meet this person if you never ask for sex? They don’t know what your intent is. That’s my whole case right there.
I bellied up to them so only thing they could do is give me a plea deal. Yes I was intimidated going to court at the time with some slow poke public attorney that is more on the law’s side than on my side.
Oh using the internet to talk to a teenager was another one of my charges well the intent sort of blew that out of the water, but police are tricky and we as offenders are sitting on our butts and can’t really afford to get all this stopped.
The person on the registry is and has been taken advantaged of by corrupt law.
Has anyone else seen this article? This makes me sick. Whenever ANY of us screw us, it reflects badly upon all of us, let alone one of the leaders of our movement. I am nauseous reading this. Literally I feel like I want to puke. This is the guy who gave that fantastic TED talk, earned a Soros fellowship and was doing really good work. As the article points out, most of us do not recidivate but the optics of this couldn’t be worse for us. YUCK!!!!!!!
http://www.slate.com/articles/news_and_politics/crime/2016/04/galen_baughman_seemed_like_an_ideal_spokesman_for_sex_offenders_civil_rights.html
He is still presumed innocent until proven guilty so I am trying not to rush to judgment. But let’s also remember that the act of one person (however prominent he is in our community) cannot define us as a whole, even if he is guilty.
I didn’t see that one, but just a couple hours ago I was reading an article on a local website about a Registered Sex Offender being sentenced to 35 years in prison for a new sex offense. I feel tremendously frustrated when I come across those articles as they are really hurting our cause. There are approximately 850,000 RSOs nationwide, but these few cases of recidivism are the ones people are hearing about and the media has a way of making it sound like it is a lot worse than it is.
I do not defend these people and I consider them traitors to our cause as they are only making things worse for the rest of us with their lack of self control.
I agree, Fred, assuming these people are actually guilty. What bothers me about Galen’s case, in particular, is that I personally really looked up to him. He was doing extremely important work. As an advocate, he was one of the most known among all RSO’s in the entire country. He worked tirelessly on our behalf and I guess I’m left wondering if all his advocacy meant anything if he was allegedly grooming a teenager at the same time he was advocating against the registry. I guess I feel let down by what he did, more than anything. But I also hope that this doesn’t cast our entire population in a negative light.
I understand that let down feeling. This too will pass though and everything will get back on track until the next controversial incident arises. Also like you said, he might not be guilty. We have many enemies who will go great lengths to bring us down.
Galen. What a disappointment. Extreme anger…that’s my reaction. But yeah, i don’t trust everything that’s presented in the news….but still, there’s so many aspects of the story that, if true, show terrible judgement (at best). Damn, damn, damn.
How to react to this?
Paul I read the article about this Galen fellow and I didn’t think he was the right spokesman for the job. Lets face it all of these comments are just opinions and nothings really going to stop this thing but it is what it is for right now.
They need questions at the voters poles when they vote to stop all this unconstitutional thing. Now the FBI is wanting to have it legal to hack your computer. Its just control and money and greed. It makes those that present these bills happy when their bill is passed.
Hey I’m the guy that thought all this up how to screw the other person legally and take control of that persons life.
All voters need to say no to all this sex scheme stuff and this computer hacking law that they want to pass. It just makes me sick how the government will go to any length to scheme the other fellow.
James,
I’m not naive enough to believe he was hacked. Sure, anything is possible but I really doubt it.
RSOL made a good point on another blog which is even the best of us have character flaws. JFK, MLK and many others could be added to that list. We need to still give Galen the presumption of innocence that we would all want ourselves but I have a hard time giving him much sympathy at the moment if he is indeed guilty. Establishing himself as an advocate meant that anything he did outside the bounds of what was proper and decent, not to mention law abiding, was going to reflect extremely negatively on us. You can see it on the comments to the slate article. People are having a field day with this. IF (and I say if purposefully) Galen engaged in this behavior, it’s truly a shame because he put instant gratification above the long term goals of an entire movement. I hope in due time, he becomes a part of the movement again. If we can forgive Bill Clinton (a president) surely with time we can forgive Galen.
I’ll tell you what worried me about him, to a small degree. His Ted Talk. He romanticized his relationship with the 14 year old that he had as a 19 year old. There was not a hint of contrition whatsoever. That struck me in a very uncomfortable way and for a moment made me think he hadn’t quite understood why it was wrong as a 19 year old to engage in sexual conduct with a 14 year old. Of course, I didn’t want to believe that at the time but I now see where unfortunately my intuition was correct. To reflect upon that relationship in any kind of sentimental way seemed entirely inappropriate.
As I said, Galen is one person. We are 850,000. Let’s try our best not to be defined by this. As Derek Logue said, our advocates as a whole have a pretty good track record. Our batting average is very high when it comes to not reoffending.