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Does v. Cooper

United States District Court, M.D. North Carolina

August 22, 2014

JOHN DOEs 1-5, Plaintiffs,
v.
ROY A. COOPER III, ET AL., Defendants

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For JOHN DOE #1, JOHN DOE #2, Plaintiffs: PAUL MOORE DUBBELING, LEAD ATTORNEY, HILLSBOROUGH, NC; GEORGE GLENN GERDING, GERDING BLASS, PLLC, CHAPEL HILL, NC.

For JOHN DOE #3, JOHN DOE #4, JOHN DOE #5, Plaintiffs: PAUL MOORE DUBBELING, LEAD ATTORNEY, HILLSBOROUGH, NC.

For ROY A. COOPER, III, Attorney General of the State of North Carolina, FRANK PARRISH, District Attorney, District 01, SETH EDWARDS, District Attorney, District 02, KIMBERLY ROBB, District Attorney, District 03A, SCOTT THOMAS, District Attorney, District 03B, ERNIE LEE, District Attorney, District 04, BEN DAVID, District Attorney, District 05, MELISSA PELFREY, District Attorney, District 06A, VALERIE ASBELL, District Attorney, District 06B, ROBERT EVANS, District Attorney, District 07, BRANSON VICKORY, District Attorney, District 08, SAM CURRIN, District Attorney, District 09, WALLACE BRADSHER, District Attorney, District 09A, COLON WILLOUGHBY, JR., District Attorney, District 10, VERNON STEWART, District Attorney, District 11A, SUSAN DOYLE, District Attorney, District 11B, BILLY WEST, District Attorney, District 12, JON DAVID, District Attorney, District 13, LEON STANBACK, District Attorney, District 14, PAT NADOLSKI, District Attorney, District 15A, JAMES WOODALL, JR., District Attorney, District 15B, KRISTY NEWTON, District Attorney, District 16A, JOHNSON BRITT, III, District Attorney, District 16B, PHIL BERGER, JR., District Attorney, District 17A, RICKY BOWMAN, District Attorney, District 17B, DOUG HENDERSON, District Attorney, District 18, ROXANN VANEEKHOVEN, District Attorney, District 19A, GARLAND YATES, District Attorney, District 19B, BRANDY COOK, District Attorney, District 19C, MAUREEN KRUEGER, District Attorney, District 19D, REECE SAUNDERS, District Attorney, District 20A, TREY ROBISON, District Attorney, District 20B, JIM O'NEILL, District Attorney, District 21, SARAH KIRKMAN, District Attorney, District 22A, GARRY FRANK, District Attorney, District 22B, TOM HORNER, District Attorney, District 23, JERRY WILSON, District Attorney, District 24, JAY GAITHER, District Attorney, District 25, ANDREW MURRAY, District Attorney, District 26, LOCKE BELL, District Attorney, District 27A, RICK SHAFFER, District Attorney, District 27B, RONALD MOORE, District Attorney, District 28, BRAD GREENWAY, District Attorney, District 29A, GREGORY A. NEWMAN, District Attorney, District 29B, MICHAEL BONFOEY, District Attorney, District 30, Defendants: HAROLD F. ASKINS, N.C. DEPT. OF JUSTICE, OFFICE OF THE ATTORNEY GENERAL, RALEIGH, NC; WILLIAM P. HART, JR., JUSTICE, RALEIGH, NC.

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MEMORANDUM OPINION AND ORDER

JAMES A. BEATY JR., United States District Judge.

This matter is currently before the Court on a Motion for Preliminary Injunction [Doc. #17], filed by Plaintiffs John Doe 1, John Doe 2, John Doe 3, John Doe 4, and John Doe 5 (collectively " Plaintiffs" ). Also before the Court is an Amended Motion to Dismiss and Motion to Intervene as a Matter of Right [Doc. #30] (" Defendants' Motion" or " Motion to Dismiss" ), filed by all Defendants (" Defendants" or " Attorney General Cooper and District Attorneys" ), seeking dismissal pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6). This Court held a hearing on these Motions on August 8, 2014. For the reasons discussed below, the Court will grant in part and deny in part Defendants' Motion to Dismiss, and the Court will deny Plaintiffs' Motion for Preliminary Injunction.

I. BACKGROUND

The factual allegations of Plaintiffs' First Amended Complaint [Doc. #28] (" Amended Complaint" ), taken as true for purposes of Defendants' Motion, allege that Plaintiffs are all residents of North Carolina who are required to register as sex offenders under North Carolina state law.[1] Some individuals required to register as sex offenders in North Carolina are

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subject to location restrictions under N.C. General Statute § 14-208.18, which restrict where these individuals can " knowingly be." [2] Section 14-208.18(a) makes it a crime for these individuals 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) of this subsection that are located in malls, shopping centers, or other property open to the general public.
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

N.C. Gen. Stat. § 14-208.18(a) (2013) (emphasis added). A violation of any of these location restrictions is a Class H felony. Id. § 14-208.18(h).

This statute does allow some limited exceptions to these location restrictions. First, § 14-208.18 allows the following limited exceptions for those subject to the location restrictions who are parents or guardians of a minor:

(1) if the minor is in need of emergency medical care, the parent or guardian may take the minor to any location that can provide emergency medical care treatment;
(2) if the minor is a student enrolled in a school, the parent or guardian may be present on school property if all of the following conditions are met:
(a) either the purpose must be to attend a conference at the school with school personnel to discuss the academic or social progress of the child, or the presence of the parent or guardian must have been requested by the principal or his or her designee for any other reason relating to the welfare or transportation of the child; and
(b) the parent or guardian must comply with all of the following:

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(i) Notice: The parent or guardian shall notify the principal of the school of his or her registration under this Article and of his or her presence at the school, unless he or she has permission to be present from the superintendent or the local board of education, or the principal has granted ongoing permission for regular visits of a routine nature. If permission is granted by the superintendent or the local board of education, the superintendent or chairman of the local board of education shall inform the principal of the school where the parent or guardian will be present. Notification includes the nature of the parent or guardian's visit and the hours when he or she will be present at the school. The parent or guardian is responsible for notifying the principal's office upon arrival and upon departure. Any permission granted under this sub-subdivision shall be in writing.
(ii) Supervision: At all times that the parent or guardian is on school property, he or she shall remain under the direct supervision of school personnel. If no school personnel are reasonably available to supervise the parent or guardian on that occasion, the parent or guardian shall not be on school property even if the parent or guardian has ongoing permission for regular visits of a routine nature.

N.C. Gen. Stat. § 14-208.18(b), (d).

In addition to those limited exceptions for parents or guardians of minors, the following additional exceptions to the location restrictions are expressly provided for in § 14-208.18:

(1) those subject to the location restrictions who are eligible to vote may be present at an otherwise restricted location that is being used as a voting place as defined by G.S. 163-165 only for the purposes of voting and shall not be outside the voting enclosure other than for the purpose of entering and exiting the voting place; if the voting place is a school, then the sex offender shall notify the principal of the school that he or she is a registered sex offender;
(2) those subject to the location restrictions who are eligible under G.S. 115C-378 to attend public school may be present on school property if permitted by the local board of education pursuant to G.S. 115C-390.11(a)(2);
(3) a juvenile subject to the location restrictions may be present at a location described in that subsection if the juvenile is at the location to receive medical treatment or mental health services and remains under the direct supervision of an employee of the treating institution at all times.

Id. § 14-208.18(e) - (g). All five Plaintiffs are subject to the location restrictions of § 14-208.18.

Plaintiff John Doe 1 was convicted in 1995 to one count of receiving material involving the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(2), and served five years in federal prison for that conviction. While in prison, John Doe 1 voluntarily completed the Sex Offender Treatment Program (" SOTP" ), which consists of months-long intensive therapy. As of 2003, he was no longer under any type of probation, parole, or supervised release. Prior to 2011, John Doe 1 attended his local church, which contains a monitored child-care center within 300 feet of the main congregation hall. His pastor was " aware of his history" and " approved of"

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his church attendance. (Am. Compl. [Doc. #28] ¶ 50.) In 2011, an anonymous caller reported John Doe 1's presence at his church's worship service, and he was arrested for violating a subsection of § 14-208.18(a). This charge was ultimately dropped the charge against John Doe 1, and the District Attorney allowed him to attend church, subject to an ad hoc list of restrictions, including a prohibition on " assisting" with the worship service and engaging in church activities other than attending the main service.

Plaintiff John Doe 2 was convicted in 2011 of misdemeanor sexual battery, in violation of N.C. General Statute § 14-27.5A, and was sentenced to 5 years of probation. " Per stipulation," the terms of John Doe 2's probation do not include any restriction on his ability to attend his minor son's educational or recreational activities. (Am. Compl. [Doc. #28] ¶ 62.) John Doe 2 desires to participate in these activities, but the State has informed John Doe 2 that § 14-208.18(a)'s proscriptions override the lack of restrictions in his probation terms. Furthermore, John Doe 2 is unsure of the meaning or extent of § 14-208.18(a)'s proscriptions. He has repeatedly asked his probation officer and the local sheriff's office for clarification, but they have pointed him to the verbatim text of § 14-208.18, " advis[ing] him not to participate in many activities" and to avoid many locations just " to be on the safe side." (Am. Compl. [Doc. #28] ¶ 67-68.) John Doe 2 has asked whether he can attend his son's activities remotely (e.g., via Skype), and received conflicting advice as to that question.

Plaintiff John Doe 3 was convicted in 2002 of committing indecent liberties with a minor, in violation of N.C. General Statute § 14-202.1, and served four years in prison in the North Carolina Department of Adult Corrections. While in prison, John Doe 3 volunteered for, and successfully completed, the state-administered Sex Offender Accountability and Responsibility (" SOAR" ) program, which consists of approximately 600 hours of therapeutic treatment.[3] Since his release from prison, John Doe 3 has been steadily employed. As part of his current job, he is required to purchase office supplies. The local sheriff's office has advised him that he could be arrested for violating § 14-208.18 for shopping in an office supply store that is located within 300 feet of a fast food restaurant that has a children's play area. John Doe 3 is unsure whether he is in violation of the statute by just driving to work past locations that might be prohibited under § 14-208.18.

Plaintiff John Doe 4 was convicted in 2007 of attempted solicitation of a minor in violation of N.C. Gen. Stat. § 14-202.3. He received a suspended sentence of 30 months, served 10 weekends in prison as an intermediate punishment, and completed a 30-month term of probation. John Doe 4 has undergone sex offender treatment and has maintained steady employment since his conviction. He currently wants to attend church, but is highly concerned that doing so could subject him to arrest and conviction under § 14-208.18, because the church has Sunday School classes for children.

Plaintiff John Doe 5 was convicted in 2009 of two counts of misdemeanor sexual battery. He received two suspended 75-day sentences, and completed his 18-month supervised probation. The victim in John Doe 5's case was a 30-year-old woman, and there have never been any allegations that John Doe 5 has ever engaged

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in, or has any interest in engaging in, any inappropriate contact with a minor. After his conviction, John Doe 5 was awarded joint custody of his two minor children, but he is unable to participate significantly in his children's education or recreational activities, due to the proscriptions of § 14-208.18. Furthermore, John Doe 5 wishes to attend church, and has the permission of his pastor to do so, but is concerned that doing so could subject him to arrest and conviction under § 14-208.18, because the church has Sunday School classes for children. John Doe 5 is also concerned about his ability to perform his job with § 14-208.18's restrictions, because his employer performs construction contracts that are sometimes inside areas that may be proscribed by this statute, and thus, on those jobs, he is unable to perform his duties as a supervisor.

On August 28, 2013, Plaintiffs commenced this action against North Carolina Governor Pat McCrory, North Carolina Attorney General Roy Cooper, and the District Attorneys in each prosecutorial district in North Carolina. The original Complaint brought claims pursuant to 42 U.S.C. § 1983, alleging that § 14-208.18 is overbroad and unconstitutionally vague, in violation of Plaintiffs' rights under the First, Fifth and Fourteenth Amendments of the U.S. Constitution. (Compl. [Doc. #1] ¶ ¶ 108-13.) The Complaint also alleged that § 14-208.18 violates their procedural due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution. (Id. ¶ ¶ 114-17.) It sought injunctive relief and a declaratory judgment that § 14-208.18 is unconstitutional. (Id. ¶ 118.)

Plaintiffs then requested and obtained leave to amend their Complaint, and filed their Amended Complaint [Doc. #28] on January 13, 2014. The Amended Complaint removes Governor McCrory as a defendant, amends factual allegations, and adds a claim for relief on equal protection grounds. (Am. Compl. [Doc. #28].) After Plaintiffs filed their Amended Complaint, Defendants filed an Amended Motion to Dismiss [Doc. #30], seeking dismissal pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6).[4] Defendants first contend that this case should be dismissed for lack of subject matter jurisdiction, because Plaintiffs lack standing. Specifically, Defendants contend that Plaintiffs have not alleged an injury that is concrete, particularized, and actual or imminent. Defendants also contend that this case should be dismissed for lack of personal jurisdiction, because Plaintiffs have not alleged facts to establish that the named Defendants constitute " persons" under 42 U.S.C. § 1983.

In addition, Defendants contend that this case should be dismissed in its entirety for failure to state a claim. To the extent that any of Plaintiffs' claims survive Defendants' Motion to Dismiss, Defendant Roy Cooper seeks to intervene as a matter of right pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, even though he also contends that this ...


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