A couple of years ago, Brian Valenti, a registered sex offender who lives in Hartford City, Indiana, received a citation for sitting in his brother's car. The car was parked outside his brother's house, which happens to be across the street from a school. By sitting in it, Valenti violated a local ordinance prohibiting anyone convicted of a sex offense involving a minor from entering a long list of "child safety zones"—including schools, parks, libraries, swimming pools, athletic complexes, movie theaters, and bowling alleys— or "loitering" within 300 feet of those locations. Because of Hartford City's ordinance, Valenti, who committed a sex offense 28 years ago in California, was not allowed to visit his daughter's school, go to the library with her, visit local parks, join the YMCA, enroll his daughter in activities there, go bowling with his family, or vote at his designated polling place.
Under a similar law in North Carolina, registered sex offenders whose crimes involved minors or violence are forbidden to venture within 300 feet of "any place intended primarily for the use, care, or supervision of minors." They are also required to stay away from "any place where minors gather for regularly scheduled educational, recreational, or social programs." Five sex offenders who challenged the law said it prevented them from attending church, visiting their children's schools, participating in adult softball games, going to events at the North Carolina State Fairgrounds, eating at fast food restaurants with play areas, attending town council meetings held near a library, and visiting the state legislature, which meets in a building near a natural history museum that attracts children. The plaintiffs also worried that they were committing felonies by working on construction projects within a 300-foot zone or by going shopping or commuting to work, since they could easily drive by forbidden locations on the way.
Last week federal courts overturned both of these laws, deeming them unconstitutionally vague. The judge who heard Valenti's challenge to Hartford City's ordinance also concluded that it imposed retroactive punishment, violating the Indiana Constitution's ban on ex post facto laws, while the appeals court that ruled against North Carolina's law found that it unjustifiably interfered with activities protected by the First Amendment. Like last summer's 6th Circuit decision against Michigan's Sex Offender Registration Act, last week's rulings go beyond the usual hand waving about child protection to ask whether the restrictions imposed by such laws can be justified by their purported public safety benefits.
When Valenti was fined for sitting in his brother's car, Hartford City's ordinance defined loitering near a child safety zone as "standing [or] sitting idly, whether or not the person is in a vehicle or remaining in or around an area." In 2015 the city council changed that definition to "remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim." U.S. District Judge Theresa Springmann concluded that both definitions violate the 14th Amendment's guarantee of due process, since they fail to give people fair notice of when they are violating the law and invite arbitrary enforcement.
Springmann also found that the ordinance's punitive effect outweighed its regulatory purpose, meaning that even if it were crystal clear it could not constitutionally be applied to sex offenders convicted before it was passed. "Considered as a whole," she writes, "the Ordinance imposes substantial affirmative restraints on the Plaintiff that he did not have fair warning of when he committed his offense in 1988, or was convicted in 1993." Those restrictions, she concludes, are excessive in light of the regulatory purpose they are supposed to serve, Springmann notes that "the Ordinance does not provide any means by which the Plaintiff can petition for an exemption," "does not provide any particularized risk assessment," and does not make exceptions for situations that pose no plausible threat to public safety, such as parent-teacher conferences.
The North Carolina law does allow such exceptions with special permission, but it is broader than the Hartford City ordinance in that it does not specify all the settings to which it applies, leaving sex offenders and police the challenge of figuring out what is meant by "any place where minors gather for regularly scheduled educational, recreational, or social programs." The U.S. Court of Appeals for the 4th Circuit agreed with the plaintiffs that a sex offender or a cop "cannot reasonably determine (1) whether a program for minors is 'regularly scheduled' or (2) what places qualify as those 'where minors gather.'" Hence "that subsection does not meet the standards of due process because it is unconstitutionally vague."
Like Judge Springmann, the 4th Circuit also highlighted the indiscriminate scope of the law, which in North Carolina's case seeks to keep sex offenders away from places where minors gather even when their crimes had nothing to do with children. "It applies to all restricted sex offenders, not just those who pose a danger to minors or are likely to pose such a danger," the court notes. Since the law interferes with activities protected by the First Amendment, such as attending church services and lobbying legislators, the state was required to present evidence of a reasonable fit between the restrictions and the goal of protecting children. Yet "for reasons not apparent from the record," it conspicuously failed to do so. "Without empirical data or other similar credible evidence," the 4th Circuit says, "it is not possible to tell" whether the 300-foot rule "responds at all to the State's legitimate interest in protecting minors from sexual assault."
That is a pretty strong indictment of the failure to justify the burdens that legislators impose on sex offenders long after they have served their sentences, without regard to the threat they currently pose. The 4th Circuit's dismay at the state's lack of proof is reminiscent of what the 6th Circuit said in August about Michigan's law: that there was "no evidence in the record that the difficulties the statute imposes on registrants are counterbalanced by any positive effects." To the contrary, it said, "the punitive effects of these blanket restrictions…far exceed even a generous assessment of their salutary effects." After years of deferring to pretty much anything legislators did in the name of protecting children from sexual predators, the federal courts are finally beginning to ask whether these laws make sense in light of the goals they are supposed to achieve.