NC RSOL v. NODALSKI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NC RSOL and JOHN DOE 1, also )

known as CHRISTOPHER KYLE )

WOODRUFF,1 )

)

Plaintiffs, )

)

v. ) 1:18CV597

)

SEAN BOONE2 and LORRIN )

FREEMAN, each in his or her )

official capacity as District )

Attorney, and JOSHUA STEIN, in )

his official capacity as )

Attorney General of the State )

of North Carolina, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

This case is now before the court on Defendants’ motion to

dismiss the complaint for lack of standing, sovereign immunity,

1 John Doe 2, originally listed as a plaintiff in this case,

was terminated following the notice of voluntary dismissal filed

on February 19, 2019. (See Doc. 20.)

2 Effective January 2019, Sean Boone has replaced Pat

Nodalski as the District Attorney for Alamance County. See

http://www.ncdistrictattorney.org/15A/home.html. Pursuant to

Fed. R. Civ. P. 25(d), Mr. Boone is automatically substituted as

a party defendant for all claims asserted against Mr. Nodalski

in his official capacity as former District Attorney. North

Carolina has also renumbered its prosecutorial districts, such

that Mr. Boone is now the District Attorney for District 17,

rather than District 15A. See N.C. Gen. Stat. § 7A-60(a)(1).

abstention, and failure to state a claim. (See Doc. 12.) This

court has reviewed the pleadings in this case and, for the

reasons that follow, finds that Defendants’ motion to dismiss

should be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff NC RSOL is a nonprofit organization that

“advocate[s], both legislatively and legally, for the rational

reform of statutes, regulations, and ordinances regarding sex

offender registries and legal restrictions placed upon

registrants.” (Complaint (“Compl.”) (Doc. 1) ¶ 42.) As initially

filed, the complaint also named two individuals as Plaintiffs:

John Doe 1 and John Doe 2. Following this court’s order denying

Plaintiffs’ motion to proceed under fictitious names, (Doc. 19),

Plaintiff John Doe 2 voluntarily dismissed his claims pursuant

to Fed. R. Civ. P. 41(a)(1)(A)(i). (See Doc. 20.) Plaintiff John

Doe 1 filed an affidavit stating his legal name and will be

referred to herein as “Woodruff.” (Doc. 21.)

Plaintiff Woodruff is a registered sex offender who resides

in Alamance County, North Carolina, “and is subject to the

restrictions contained in North Carolina General Statutes

Article 27A, specifically including N.C.G.S. § 14-208.18(a)(3)

and (a)(4).” (Compl. (Doc. 1) ¶ 22.) Woodruff was convicted of

misdemeanor sexual battery of a thirty-year-old woman in 2009.

(Id. ¶¶ 23–26.) The complaint alleges that Woodruff “desires to

attend church, to be able to go to the public library, to go to

movies, sporting events, recreation parks, amusement parks, and

other areas made off-limits to him by § 14-208.8(a)(3) [sic].”

(Id. ¶ 95.) Woodruff also desires to attend North Carolina state

and agricultural fairs and would do so but for the restrictions

in N.C. Gen. Stat. § 14-208.18(a)(4). (See id. ¶¶ 107–17.)

Plaintiffs challenge the premises restrictions in N.C. Gen.

Stat. §§ 14-208.18(a)(2) — (a)(4), which make it unlawful for

registered sex offenders to knowingly be present at certain

locations. Specifically, Plaintiffs allege that

§ 14-208.18(a)(2) is unconstitutionally “overbroad in violation

of the First and Fourteenth Amendments to the United States

Constitution,” that § 14-208.18(a)(3) is both overbroad and

unconstitutionally vague, and that § 14-208.18(a)(4) is

overbroad. (Id. ¶¶ 119–30.)

Defendants have moved to dismiss the complaint under Fed.

R. Civ. P. R. 12(b)(1), (b)(2), and (b)(6), asserting sovereign

immunity, lack of standing, and failure to state a claim. (Doc.

12.) Defendants filed a brief in support of their motion to

dismiss. (See Mem. of Law in Supp. of Mot. to Dismiss (“Defs.’

Mem.”) (Doc. 13).) Plaintiffs have responded opposing the motion

to dismiss, (Pls.’ Resp. and Mem. in Resp. to Defs.’ Mot. to

Dismiss (“Pls.’ Resp.”) (Doc. 15)), and Defendants have not

filed a reply brief.

II. STANDARD OF REVIEW

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). In other words, the plaintiff must

plead facts that “allow[] the court to draw the reasonable

inference that the defendant is liable” and must demonstrate

“more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678.

When ruling on a motion to dismiss, this court must accept

the complaint’s factual allegations as true. Iqbal, 556 U.S. at

678. Further, “the complaint, including all reasonable

inferences therefrom, [is] liberally construed in the

plaintiff’s favor.” Estate of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004) (citation omitted). Despite this deferential standard, a

court will not accept legal conclusions as true, and

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, [will] not suffice.”

Iqbal, 556 U.S. at 678.

III. STANDING

A. Legal Framework

The federal judicial power extends only to cases or

controversies within the scope of Article III of the United

States Constitution. See U.S. Const. art. III, § 2. To have

standing, “[t]he plaintiff must have (1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S.

____, ____, 136 S. Ct. 1540, 1547 (2016). Stated differently,

“[a] plaintiff must allege personal injury fairly traceable to

the defendant's allegedly unlawful conduct and likely to be

redressed by the requested relief.”3 Allen v. Wright, 468 U.S.

3 Plaintiffs must establish these elements even for their

facial overbreadth challenges. While the overbreadth doctrine

permits a narrow exception to the rule that a party may assert

only his or her own personal constitutional rights, it does not

remove the injury requirement or the other aspects of

traditional Article III standing. See Prime Media, Inc. v. City

of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007) (“Because

overbreadth creates an exception only to the prudential standing

inquiry, the Supreme Court has made clear that the injury in

fact requirement still applies to overbreadth claims under the

First Amendment.”) (citing Virginia v. Am. Booksellers Ass’n,

Inc., 484 U.S. 383, 392–93 (1988)); see also Peterson v. Nat’l

Telecomms. & Info. Admin., 478 F.3d 626, 634 (4th Cir. 2007)

(“[A] party asserting overbreadth standing must still

demonstrate a distinct and palpable injury.”) (internal

quotation marks omitted).

737, 750 (1984), abrogated on other grounds by Lexmark Int’l,

Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).

First, the plaintiff must have either suffered an injury or

be in imminent fear of an injury. “A plaintiff who challenges a

statute must demonstrate a realistic danger of sustaining a

direct injury as a result of the statute's operation or

enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979). That injury must be “(a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992) (internal citations, quotation marks and footnote

omitted). Plaintiffs generally may challenge alleged violations

prospectively, provided that “the threatened injury is real,

immediate, and direct.” Davis v. Fed. Election Comm’n, 554 U.S.

724, 734 (2008). “Past exposure to illegal conduct does not in

itself show a present case or controversy regarding injunctive

relief, however, if unaccompanied by any continuing, present

adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96

(1974).

Second, the injury must be “fairly traceable” to the

defendant’s conduct. This does not mean that the plaintiffs must

prove to an absolute certainty that the defendant’s actions

caused or are likely to cause injury; rather the “plaintiffs

need only show that there is a substantial likelihood that

defendant's conduct caused plaintiffs’ harm.” Pub. Interest

Research Grp. of N.J., Inc. v. Powell Duffryn Terminals Inc.,

913 F.2d 64, 72 (3d Cir. 1990) (quoting Duke Power Co. v.

Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 75 n.20 (1978))

(internal quotation marks omitted). While this standard excludes

any injury that is “the result of the independent action of some

third party not before the court, [it] does not exclude injury

produced by determinative or coercive effect upon the action of

someone else.” Bennett v. Spear, 520 U.S. 154, 169 (1997)

(quoting Lujan, 504 U.S. at 560–61). For example, in Bennett,

the Supreme Court held that the plaintiffs had alleged an injury

“fairly traceable” to the Fish and Wildlife Service when the

Service’s (technically advisory) biological opinion expressing

concern about a land reclamation project’s impact on endangered

wildlife prompted a federal agency to enforce minimum reservoir

levels. Id. at 167–71.

Third and finally, the law requires that it be “likely, as

opposed to merely speculative, that the injury will be redressed

by a favorable decision” from the court. Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181

(2000). This requirement “examines the causal connection between

the alleged injury and the judicial relief requested” and asks

whether a judicial decision granting the requested relief will

alleviate plaintiff’s alleged injury. See Allen, 468 U.S. at 753

n.19 (explaining the distinction between the “fairly traceable”

and “redressable” components of standing).

B. Analysis

Prior to the Fourth Circuit’s decision substantively

affirming the district court in Doe v. Cooper, 842 F.3d 833 (4th

Cir. 2016) (“Cooper III”), a former judge in this district found

that registered sex offenders had standing to challenge the

prior version of N.C. Gen. Stat. § 14-208.18(a). See Does 1–5 v.

Cooper, 40 F. Supp. 3d 657 (M.D.N.C. 2014) (“Cooper I”). In its

standing analysis, the court compared the facts of that case to

the Fourth Circuit case Doe v. Virginia Department of State

Police, 713 F.3d 745 (4th Cir. 2013), where the plaintiff lacked

standing to challenge Virginia’s sex offender premises

restrictions (Va. Code § 18.2-370.5). The Virginia statute that

criminalized sex offender presence in certain locations also

contemplated that a registered sex offender could “petition the

circuit court in the county or city where the school or child

day center is located for permission to enter such property” and

become exempt from certain restrictions upon obtaining a court

order and permission from the school board or property owner.

Va. Code § 18.2-370.5(c). The Fourth Circuit found that the

plaintiff had alleged only hypothetical injury because she had

not actually attempted to access the restricted locations and

had not utilized the petition process. Id. at 754 (“Because Doe

has not attempted to petition a Virginia circuit court, the

Board, or any church, it is far from clear whether she will

ultimately be barred from entering these properties.”).

By contrast, in Does 1–5 v. Cooper, a former judge in this

district found that N.C. Gen. Stat. § 14-208.18 contained “no

such petition option or opportunity to obtain an individualized

degree of access to restricted locations.” Cooper I, 40 F. Supp.

3d at 670. Further, the court noted that certain plaintiffs had

either been arrested for violating subsections of § 14-208.18

(although the charges were later dismissed) or had obtained

permission from property owners to attend events at restricted

locations. Id. at 671. Noting that the “Plaintiffs need not

actually violate § 14-208.18, or be proactively threatened with

prosecution prior to violation, in order to have standing,” the

court determined that the plaintiffs had standing for their

claims. Id. at 672.

N.C. Gen. Stat. § 14-208.18 still lacks any formal petition

process by which a registered sex offender might obtain judicial

approval of his or her presence at a restricted location.

According to the complaint, the state trial judge in Woodruff’s

2009 misdemeanor sexual battery case “determined that [Woodruff]

is not a threat to minors or others” and “directed that

[Woodruff] would not be subject to the premises, housing, and

work restrictions contained in Article 27A (including N.C.G.S.

§ 14-208.18(a)).” (Compl. (Doc. 1) ¶¶ 27–29.) However, the state

of North Carolina objected to this ruling and Woodruff is now

subject to the premises restrictions. (Id. ¶ 29.) Woodruff has

refrained from being present at locations specified in

§§ 14-208.18(a)(3) and (a)(4) due to his “resulting fear of

arrest and prosecution.” (Id. ¶ 96.)

Defendants argue, in support of their motion to dismiss,

that “[i]t is purely speculative that there exists a time,

location, or other area covered by N.C.G.S. § 14-208.18 that

coincides with a viable and imminent threat to prosecute which

could serve as an actionable injury for standing.” (Defs.’ Mem.

(Doc. 13) at 8.) In other words, Defendants assert that any

purported injury is merely hypothetical and not imminent. This

court first notes several factors that distinguish this case

from the earlier challenge in Doe v. Cooper. First, Plaintiffs

have not alleged that Woodruff has been threatened with arrest,

arrested or prosecuted for violating the revised version of

§ 14-208.18(a). Second, it appears from the complaint that

Woodruff has not sought permission from any law enforcement

officer or property owner to be present at locations mentioned

in subsections (a)(3) or (a)(4).

A plaintiff is never required to violate the law to obtain

standing to challenge a statute. See, e.g., Steffel v. Thompson,

415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner

first expose himself to actual arrest or prosecution to be

entitled to challenge a statute that he claims deters the

exercise of his constitutional rights.”). However, a general

feeling of inhibition, without evidence suggesting that

plaintiffs “would be prosecuted for the conduct they planned to

engage in,” is insufficient to establish standing. Younger v.

Harris, 401 U.S. 37, 42 (1971). In this arena, the Supreme Court

has generally found standing when a plaintiff professes a desire

to engage in conduct that is facially prohibited by the

challenged statute, the state has prosecuted individuals in the

past, and the state has not disavowed future prosecution. See

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 161–66 (2014)

(finding that the plaintiffs had standing to challenge a “false

campaign statement” law restricting political speech, where one

plaintiff was “the subject of a complaint in a recent election

cycle” and complaints were common and carried potential criminal

penalties); Holder v. Humanitarian Law Project, 561 U.S. 1, 15–

16 (2010) (holding that the plaintiffs had standing to challenge

a terrorism material-support ban, where the government had

prosecuted others under the statute and plaintiffs alleged “that

they would provide similar support again if the statute's

allegedly unconstitutional bar were lifted”); Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289, 301–02 (1979)

(plaintiffs had standing to challenge a “consumer publicity”

restriction applicable to labor unions where they had engaged in

past publicity campaigns, intended to do so in the future, had a

reasonable fear that the statute might restrict these

activities, and did not receive any state assurance of non-

prosecution).

Here, as alleged, Woodruff is subject to a state trial

court order that explicitly states he is subject to the premises

restrictions in §§ 14-208.18(a)(3) and (a)(4). (Compl. (Doc. 1)

¶ 29.) This order is allegedly the result of the state’s

objection to earlier findings by Woodruff’s trial court judge.

(Id.) Even absent an order from the trial court, Woodruff would

still be subject to the premises restrictions and to criminal

liability for violating those restrictions. Without any formal

petition process to obtain advance permission to enter such a

location, Woodruff’s only options are to (1) refrain from

visiting any place where minors may congregate, to avoid running

afoul of § 14-208.18(a)(3), or (2) visit these places and simply

hope that he does not run afoul of the statutory restrictions.

Defendants acknowledge as much. (See Defs.’ Mem. (Doc. 13) at 8

(“[T]he reality is that they can go to these places, but they

must be vigilant as to who else is at the location when they

chooses [sic] to visit.”).)

This court’s independent research4 illustrates that North

Carolina has prosecuted registered sex offenders for violating

the premises restriction in § 14-208.18(a)(3).5 See, e.g., Cooper

I, 40 F. Supp. 3d at 671 (“Plaintiff John Doe 1 was arrested and

charged with violating § 14–208.18 for attending a church where

he had the pastor's permission to attend.”); State v. Daniels,

224 N.C. App. 608, 610, 741 S.E.2d 354, 357 (2012) (“Defendant

was indicted on two charges of violating N.C. Gen. Stat. § 14–

208.18(a)(3)” for being present at a park) (footnote omitted);

4 This court may, at the motion to dismiss stage, consider

evidence outside of the pleadings to determine whether it has

subject matter jurisdiction over the dispute. See, e.g.,

Richmond, Fredericksburg & Potomac R.R. Co. v. United States,

945 F.2d 765, 768–69 (4th Cir. 1991).

5 While this court finds no evidence that any sex offender

has yet been prosecuted for violating § 14-208.18(a)(4), this

subsection has only been in effect since September 1, 2016, and

is also likely to be used less frequently because state fairs

occur only at specific times throughout the year. Therefore,

this court finds that Woodruff has standing to challenge

subsection (a)(4). See, e.g., Am. Booksellers, 484 U.S. at 393

(“The State has not suggested that the newly enacted law will

not be enforced, and we see no reason to assume otherwise.”).

State v. Runyon, No. COA14–817, 2015 WL 241754, at *1 (N.C. Ct.

App. Jan. 20, 2015) (same underlying facts). Notably, Defendants

only assert that Plaintiffs have failed to identify any threat

of prosecution directed to Woodruff individually, not that no

prosecutions have occurred generally. (Defs.’ Mem. (Doc. 13) at

7.) Defendants further argue that Plaintiffs’ allegations lack

specificity; however, Plaintiffs are not required to plead the

specific name of the locations they wish to visit. The complaint

alleges that Woodruff wishes to visit “recreation parks,”

(Compl. (Doc. 1) ¶ 95), and North Carolina has recently

prosecuted registered sex offenders under subsection (a)(3) for

being present at parks. See Daniels, 224 N.C. App. 608, 741

S.E.2d 354; Runyon, 2015 WL 241754. Finally, Defendants do not

disavow the intent to prosecute sex offenders under the

challenged statutes; nor could they reasonably do so, given the

prosecutorial history described above.

Here, notwithstanding that Woodruff has neither been

arrested nor taken affirmative steps to visit any restricted

locations, this court finds that Woodruff has alleged more than

a mere feeling of inhibition in visiting places identified by

§§ 14-208.18(a)(3) and (a)(4). The history of past prosecution

under subsection (a)(3), the state’s active opposition to an

order exempting Woodruff from the premises restrictions, and the

lack of any state disavowal combine to create a credible threat

of prosecution under Driehaus and Holder. Therefore, Woodruff

has standing to challenge subsections (a)(3) and (a)(4), and

Defendant’s motion to dismiss these claims for lack of standing

under Fed. R. Civ. P. R. 12(b)(1) will be denied.

C. Traceability to the Attorney General’s Office

Defendants further argue that any purported injury is not

traceable to conduct by the North Carolina Attorney General’s

Office because the Attorney General is only authorized to

prosecute alleged criminal acts upon request from the relevant

district attorney. (See Defs.’ Mem. (Doc. 13) at 9.) For that

reason, Defendants contend that, “at a minimum, the claims

against the North Carolina Attorney General should be dismissed

pursuant to Rule 12(b)(1) for failure to ever be able to

establish the second prong of the case-or-controversy test.”

(Id.) Plaintiffs do not appear to dispute that their injuries

are traceable only to the individual district attorneys, rather

than to the Attorney General’s Office. (See Pls.’ Resp. (Doc.

15) at 7–8.)

Here, it appears that ultimate prosecutorial decision-

making resides with the local district attorneys and not the

North Carolina Attorney General. Therefore, the facts in this

case are the inverse of those in Bennett v. Spear, 520 U.S. at

167–71, in that plaintiffs seek to sue a subordinate government

body that can take potentially injurious action only upon the

direction of others. Had Plaintiffs alleged that the district

attorneys actually instructed the North Carolina Attorney

General’s office to investigate or prosecute Woodruff for a

potential violation of § 14-208.18(a)(3) or (a)(4), this injury

would be fairly traceable to both the directing district

attorney and the Attorney General’s office, under Bennett.

However, because Plaintiffs bring a pre-enforcement challenge to

the premises restrictions, the proper defendants in this case

are the “state officials empowered to enforce [that] law.”

Diamond v. Charles, 476 U.S. 54, 64 (1986); see also Nova Health

Sys. v. Gandy, 416 F.3d 1149, 1158 (10th Cir. 2005) (“[A]n

official who is charged with enforcing a state statute on behalf

of the entire state is a proper defendant, so long as the

plaintiff shows an appreciable threat of injury flowing directly

from the statute.”); Mobil Oil Corp. v. Attorney Gen. of Va.,

940 F.2d 73, 76–77 (4th Cir. 1991). Plaintiffs apparently

concede that only the district attorneys are empowered to

initiate prosecutions under the challenged statutes. Therefore,

this court finds that all claims against Defendant Joshua Stein,

in his official capacity as the Attorney General of the State of

North Carolina, should be dismissed for lack of standing

pursuant to Fed. R. Civ. P. 12(b)(1).

D. Organizational Standing

Plaintiff NC RSOL, as an organization, may have standing to

sue either on its own behalf or “as the representative of its

members.” Warth v. Seldin, 422 U.S. 490, 511 (1975). To

establish independent organizational standing, NC RSOL must

demonstrate “concrete and demonstrable injury to the

organization's activities . . . [rather] than simply a setback

to the organization’s abstract social interests.” Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 (1982). The complaint

alleges only that NC RSOL is suing “on behalf of its members”

and “to protect the interests of its members,” (Compl. (Doc. 1)

¶¶ 19, 46), but does not describe how the challenged statutory

provisions work concrete injury to the organization’s objectives

(as opposed to the constitutional rights of its individual

members). Therefore, this court finds that NC RSOL can establish

standing to sue only in a representative capacity.

For an organization to have representative standing, it

“must allege that its members, or any one of them, are suffering

immediate or threatened injury as a result of the challenged

action of the sort that would make out a justiciable case had

the members themselves brought suit.” Warth, 422 U.S. at 511. It

appears that Woodruff is not a member of NC RSOL. The complaint

identifies only one individual member of NC RSOL, John Doe 2,

(see Compl. (Doc. 1) ¶ 45), and Plaintiff John Doe 2 has

voluntarily dismissed his claims in this case.

This court finds the allegations in the complaint

insufficient to establish an imminent injury under N.C. Gen.

Stat. § 14-208.18(a)(2) to any individual NC RSOL member other

than John Doe 2. Specifically, the portion of the complaint that

describes Plaintiffs’ challenge to subsection (a)(2) mentions

only John Doe 2 and not any other NC RSOL member. (See Compl.

(Doc. 1) ¶¶ 67–81.) John Doe 2’s voluntary dismissal excises his

subsection (a)(2) allegations from the complaint. See, e.g., In

re Matthews, 395 F.3d 477, 480 (4th Cir. 2005) (“[A] dismissal

without prejudice [under Rule 41] operates to leave the parties

as if no action had been brought at all.”) (internal quotation

marks omitted); Webb v. Nolan, 361 F. Supp. 418, 420 (M.D.N.C.

1972) (“[T]he plaintiff . . . submitted to a voluntary

dismissal. At this stage the situation was the same as if the

suit had never been filed.”); aff’d, 484 F.2d 1049 (4th Cir.

1973). Because John Doe 2’s voluntary dismissal means this court

must consider the allegations as if his individual claims were

never filed, all allegations relating to John Doe 2 are null and

void and cannot be used by the remaining Plaintiffs to establish

standing.

While other NC RSOL members may be subject to subsection

(a)(2), Plaintiffs have failed to allege that any member (other

than John Doe 2) is subject to this provision, wishes to visit

restricted locations, and would do so but for the threat of

prosecution. Because Plaintiffs have failed to allege facts that

establish an injury in fact to any individual member by

operation of N.C. Gen. Stat. § 14-208.18(a)(2), Plaintiff NC

RSOL lacks representative standing to challenge this specific

subsection and this claim will be dismissed pursuant to Fed. R.

Civ. P. 12(b)(1). NC RSOL does have representative standing,

under the Warth test, to challenge subsections (a)(3) and (a)(4)

based on the alleged injury to Woodruff.

IV. SOVEREIGN IMMUNITY

The Eleventh Amendment states that “[t]he judicial power of

the United States shall not be construed to extend to any

suit . . . against one of the United States . . . .” U.S. Const.

amend. XI. The Supreme Court has interpreted this restriction to

generally prohibit any state from being sued by an individual

without the state’s consent. See, e.g., Seminole Tribe v.

Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1,

13 (1890) (“It is inherent in the nature of sovereignty not to

be amenable to the suit of an individual without its consent.”).

However, the Supreme Court has also long recognized an exception

to this general rule: state officials are stripped of immunity

and subject to lawsuits for declaratory or injunctive relief,

when these suits are based on the act of enforcing an allegedly

unconstitutional state statute. Ex Parte Young, 209 U.S. 123,

159 (1908) (“The act to be enforced is alleged to be

unconstitutional; and if it be so, the use of the name of the

state to enforce an unconstitutional act to the injury of

complainants is a proceeding without the authority of, and one

which does not affect, the state in its sovereign or

governmental capacity.”); see also Idaho v. Coeur d’Alene Tribe,

521 U.S. 261, 274–77 (1997) (noting that the Ex Parte Young

exception generally applies to abrogate sovereign immunity when

the plaintiff’s claim for injunctive relief arises under federal

law; “where prospective relief is sought against individual

state officers in a federal forum based on a federal right, the

Eleventh Amendment, in most cases, is not a bar”).

Here, Defendants argue that Plaintiffs’ claims are subject

to dismissal due to sovereign immunity, notwithstanding Ex Parte

Young. First, Defendants assert that the state officials named

in the case are not “‘persons’ within the meaning of § 1983 who

have engaged in a violation of the U.S. Constitution.” (Defs.’

Mem. (Doc. 13) at 4.) Second, Defendants contend there is no

threatened or ongoing violation of federal law as required by Ex

Parte Young. (Id. at 4–5.) Because it is “entirely speculative

as to whether any District Attorney will ever prosecute or

request the North Carolina Attorney General to prosecute”

Woodruff under the premises restrictions, Defendants urge this

court to apply sovereign immunity and dismiss the claims. (Id.)

Defendants’ sovereign immunity argument overlaps

substantially with the standing analysis. This court has found,

as described above, that there is a credible threat that §§ 14-

208.18(a)(3) and (a)(4) might be used to prosecute Woodruff if

he visits any location listed in the statute. The facts

surrounding this case demonstrate that, not only do “state

officials stand ready to perform their general duty to enforce

laws,” (Defs.’ Mem. (Doc. 13) at 4 (quoting Doe v. Duling, 782

F.2d 1202, 1206 (4th Cir. 1986))), but state officials have

recently prosecuted sex offenders for violating the exact same

statute challenged here. Further, the state actively opposed a

judicial order that would have exempted Woodruff from the

premises restrictions.

Ex Parte Young requires only “a straightforward inquiry

into whether a complaint alleges an ongoing violation of federal

law and seeks relief properly characterized as prospective.”

Coeur d’Alene Tribe, 521 U.S. at 296 (O’Connor, J., concurring).

The relief requested in this case is clearly prospective:

Plaintiffs ask this court to enjoin Defendants from enforcing

N.C. Gen. Stat. §§ 14-208.18(a)(3) and (a)(4) in the future,

rather than suing for damages based on past injury. See Verizon

Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 645 (2002). The

alleged violation here is also ongoing, because Woodruff is

reasonably deterred from engaging in certain conduct based on

the state’s past actions and prosecutorial decisions and

continues to be deterred so long as the law remains on the books

and the state continues to actively prosecute offenders. See

Allen v. Cooper, 895 F.3d 337, 354–55 (4th Cir. 2018), cert.

granted, ____ U.S. ____, 139 S. Ct. 2664 (2019) (stating that

the alleged violation must be ongoing; therefore, the plaintiff

did not establish standing based only “on the asserted

possibility that North Carolina will resume infringing Allen’s

copyrights”); DeBauche v. Trani, 191 F.3d 499, 504–05 (4th Cir.

1999) (noting that Ex Parte Young requires “an ongoing violation

of federal law that can be cured by prospective relief” rather

than “conjecture regarding discrete future events”). Where, as

here, there is a credible threat of enforcement due to law

enforcement actions and past prosecutions, this court finds that

a future injury is not merely hypothetical but rather actual and

ongoing. Therefore, Plaintiffs’ claims in this case fall

squarely within the Ex Parte Young doctrine and Defendants’

motion to dismiss for lack of personal jurisdiction based on

sovereign immunity will be denied.

V. ABSTENTION

Defendants argue, under two different legal theories, that

this court should abstain from ruling on the federal

constitutionality of N.C. Gen. Stat. §§ 14-208.18(a)(3) and

(a)(4). First, Defendants contend that this court should abstain

under the Pullman doctrine because no North Carolina court has

yet interpreted the post-amendment version of § 14-208.18(a)(3)

and “state court clarification might serve to avoid a federal

constitutional ruling.” (Defs.’ Mem. (Doc. 13) at 10 (quoting

Nivens v. Gilchrist, 444 F.3d 237, 245 (4th Cir. 2006).) Second,

Defendants argue that this court should abstain under Burford

because the challenged statutes are “are of substantial

importance to the safety of the citizens in North Carolina and

to the State’s ability to exercise its police powers.” (Id. at

10–11.) This court will address each of these arguments in turn.

A. Pullman Abstention

The Pullman abstention doctrine is applicable only when

special circumstances, such as “the susceptibility of a state

statute of a construction by the state courts that would avoid

or modify the constitutional question,” are present. Zwickler v.

Koota, 389 U.S. 241, 248–49 (1967); see also R.R. Comm’n of Tex.

v. Pullman Co., 312 U.S. 496, 501–02 (1941). The central

question is whether a state court decision interpreting the

relevant law is likely to negate any federal constitutional

issue. See Educ. Servs., Inc. v. Md. State Bd. for Higher Educ.,

710 F.2d 170, 174–75 (4th Cir. 1983). If so, it may appropriate

for a federal court to defer adjudication of the dispute. To

abstain under Pullman, this court must find that there exists a

novel issue of state law, that the statute is “amenable to a

state court interpretation which could obviate the need to

adjudicate or substantially narrow the scope of the federal

constitutional claim[, . . . and] that an erroneous construction

of state law by the federal court would disrupt important state

policies.” Planned Parenthood of Cent. N.J. v. Farmer, 220 F.3d

127, 149–50 (3d Cir. 2000) (internal quotation marks omitted)

(quoting Presbytery of N.J. of the Orthodox Presbyterian Church

v. Whitman, 99 F.3d 101, 106 (3d Cir. 1996)).

However, Pullman abstention is generally inappropriate in

a First Amendment overbreadth challenge because “to force the

plaintiff who has commenced a federal action to suffer the delay

of state court proceedings might itself effect the impermissible

chilling of the very constitutional right he seeks to protect.”

Zwickler, 389 U.S. at 252; see also Expressions Hair Design v.

Schneiderman, 581 U.S. ____, ____, 137 S. Ct. 1144, 1157 (2017)

(“[T]his Court has described abstention as particularly

problematic where, as here, a challenge to a state statute rests

on the First Amendment.”). Further, in the context of a

vagueness challenge, “abstention [is] permissible only where the

case turns on the applicability of a state statute or regulation

to a particular person or a defined course of conduct,” and not

where the sole state-law question is a potential “narrowing

construction” of the statute’s substantive provisions. Educ.

Servs., 710 F.2d at 175 (internal quotation marks omitted).

Finally, the Supreme Court has suggested that the Pullman

doctrine is of limited applicability generally, because a

federal court may certify disputed questions of state law to the

highest court of the relevant state. Arizonans for Official

English v. Arizona, 520 U.S. 43, 75–76 (1997); see also Colo.

River Water Conservation Dist. v. United States, 424 U.S. 800,

813 (1976) (stating that abstention is permitted only in

“exceptional circumstances”).

Plaintiffs’ challenges here rest on both First Amendment

overbreadth and vagueness. This court finds that Pullman

abstention is inappropriate for Plaintiffs’ First Amendment

claims, due to the Supreme Court’s cautionary statements

regarding abstention in this context and the risk that state

court proceedings may prolong the allegedly unconstitutional

deterrent effect of the statute. See Schneiderman, 137 S. Ct. at

1157. With regard to the vagueness challenge, the only state law

resolution here would be a limiting construction of the premises

restriction in § 14-208.18(a)(3). Defendants do not argue that a

state court might find the statute as a whole inapplicable to

Woodruff; rather, it is undisputed that Woodruff is a registered

sex offender subject to (a)(3). There is also little chance that

any narrow state court interpretation of the phrase “frequently

congregate” would render Plaintiffs’ vagueness challenge moot. A

North Carolina state court might provide some clarification

regarding the legislative intent behind this phrase, but a state

court can neither catalogue every location that falls within the

statute’s intended scope, nor can it “apply[] ‘judicial surgery’

. . . [or] completely rewrite [the] statutes.” Farmer, 220 F.3d

at 150. Notably, Defendants have not suggested any clarifying

interpretation that might save the statute from a vagueness

challenge. This court declines to take the extraordinary step of

abstaining under the Pullman doctrine.

B. Burford Abstention

Defendants next argue that abstention is required by

Burford. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943)

(“These questions of regulation of the industry by the State

administrative agency, whether involving gas or oil prorationing

programs or Rule 37 cases, so clearly involves basic problems of

Texas policy that equitable discretion should be exercised to

give the Texas courts the first opportunity to consider them.”).

A federal court should abstain under Burford only:

(1) when there are difficult questions of state law

bearing on policy problems of substantial public

import whose importance transcends the result in the

case then at bar; or (2) where the exercise of federal

review of the question in a case and in similar cases

would be disruptive of state efforts to establish a

coherent policy with respect to a matter of

substantial public concern.

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

491 U.S. 350, 361 (1989) (quoting Colorado River, 424 U.S. at

814) (internal quotation marks omitted).

“Burford is concerned with protecting complex state

administrative processes from undue federal interference.” Id.

at 362. In this vein, the circuit courts have frequently found

that application of the Burford doctrine is appropriate only

“when federal adjudication would unduly intrude upon” a state’s

administrative machinery. Martin v. Stewart, 499 F.3d 360, 364

(4th Cir. 2007) (internal quotation marks omitted); see also

Baggett v. Dep’t of Prof’l Regulation, Bd. of Pilot Comm’rs, 717

F.2d 521, 524 (11th Cir. 1983) (stating that Burford abstention

is justified by “the need for protection of the state's

comprehensive regulatory scheme”).

While this court does not dispute that restricting the

presence of registered sex offenders at locations where children

may be present is an important state public policy objective,

the regulatory interference rationale that animated Burford is

simply not present on the facts here. North Carolina has not

established any administrative process by which registered sex

offenders may petition to be present at locations potentially

within the scope of § 14-208.18(a). In fact, the lack of such a

regulatory regime is part of the reason that Woodruff has

standing to bring these claims in the first place. Further, a

ruling from this court would not undermine uniformity or

efficiency or invite into federal court disputes that ordinarily

might be handled by some administrative tribunal. Cf. First

Penn-Pac. Life Ins. Co. v. Evans, 304 F.3d 345, 349 (4th Cir.

2002) (stating that the risk of federal court interference in a

state-administered “comprehensive scheme for liquidating

insolvent state-chartered savings and loan associations”

presented an appropriate case for Burford abstention). If this

court ultimately rules that any aspect of § 14-208.18(a) is

unconstitutional, the state will simply need to re-write its

laws. In other words, this is merely a garden-variety challenge

to the federal constitutionality of a state statute. There are

no special factors that counsel abstention, and therefore this

court declines to abstain under Burford.

VI. FAILURE TO STATE A CLAIM – ANALYSIS

A. Claim 1

In Claim 1, Plaintiffs challenge the premises restrictions

set forth in N.C. Gen. Stat. § 14-208.18(a)(2), which prohibits

certain registered sex offenders (those convicted of an offense

involving a minor or those found to pose a danger to minors

specifically) from being knowingly present “[w]ithin 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 . . . .” (Compl. (Doc. 1) ¶ 54(2). Plaintiffs allege that

John Doe 2 “would go to such places, for the purpose of

exercising First Amendment liberties, if not for the ban imposed

by N.C.G.S. § 14-208.18(a)(2) and his resulting fear of arrest

and prosecution.” (Compl. (Doc. 1) ¶ 81.) Claim 1, however,

contains no allegations regarding Woodruff. Further, it appears

that Woodruff is not subject to the restrictions in (a)(2)

because he has not committed any offense against a minor and a

state judge has determined that he does not pose a threat to

minors. See N.C. Gen. Stat. § 14-208.18(c)(2); (Compl. (Doc. 1)

¶ 27.) As described above, Plaintiffs have failed to allege any

particularized injury under subsection (a)(2) to any individual

NC RSOL member other than John Doe 2, who is no longer a party

to this case.

To establish standing to challenge the premises restriction

in subsection (a)(2), Plaintiffs must show a real, imminent

threat of harm. Here, no Plaintiff is directly subject to the

restrictions in subsection (a)(2) and thus no Plaintiff faces an

imminent injury due to the statute’s operation. Plaintiffs have

failed to establish standing to challenge N.C. Gen. Stat. § 14-

208.18(a)(2), and Defendants’ motion to dismiss this claim will

be granted.

B. Overbreadth (Claims 2 and 4)

1. Legal Framework

Plaintiffs allege that N.C. Gen. Stat. §§ 14-208.18(a)(3)

and (a)(4) are both unconstitutionally overbroad in violation of

the First Amendment.

In the First Amendment context only, the Supreme Court “has

altered its traditional rules of standing to permit . . .

‘attacks on overly broad statutes with no requirement that the

person making the attack demonstrate that his own conduct could

not be regulated by a statute drawn with the requisite narrow

specificity.’” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)

(quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)). To

bring a claim under this doctrine, the plaintiff must plausibly

allege that “the overbreadth of a statute [is] not only . . .

real, but substantial as well, judged in relation to the

statute's plainly legitimate sweep.” Id. at 615. A statute is

unconstitutionally overbroad only when it is both not

susceptible to a limiting construction that avoids

unconstitutional applications and not severable, such that the

unconstitutional portion may be excised. See New York v. Ferber,

458 U.S. 747, 769 n.24 (1982). If these criteria are met, then

the statute as a whole is struck down as overbroad. Invalidating

a statute as overbroad is “strong medicine” justified only by

the “concern that the threat of enforcement of an overbroad law

may deter or chill constitutionally protected speech —

especially when the overbroad statute imposes criminal

sanctions.” Virginia v. Hicks, 539 U.S. 113, 118–20 (2003)

(internal quotation marks omitted).

The level of scrutiny appropriate in a First Amendment

challenge turns on the law’s objective. As the Fourth Circuit

has explained:

If the regulation was adopted to burden disfavored

viewpoints or modes of expression, a court applies

strict scrutiny. If, by contrast, the regulation was

adopted for a purpose unrelated to the suppression of

expression — e.g., to regulate conduct, or the time,

place, and manner in which expression may take place —

a court must apply a less demanding intermediate

scrutiny.

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 512–13 (4th Cir.

2002). In other words, “a content-neutral measure that imposes

incidental burdens on speech . . . is . . . subject to

intermediate First Amendment scrutiny.” Satellite Broad. and

Commc’ns Ass’n v. F.C.C., 275 F.3d 337, 355 (4th Cir. 2001). A

law is content-neutral for First Amendment purposes when it is

“justified without reference to the content of the regulated

speech.” Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,

293 (1984); see also Ward v. Rock Against Racism, 491 U.S. 781,

791–92 (1989) (finding that a noise-control ordinance was

content-neutral because it was justified by “the city's desire

to control noise levels at bandshell events . . . [and had]

nothing to do with content”) (internal quotation marks and

citation omitted).

Under the intermediate scrutiny standard, a law should be

upheld “if it furthers an important or substantial governmental

interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is no greater

than is essential to the furtherance of that interest.” United

States v. O’Brien, 391 U.S. 367, 377 (1968).6

2. Analysis

Here, there appears to be no dispute that §§ 14-

208.18(a)(3) and (a)(4) are content-neutral laws.7 Both

subsections apply regardless of the nature of the regulated

speech. In other words, they apply regardless of the reason that

a registered sex offender might wish to visit a restricted

location. And, as Defendants argue, the laws are justified by

6 The freedom of speech and the freedom to peaceably

assemble are both found in the First Amendment. The Supreme

Court has consistently articulated a single legal standard for

“First Amendment rights” generally. See, e.g., City of Chicago

v. Morales, 527 U.S. 41, 54 (1999); Broadrick, 413 U.S. at 611;

De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (“The right of

peaceable assembly is a right cognate to those of free speech

and free press.”). Therefore, the same legal framework applies

to Plaintiffs’ speech and assembly challenges.

7 Plaintiffs allege that the challenged statutes restrict

their freedom of religion. (See Compl. (Doc. 1) ¶¶ 69, 87, 95.)

Although the laws may impact upon the practice of religion and

thus relate to the Free Exercise Clause, they are still content-

neutral and subject to intermediate (rather than strict)

scrutiny under the First Amendment. Plaintiffs do not allege,

nor could they, that the laws are specifically directed to

regulate religious, rather than other forms of, expression. Cf.

Tucker v. State of Cal. Dep’t of Educ., 97 F.3d 1204, 1209–10

(9th Cir. 1996) (“Because the orders here regulate only a

certain type of expression, based on its content — religious

expression — they are not content neutral.”). Rather, the laws

at issue apply to a broad range of conduct regardless of subject

matter.

the goal of “public protection” due to the “risk of recidivism

by sex offenders.” (Defs.’ Mem. (Doc. 13) at 11–12.) This is

certainly an important state interest; in fact, this court can

think of few interests more important and worthwhile than

protecting children. The question, then, is whether Plaintiffs

have plausibly alleged that the laws impose a restriction on

First Amendment freedoms that is greater than necessary to

further the legitimate state interest in public safety and

protection.

The prior version of N.C. Gen. Stat. § 14-208.18(a)(3) was

challenged and found to be plausibly overbroad at the motion to

dismiss stage.8 See Cooper I, 40 F. Supp. 3d at 679–81. The

district court held that the plaintiffs had plausibly alleged

that subsection (a)(3) was overbroad because it “operates to

exclude those subject to § 14–208.18's restrictions from many

traditional public fora at all times (regardless of the absence

of children) and without exception for public demonstrations,

8 It appears that neither the plaintiffs nor defendant in

that case moved for summary judgment on the overbreadth of

subsection (a)(3), but instead argued only a vagueness theory at

the summary judgment stage. The district court held that

subsection (a)(3) was unconstitutionally vague and enjoined the

state from enforcing that portion of the law, see Does v.

Cooper, 148 F. Supp. 3d 477, 505–06 (M.D.N.C. 2015) (“Cooper

II”), and the Fourth Circuit affirmed that ruling. See Cooper

III, 842 F.3d 833 (4th Cir. 2016).

protests, or other ways of exercising one's free speech rights.”

Id. at 681. Subsection (a)(3) was then amended, in part to add

the phrase “when minors are present.” See 2016 N.C. Sess. Laws

102 (H.B. 1021).

This court finds that the amended version of subsection

(a)(3) arguably addresses the district court’s concerns in

Cooper I. While the new statute may be unconstitutionally vague

regarding what it means for minors to “frequently congregate,”

the law, by its own terms, applies only when minors are present

at any listed location. Therefore, a registered sex offender may

generally exercise his or her First Amendment rights (including

the freedom of association and the freedom of religion) and is

restricted from doing so only when minors are present. To

protect minors and the public from sex offender recidivism while

burdening the minimal amount of protected speech, the state can

presumably address specific situations where the risk of

recidivism is demonstrably high. The current version of § 14-

208.18(a)(3) appears to meet this requirement in part, by

covering only conduct likely to bring a sex offender into

contact with or proximity of a minor. The statute does not

contain an explicit exception for demonstrations and protests.

However, this court finds that the sample location list

mitigates this omission because the listed locations are not the

type of places that traditionally host events of public debate

or political speech.

However, while the state has solved the specific issue

identified by the district court in Cooper I, at least one

significant problem remains. § 14-208.18(a)(3) applies to

individuals, such as Woodruff, who have been convicted of sexual

offenses that do not involve a minor child. Specifically,

subsection (a)(3) applies to all offenses listed in Chapter 7B

of the North Carolina criminal code, see N.C. Gen. Stat. § 14-

208.18(c)(1)(a), including numerous offenses that can be

committed against an adult victim. Defendants have, at this

point, presented no evidence regarding the risk posed to minors

by sex offenders convicted of assaulting non-minors. The plainly

legitimate, constitutional sweep of subsection (a)(3) appears to

cover only sex offenders with minor victims, as these offenders

logically pose a specific threat to children. The statute is at

least plausibly overbroad because, in its current form, it

applies to all sex offenders and even those whom a judge has

determined pose no specific risk to minors (such as Woodruff).

(See Compl. (Doc. 1) ¶ 27.) If Defendants assert a broader

public safety rationale that goes beyond the protection of

children to the protection of the public at large, then the

statute appears to be potentially too narrow. In other words, if

Defendants are equally concerned that sex offenders may

re-offend by assaulting adult victims, as opposed to targeting

minors specifically, then there is no rational basis to apply

the premises restrictions only to locations frequented by

minors.

The statute appears, at least on its face, to plausibly

burden more speech than is necessary to achieve the state’s

legitimate objective of protecting children.9 At the current

stage of proceedings, Defendants have not shown any

justification for subjecting offenders such as Woodruff to the

restrictions of subsection (a)(3). Therefore, Defendants’ motion

to dismiss the overbreadth challenge to N.C. Gen. Stat. § 14-

208.18(a)(3) will be denied.

N.C. Gen. Stat. § 14-208.18(a)(4) was enacted in 2016 and

was not challenged in the prior litigation. While Defendants do

not put forth an explicit rationale for subsection (a)(4), this

court presumes that the objective is the same as for subsection

(a)(3): to protect minors and guard against sex offender

recidivism. Plaintiffs allege that state “fairs typically host

classes, lectures, competitions, concerts, entertainment shows,

9 It appears that other states with similar premises

restrictions have chosen to limit these statutes to apply only

to sex offenders convicted of offenses involving a minor child.

See, e.g., Mo. Stat. § 566.149; Va. Code § 18.2-370.2.

and . . . provide opportunities to meet and interact with

elected representatives and candidates for political office.”

(Compl. (Doc. 1) ¶¶ 110–11.) Defendants neither refute these

allegations nor provide any rationale for why subsection (a)(4)

cannot be more narrowly tailored to achieve the objective of

public protection. Specifically, Defendants fail to explain why

subsection (a)(4) cannot (1) apply only to those portions of

fairgrounds designed primarily for “use, care or supervision of

minors,” or (2) apply only when minors are present in those

areas. Plaintiffs have plausibly alleged that subsection (a)(4)

is overbroad by burdening the ability to engage in educational

and political activities beyond what is necessary to protect the

public. Because Defendants have failed to carry their burden of

demonstrating that the law is appropriately tailored, and in

fact do not mention subsection (a)(4) anywhere in their

supporting brief, this court finds that Plaintiffs have

plausibly alleged a facial overbreadth claim as to N.C. Gen.

Stat. § 14-208.18(a)(4), and Defendants’ motion to dismiss that

claim will be denied.

C. Vagueness (Claim 3)

1. Legal Framework

Plaintiffs allege that N.C. Gen. Stat. § 14-208.18(a)(3) is

unconstitutionally vague. “Vagueness may invalidate a criminal

law for either of two independent reasons. First, it may fail to

provide the kind of notice that will enable ordinary people to

understand what conduct it prohibits; second, it may authorize

and even encourage arbitrary and discriminatory enforcement.”

City of Chicago v. Morales, 527 U.S. 41, 56 (1999); see also

Hardwick v. Heyward, 711 F.3d 426, 442 (4th Cir. 2013). With

regard to insufficient notice, the Supreme Court has stated

“that criminal responsibility should not attach where one could

not reasonably understand that his contemplated conduct is

proscribed.” United States v. Nat’l Dairy Prods. Corp., 372 U.S.

29, 32-33 (1963). The arbitrary enforcement category, on the

other hand, applies to laws that “fail[] to provide such minimal

guidelines . . . [that they] permit a standardless sweep that

allowed policemen, prosecutors, and juries to pursue their

personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358

(1983) (quoting Smith v. Goguen, 415 U.S. 566, 575 (1974))

(internal quotation marks omitted).

Plaintiffs allege that subsection (a)(3) is

unconstitutionally vague in the “sufficient notice” category.

(Compl. (Doc. 1) ¶ 100.) Specifically, Plaintiffs allege that

subsection (a)(3) fails to put a person of ordinary intelligence

on notice of (1) “how many minors must be present or otherwise

what it means for minors to ‘congregate’ in a given area” and

(2) “how often minors must ‘congregate’ in order to do so

‘frequently.’” (Id. ¶¶ 102–03.) Defendants argue that this claim

should be dismissed “[b]ecause Plaintiff cannot demonstrate

N.C.G.S. § 14-208.18(a)(3) is impermissibly vague in all its

applications.” (Defs.’ Mem. (Doc. 13) at 15 (citing Vill. of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 497 (1982).) The Supreme Court in Hoffman was discussing

facial versus as-applied challenges and concluded that

“legislation is not facially overbroad or vague if it does not

reach constitutionally protected conduct and is reasonably clear

in its application to the complainant.” Hoffman, 455 U.S. at

505. The Court held that, if a plaintiff is unable to

demonstrate that they personally are injured by the alleged

vagueness, then that plaintiff “must demonstrate that the law is

impermissibly vague in all of its applications” to mount a

facial challenge. Id. at 497.

2. Analysis

Here, Woodruff alleges that he is personally subject to

subsection (a)(3), is “unclear as to the meaning and extent of

N.C.G.S. § 14-208(a)(3) [sic]” and has refrained from visiting

certain locations due to this uncertainty. (Compl. (Doc. 1)

¶¶ 105–06.) As Plaintiffs correctly note, the Fourth Circuit in

Cooper III explained that, “where a statute specifies no

standard, the fact that it has one or more clearly

constitutional applications cannot save it” when the statute is

unconstitutionally vague as applied to the plaintiff. Cooper

III, 842 F.3d at 842. Because Defendants did not file a reply

brief, this court is left with nothing to refute this argument

and therefore concludes that Hoffman is inapplicable and that

Plaintiffs are not required to demonstrate that subsection

(a)(3) is unconstitutionally vague in all applications to

survive a motion to dismiss. Rather, in an as-applied challenge,

Plaintiffs must only plausibly allege that subsection (a)(3)

fails to place a person of ordinary intelligence on notice as to

what conduct is prohibited.

In Cooper I, a former judge in this district found, at the

motion to dismiss stage, that the prior version of N.C. Gen.

Stat. § 14-208.18(a)(3) was potentially vague because of the

phrase “regularly scheduled.” Cooper I, 40 F. Supp. 3d at 684.

Specifically, the court observed that “[t]here is no indication

how often such programming must occur in order to be ‘regularly

scheduled’ or how many minors must gather to qualify.” Id. The

court further noted that “it is unclear how often minors must

gather for such programming — whether minors should attend most

of the time when such programming occurs or whether it is

sufficient that two minors gathered once for such programming.”

Id. The Fourth Circuit ultimately agreed, finding that “a

reasonable person, whether a restricted sex offender or a law

enforcement officer, cannot reasonably determine (1) whether a

program for minors is ‘regularly scheduled’ or (2) what places

qualify as those ‘where minors gather.’” Cooper III, 842 F.3d at

843. The North Carolina legislature then amended the statute,

replacing “regularly scheduled . . . programs” with “frequently

congregate,” adding a list of specific examples, and limiting

the restrictions to apply only “when minors are present.” See

2015 N.C. Sess. Laws 102 (H.B. 1021).

This court finds that the 2016 amendment effectively

addressed two, but not all three, of the vagueness concerns

raised in the Cooper cases. By including a list of specific

examples, the law now places a person of ordinary intelligence

on notice about the types of places that the provision is

intended to cover and differentiates the “places” covered by

subsection (a)(3) from the “places” and “locations” covered by

subsections (a)(1) and (a)(2). This court further finds that the

law is no longer vague as to the number of minors who must be

present. Rather, the use of the word “congregate” and the word

“minors” (as opposed to “a minor or minors”) clearly suggests

that the restriction in subsection (a)(3) applies only when more

than one minor is present at such a location.

However, the phrase “frequently congregate” suffers from

the same flaw as the phrase “regularly scheduled.” There is,

quite simply, no guidance or clarification in the law regarding

how frequently minors must congregate at a certain place to

bring that place within the scope of § 14-208.18(a)(3). It

certainly cannot be that the presence of two minors at a

swimming pool on a single occasion qualifies as frequent

congregation.10 But the law does not specify how frequently

minors must be present, nor does it explain whether these

occasions must be scheduled classes or activities or can be ad

hoc gatherings.11 Therefore, this court finds that Plaintiffs

have plausibly alleged that § 14-208.18(a)(3) is

unconstitutionally vague as to the definition of “frequently

10 See Webster’s Third New International Dictionary (3d ed.

1986) (defining “frequent” as “often repeated or occurring”).

11 A brief survey of state laws restricting sex offender

presence at specific locations reveals that these statutes

generally prohibit sex offenders from being present at a defined

list of places rather than using an open-ended catch-all term.

See, e.g., Tenn. Code § 40-39-211(d) (restricting presence at

“any building or grounds of any public school, private or

parochial school, licensed day care center, other child care

facility, public park, playground, recreation center or public

athletic field”); 720 Ill. Comp. Stat. § 5/11-9.3 (prohibiting

sex offender presence at any school, school-owned property, or

school bus stop; stating that sex offenders may not be present

at any park “when persons under the age of 18 are present . . .

[and the sex offender intends] to approach, contact, or

communicate with a child under 18 years of age, unless the

offender is [the] parent or guardian of [that] person”).

congregate,” and Defendant’s motion to dismiss this claim will

be denied. Plaintiffs have not, however, plausibly alleged that

the statute is vague regarding the number of minors who must be

present at a qualifying location; this claim will be dismissed

pursuant to Fed. R. Civ. P. 12(b)(6).

VII. CONCLUSION

This court finds that the following claims should survive:

(1) Plaintiffs’ claim that N.C. Gen. Stat. § 14-208.18(a)(3) is

overbroad in violation of the First Amendment, (2) Plaintiffs’

claim that N.C. Gen. Stat. § 14-208.18(a)(3) is

unconstitutionally vague as to the definition of “frequently

congregate,” and (3) Plaintiffs’ claim that N.C. Gen. Stat.

§ 14-208.18(a)(4) is overbroad in violation of the First

Amendment. Defendants’ motion to dismiss will be granted as to

Claim 1 and the portion of Claim 3 alleging that subsection

(a)(3) is unconstitutionally vague regarding the number of

minors who must be present at one of the specified locations.

This court further notes that, up to this point, Defendants

have defended the relevant statutes only by invoking general

public safety concerns and have provided neither evidence nor

statistics. (See Defs.’ Mem. (Doc. 13) at 11–12.) As the Fourth

Circuit stated in Cooper III, Defendants must provide more

specific evidence regarding the risk of recidivism to

successfully defend the remaining claims at the summary judgment

stage. See Cooper III, 842 F.3d at 847 (“Without empirical data

or other similar credible evidence, it is not possible to tell

whether subsection (a)(2) — and specifically its application to

offenders with only adult victims — responds at all to the

State’s legitimate interest in protecting minors from sexual

assault.”).

For the foregoing reasons, this court finds that

Defendants’ motion to dismiss should be granted in part and

denied in part as set forth herein.

IT IS THEREFORE ORDERED that Defendants’ motion to dismiss,

(Doc. 12), is GRANTED IN PART AND DENIED IN PART, in that: the

motion to dismiss for lack of standing is GRANTED as to Claim 1,

GRANTED as to all claims against Defendant Joshua Stein, in his

official capacity as Attorney General of the State of North

Carolina, and DENIED as to Claims 1–4 against the Defendant

District Attorneys; the motion to dismiss on the grounds of

sovereign immunity or abstention is DENIED; and the motion to

dismiss for failure to state a claim is GRANTED as to the

portion of Claim 3 relating to the number of minors who must be

present, and DENIED as to Claims 2 and 4 and the portion of

Claim 3 relating to the meaning of “frequently congregate.”

IT IS FURTHER ORDERED that Claim 1 and all claims against

Defendant Joshua Stein, in his official capacity as Attorney

General of the State of North Carolina, are DISMISSED pursuant

to Fed. R. Civ. P. 12(b)(1), and that the portion of Claim 3

relating to the number of minors who must be present is

DISMISSED pursuant to Fed. R. Civ. P. R. 12(b)(6).

This the 26th day of August, 2019.

Win L. Wahu. XC.

United States District Judge;

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