# NC RSOL v. NODALSKI

> District Court, M.D. North Carolina · August 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10253344

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that abstention is permitted only in “exceptional circumstances”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253344. Public record. Not legal advice.