good morning your honour's may it please the court my name is matthew boy with the north carolina department of justice i represent the state defendants in this matter this is an appeal of all involved north carolina's sex offender registry laws specifically those regulations that prevent qualified sex offenders from being on certain premises in other locations that are intended primarily for children and were children gather for various programs the district court held that section eighty two of the statute in question was constitutional with respect to the plaintiffs first amendment rights as it applied to child victim offenders so those offenders who have been convicted of a crime against a fifteen year old child and younger section eight to provides that it shall be unlawful for a registered sex offender that qualifies under the statute to be within three hundred feet of any place intended primarily for the use care supervision of minors when that place is located on a premises open to the public the district court held that this was overbroad in so far as it applied to adult victim offenders those individuals who were sex offenders who may not have committed crimes against a child the district court concluded that that violated these offenders first amendment right to support free speech and therefore the statute was overbroad in doing so the district court relied heavily on the case of those vs nebraska which was an internet restriction case that prevented a large swath of sex offenders from being on sites such as my space facebook skype and twitter specifically in that just as for my understanding the would the prohibited class of individuals clued in i don't know the details of north carolina definitional statues if someone spouse a is convicted of sexual battery of sp is that going to qualify somebody as a sex offender yes your honor say sexual battery is would qualify the individual under this statute the the individuals who qualify have been convicted of violent sex offenses offenses involving use of force against the person's will for the purpose of sexual gratification so it includes sexual battery sexual forcible sex offense and forcible rape that story rape twenty year old fourteen year old girl yes your honor i would qualify as well so your honour's under doe vs nebraska the government did not present a direct link by way of evidence showing that use of my space facebook skype or twitter resulted in sex offenders going on to court and solicit and commit a crime against a child and so in that case the court held that it was the risk was just conjectural and therefore this this regulation was sweeping in overbroad however that is not the case with that we're dealing with in north carolina the risk that these adult victim offenders pose is not conjectural it is a real risk well it one or two things to me that section two and section three  a three first and that involves the vagueness challenge so the district court your honor held that a three was vague because it did not defined what is meant by where minors gather nor did it define what constitute constitutes regularly scheduled your honor the statute in question is not vague because it contains a common core that is readily understandable to any reasonable person and to any sex offender who is coming on the registry this statute has to be considered as a whole looking at a one a two and a three not just looking at a three independent of the first two sections so a registered sex offender coming onto the registry starting at the beginning and looking at a one of the statute will know that they cannot go on the premises the entire premises of any place intended primarily for the care or supervision of a minor and the statute gives examples of that such as schools daycare centers section eighty two goes on to instruct the sex offender that they cannot be within three hundred feet in these mix sites so there's a protective buffer zone sex offender cannot be within three hundred feet of any area intended for the care supervision of minors when that place is located on in an area open to the public o incorporates the list and subsection one reference but there isn't anything in subsection three normally or canons of construction tells when the legislature writes a statute and they include provisions and certain sections but omit them and others there was a reason the legislature did usually don't have legislative history each of these sections represents a completely distinct criminal offense and what we are saying is a one in aid to in looking at that th a stablish a common core to this statute to where a sex offender reading section eighty three would understand clearly the type of conduct that is prohibited but i don't understand it and maybe sex offenders have better ways of understanding it but it strikes me that it could be regularly scheduled doesn't tell me how often once a day the week the jury every birthday party what to send me your honor the district vs levy hoffman estates supreme court cases have recognized that even though a statute may have an imprint imprecise standard it is not fake if the conduct that is  comprehensible in this case is a perfect example of that your honor there can be no one fix all set definition for regularly scheduled that could be taking for example in the context of somebody committed a criminal act and again looking at the core of the statute as a sex offender of knows that they are prohibited from locations where children or were minors gather regularly whether it's at the school children sometimes not on sometimes a couple bus ones and that's also the general entrance for all members of the public so it's going to include a lot of adults some days that's all that is so if you're a convicted sex offender and you're driving down the street here how do you know whether that spot is a place that monitors gather or whether or not it's or regularly scheduled activity and what the program would be your honor the statute does contain a c enter requirement and so the sex offender would have to know that that location is where  minors gather regularly for a scheduled program whether it's educational or recreational if they did were unaware of those facts then it would not be a violation of the statute but with respect to to how north carolina's laws structure on me ask you this if they are driving down the street and they see a school bus loading even though they have no way of knowing whether or not it's something that happens every day once a week once a month then violation of subsection three no your honor because again subsection three even looking at it independently it has to be where they gather for a scheduled program a scheduled program whether it's really important the hypothetical just a little every two weeks there is a scheduled program for children in the capital based on the plain reading of the statute a reasonable person one understand that the sex offender cannot be there yes it's restrictive but that's not to say it's vague if there is a regularly scheduled program that happens as your honour's pointed out two three times a week you know once every two weeks was my hypothetical if that would be a violation of the statute your honor well now you know all these questions that we've asked you and you you're giving us your legal advice and we appreciate it isn't there evidence in the record where sex offenders were calling in to find out whether in fact they were barred from going here under three whether they were barred going to church to college to classrooms to college classrooms you know like or high school classroom with their p one person under the age of seventeen and they were being given an answer they were giving at various various answers about this statue they're there is evidence of the calling people that knew there is evidence in the record i'm not sure that a law enforcement officer would give them legal advice that is perhaps what you have to go get get your lawyer before you walk outside your house well you know what no that's that's not accurate you would not have to be the police to enforce this law would be the people that would know that you could call be in north carolina the sheriffs the elected sheriffs are the ones who have an appointed  sex offender register officer who would be the one who would have to answer those questions i'm only aware of there's nothing in the record about someone asking their sex offender officer i'm aware of one case in the record that dealt with an officer with respect to a three and a church telling the sex offender that he could go there is long as children were not present that doesn't mean the statute is vague year on earth that's more of an indication that that officer did not read the statute because that's clearly not listed also it's not just a matter of whether or not the prospective defendant under a criminal statute is unable to tell what the statute means but law enforcement has to be able to know how to enforce the statutes so that it's and for some it isn't arbitrary or and for in we agree with that i agree with that your honor the fact that this statute has a common core that is understandable and that a reasonable person could understand it is not vague even with respect to to how law enforcement would would view the statute  that there were instances of the record where the law enforcement officers couldn't interpreter and the statute differently or improperly or something and then you said they have to go to the special officer so judges say well should the police be able to interpret it so they know what that you say yes just because you have a few officers in north carolina in this this law's been in effect for ten years the fact that there are few examples of that does not make this statute vague would i would ask the court to consider all of those instances where it is as clear as a pikestaff that a sex offender can't be there so for example under eighty three if you have a children's minor sports program at a park at a football field that that m twice a week games on weekends and that happens quite often obviously the sex offender would realize that they're not allowed at that location i think what we're talking about are these marginal offenses where we get into hypotheticals that are being asked that should not justify striking this statute is vague in its entirety and if i can move on briefly eight to which was also an issue in this case  testify about the issue of risk with adult victim offenders i do not believe that is required based on several reasons within the record if there j j it's correct that the district court told you that it was inclined to find this right and invited you to put on some evidence to demonstrate that it wasn't and the state klein that invitation and said no we want this decided on the record that's in front of you right now is that correct correct the district court invited the state to do that approximately two weeks before trial this case this is been going on a long time no correct your honor so you have a lot of chance to build a record to get an expert to do it every one of two and instead of just go going on the record the district court said look i'm inclined to rule against you get an expert get some evidence here and you said no we don't need to we're happy with the record as it exists yes your honor and if i could explain in short one minute why the state should not be required to do that because the risk is real there is in the record a department of justice study that has shown that one point three percent of adult victim offenders go on to molest children within three years that's a real risk that's why we have the statute over inclusion should not be considered because it's evidence your honor in addition to that we've got the supreme court on multiple occasions finding that these individuals are a threat the united states congress finding that they are a threat and the whole reason behind soreness statutes it is not conjectural risk is real that's why we have the statute and that's why it's not over broad thank you please the court my name is paul doodling i represent the john doe's one two five the a police in this case as i represented them before the district court below as the court correctly noted there are two distinct issues before the court says the district court's finding that subsection eighty three is unconstitutional because of its vagueness i think the court correctly picked up on in the prior argument that there's two things going on one the district court did an extensive analysis of existing case law considering phrases substantially similar almost identical to the phrasing in the statute where minors regularly congregate where someone regularly operates a vehicle and consistently across the board those cases find that use of those phrase is unconstitutionally vague unless the statute contains some sort of guidance to law enforcement officials or to the person subject to the statute to give an idea of how to narrow those something that indicates what is meant by regularly the use of the phrase itself suggests that the mere presence of minors sometimes is not enough to trigger the statute but there's some level of minor participation that's going to do it and it's incumbent upon legislators to give some clarifying guidance in that instance at the same time where minors gather again it's not the presence of minors it's some number of minors doing something together or merely in president but there's no guidance in the statute of what the legislature meant by that and in this case we did build a record very specifically to show that these aren't about hypotheticals we have affidavits from each of the john doe's explaining how they have specifically gone to law enforcement officials and asked for clarifying guidance and not only have they been told they don't know they told not to do something because law enforcement believes they might be in violation of the statute and that's exactly what the vagueness doctrine is intended to prevent a situation where someone is not allowed to engage in perfectly legal constitutionally protected activity because they don't know nor can law enforcement even tell them whether or not that activity would be proscribed by the statute or program for those that you know none of these words are defined in the statute your honor the suggests that can solve this by saying well you have to read the statute together but if you read the statute together you don't solve the problem you actually highlight it you bring it into starker relief subsections a one in eight to give a li examples you can't be at any place intended primarily for the use of minors what do we mean by that we mean schools daycares nurseries places like that and as judge agee correctly pointed out a two specifically incorporates the examples of a one wears a three specifically leaves them out the canons of statutory construction suggest exactly that a three does not mean places like schools nurseries playground stuff like that they mean something else so in this instance we have a statute that says places where minors regularly gather that are at some level that trigger this statute but aren't at a high enough level to make that place primarily intended for children it's nebulous middle ground the sort of weird catchall with no guidance whatsoever to guide either the decision making of citizens subject to the statute or law enforcement officials responsible for enforcing it and you see in the not only the affidavits of individual saying that they have been unable to get clarifying guidance you see the affidavits of the district attorneys themselves saying they're not sure on both ends of the spectrum the uncontracted testimony is that there's a broad swath of constitutionally protected activity that we simply do not know as a practical matter whether or not it falls within the statute and the case law suggests there is a way for a legislature to address these problems very specifically and that is to provide some clarifying guidance of how often is regularly of whether what they mean by minors gather precisely to avoid this problem your permission i'll move on to subsection eight to again the state of knowledge is and has never contested that it has the burden here to show that this statute is narrowly tailored again the plaintiffs in this case built a record showing the extent of first amendment burdens that this statute places upon them as a practical matter as demonstrated in the record this statute prevents them from going to churches it prevents them from going to libraries it prevents them from going to community centers it prevents them from going to broad swaths of parks we put maps in the record showing you how complicated is you have to take a specific alley in downtown raleigh north carolina to get that question your honor is not before the court because we have not challenge the district court's finding that eighty two would be constitutional as applied to minors victim of intercity so that's the law not today not here no ma'am so that problem the problem that you were just talking about would apply to anybody any whether an adult offender whether offender victims or adults or children so that i think your real issue is whether this can be applied to it dealt well lester's guess right if that is the issue before the court so as the state finally seems  understand they don't have any of the correct your honor but you all put in the d o j study is that enough evidence respectfully your honor it's in the record it is on the state of this is the third case today where we've talked about burdens the state of knowledge is that it bears the burden of showing that the statute is narrowly tailored they'd specifically declined to actually produce any evidence in support of that the population at large we dispute that that's what that evidence says your honor if you look in the state's own brief it's pacifically says that that study is not reliable the study itself says this should be taken with a grain of salt for like what is right well we vote for it in the sense of the state offer the district court at the hearing said what sorts of evidence would you put in and we put in the study we contend strongly that that study shows that the actual risk of  that that sex offenders adult offenders are likely at least more likely to engage in molesting children than people who are not offenders at all even assuming that were true your honor the question is not can the state in a hypothetical world present some evidence that there is some slight increase of risk can they present specific evidence of dangerousness to sufficient to justify the broad first amendment burns and they simply haven't even attempted to do that they're trying to bootstrap themselves into our evidence and claiming well this shows what we had to bear all along but the state bearing the burden in this case said no no one their evidence doesn't matter to we've acknowledged we have the burden but we're actually not going to produce any substantial evidence and then they've come the core the before the court today and ask the court to vouch for that to say well at best at absolute best there is some evidence in the record that arguably demonstrates there may be some slight increase of risk and despite the fact that you dispute the validity of that evidence despite the fact that it's not your evidence despite the fact that standing alone it doesn't meet your burden we want you to rule for us the state with regard to a to your honor has specifically declined to do its job and it really should lose on that point it er people absolutely not your honor the state never before the district court made any comments about that study on a study which may show some slight increase averse and again that study itself does not show what the state wanted to show that's twenty years old is simply not sufficient to meet the state's burden in this case we built the record we showed the first minute burden that makes it incumbent upon the state to justify these broad restrictions and a one percent is the suggested overall recidivism rate for persons convicted of sex offenses the accepting the math of the study the recidivism rate for persons convicted of offenses against adults who are later convicted or arrested of any offense against a minor is more like one percent that study specifically declines to take into account the effect of time that study also specifically shows that after one year recidivism rates for all sex offenders plummet it's pacifically does not take into account the effect of remedial programs offered in the jails the sore program the s o t p program which in our record we've built demonstrate a decrease in the risk of our federalism and many of our plaintiffs went through so again at best at best that study shows that there is perhaps a one percent risk of recidivism for an adult victim offender a risk which that study also shows declines by half a year after release a study that does not take into account the effect of rehabilitative efforts and  study that we produced to make those points because those points are in our favor the state in contrast said well we're not going to produce any evidence but we're just going to try to potshot yours and they didn't even do that before the finder of fact the state accepted that before the final fact they never made these arguments and in a last ditch effort to cover the fact that they didn't do their job they're coming before the court today and trying to say well you could read this evidence in a way that supports our case so therefore you should rule with us and that doesn't meet their burden you know i believe that's really the issues here today there's a clear rule a three is vague all the courts that have looked at it said it's vague it has all the negative affects of a vague statute eight to create substantial first amendment burdens that are simply not justified by any evidence of the status proffered and certainly not justified by the evidence that we have proffered in this case it is incumbent upon the state to justify the imposition of these restrictions and when it imposes those restrictions amendments or something yes your honor both provisions yes your honor the general assembly in july of this year took a look at the district court's case and refashioned the statute at issue specifically to apply a to only to those offenders who commit an offense against children the solving the identified problem at the district court they also added a list of examples to a three the solving the problem identified it is by the district court that statute is already in effect so any sort of you don't you would challenge the proposed it i can't say that you are simply because i haven't done an extensive analysis that ok i'm not sure that they are prepared right now to say that there's any or all of those you're i'm simply have not done an analysis all i can say with specificity is that the legislature appears to have taken the district court's ruling taken it to heart and has already enacted a new statute that addresses the specific deficiencies found by the district or is well you know at the the legislature did something pretty interesting they put a provision in the statute that says that if this court were to rule in favor of the state then the law would revert back to the old version so they've put a new statute in place that effectively addresses the issues put forward by the district court but then said and they're asking this court to basically say but go ahead and tell us whether our old statute was valid because if you do we'll just go back to that one so what did you it what really did you ask for in your case we asked for a permanent injunction against enforcement of us i heard no no your you for your get going maybe you can tell me with your ever relied on this department sure whatever it was before the district court we were obviously aware of that study because of the question did you rely on did you say no we don't have to put in evidence because we have this evidence or did you rely on your argument we relied on it in the argument before this court before and i'm happy to listen to them but did you rely on this do you think no your honor because thank you and the the issue before the court with respect to you is whether or not these adult victim offenders pose a risk to minors even before you get to the d o j study it should be clear that they do the supreme court has on multiple occasion recognised sex offenders as a class as posing a risk to minors connecticut versus department of public safety or connecticut department of public safety versus doughs are among the cases that represent that this right has been recognized by congress your soreness statutes has been recognized by our general assembly and our supreme court in addition to that the state defendants offered dozens of real case law examples which illustrate the point real scenarios where adult victim offenders have gone on to commit crimes against children and so even before you get to  it should be clear that this risk is real and not just conjectural but beyond that this court does have before it in the record proof from a study analysis that shows that one point three percent of our adult victim offenders commit a crime against a child that justifies this statute your honour's correctly noted that the district court already found that this was constitutional with respect to child victim offenders and that alternate channels of communication are open to these individuals the the restriction provides a discreet three hundred foot buffer zone is not a complete ban to these public places with respect to the new law that the court had a question about the state was unable to obtain a state in this case and so our general assembly was required to pass a law to fill that void during the pendency of this litigation to have a law in place where we can ensure the safety of minors the general assembly though contemplated that this statute is constitutional as written both sections a two and a three we would ask the this honorable court to find that a two is not over broad with respect to adult victim offenders and we would respectfully request that the court find that section eight three is is not vague because it does have a common core that is readily understandable those ease of the to determine scenarios for example to sporting events in a public place like a park a sex offender would understand that they cannot be there the the marginal cases should be handled in as applied challenges there is an example of that in the record state versus daniels involving  three and in that case the sex offender was found to be between a parking lot and the ball field where the children regularly gathered or the minors did and the court found that it was vague as applied to  it's face on his face because of where the gentleman was located and so in those marginal offenses we would state that they should be of as as applied challenges not striking the statute it's entirety thank you