PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-6026

JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE #5,

Plaintiffs – Appellees,

v.

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

Defendants – Appellants,

and

PAT MCCRORY, Governor of the State of North Carolina,

Defendant.

No. 16-1596

JOHN DOE #1; JOHN DOE #2; JOHN DOE #3; JOHN DOE #4; JOHN DOE #5,

Plaintiffs – Appellees,

v.

ROY A. COOPER, III, Attorney General of the State of North Carolina; FRANK PARRISH, District Attorney, District 01; SETH EDWARDS, District Attorney, District 02; KIMBERLY ROBB, District Attorney, District 03A; SCOTT THOMAS, District Attorney, District 03B; ERNIE LEE, District Attorney, District 04; BEN DAVID, District Attorney, District 05; MELISSA PELFREY, District Attorney, District 06A; VALERIE ASBELL, District Attorney, District 06B; ROBERT EVANS, District Attorney, District 07; BRANSON VICKORY, District Attorney, District 08; SAM CURRIN, District Attorney, District 09; WALLACE BRADSHER, District Attorney, District 09A; COLON WILLOUGHBY, JR., District Attorney, District 10; VERNON STEWART, District Attorney, District 11A; SUSAN DOYLE, District Attorney, District 11B; BILLY WEST, District Attorney, District 12; JON DAVID, District Attorney, District 13; LEON STANBACK, District Attorney, District 14; PAT NADOLSKI, District Attorney, District 15A; JAMES WOODALL, JR., District Attorney, District 15B; KRISTY NEWTON, District Attorney, District 16A; JOHNSON BRITT, III,

2 District Attorney, District 16B; PHIL BERGER, JR., District Attorney, District 17A; RICKY BOWMAN, District Attorney, District 17B; DOUG HENDERSON, District Attorney, District 18; ROXANN VANEEKHOVEN, District Attorney, District 19A; GARLAND YATES, District Attorney, District 19B; BRANDY COOK, District Attorney, District 19C; MAUREEN KRUEGER, District Attorney, District 19D; REECE SAUNDERS, District Attorney, District 20A; TREY ROBISON, District Attorney, District 20B; JIM O'NEILL, District Attorney, District 21; SARAH KIRKMAN, District Attorney, District 22A; GARRY FRANK, District Attorney, District 22B; TOM HORNER, District Attorney, District 23; JERRY WILSON, District Attorney, District 24; JAY GAITHER, District Attorney, District 25; ANDREW MURRAY, District Attorney, District 26; LOCKE BELL, District Attorney, District 27A; RICK SHAFFER, District Attorney, District 27B; RONALD MOORE, District Attorney, District 28; BRAD GREENWAY, District Attorney, District 29A; GREGORY A. NEWMAN, District Attorney, District 29B; MICHAEL BONFOEY, District Attorney, District 30,

Defendants – Appellants,

and

PAT MCCRORY, Governor of the State of North Carolina,

Defendant.

Appeals from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., Senior District Judge. (1:13-cv-00711-JAB-JLW)

Argued: September 21, 2016 Decided: November 30, 2016

Before MOTZ, TRAXLER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Motz and Judge Traxler joined.

ARGUED: Matthew L. Boyatt, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Paul Moore Dubbeling,

3 P.M. DUBBELING PLLC, Chapel Hill, North Carolina, for Appellees. ON BRIEF: Roy Cooper, North Carolina Attorney General, Hal F. Askins, Special Deputy Attorney General, William P. Hart, Jr., Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants.

4 AGEE, Circuit Judge:

The State of North Carolina requires persons convicted of

certain reportable sex offenses to register as “sex offenders.”

See

(4);

§ 14-208.7(a). For

persons convicted of a subset of those reportable sex offenses,

North Carolina restricts their movement relative to certain

locations where minors may be present. See id. § 14-208.18(a)

(2015). 1

John Does #1 through #5 (collectively, the “Does”)

challenged these statutory restrictions as either overbroad,

under the First Amendment to the United States Constitution, or

unconstitutionally vague, under the Fourteenth Amendment. The

district court agreed with the Does as to two subsections of the

statute and permanently enjoined enforcement of section 14-

208.18(a)(2) and section 14-208.18(a)(3). For the reasons set

out below, we affirm the judgment of the district court.

I.

We begin with an overview of North Carolina’s sex offender

registration laws. Persons with a “reportable conviction” of a

1Section 14-208.18 was amended effective September 1, 2016. This case involves the 2015 version of that statute, and all references to section 14-208.18 herein are to the 2015 version. The provisions of the amended statute are not at issue in this case.

5 sex offense, and who live in North Carolina, must register “with

the sheriff of the county where the person resides.” See

(a). During the registration period, which

generally lasts for “at least 30 years following the date of

initial county registration,”

the movements of all

registered sex offenders are restricted in certain

circumstances. For example, a registered sex offender may not

“knowingly reside within 1,000 feet of the property on which any

public or nonpublic school or child care center is located.”

§ 14-208.16(a).

Some registered sex offenders are subject to additional

restrictions under section 14-208.18(a). That statute provides

that it shall be unlawful for any registered offender whose

registration follows a conviction for a violent sex offense 2 or

2 A “violent sex offense,” as applicable here, is “[a]ny offense in Article 7B of [N.C. Gen. Stat.] Chapter [14] or any federal offense or offense committed in another state, which if committed in this State, is substantially similar to an offense in Article 7B of this Chapter.”

- 208.18(c)(1). Article 7B of N.C. Gen. Stat. Chapter 14, entitled “Rape and other Sex Offenses,” includes the offenses of: first-degree forcible rape, second-degree forcible rape, statutory rape of a child by an adult, first-degree statutory rape, statutory rape of a person who is fifteen years of age or younger, first-degree forcible sexual offense, second-degree forcible sexual offense, statutory sexual offense with a child by an adult, first-degree statutory sexual offense, statutory sexual offense with a person who is fifteen years of age or younger, sexual activity by a substitute parent or custodian, sexual activity with a student, and sexual battery. See

§§ 14-27.21 through 14-27.33.

6 any offense where the victim was younger than sixteen at the

time of the offense (“restricted sex offenders”) to “knowingly

be” at any of the following locations:

(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.

(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public.

(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

Id. § 14-208.18(a).

Those limitations on restricted sex offenders are subject

to certain exceptions. For example, a restricted sex offender

who is also the “parent or guardian of a student enrolled in a

school may be present on school property” to attend a parent-

teacher conference, at the request of the school’s principal, or

“for any other reason relating to the welfare or transportation

of the child.” Id. § 14-208.18(d).

Absent one of the statutory exceptions, a restricted sex

offender who is “knowingly” at or on a restricted premises is

guilty of a Class H felony under North Carolina law. Id. § 14-

208.18(h). A Class H felony conviction carries with it a 7 presumptive term of imprisonment of up to twenty months. See

id. § 15A-1340.17.

II.

A.

The Does are restricted sex offenders. In 1995, John Doe

#1 pleaded guilty to receiving material involving the sexual

exploitation of a minor, a violation of

(a)(2).

As a result, he served five years in federal prison, but, as of

2003, is no longer under any type of probation, parole, or

supervised release. After his release, John Doe #1 attended a

church, but eventually was arrested because the church had a

child care center within 300 feet of the main congregation hall.

The local district attorney initially charged John Doe #1 with a

violation of section 14-208.18(a), but the charge was dropped.

Afterward, John Doe #1 was allowed to continue attending church

subject to a number of restrictions set by the district

attorney. Those restrictions included a prohibition on

“assisting” with worship services and engaging in any church

activities outside of the main worship service. J.A. 137.

In 2011, John Doe #2 was convicted of misdemeanor sexual

battery, a “violent sex offense,” and given a probationary

sentence. As a result of his conviction, John Doe #2 was

advised by the local sheriff against attending his minor son’s

8 educational and recreational activities “just to be on the safe

side.” J.A. 69. John Doe #2 has received conflicting

information from the local sheriff and his probation officer as

to whether he can attend his son’s sporting events remotely, via

technology such as “Skype.” In like fashion, he was also

advised by his probation officer against visiting a wide variety

of other places, including a fast food restaurant with an

attached play area, the North Carolina State Fairgrounds, and

adult softball league games (given the field’s proximity to

playground equipment).

In 2002, John Doe #3 was convicted of committing indecent

liberties with a minor, a violation of

-

202.1, and he served four years in prison. John Doe #3 is now

employed and his current job responsibilities require him to

purchase office supplies. However, the local sheriff advised

John Doe #3 he could be arrested for shopping at an office

supply store that is within 300 feet of a fast food restaurant

with an attached children’s play area. Further, John Doe #3 is

unsure whether he can drive within 300 feet of some locations

while on his way to work or visit the North Carolina State

Legislative Building, the meeting place of the North Carolina

General Assembly, given its proximity to the North Carolina

Museum of Natural Sciences, which may have visiting children.

9 John Doe #4 was convicted in 2007 of attempted solicitation

of a minor, a violation of

. He

received a suspended sentence of thirty months, spent ten

weekends in intermittent confinement, and completed thirty

months of probation. He currently wishes to attend church, but

is concerned doing so might violate section 14-208.18(a) because

the church has classes for children. In addition, he claims he

cannot attend a town council meeting, since the town hall is in

close proximity to the public library, which has a dedicated

children’s section.

John Doe #5 was convicted in 2009 of two counts of

misdemeanor sexual battery, for which he received two suspended

seventy-five day sentences and completed eighteen months of

supervised probation. Following his conviction, John Doe #5 was

awarded joint custody of his two minor children. However, he is

unable to participate significantly in his children’s

educational or recreational activities due to the restrictions

imposed by section 14-208.18(a). In addition, like John Does #1

and #4, John Doe #5 wishes to attend church, but is concerned

that his presence may violate section 14-208.18(a) because the

church has programs for children. Finally, John Doe #5 is

concerned he may violate the statute while working, because his

employer, a construction company, sometimes performs projects

inside areas that may be covered by section 14-208.18(a).

10 B.

The Does filed this action against Pat McCrory, North

Carolina’s Governor; Roy Cooper, North Carolina’s Attorney

General; and each of North Carolina’s elected district attorneys

(collectively, the “State”). They challenged each subsection of

section 14-208.18(a) as overbroad, in violation of the First

Amendment to the United States Constitution, and

unconstitutionally vague, in violation of the Fourteenth

Amendment’s Due Process Clause. They requested declaratory and

injunctive relief under

and

.

The district court granted the State’s Rule 12(b)(6) motion

and dismissed the Does’ overbreadth claim as to section 14-

208.18(a)(1). Later, the district court granted summary

judgment to the State on the Does’ section 14-208.18(a)(1)

vagueness claim. The Does do not challenge these rulings on

appeal.

The parties filed cross motions for summary judgment

regarding the alleged vagueness and overbreadth of subsections

(a)(2) and (a)(3). The district court held subsection (a)(2)

was not unconstitutionally vague. However, the district court

found strong indicia of vagueness as to subsection (a)(3),

noting language, such as “places where minors gather,” was

unbounded in scope. And, unlike the other subsections of the

statute, subsection (a)(3) was not informed by any specific list

11 of examples. Further, the district court pointed out that

subsection (a)(3)’s reference to “regularly scheduled”

activities was too vague for an ordinary person to determine its

application. Accordingly, the district court ruled subsection

(a)(3) was unconstitutionally vague as violative of due process

and permanently enjoined its enforcement. The State immediately

appealed the district court’s permanent injunction of subsection

(a)(3). We have jurisdiction of that appeal pursuant to

(a)(1).

The district court denied the Does’ motion for summary

judgment on the separate, remaining issue of whether subsection

(a)(2) was overbroad and granted the State’s cross motion in

part. As the district court set out in its opinion, subsection

(a)(2) was not overbroad to the extent it generally

“prohibit[ed] them from going to a variety of places, including

libraries, museums, parks, recreation centers, theaters, state

or county fairs, the General Assembly[,] religious services,

movies, and certain private homes.” J.A. 169. 3 Stated another

way, the district court held that, even though subsection (a)(2)

incidentally restricted the Does’ access to certain locations

where activities protected by the First Amendment would occur,

3We have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted.

12 it was not overbroad with respect to the particular place

restrictions.

However, the district court also determined that a genuine

issue of material fact existed as to whether subsection (a)(2)

was overbroad “in that it could burden less First Amendment

activity by taking into account the individual dangerousness of

certain restricted sex offenders.” J.A. 173. The district

court noted “an inquiry into dangerousness” was proper “in that

if subsection (a)(2) burdens the First Amendment rights of sex

offenders who pose little or no risk to minors,” then the

statute could be overbroad. J.A. 174. Accordingly, because

“the parties [did] not thoroughly address[] th[e] crucial

issue” of “whether applying [subsection (a)(2)] to restricted

sex offenders who committed offenses not involving minors

furthers [North Carolina’s] interest in protecting minors,” the

district court denied the motions for summary judgment and set

that issue for trial. J.A. 176-77.

Before trial, the parties filed renewed cross motions for

summary judgment on the issue of subsection (a)(2)’s

overbreadth. As recited in the district court’s opinion, at a

status conference on the motions:

The Court expressed to Defendants that their evidentiary showing up to that point was likely inadequate to carry their burden of showing that subsection (a)(2) furthers [North Carolina’s] interest in protecting minors from sexual crimes

13 without burdening substantially more speech than necessary, particularly as their showing related to adult-victim offenders. Hence, the Court asked Defendants if there was additional evidence they wished to obtain and provide to the Court in support of their Renewed Motion for Summary Judgment. Defendants stated that they would rely upon the evidence already provided to the Court and would not provide additional evidence. The parties agreed that a trial was unnecessary, that a trial would merely duplicate the evidence already presented, and that the Court should resolve the remaining issue as a matter of law based upon the evidence that had been presented.

Suppl. J.A. 155.

The district court then granted summary judgment to the

Does, holding, on the record before it, subsection (a)(2) was

facially overbroad in violation of the First Amendment. In the

district court’s view, subsection (a)(2), although facially

neutral, significantly impaired restricted sex offenders’

exercise of core First Amendment rights without taking into

consideration the dangerousness of the particular offender. In

other words, subsection (a)(2) was overbroad because it affected

the ability of all restricted sex offenders to engage in core

First Amendment activities, such as attending a religious

service or congregating in some public fora, regardless of

whether a particular restricted sex offender had ever abused

minors or was likely to do so.

The district court agreed the State had a legitimate and

substantial interest in protecting minors, but concluded the

14 State failed to meet its burden of proof to show subsection

(a)(2) was narrowly tailored to further that interest. As a

result, the district court permanently enjoined enforcement of

subsection (a)(2) and entered judgment in the Does’ favor.

The State timely appealed that judgment. We have

jurisdiction over that appeal under

. 4

III.

We review de novo the district court’s rulings concerning

the constitutionality of a state statute. See Miller v. Brown,

(4th Cir. 2007).

A.

The State first challenges the district court’s ruling that

subsection (a)(3) is unconstitutionally vague and, thus,

violates the Due Process Clause of the Fourteenth Amendment. In

relevant part, the Fourteenth Amendment provides that “[n]o

State shall . . . deprive any person of life, liberty, or

property, without due process of law[.]” U.S. Const. amend.

XIV, § 1. A state law violates due process if it “fails to

provide a person of ordinary intelligence fair notice of what is

4 The State’s appeal of the district court’s final judgment came after briefing on its earlier interlocutory appeal regarding subsection (a)(3) was completed. The State’s two appeals were consolidated for purposes of this proceeding, with the issue of subsection (a)(2)’s overbreadth addressed through supplemental briefing.

15 prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.” Martin v.

Lloyd,

(4th Cir. 2012). “The prohibition of

vagueness in criminal statutes is a well-recognized requirement,

consonant alike with ordinary notions of fair play and the

settled rules of law[.]” Johnson v. United States,

,

(2015).

As noted earlier, subsection (a)(3) states that a

restricted sex offender may not “knowingly be . . . [a]t any

place where minors gather for regularly scheduled educational,

recreational, or social programs.”

-

208.18(a)(3). When read alongside subsections (a)(1) and

(a)(2), the State contends subsection (a)(3) has a clear “core”

meaning. Although the State concedes the three subsections of

section 14-208.18(a) “constitute separate offenses,” it posits

“they are nevertheless interrelated and must therefore be

construed in pari materia.” Appellants’ Opening Br. 10-11.

When read that way, the State concludes, “[n]o ordinary person

would read [section] 14-208.18(a) in its entirety and be unclear

as to” the meaning of subsection (a)(3). Appellants’ Opening

Br. 11. The district court disagreed, and so do we.

When applying the constitutional vagueness doctrine, the

Supreme Court distinguishes between statutes that “require[] a

person to conform his conduct to an imprecise but comprehensible

16 normative standard” and those that specify “no standard of

conduct.” Coates v. City of Cincinnati,

(1971). Statutes falling into the former category have, as the

State terms it, a constitutional “core” in the sense that they

“apply without question to certain activities,” even though

their application in marginal situations may be a close

question. Parker v. Levy,

(1974).

Conversely, those statutes that fall into the latter category

are unconstitutionally vague. The distinction between these two

types of statutes, in some instances, may be somewhat difficult

to decipher. Indeed, an unconstitutionally vague statute may

still have some clearly constitutional applications. See

Johnson,

.

But where a statute specifies no standard, the fact that it

has one or more clearly constitutional applications cannot save

it. See

Supreme Court precedent “squarely contradict[s]

the theory that a vague provision is constitutional merely

because there is some conduct that clearly falls within the

provision’s grasp.”

That is the case here. Subsection

(a)(3) is unconstitutionally vague, even though some conduct may

“fall[] within . . . [its] grasp,”

because it fails to

“define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in

17 a manner that does not encourage arbitrary and discriminatory

enforcement.” Kolender v. Lawson,

(1983).

Two principal problems are evident in subsection (a)(3)

which compel the conclusion it is unconstitutionally vague. In

particular, 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.”

The district court succinctly explained these deficiencies

with respect to the “regularly scheduled” provision:

The first problem stems from the language “regularly scheduled.” The term “regular” means happening at fixed intervals[, periodic]. Even if a restricted sex offender or law enforcement officer knew precisely how often and where the “scheduled programs” took place, the statute provides no principled standard at all for determining whether such programs are “regularly scheduled.”

Notably, subsection (a)(3) provides no examples to guide restricted sex offenders or law enforcement as to how frequently the programs would need to occur in order to be “regularly scheduled.” In contrast, subsection (a)(1) provides examples of (a)(1) “places” and subsection (a)(2) provides examples of (a)(2) “premises” upon which a “location” or “place” might be. This case is distinguishable from other cases holding restrictions that included the word “regularly” or variants of “frequently” to be not vague because those restrictions included examples to clarify which locations were restricted.

J.A. 157-59. Moreover, although not necessary to our

conclusion, the State’s own evidence confirms the difficulty in

18 determining whether a program for minors is “regularly

scheduled.” For example, District Attorney Todd Williams

admitted subsection (a)(3) “gives no clear guidance” regarding

the frequency with which an activity must be conducted to be

“regularly scheduled.” J.A. 159.

Likewise, subsection (a)(3)’s “where minors gather”

language is without defining standards. The district court’s

opinion accurately expresses the constitutional issue:

For example, subsection (a)(3) does not explain how many minors must gather at the place. Subsection (a)(3) also does not explain whether a place where mixed groups of minors and adults gather, such as a community college that has some high school students or a church with a congregation of adults and minors, would be considered a restricted zone under subsection (a)(3). As was the case with the term “regularly scheduled,” subsection (a)(3) is distinguishable from other instances where similar formulations have been held to be not vague because those cases involved general language that was accompanied by examples rather than general language standing alone.

J.A. 159-60.

The State attempts to overcome these deficiencies by

appealing to the in pari materia canon of construction. In

essence, the State contends subsection (a)(3) should be saved by

reading into it the list of places specifically included in

subsection (a)(1) and incorporated by reference in subsection

(a)(2). That argument lacks merit.

We have “interpreted the principle [of in pari materia] to

mean that adjacent statutory subsections that refer to the same

19 subject matter should be read harmoniously.” United States v.

Broncheau,

(4th Cir. 2011). But the in pari

materia principle does not apply here by virtue of the structure

of subsection (a)(3) as written by the North Carolina General

Assembly. Directly to that point, subsection (a)(3)

conspicuously omits any list of examples, in contrast to

subsection (a)(1). In addition, subsection (a)(3) contains no

language suggesting that such a list should be read into it, in

contrast to subsection (a)(2). We must presume the

legislature’s omissions to be intentional. See, e.g., Jones v.

Comm’r,

(4th Cir. 2011) (“[W]hen a statute

includes particular language in one section but omits it in

another, a court can assume . . . that the omission was

deliberate.”); N.C. Dep’t of Revenue v. Hudson,

(N.C. Ct. App. 2009) (“When a legislative body includes

particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that

the legislative body acts intentionally and purposely in the

disparate inclusion or exclusion.”). We cannot, therefore, read

by judicial construction into subsection (a)(3) that which the

legislature chose to omit.

Even if we were to read subsection (a)(1)’s list of

examples into subsection (a)(3), other problems would arise.

“[A] statute should be construed so that effect is given to all

20 its provisions, so that no part will be inoperative or

superfluous, void or insignificant[.]” Corley v. United States,

(2009); accord State v. Coffey,

(N.C. 1994). Reading subsection (a)(1)’s list of

examples into subsection (a)(3) would effectively make the two

provisions identical, thereby rendering one of those subsections

“superfluous” or “insignificant.” Corley,

. For

instance, the examples listed in subsection (a)(1) and

incorporated by reference into subsection (a)(2) -- schools,

children’s museums, childcare centers, and playgrounds -- are

places “intended primarily for the use, care, or supervision of

minors.”

(a)(1) & (a)(2). But,

those same places also are “place[s] where minors gather for

regularly scheduled educational, recreational, or social

programs.”

§ 14-208.18(a)(3). Thus, to read subsection

(a)(1)’s list into subsection (a)(3) would be to effectively

swallow subsections (a)(1) and (a)(2), leaving them “only to

define the limits of the proscribed ‘place[s]’” then

incorporated into subsection (a)(3). Appellees’ Response Br.

14. Subsection (a)(3) cannot be saved by reading subsection

(a)(1) into it and, thereby, diminishing or subsuming the

importance of other clear legislative judgments.

In sum, neither an ordinary citizen nor a law enforcement

officer could reasonably determine what activity was

21 criminalized by subsection (a)(3). As a consequence, that

subsection does not meet the standards of due process because it

is unconstitutionally vague. Accordingly, the district court

did not err in granting summary judgment as to subsection

(a)(3).

B.

The State separately challenges the district court’s

holding that subsection (a)(2) is unconstitutionally overbroad

in violation of the First Amendment. As the proponent of

subsection (a)(2), the State was required to prove that it

“promotes a substantial government interest that would be

achieved less effectively absent the regulation” and does not

“burden substantially more speech than is necessary to further

the government’s legitimate interests.” Ward v. Rock Against

Racism,

(1989). As we explain below, the

State failed to meet its burden of proof.

1.

Under the overbreadth doctrine, if a law “punishes a

substantial amount of protected free speech, judged in relation

to the statute’s plainly legitimate sweep,” then it is invalid

“until and unless a limiting construction or partial

invalidation so narrows it as to remove the seeming threat or

deterrence to constitutionally protected expression.” Virginia

v. Hicks,

(2003). Any overbreadth must be

22 both “real” and “substantial” in order to be constitutionally

deficient. Hill v. Colorado,

(2000).

Although “substantial” overbreadth is not “readily reduced” to a

mathematical formula, “there must be a realistic danger that the

statute itself will significantly compromise recognized First

Amendment protections of parties not before the Court for it to

be facially challenged on overbreadth grounds.” Members of the

City Council of L.A. v. Taxpayers for Vincent,

(1984).

Subsection (a)(2) burdens the First Amendment rights of all

restricted sex offenders “by inhibiting the[ir] ability . . . to

go to a wide variety of places associated with First Amendment

activity.” Suppl. J.A. 158. For example, subsection (a)(2)

potentially impedes the ability of restricted sex offenders to

access public streets, parks, and other public facilities. See

Hague v. Comm. for Indus. Org.,

(1939)

(“Wherever the title of streets and parks may rest, they have

immemorially been held in trust for the use of the public and,

time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public

questions.”). The issue presented to the district court, and

now on appeal, is whether subsection (a)(2) is overbroad because

it places substantial limitations of movement on restricted sex

offenders without regard to the dangerousness of the individual

23 offender. Put another way, we must decide whether subsection

(a)(2) is overbroad because it applies to all restricted sex

offenders, not just those who pose a danger to minors or are

likely to pose such a danger.

2.

In analyzing overbreadth, we initially identify the

appropriate level of scrutiny to apply to the statute. Because

subsection (a)(2) implicates protected First Amendment

activities, our first task is to determine whether it is

“content neutral.” “If the regulation was adopted to burden

disfavored viewpoints or modes of expression, a court applies

strict scrutiny.” Giovani Carandola, Ltd. v. Bason,

(4th Cir. 2002). Conversely, if the statute “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.”

; see also Texas

v. Johnson,

(1989).

The parties stipulate that subsection (a)(2) is content

neutral and we agree. The statute does not burden disfavored

viewpoints or certain modes of expression. Rather, it merely

restricts the time, place, or manner in which restricted sex

offenders may engage in certain activities protected by the

First Amendment. Thus, we apply intermediate scrutiny.

24 To pass intermediate scrutiny, a statute must “materially

advance[] an important or substantial [government] interest by

redressing past harms or preventing future ones.” Giovani

Carandola, Ltd. v. Fox,

(4th Cir. 2006). In

addition, it must have the right “fit.” That is, it cannot

“burden substantially more speech than is necessary to further

the government’s legitimate interests.” Ward,

.

“[I]ntermediate scrutiny places the burden of establishing the

required fit squarely upon the government.” United States v.

Chester,

(4th Cir. 2010).

3.

As noted previously, at a status conference held prior to

considering the parties’ renewed cross motions for summary

judgment, the district court put the State on notice that its

limited evidence was inadequate to meet its burden of proof.

Yet, the State explicitly declined to introduce any additional

evidence. The only “evidence” proffered by the State consisted

of citations to a list of cases in which sex offenders had re-

offended after a prior conviction. 5

5 The case law examples relied on by the State do not nudge the needle in its favor. For example, in People v. Loy,

(Cal. 2011), the defendant first offended with a minor victim, then re-offended with an adult victim. See

. The facts of that case do not suggest that a restricted sex offender, who first offends with an adult victim, is likely to re-offend with a minor victim. The same is true for People v. (Continued) 25 In its order granting the Does’ renewed motion for summary

judgment, the district court addressed the State’s evidentiary

deficit:

Defendants’ decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. Defendants stated at the status conference that it would not be difficult for them to find an expert to support their case. Yet, Defendants chose not to seek out an expert even after repeated inquiries from the Court regarding whether they desired to do so and after the Court expressly stated that it believed that Defendants’ evidentiary offering was inadequate to carry their burden in this case.

Suppl. J.A. 168.

The State tries to overcome its lack of data, social

science or scientific research, legislative findings, or other

empirical evidence with a renewed appeal to anecdotal case law,

as well as to “logic and common sense.” Appellants’ Suppl.

Opening Br. 11. But neither anecdote, common sense, nor logic,

in a vacuum, is sufficient to carry the State’s burden of proof.

See United States v. Carter,

(4th Cir.

2012). Thus, while the State’s argument may be conceptually

Hollie,

(Cal. Ct. App. 2010). Other cases cited by the State suggest, for example, that a restricted sex offender may develop and retain an attraction for a particular individual. See State v. Smith,

(N.C. Ct. App. 2010). None of these cases suggest with any degree of reliability that offenders with only adult victims are more likely to reoffend with minors.

26 plausible, it presented no evidence or data to substantiate it

before the district court. 6

In fact, the State’s own evidence belies its appeal to

“common sense” as an appropriate substitute for evidence. In

its brief, the State cites three North Carolina cases, State v.

Smith,

(N.C. Ct. App. 2010); State v. Tyson,

(N.C. Ct. App. 2009); and State v. Smith,

(N.C. Ct. App. 2002), for the proposition that “sexual

deviants choose victims based upon opportunity/vulnerability

rather than the age of the victim or level of ‘romantic’

attraction akin to that of husband and wife.” Appellants’

Suppl. Opening Br. 18-19. However, the State fails to explain

how three cases, representing three individuals -- out of more

than 20,000 registered North Carolina sex offenders -- provide a

sufficient basis to justify subsection (a)(2)’s sweeping

6Nor is the State’s appeal to the policy underlying Federal Rule of Evidence 413 persuasive. That rule provides in relevant part “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.” Fed. R. Evid. 413(a). The State cites Rule 413 as “evidence” that “Congress has clearly drawn the connection between past sexually assaultive conduct and the likelihood of future sexually assaultive conduct regardless of victim age.” Appellants’ Suppl. Opening Br. 15. However, the State confuses the rule’s suggestion that sex offenders are likely to re-offend with the more pointed, and very different, proposition that sex offenders with only adult victim offenses are likely to re-offend with a minor victim.

27 restrictions. 7 Although each of these cases involved a minor

victim, there was no evidence in any case that the defendant had

ever been convicted of a previous sex offense.

Similarly, the State cannot rest its case on the conclusory

assertion that minors would be “more exposed to harm without

[this] prohibition than with it.” Appellants’ Suppl. Opening

Br. 10. 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.

Finally, although the State cites United States v. Staten,

(4th Cir. 2011), to bolster its appeal to “common

sense,” that case is inapposite. In Staten, this Court upheld

(g)(9) 8 against a Second Amendment challenge,

reasoning “common sense and case law fully support[ed]”

restricting persons convicted of misdemeanor crimes of domestic

violence from possessing firearms.

. However, our

appeal to “common sense” in Staten only bolstered the

7 There currently are more than 21,000 sex offenders registered in North Carolina. See Offender Statistics, N.C. Dep’t of Pub. Safety, http://sexoffender.ncsbi.gov/stats.aspx (last visited Nov. 29, 2016)(saved as ECF opinion attachment). 8 Section 922(g)(9) prohibits “any person . . . who has been

convicted in any court of a misdemeanor crime of domestic violence” from possessing a firearm.

(g)(9).

28 government’s already strong case, which was fully supported by

empirical proof in the form of data generated from relevant

social science research. See

(discussing

empirical research supplied by the government).

While all parties agree North Carolina has a substantial

interest in protecting minors from sexual crimes, it was

incumbent upon the State to prove subsection (a)(2) was

appropriately tailored to further that interest. Nevertheless,

for reasons not apparent from the record, the State failed to

produce evidence to carry that burden. Thus, irrespective of

whether subsection (a)(2) could have met constitutional

standards in a different evidentiary setting, the State here

simply failed to meet its burden of proof. See, e.g., McCullen

v. Coakley,

,

(2014)

(“Respondents point us to no evidence that individuals regularly

gather at other clinics, or at other times in Boston, in

sufficiently large groups to obstruct access.”); Chester,

(“[I]ntermediate scrutiny places the burden of

establishing the required fit squarely upon the government.”).

Accordingly, the district court did not err in granting the

Does’ motion for summary judgment as to subsection (a)(2).

29 IV.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED

30