The 4th Circuit Court of Appeals rendered an important decision yesterday, Does v. Cooper, that is full of many wonders. We can only hope that this wonder-full decision will serve as a guiding light for additional federal courts, including the U.S. Supreme Court, in the future.
The greatest wonder of the 4th Circuit’s decision was the Court’s insistence that state laws which prohibited some, but not all, registrants from visiting public and private locations must be based upon empirical evidence if those laws could cover locations where people exercise their First Amendment rights of freedom of speech and religion. Such locations include, for example, public parks, public streets, public buildings, and religious institutions. The Court suggested that empirical evidence in support of such laws could include data, social science or scientific research, and legislative findings.
In fact, the Court strongly rejected the assertions of the State of North Carolina that anecdotes, common sense and logic could replace empirical evidence. The Court’s rejection, in fact, emphasized that “(w)ithout empirical data or other similar credible evidence” the State of North Carolina could not justify that its laws were based upon “the State’s legitimate interest in protecting minors from sexual assault.”
Another wonder of the 4th Circuit’s decision is the Court’s determination that one of the laws at issue was overbroad not because it applied to all of the state’s registrants, but because it applied to a smaller group of registrants who had been convicted of a violent sex offense and/or an offense involving a victim less than 16 years old. The Court noted that not all members of even that group “pose a danger to minors or are likely to pose such a danger”.
A third wonder of the 4th Circuit’s decision is the Court’s determination that another of the laws at issue was unconstitutionally vague because “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized”. This part of the decision focused upon language in the law the prohibited registrants from visiting “any place where minors gather for regularly scheduled educational, recreational, or social programs,” without providing examples of such places or other guidance as to what the law requires.
We celebrate the 4th Circuit Court of Appeals decision and remember fondly a similar decision, People v. Nguyen, in a California state appellate court issued in 2014 that reached a similar conclusion albeit for different reasons. It is that decision which helped us, along with 31 cases filed in federal court, to eliminate virtually all presence restrictions in the State of California.
Our holiday hope is that all states in our great nation will soon follow these precedents and eliminate all laws that restrict where registrants may visit. This is particularly important at a time of year when the existence of such laws punish not only registrants but their loved ones by keeping them apart.
— by Janice Bellucci / all Janice’s Journal entries