4th Circuit Finds NC Sex Offender Law Unconstitutionally Vague and Overbroad

Section 14-208.18(a) of the North Carolina General Statutes makes it a felony for convicted sex offenders to “knowingly be”:

(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.

A group of convicted sex offenders — referred to in court documents as John Doe 1, 2, 3, 4 & 5 — challenged the law in federal court as unconstitutionally vague and overbroad. The US District court for the Middle District of North Carolina found subsection(a)(1) neither vague nor overbroad. Regarding the other two subsections, however, it found that:

Subsection (a)(2) [is] facially overbroad in violation of the First Amendment because it [affects] 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.

And it found:

Strong indicia of vagueness as to subsection (a)(3) [because] language, such as “places where minors gather,” [is] unbounded in scope. And, unlike the other subsections of the statute, subsection (a)(3) [is] not informed by any specific list of examples. Further, … subsection (a)(3)’s reference to “regularly scheduled” activities [is] too vague for an ordinary person to determine its application.

Last week, the US Court of Appeals for the 4th Circuit upheld both of those findings. Writing for a unanimous three judge panel, Judge Agee held that:

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.

And that:

Neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was 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)

Disturbing News about “Problematic” Case Management Software

Ars Technica reports that:

Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management software that runs on the computers of hundreds and perhaps even thousands of court clerks and judges in county courthouses across the US. (Federal courts use an entirely different system.)

Typically, when a judge makes a ruling—for example, issuing or rescinding a warrant—those words said by a judge in court are entered into Odyssey. That information is then relied upon by law enforcement officers to coordinate arrests and releases and to issue court summons. (Most other courts, even if they don’t use Odyssey, use a similar software system from another vendor.)

But, just across the bay from San Francisco, one of Alameda County’s deputy public defenders, Jeff Chorney, says that since the county switched from a decades-old computer system to Odyssey in August, dozens of defendants have been wrongly arrested or jailed. Others have even been forced to register as sex offenders unnecessarily. “I understand that with every piece of technology, bugs have to be worked out,” he said, practically exasperated. “But we’re not talking about whether people are getting their paychecks on time. We’re talking about people being locked in cages, that’s what jail is. It’s taking a person and locking them in a cage.”

Odyssey is used not only in Alameda County and additionally in 25 of California’s 58 county courts, but also in counties nationwide, from Miami-Dade County, Florida, to Kane County, Illinois. Lawyers in at least three counties in as many states have reported problems nearly identical to Alameda’s and have begun formal legal proceedings as a result. Earlier this month, an activist group in Shelby County, Tennessee, alleged similar issues in a recently filed federal civil rights lawsuit. According to the Memphis Daily News, Shelby County Commissioners discussed on Wednesday possible legal action against Tyler Technologies.

Are any North Carolina courts using this product?

“Until it was shut down this summer, the sham embassy was housed in a run-down, pink two-storey building with a corrugated iron roof and flew a U.S. flag outside. Inside hung a portrait of President Barack Obama.”

That’s a passage from a report posted yesterday by Rueters:

Authorities in Ghana have busted a fake U.S. embassy in the capital Accra run by a criminal network that for a decade issued illegally obtained authentic visas, the U.S. State Department said. …

“It was not operated by the United States government, but by figures from both Ghanaian and Turkish organized crime rings and a Ghanaian attorney practicing immigration and criminal law,” the State Department said in a statement released late on Friday.

Turkish citizens, who spoke English and Dutch, posed as consular officers and staffed the operation. Investigations also uncovered a fake Dutch embassy, the State Department said. …

The crime ring issued fraudulently obtained but legitimate U.S. visas and false identification documents, including birth certificates at a cost of $6,000 each, the statement said.

During raids that led to a number of arrests, authorities also seized authentic and counterfeit Indian, South African and Schengen Zone visas and 150 passports from 10 different countries along with a laptop and smart phones.

The statement did not say how the gang obtained the authentic visas. And the State Department did not say how many people were believed to have illegally entered the United States and other countries using visas issued by the crime ring, which used bribery to operate unhindered.

“The criminals running the operation were able to pay off corrupt officials to look the other way, as well as obtain legitimate blank documents to be doctored,” the statement said.

Leef takes on Trump’s flag-burning comments

George Leef’s latest column for Forbes addresses President-elect Donald Trump’s recent comments about flag burning.

Here’s what Trump wrote: “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or a year in jail!”

The very last thing we need in America is more activism meant to punish people for thinking the wrong things. Our college campuses are awash in left-wing thought control, whereby students who say or write anything that hypersensitive students or administrators find offensive can be punished. That’s bad enough. We do not need a right-wing counter-movement led by Trump doing the same.

One troubling aspect of Trump’s declaration is that it bespeaks either ignorance of or hostility to the Supreme Court’s First Amendment jurisprudence. We have considerable history with cases involving governmental efforts at stamping out dissent generally and involving the flag specifically. …

… Does Donald Trump want to overturn Johnson so we can again prosecute people for not having the right thoughts about the flag? Evidently so, but I cannot see how that does any good. Sure, it would satisfy some of his most vociferous supporters, but it would be a terrible step backwards.

It would be a step in the direction of the same politically correct intolerance by leftists that so energized many Trump supporters. As American Enterprise Institute scholar Ben Zycher writes, “Does Mr. Trump recognize that he has endorsed the intellectual underpinnings of hate-crime legislation, the inexorable end-game product of the political rectitude that he campaigned against?”

Answer: no.

Van der Vaart to EPA?

vandervaartcleanpower-092115It’s a prospect Michael Bastasch explores for the Daily Caller.

Members of President-elect Donald Trump’s transition team are interviewing candidates to head up the Environmental Protection Agency (EPA). While media reports indicate the president-elect has narrowed the field down to two candidates, a new name is on the lips of some on Trump’s transition team: Dr. Donald van der Vaart.

Van der Vaart is a PhD chemical engineer who currently heads the North Carolina Department of Environmental Quality. If appointed and approved by Congress, Van der Vaart would be the first PhD scientist to head EPA. He also holds a law degree.

Sources close to Trump’s transition team said van der Vaart would put a halt to overreaching regulations and the so-called “secret science” EPA relies on to push ever-stricter rules on businesses.

“He can see right through this stuff,” a source told The Daily Caller News Foundation, arguing van der Vaart would be critical of any shoddy science coming out of the agency.

Van der Vaart has been a vocal critic of the EPA as North Carolina’s top environmental regulator, especially in regards to the Clean Power Plan (CPP) and the “waters of the United States” rule. Repealing both those rules are top priorities for Trump.

“He understands that time consumption and reams of paperwork, to comply with regulations that accomplish nothing to improve our environment, are economy killers,” North Carolina state Rep. Chris Millis, a van der Vaart supporter, told TheDCNF.

Trump’s Supreme Court picks and an ideological war with the left

U.S. News and World Report looks ahead to the likely ideological battles surrounding President-elect Donald Trump’s Supreme Court choices.

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Improving health care involves more than fixing Obamacare

Darcy Bryan, Jared Rhoads, and Robert Graboyes of the Mercatus Center at George Mason University explain a project that’s designed to improve American health care, not just scrap Obamacare.

Ranked No. 43, it looks as if North Carolina has some work to do.

The Healthcare Openness and Access Project (HOAP) is a collection of state-by-state comparative data on the flexibility and discretion US patients and providers have in managing health care. HOAP combines these data to produce 38 indicators of openness and accessibility. …

… There is broad agreement in the United States that it would be desirable to lower the cost and improve the quality of health care and broaden health insurance coverage. There is much disagreement about how this trio of goals is to be accomplished. The years-long political struggle over the Affordable Care Act (ACA, commonly known as Obamacare) is the most visible manifestation of this divergence of views. The ACA represents one approach to tackling the three goals. Many on the political Left argue for still-more-centralized public-sector control over health care and particularly for a federal single-payer insurance system. Policymakers and commentators on the Right have offered a variety of proposals that, generally speaking, would shift more power to private-sector entities and to states. All these proposals have one thing in common: they assume the key to lower costs and better care lies in reconfiguring the insurance system.

We believe the three goals of healthcare reform cannot be attained by fixating solely, or even primarily, on health insurance reform. States have (and should have) substantial control over the delivery of health care—and not solely or principally in the area of insurance reform. To make maximum use of state powers in improving care, it is vital to have a basis for comparison—to see what works in other states. The Healthcare Openness and Access Project (HOAP) is a set of tools providing state-by-state measures of the flexibility and discretion that patients and providers have in managing health and health care. In other words, how open are each state’s laws and regulations to institutional variation in the delivery of care, and how much access to varying modes of care does this confer on the state’s patients and providers?

N.C.’s Walker on conservatism in Congress

The new leader of the U.S. House’s Republican Study Committee, North Carolina’s Mark Walker, offered the American Enterprise Institute some interesting thoughts about the next year in Congress.

Rep. Walker on “effective conservatism”:

However long we’re privileged to serve here, whether it’s two years or twenty years, can you look back and say ‘was it simply about winning the argument? Or was it about making a difference? Are there measured marks of success where you’ve moved the needle forward? Now I think that consists of three things: 1) the right policy 2) the right approach, and 3) the right voice.

What do I mean by the right voice? If you go back to business and marketing […] products can sometimes reach a ‘maturity stage’: people are walking past it on the shelf in the grocery store. Kelloggs’ had that problem in thge late 1980s. So in 1990 they release this commercial, they had this New Englander eating this big bowl of Corn Flakes, but the tag line was this: Taste them again for the first time.

And when you talk about your question as far as the different factions, conservatives as a whole across the conference, I feel like it’s ‘Hear us again for the first time.’ We have an opportunity, an incredible moment in history right now, to allow our voices to be heard.

Rep. Walker on the opportunities for growing the conservative community:

There is fertile soil right now. We have the data on our side that the last eight years have not benefited any community. … The conduit of how we share that message is crucial. If we come in with our strong armor, if we come in attack, attack, attack… In any aspect of life, when you start from an adversarial position, you limit your gain immediately. And I feel like, if we’re willing to look across the conference, across the RSC, to talk about these non-traditional items, we have an incredible opportunity to impact our culture.