NC: Orange County Judge Allen Baddour: Sex offenders can visit public libraries

A trip to the library landed James Elder in jail.

In 2011, authorities caught Elder with explicit photographs of 15-year-old girls on his computer. He served 15 months in state prison and, after his release last year, became homeless. Last December the 46-year-old visited the Chapel Hill Public Library to job hunt on one of its free computers, he says. His probation officer had suggested that visiting a library was permissible, provided that a children’s event wasn’t being held there.

One floor below the library’s “Kids Room,” Elder pecked at a keyboard. Another patron recognized him as a sex offender and alerted library staff, who in turn called police.

Five days later, after contacting the state Attorney General’s Office for guidance, Chapel Hill police charged Elder with two felony counts of “Sexual Offender Unlawfully on Premises.” The indictment alleged he was within 300 feet of a location intended primarily for minors, and in a place where minors gather for regularly scheduled programs. Though the charges put Elder at risk of more prison time, he nevertheless declined a plea offer for probation. Instead, he went to the Orange County Jail, where he stayed for four months because he couldn’t afford the $2,500 bond.

During a recent jail interview, Elder explained the motivation behind his fight. “The way the law reads, it’s confusing,” he said. “It’s like I have to pretty much stay at home 24/7.”

His argument proved persuasive. Three weeks ago, an Orange County judge dismissed Elder’s charges, declaring parts of North Carolina’s sex-offender law unconstitutional. A library patron’s quest for information and ideas is a fundamental First Amendment right, Judge Allen Baddour ruled.

“It is difficult to imagine many public libraries in North Carolina that are sufficiently large such that popular books, reference materials, and computers are greater than 300 feet away from the children’s reading areas,” Baddour said. Though the North Carolina law does not explicitly bar sex offenders from libraries, Baddour said the statute was tantamount to an all-out ban.

Elder’s case exemplifies a contentious national debate about the rights of sex offenders. In 2008, North Carolina was among several states to pass versions of the Jessica Lunsford Act, named for the 9-year-old from Gaston County who was kidnapped, raped and buried alive by a convicted sex offender. The law essentially criminalized a sex offender’s presence at some locations, such as parks and schools.

Elder, who is from Onslow County, has an associate’s degree in business management, and has done “just about everything,” he said, including cooking, carpentry, customer service and business management. He acknowledged he has a sex addiction, which he manages through Reformers Anonymous meetings.

Elder said he used the Chapel Hill library to look for a job because other area computer labs have time limits. “When I’m trying to get my résumé together, an hour is not enough. As long as I’m doing something productive—looking for a job or researching, or just relaxing—I don’t see using the library as a problem.”

But Assistant District Attorney Jeffrey Nieman argued that people don’t have a fundamental right to every public library service; moreover, Elder could go to university libraries where children weren’t present. In his ruling, however, Baddour declared that university libraries don’t provide an equal level of general information that public libraries do.

 

SOURCE

The vagueness and overbreadth of the law underpinned Baddour’s ruling. “It is unreasonable to expect this defendant, or the average sex offender, or the average law enforcement officer, or the average citizen, to predict what locations are covered and what activity is unlawful.”

Among Baddour’s criticisms were whether “place” refers to the whole property or to specific areas, and the definition of “regularly scheduled.” As for the 300-foot rule, Baddour asked, “What if they were only 20 feet apart through the ceiling, even if no direct access existed?”

Baddour’s order is consistent with a legal movement to loosen harsh location restrictions on sex offenders. In 2012, N.C. Court of Appeals said the law was unconstitutionally vague as applied to a sex offender who stood on an adult softball field adjacent to a Tee Ball field.

Elsewhere in the country, sex offender location laws are waning. In March, California officials announced some sex offenders could live within 2,000 feet of schools and parks.

Sarah Vidrine, project coordinator for the N.C. Coalition for the Prevention of Child Sex Abuse, says that to protect children, communities must look beyond restriction laws. “The registry/notification act in many ways gives folks a false sense of security, because we feel that sex offenders are identifiable,” Vidrine said. “By far, the vast majority of kids are harmed by somebody they know well.” A more comprehensive approach, she said, would be “to effectively ensure that kids don’t experience this type of trauma in the first place.”

Unless the DA’s Office appeals Baddour’s order, the case is unlikely to affect cases outside of Orange County. But a federal complaint about the constitutionality of location restrictions is being litigated in a federal court in North Carolina. An anonymous group of sex offenders have sued Attorney General Roy Cooper for denying them access to certain public areas, including libraries, churches and their children’s sporting events. Cooper filed a recent motion to dismiss the suit, but a judge denied it.

When Elder received the news he won his case and would be released from jail, “I was ecstatic,” he said, “I was jumping up and down for joy. It was like a birthday present and a Christmas present combined.” He is living in a shelter and is applying for dishwasher jobs. “I’m just trying to take it one day at a time.”