Eleventh Circuit Smacks Georgia Sheriff Around For Posting 'Don't Trick Or Treat Here' Signs In Sex Offenders' Yards

from the this-is-the-First-Amendment...-perhaps-you-two-should-get-acquainted dept

In 2018, the sheriff of Butts County, Georgia (no, really), Buford T. Justice Gary Long instructed deputies to ruin the Halloween holiday spirt by planting damning signs in the yards of released sex offenders. The sheriff cited no reason for doing this — not even extremely anecdotal “evidence.” Instead, the signs — which warned trick or treaters away from the homes of certain county residents — appeared to be purely punitive: a way to continue to punish criminals who’d already served their time.

The sheriff’s deputies wandered onto private property and planted signs printed by the department — ones that said nothing more than “NO TRICK-OR-TREAT AT THIS ADDRESS.” The signs were signed (so to speak) by the sheriff, passing themselves off as a “community safety message.”

In a now-deleted, self-congratulatory post, Sheriff Gary Long claimed this invasion of privacy and property was lawful good:

As Sheriff, there is nothing more important to me than the safety of your children. This Halloween, my office has placed signs in front of every registered sex offender’s house to notify the public that it’s a house to avoid. Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property. With the Halloween on the square not taking place this year, I fully expect the neighborhoods to be very active with children trick-or-treating. Make sure to avoid houses which are marked with the attached posted signs in front of their residents. I hope you and your children have a safe and enjoyable Halloween. It is an honor and privilege to serve as your sheriff.

(These signs are placed In accordance with Georgia Law O.C.G.A. 42-1-12-i(5) which states the Sheriff shall inform the public of the presence of sexual offenders in each community)

Nothing in the law requires this, despite the sheriff’s half-assed appeal to authority. The public is already made aware of these facts by sex offender registries, which are accessible with or without Sheriff Long’s assistance. If the law truly required the posting of signs like this, they would already have been posted by these residents in order to comply with the conditions of their release. There are plenty of laws in place that deter sex offenders from using a once-a-year celebration to further their sex offending. The lack of evidence or data pointing to a spike in sex offenses against children during Halloween suggests the laws on the books are working. This was nothing more than Sheriff Long being an asshole for no other reason than he could.

Four years later, the uppance has finally come for Sheriff Long and his deputies. The Eleventh Circuit Court of Appeals has ruled [PDF] these signs were nothing more than cheaply printed rights violations. (h/t Volokh Conspiracy)

The plaintiffs in this case posed a minimal, if not entirely nonexistent, threat to the communities they reside in. Here’s how the court describes the three men suing Sheriff Long and his deputies:

Plaintiffs Reginald Holden, Corey McClendon, and Christopher Reed are residents of Butts County and are required to register as sex offenders under O.C.G.A. § 42-1-12, et seq. The Georgia statute not only requires individuals with certain convictions to register as sex offenders, but also requires Georgia to classify registrants based on whether they pose an increased risk of recidivism. Id. § 42-1-14. None of the three plaintiffs have been classified as posing an increased risk of recidivism.

In 2004, Holden was convicted of lewd and lascivious battery in Pinellas County, Florida. He has been a homeowner in Butts County since May 2017. He lives by himself and works as a warehouse coordinator.

In 2001, McClendon was convicted of statutory rape of a minor in Butts County. He lives with his daughter and his parents who own the home where they all reside. He holds a commercial driver’s license.

In 2007, Reed was convicted of sexual assault of a minor in Cook County, Illinois. He works as a truck driver and has lived with his father, who owns their home, since 2011. In the 2020 order now on appeal, the district court found that all three plaintiffs “have, by all accounts, been rehabilitated and are leading productive lives.”

Sheriff Gary Long was aware of this when he made and posted the signs.

The Sheriff does not dispute this, nor does the record support a contrary finding.

Sheriff Gary Long was also aware that sex offenders don’t offend more often on Halloween.

Since 2013, Long had been Sheriff in Butts County and in that time did not know of any incidents in Butts County involving registered sex offenders on Halloween. In fact, during his six-year tenure as Sheriff, there were no issues with any registered sex offenders in Butts County having unauthorized contact or reoffending with minors at any time.

So, the signs were clearly made and distributed under the color of law for the sole purpose of heaping more stigma on stigmatized residents — all under the guise of public safety. The sheriff had no lawful authority to do this. But he did it anyway.

The court is not happy with Sheriff Long’s actions. Despite being constrained by the limits of the lawsuit, which does not seek damages or dispute any finding of qualified immunity, the Eleventh Circuit makes it clear this is some bullshit, Constitutionally speaking. This is compelled speech, forced on certain members of Butts County by Sheriff Gary Long. And there’s nearly 50-year-old Supreme Court precedent on hand that made it clear the sheriff should never have engaged in this activity.

In Wooley, the Supreme Court held that it was unconstitutional for the State of New Hampshire to prosecute a citizen for covering the State motto, “Live Free or Die,” on his license plate. Specifically, the Court held that a state could not “constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.” The Court stated that the New Hampshire statute “in effect requires that appellees use their private property as a ‘mobile billboard’ for the State’s ideological message or suffer a penalty.”

This case is materially similar to Wooley. The Sheriff’s warning signs, like the State motto on the New Hampshire license plate, are government speech. Indeed, the signs expressly bore the imprimatur of government, stating that they were “a community safety message from Butts County Sheriff Gary Long.” The deputies placed the signs despite the homeowners’ and/or residents’ objections. The deputies explained, both verbally and through the accompanying leaflet, that only the Sheriff’s Office could remove the signs.

To sum up:

The Sheriff’s warning signs are a classic example of compelled government speech.

Sheriff Gary Long had no justification for this imposition on county residents, even given the state’s obvious (and justifiable) desire to prevent the sexual abuse of children. The sheriff’s office had other ways of informing Butts County residents of where sex offenders were located. The signs were completely unnecessary. Nothing the sheriff’s office submitted to the court shows this punitive measure was the only (or least intrusive) way to ensure the safety of trick-or-treating children.

Assuming that yard signs alerting people to the residences of registered sex offenders on Halloween would prevent the sexual abuse of children (which, we repeat, is not supported by any record evidence), the signs are not tailored narrowly enough. Sheriff Long testified that the sex-offender registry, which contains each registrant’s name, address, and photograph, is available on the State of Georgia’s website, on the Butts County website, at Butts County administrative buildings, and at the Butts County Superior Court Clerk’s Office. The Sheriff has made the sex offender registry widely available through government sources, diminishing the need to require residents to disseminate the same information in yard signs on their private property. And, while “narrowly tailored” does not mean “perfectly tailored,” the Sheriff has not met his burden to show the yard signs were narrowly tailored because he has not offered evidence that any of the yard signs would accomplish the compelling purpose of protecting children from sexual abuse.

Sheriff Long tried arguing the government had the right to post whatever it wanted in “public rights of way,” his way of describing the areas (towards the end of driveways or near sidewalks) where deputies posted signs. This footnote makes it clear this is the sheriff’s Hail Mary play — one the court easily bats down in the 11th Circuit end zone.

Before placing the signs in 2018, the deputies did not conduct research to assure themselves the signs would be placed in rights-of-way. In 2019, for the preliminary injunction hearing, the Sheriff introduced some poorly scanned copies of subdivision plats that do not include any keys, legends, or labels; the plat maps are not self-explanatory. He also introduced aerial Google Maps photos of roads with lines drawn across them. But those maps do not indicate who owns the underlying fee where the lines are drawn, or that the lines represent right-of-way easements—much less who possesses any easements or for what purpose.

The end result is a reversal of the lower court’s decision in favor of Sheriff Long and his Halloween-adjacent dickishness. The case travels back down the federal pipe to the district court with instructions to find in favor of the plaintiffs and their request for a permanent injunction prohibiting the sheriff from pulling this stunt in the future. The ruling is clear: the government can’t force people to say things they don’t want to by planting signs in their yards. Sheriff Long will just have to find some other, more constitutional way to harass residents he doesn’t like next Halloween.

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Comments on “Eleventh Circuit Smacks Georgia Sheriff Around For Posting 'Don't Trick Or Treat Here' Signs In Sex Offenders' Yards”

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btr1701 (profile) says:

Re: Re: 1st Amendment?

What also seems unaddressed by the court are the rights of people who aren’t sex offenders.

It’s bad enough to violate the offenders’ rights but what about the people who haven’t committed any crime who are the actual owners of some of these properties? If a guy who has the conviction is living at his parents’ home, that doesn’t mean his parents– who have not been accused of, let alone convicted of any crime– lose their private property rights against trespass, nor their 1st Amendment rights against having government propaganda posted on their property.

This comment has been deemed insightful by the community.
Cdaragorn (profile) says:

More than one way to look at data

The lack of evidence or data pointing to a spike in sex offenses against children during Halloween suggests the laws on the books are working.

It also suggests the laws on the books are ridiculous and completely unnecessary. In fact it suggests that far more than that they are "working".

Sorry but sex offender registries are some of the most disgusting representations of abusive overpunishment we have today. When someone has served the time the law dictates they should for crimes they’ve committed they have a right to be treated as an honest citizen. And that doesn’t even get in to how many of these registries are abused by law enforcement to punish people for whatever reason they want to come up with.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: More than one way to look at data

If a sex offense is such a terrible and egregious crime that society must have this additional level of notification/"security," then why aren’t the offenders just imprisoned for life without parole? (I’m not saying they should be)

Anonymous Coward says:

Re: Re: More than one way to look at data

why aren’t the offenders just imprisoned for life without parole?

Because the public doesn’t want to pay the cost for continued imprisonment, nor do they want to just execute the person, nor do they wish to truly forgive / give absolution to the criminal for their prior acts.

For the international folks out there that are confused by this or those that just want the long form version:

In the USA, we don’t believe that a person ever fully pays their dues to society. The phrase "once a criminal, always a criminal" means that once a person is convicted of a crime, they will be punished for it indefinitely. If not by the government, then by the citizenry. There is no such thing as "forgiveness" when referring to criminals.

Of course, indefinite punishment is expensive. The cheapest way of getting out of that is simple execution, but the USA can’t stomach the thought of doing that to every criminal out there despite their constant blithering about "mah guns!" and "Second Amendment." (I know, right?) In reality, most are fine with outright torture. Denying each other their most basic rights. Including but not limited to: Habeas corpus, the ability to vote, freedom of speech, right to assemble, right to work, right to travel, etc. Hence, after robbing the criminal of multiple decades of their life, often in unbearable / torturous living conditions, society then turns around and denies them their rights upon release. All the while claiming that they have "paid their dues to society" and that "they are just like everyone else." As if the physical torture wasn’t enough, now the torture is psychological and physical. As the continued loss of their rights makes any attempt at survival outside of prison almost impossible / prohibitively expensive, the general hope is that the "former" criminal will just kill themselves. Or do something to justify the cost of locking them up again.

AND boy, does the USA look for any excuse to justify locking them back up. The second a "former" criminal is just in the vicinity of a crime, they immediately become the top suspect. There’s even some law enforcement officials who make it their personal mission in life to rearrest and lock back up "former" criminals. Evidence optional. Some even go as far as to fabricate evidence / testimony to secure a re-conviction. Of course the jury in question will always be checked for any sympathizers to weed out during selection.

As for sympathizers, they are to be demonized by the general public and thrown into the ranks of the criminals themselves. Often such sympathy is considered "a form of weakness" at best, and "what are you trying to hide?" at worst. Yes, showing a "former" criminal sympathy in the good ol’ USoA is likely to throw you under suspicion of the same crime as the criminal(s) you’ve shown sympathy to. Hence why in many cases such sympathy can only be given in anonymous cowardice.

In my personal opinion, I believe that the general public of the USA actually loves the torturing. Both as an outlet for their own frustrations, and as a way of creating a permanent underclass that they can always feel morally superior towards. (Even if that moral superiority is all in their heads.)

Sok Puppette says:

Re: More than one way to look at data

Of course they’re unnecessary.

Typical interaction on Halloween: kids you don’t know, from blocks away, knock on your door and you throw some candy into their bags. The most interaction might be "Who are you? Good job on the costume!". There are dozens of other kids parading by, they often travel in groups, and most of the time these days even the older kids have their parents with them.

Suppose you were the biggest child molester that ever child molested. How exactly would you turn that situation into a molestin’?

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TheDumberHalf says:

Outlawing someone's existence

Sex offender registries are not the only harm. Some cities outright prohibit you living in the city at all – a result of cumulative boundaries around sensitive areas. We can all agree, parole should help you integrate and keep you on the straight and narrow. However, people need an actual chance. Then there’s instances where peeing in public or even hugging is a sex offense. Scope creep is a bitch.

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John85851 (profile) says:

Re: Outlawing someone's existence

If the sex offender registry is designed to inform people about a person’s bad behavior, why is there no murderer registry?
I find it beyond ridiculous that someone can get on the sex registry and stigmatized for life for peeing in public, but the guy who murders 3 people, serves 50 years in jail, and is then released for "serving his time" does NOT have to go on any list.

So, oh, no- your next door neighbor peed in public! Avoid him at all costs! But your other neighbor killed 3 people, served 50 years in jail, and no one knows about it.

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That Anonymous Coward (profile) says:

Sex offender registries were a good idea.
A place where citizens could see where those who have been convicted of abusing children were in the community.

There are those who re-offend over & over so this was a middle of the road solution to the legal system hitting a wall with what they could do. While sex offenders can be dangerous forcing them to live in trailers on prison grounds after release isn’t a solution either.

The registries then got the human treatment.
Despite the hype there are not 30 trillion sex offenders stalking children everyday.
So the definition got widened, and widened, and stretched to WTF levels.

I can not believe that the average citizen thinks that someone who was drunk & peed in an alley is a threat to their children.
How to claim that public urination is a sexual crime is… wha?

Everyone wants to believe everyone on the registry is a timebomb just waiting to claim more children, but its a lie.

We make them live under overpasses, off in the woods because we’ve added tons of restrictions about where they can live based on they are on the registry not the crime that got them there.

Of course now it has a life of its own and daring to suggest that something is wrong with it gets you branded as a pedophile lover so no politicans will address the horrific abuses of rights that so many are perfectly okay with because bad people don’t deserve any rights ever even after their debt is paid.

Sheriff needed an easy target to win hearts and minds, targets those on the sex offender registry because well who is gonna give a shit about them?
Remember this got all the way up to 11th Circuit before a court said ummm no this is bullshit, they have rights and this asshole violated them.

Justice isn’t perfect but are they even trying anymore?

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K`Tetch (profile) says:

Typical for butts

They’re often the arse of the area. and I say that having lived within 25 miles of Butts county for exactly 19 years today.

It’s the county that had one of its LT’s terrorize and falsely arrest contractors working on a home he got foreclosed on, to repair the vandalism he did.
That guy ran the county SWAT team, which is a busy one as it also covers the north side of Macon, and a lot of TV filming (stranger things, walking dead)… oh and the state prison and ‘diagnostic hospital’, including that special room where they diagnose prisoners to death.

They’re even thinking of turning the county seat’s name from Jackson, to JackASS.

Bilvin Spicklittle says:

Not sure what the problem is...

The signs are merely an extension of the registry itself. Sure, the registry is being enhanced in a way not currently prescribed by law, so on a technicality it is wrong.

But if you think there is something fundamentally wrong with the signs, then you must also believe that the registry itself is fundamentally wrong. There is no other way to rationally reconcile your position.

Personally, I believe that the registry itself is fundamentally wrong. But also practically wrong. What good does this list of perverts do me, when half of them were drunks pissing in an alley? Give those people $100 fines and be done with it. My children aren’t in danger from them (at least when they’re not behind the wheel). Some 19 yr old banged his 16 yr old girlfriend? Same.

And that’s just on the practical level. If we’re going to get philosophical, then it’s always been true that if someone has "done their time" then no more punishment can or should be given. And if more punishment should be given, then have our legislators and judges give more punishment. Don’t drag this shit out pretending that we’re not giving them life sentences outside of prison where they’re subject to random vigilante reprisals. (Does a sheriff count as a vigilante?)

I’m pretty sure that humanity is utterly fucked in the head, and I’m talking to you, the reader of this comment. You’re fucked in the head. Something is wrong with all of you, something that can’t be fixed.

Anonymous Coward says:

Re: Not sure what the problem is...

The signs are compelled speech because the Sheriff posted speech on private property. Posting signs may seem like a small thing in this situation, but normalizing it would enable further erosion of protections against more serious forms of compelled speech.
Perhaps whether sex offender registries are a good thing wasn’t relevant enough to be included in the article. Fortunately, extending the conversation is what the comments are for. In general, governments (and employers) should treat former convicts as regular people after they have served their sentences.

nasch (profile) says:

Georgia law

Georgia law forbids registered sex offenders from participating in Halloween

CNN reports:

"Georgia doesn’t have a law that specifically forbids registered sex offenders from participating in trick-or-treating. Instead, offenders are subject to the general Georgia Department of Community Supervision’s conditions.

The department forbids registered sex offenders from having contact with children under 18 years old."

Perhaps that is what he is clumsily referring to?


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