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

Free Speech

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.

Filed Under: 11th circuit, butts county, gary long, georgia, halloween, sex offenders, signs