Missouri defends Halloween sex offender sign requirement at Eighth Circuit

ST. LOUIS (CN) — An Eighth Circuit judge compared a Missouri law requiring sex offenders to post signs on Halloween saying they don’t have candy to a North Dakota law requiring landowners to post signs warning if there is quicksand on their property during a hearing Tuesday challenging the sign law’s constitutionality.

“In North Dakota, if there is quicksand, we’re required to post it,” U.S. Circuit Judge Ralph R. Erickson, a Donald Trump appointee, said during the 30-minute hearing. “Obviously the cattle don’t understand it’s quicksand. But you know, in theory, somebody wandering up, they see it’s there, and no one has ever asserted that that’s being too compelled (of speech).”

The analogy hit at the heart of the arguments as Missouri attempted to revive the sign requirement after a lower court blocked it last October, stating that it violated the First Amendment guarantee of speech by compelling sex offenders to post the sign on their private property.

The lower court’s statewide injunction came as result of a 2023 lawsuit filed by Thomas Sanderson, a convicted sex offender.

“This requirement is not requiring the sex offender to disclose the fact that they are a sex offender,” William Seidleck of the Missouri Attorney General’s Office told the three-judge panel. “That makes this the least restrictive means for a sign such as this.”

Sanderson’s attorney, Janice Bellucci, pushed back on that idea, pointing out that all sex offenders and their addresses are available for the public on a website.

“If a family is concerned about going to the home of somebody who’s required to register, all they have to do is look at this public website, and they’ll know ahead of time where a person who is required to register lives,” said Bellucci, who’s based in Sacramento, California. “The other thing is for law enforcement, it’s not necessary for them either, because they already have this information in a government database.”

Bellucci cited an earlier ruling from the Eighth Circuit in Wilson v. the City of Bel-Nor , in which she said the court recognized that the right to speak for one’s own home is especially significant and protected by the First Amendment.

“The courts have also recognized that placement of a government-mandated sign on a person’s home exposes all who live there the danger of significant physical harm and possible damage to or destruction of their property in this country,” Bellucci said.

U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, pointed out that the lower court’s injunction was ordered before the U.S. Supreme Court’s ruling earlier this year in Trump v. Casa , which found that universal injunctions exceed the judiciary power unless necessary to provide the formal plaintiff with “complete relief.” Kelly asked if that decision affected this case.

“We believe that it’s easier to look at this as a speech incident to conduct case, just like a regulation that requires a building owner to have an exit sign on their door,” Seidleck said.

Since 2002, Sanderson has hosted large Halloween displays at his home in Hazelwood, Missouri, with animated figures, lights, music and fog machines. He says it attracts hundreds of visitors and has become a neighborhood tradition in the St. Louis suburb.

Sanderson was convicted in 2006 of felony sodomy involving a 16-year-old family friend during a sleepover. The conviction, which Sanderson claims has no connection to the Halloween festivities, required sex offender registration.

Sanderson, who hasn’t been accused of another sex offense in the 22 years since the incident with the 16-year-old, visited the St. Louis County Police Department and the Hazelwood Police Department to inquire whether the sign requirement applied to him. He claims he was told that it didn’t, because he was grandfathered in since the requirement was made after his conviction.

Nevertheless, Sanderson says Hazelwood police officers swarmed his residence on Oct. 31, 2022, and he was charged with and convicted of one misdemeanor count of violating the sign statute, prompting his lawsuit.

“The signs cannot survive strict scrutiny because they are not ‘necessary’ or ‘narrowly tailored,’” Sanderson’s brief stated.

Sanderson added in the brief that other provisions of the law “preclude every conceivable form of participation in Halloween, and are thus less restrictive means of serving the state’s interest in protecting the public on Halloween and after.”

Missouri argued in its brief that the law is common sense.

“When a child is already on a sex offender’s doorstep, it takes little effort to lure that child inside the home, or to start or further a grooming relationship with the child,” the brief states. “To avoid contact between sex offenders and children, sex offenders are not permitted to distribute candy anyway. The no-candy posting requirement simply rescinds the implied invitation that Halloween creates; the requirement makes it less likely that children find themselves face to-face with a sex offender, on that offender’s doorstep, in the dark.”

U.S. Circuit Judge James B. Loken, a George H.W. Bush appointee, rounded out the panel, which took the case under advisement. There is no timetable for a decision.

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