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Heller . . . Britt . . . What’s Next for Gun Laws?

Thursday, November 19th, 2009

We’ve seen several significant cases concerning gun laws in the past few years. The two biggest, of course, are District of Columbia v. Heller, 554 U.S. ___ (2008), in which the United States Supreme Court struck down the District of Columbia’s ban on handgun possession as inconsistent with the Second Amendment, and Britt v. North Carolina, discussed in this prior post, in which the North Carolina Supreme Court ruled, under the state constitution’s analogue to the Second Amendment, that a particular convicted felon, whose single, non-violent conviction was many years in the past, could not be prohibited from possessing a gun.

More changes may be afoot in this area, and lawyers on both sides should be aware of the legal landscape. For starters, the United States Supreme Court will hear, this Term, McDonald v. Chicago, a case that asks whether the Second Amendment applies to the states, either through selective incorporation under the Fourteenth Amendment’s due process guarantee or (more radically) because selective incorporation is wrong and all of the bill of rights apply to the states. This question wasn’t relevant in Heller, because the District of Columbia is a federal jurisdiction, but it’s a critical question because if the Second Amendment only applies to the federal government, the practical importance of Heller will be quite limited. A brief discussion of McDonald is here; a gun rights group’s website about the case, with links to some briefs, is here. I don’t think that a date has been set yet for the argument, but it looks like it won’t be until February, at least, based on the briefing schedule. If the Court rules that the Second Amendment applies to the states, that will open the door to Second Amendment challenges to an array of state and local firearm regulations.

An example of the type of litigation that we might see post-McDonald at the state level is the Seventh Circuit’s recent decision in United States v. Skoien. The defendant in that case was convicted of possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). He appealed, arguing that his motion to dismiss the indictment under Heller should have been granted. The Seventh Circuit remanded the case for further consideration by the district court. It slapped the prosecution’s wrist in this passage, which gives a flavor of how seriously the court views the defendant’s claim:

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies.

Again, if the Second Amendment applies to the states, we can expect to see similar arguments in state courts. (Or maybe we should be seeing them now, under Britt.) For example, what about the requirement that people who are subject to a domestic violence protective order surrender their firearms, under G.S. 50B-3.1? Farther afield, what of gun laws such as the prohibition against weapons at parades and similar events, under G.S. 14-277.2? What of municipal ordinances prohibiting high-capacity firearms, e.g., Durham County Code of Ordinances § 17-71, or the display of certain handguns, e.g., Chapel Hill Code of Ordinances § 11-134? Suffice it to say, Heller, Britt, and McDonald — however it comes out — will be reshaping the legal landscape regarding firearms for years to come.

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Using Other Bad Acts to Prove Malice in a Vehicular Homicide Case

Monday, November 16th, 2009

by School of Government faculty member Shea Denning

Among the most recent batch of opinions issued by the Court of Appeals was State v. Tellez, in which the court upheld the defendant’s conviction of two counts of second-degree murder and one count of felonious hit and run arising from a fatal car crash. Here are the facts: Defendant went to a party in Coats, NC around 1 p.m. on March 4, 2007, where he drank three beers. Three hours later, defendant and his friends, Castro and Childers, left the party in Castro’s car. Defendant drove and, while he was driving, began to drink a fourth beer. As defendant approached an intersection with a state highway, he slowed, but did not stop. Indeed, defendant drove around a car that had stopped at the intersection and drove straight into the path of a truck driven by Dwayne Braswell and in which Braswell’s nine-year-old son, Jerry, was a passenger. After the collision, the truck rolled several times and caught on fire. Paramedics were unable to help Mr. Braswell or his son because of the fire. Their bodies burned beyond recognition. Defendant ran from the scene. Childers told the trooper who arrived on the scene that the defendant “was drunk and ran, got scared.” But Childers testified at trial that she did not know whether Tellez “was intoxicated” and “didn’t think he was.”

Tellez argued on appeal that the trial court erred in denying his motion to dismiss the second-degree murder charge because there was no evidence that he was driving while impaired. The court rejected this contention. Noting that second-degree murder is an unlawful killing with malice but without premeditation and deliberation, the court explained that there must be an intentional act sufficient to show malice. To prove malice in operating a motor vehicle, the State must prove that the defendant intended to drive in a reckless manner that reflected knowledge that injury or death would likely result, thus evidencing depravity of mind. Conduct other than impaired driving can arise to this level of recklessness.

The Tellez court concluded that the evidence of defendant’s (1) reckless driving, (2) consumption of alcohol before and during driving, (3) prior convictions for impaired driving and driving while license revoked, and (4) flight and elusive behavior after the collision constituted substantial evidence of malice based upon depravity of mind.

That the defendant’s reckless driving and his consumption of alcohol would be considered evidence of driving in such a way that reflects knowledge that injury or death would likely result-in other words, malice-seems rather obvious. This post is focused on the latter two categories of evidence, the defendant’s prior convictions and his post-crash conduct.

North Carolina’s appellate courts have consistently held that a defendant’s prior driving convictions are admissible to pursuant to Rule 404(b) to show malice in a second-degree murder prosecution based on the defendant’s driving. See, e.g., State v. Maready, 362 N.C. 614 (2008); State v. Goodman, 147 N.C. App. 57 (2002) (Greene, J., dissenting), rev’d, 357 N.C. 43 (2003) (per curium, adopting dissenting opinion); State v. Rich, 351 N.C. 386 (2000).

As most readers know, Rule 404(b) of the NC Rules of Evidence provides that evidence of other crimes, wrongs and acts by a defendant may not be admitted to prove that the defendant acted in conformity with that bad character in committing the instant offense. In other words, a prior impaired driving conviction may not be considered by the jury as evidence that, since the defendant previously drove while impaired, he did so on this occasion as well. Despite its provisions excluding the introduction of relevant evidence of other crimes, wrongs or acts by a defendant, Rule 404(b) otherwise is a rule of inclusion. Evidence of other bad acts and crimes, if relevant, may be introduced for other purposes, including establishing the defendant’s state of mind.

While 404(b) evidence must bear similarity and temporal proximity to the instant offense, courts generally have viewed a defendant’s entire record of traffic convictions to be relevant to whether the defendant exhibited malice by driving a manner that caused a fatal accident. In Tellez, the trial court admitted evidence that defendant had previously been convicted of driving while license revoked and impaired driving.

It is not entirely clear whether North Carolina’s appellate courts would sanction the admission of evidence of a prior impaired driving conviction as evidence of malice if the conduct giving rise to the murder charge did not involve driving after consuming alcohol or some other impairing substance. In State v. Lloyd, 187 N.C. App. 174 (2007), the defendant was charged with second-degree murder after he stole a van, fled from police, drove recklessly, and crashed into another car, killing both of its occupants. Lloyd was sober, but his driver’s license was revoked. The State introduced evidence of Lloyd’s prior refusal to submit to a breath test and his accompanying arrest and conviction of impaired driving. The trial court instructed the jury that this evidence “was received solely for the purpose of showing that the defendant had the knowledge that his license was suspended” on the date of the offense and, further, that driving with a suspended license suspension was evidence of malice. The court of appeals characterized the evidence that defendant drove knowing his license revoked as “fundamental” to proving malice and held that the danger of unfair prejudice was mitigated by the trial court’s limiting instruction. The appellate court failed to explain how driving with a revoked license evidences reckless-rather than simply unlawful-behavior.

Evidence of Tellez’s behavior after the collision likewise is admissible under Rule 404(b) as probative of his depravity of mind since post-offense conduct, like prior bad acts, can be relevant to establishing the defendant’s state of mind at the time of the offense. Cf. State v. Grice, 131 N.C. App. 48 (1998) (characterizing comments by trial court at sentencing that defendant’s “total lack of remorse” as evidenced by his failure to ask whether someone was hurt in the car he crashed into “implies . . . a lack of consciousness [and] total disregard for the laws of this State” as drawing a parallel between defendant’s lack of remorse and the malice necessary to support a second-degree murder conviction).

Tellez doesn’t change the landscape of the law applicable to murder prosecutions arising from vehicle crashes, though it does provide one more set of tragic facts held to establish malice. The last portion of the opinion explains that Childers’ statements to the trooper at the scene of the crash that Tellez “was drunk” were properly admitted into evidence, notwithstanding Childers’ testimony at trial that she did not think Tellez was intoxicated. I’ve waxed on too long already, so I won’t attempt to explain how the court concluded that these statements amounted to corroboration rather than inadmissible hearsay. (Plus, I can’t figure out what these statements corroborated.) Can any of our loyal readers explain this reasoning? Anyone? Anyone? Bueller?

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Mello and “Loitering for Drugs” Ordinances

Tuesday, November 10th, 2009

Can a municipality adopt an ordinance that criminalizes loitering for the purpose of drug activity? I’ve been asked that question several times, and in fact, a number of North Carolina municipalities have such ordinances. See, e.g., Charlotte Code of Ordinances § 15-23; Hickory Code of Ordinances § 29-22(d). The answer is generally yes, though such ordinances must be drafted very carefully.

Last week, the North Carolina Court of Appeals underscored the need for careful drafting when it decided State v. Mello. Gary Mello was charged with, inter alia, violating Winston-Salem Code of Ordinances § 38-29, which is captioned “[l]oitering for purpose of engaging in drug-related activity.” The court’s opinion doesn’t describe the facts underlying the charge, so I skimmed the parties’ briefs. Generally, it appears that Mello was parked on a street in a high-drug area of Winston-Salem, engaging in what appeared to be hand-to-hand drug transactions with pedestrians.

Mello moved to dismiss the charge, arguing that the ordinance was unconstitutional. The motion was denied by the trial judge, a jury convicted Mello, and he appealed. The court of appeals agreed with Mello, finding the ordinance overbroad and vague.

The ordinance reads as follows:

It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:
(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;
(2) Repeatedly stopping or attempting to stop motor vehicles;
(3) Repeatedly interfering with the free passage of other persons;
(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;
(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;
(6) Such person taking flight upon the approach or appearance of a police officer; or
(7) Such person being at a location frequented by persons who use, possess or sell drugs.

Mello’s indictment referred specifically to subsections (4) and (7) of the ordinance.

The court of appeals began its analysis by considering overbreadth, which is a First Amendment doctrine that invalidates regulations that prohibit a substantial amount of “protected” conduct, even if the regulations have some legitimate application. The court concluded that the Winston-Salem ordinance prohibits protected activity such as conducting a survey (which would violate (1) and/or (3)), handing out leaflets (which would violate (5)), and merely being present in an area where drug arrests have taken place (which would violate (7)).

Nor, according to the court, was the ordinance saved by the inclusion of the language, “under circumstances manifesting the purpose to engage in [a drug offense],” because under the ordinance, the listed circumstances by definition manifest the necessary intent. So here’s the first draftsmanship point: had the intent requirement said “the circumstances that may be considered in determining a person’s intent include the following” instead of “[s]uch circumstances are,” I suspect that the overbreadth analysis would have come out differently. Cf., e.g., State v. Evans, 73 N.C. App. 214 (1985) (upholding a loitering for prostitution ordinance that required the state to demonstrate that the defendant’s purpose was to violate the prostitution laws).

Next, the court considered whether the ordinance was void for vagueness. A law is unconstitutionally vague when citizens are left to guess and to speculate as to whether they are violating the law. The court concluded that subsection (4) of the ordinance is vague, because a citizen can’t be reasonably sure what conduct “raise[s] a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” Here’s the second draftsmanship point: the court was particularly critical of the inclusion of the term “reasonable suspicion” in the ordinance, insofar as it could be read to allow a defendant to be convicted on proof less than beyond a reasonable doubt. Absent that red flag, I’m not sure that the court would have ruled the same way; courts have long recognized that a person’s intent usually must be inferred from the circumstances, and that the relevant circumstances defy easy categorization.

Mello has received some national attention, and is a must read for lawyers and judges who regularly handle cases arising under this type of ordinance. Obviously, it should also catch the eye of municipal attorneys in jurisdictions that have, or may adopt, this type of ordinance. I should note, too, that we at the School of Government are happy to consult with jurisdictions that are considering adopting or revising ordinances like this.

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Belated Halloween Edition

Tuesday, November 3rd, 2009

As a runner and a criminal lawyer, I found this story irresistable. The short version is that the police in Boulder, Colorado decided to stamp out the Naked Pumpkin Run, a Halloween tradition that involves 150 men and women wearing nothing but Jack-o-Lanterns on their heads running four blocks through downtown Boulder. I don’t know the first thing about Colorado law, but the story makes it sound like the decision by the police is legally questionable, as well as being opposed by virtually every elected official in the city. Nonetheless, the threat of being charged with indecent exposure, and ultimately of being required to register as a sex offender, seems to have put an end to the run. (Hat tip: Volokh Conspiracy.)

In order to render this post at least faintly useful, I’ll note that a person participating in such a run in North Carolina would clearly violate our indecent exposure statute, G.S. 14-190.9, which may sweep more broadly than Colorado’s. Our statute creates two crimes. The more serious one is a Class H felony for adults who expose themselves in a public place and in the presence of a person under 16, for the purpose of arousing or gratifying sexual desire. (That sort of behavior, in at least some circumstances, might also be a Class F felony under the indecent liberties statute, G.S. 14-202.1.) Since the Pumpkin Run takes place late at night when trick-or-treaters have presumably gone home, and since there’s apparently nothing overtly sexual about the undertaking, I doubt that runners would be committing a felony under North Carolina law.

However, they’d be committing a Class 2 misdemeanor. That crime is committed, with a few exceptions not relevant here, by “any person who shall willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons.” Misdemeanor indecent exposure doesn’t require registration as a sex offender, though, so in that regard, a Pumpkin Runner here would apparently have less to worry about than the ones in Boulder.

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Larceny: Spouse vs. Spouse Edition

Monday, October 19th, 2009

I was recently asked whether one spouse can properly be charged with larceny for stealing joint property from the other spouse. Apparently, this question comes up frequently with separated spouses. For example, assume that Harry and Sally are separated. Sally lives at the house they formerly shared, and Harry lives in an apartment nearby. If Harry comes to the house one day while Sally’s at work, and takes the BBQ grill from the back yard, has he committed a larceny?

Generally, the answer is no. If the BBQ grill is joint property, not Sally’s family heirloom that she had way before she met Harry, Harry has just as much right to it as Sally does, and if he wants to take it, he can. It isn’t a larceny because it isn’t the property of another. But there are some interesting caveats to that general rule.

1. Work-arounds. Sally can tell Harry, “don’t come on this property ever again,” and then Harry’s trespassing if he comes to get the BBQ grill. And even absent such an instruction, if Harry goes into the house, there’s likely a breaking or entering charge. So there are some things that Sally, as a practical matter, can do to keep Harry’s paws off the grill.

2. Separation agreements. If there’s a separation agreement in place that says that Sally gets the grill, then Harry’s definitely committing a larceny if he takes it. Cf. State v. Lindley, 81 N.C. App. 490 (1986).

3. Not playing nice. The most interesting and controversial exception is what I hereby term the “not playing nice” exception. If Harry’s not just taking the BBQ grill to use it — which, again, he’s entitled to do just as much as Sally is — but is taking the BBQ grill intending to (1) make it his own, exclusively, and thereby deprive Sally of her interest in it, or (2) destroy it in bad faith, several courts have sustained criminal charges. See, e.g., People v. Llamas, 51 Cal.App.4th 1729 (Cal. Ct. App. 4 Dist. 1997) (when one spouse “tak[es] . . . [property], even with the intent to temporarily deprive [the other] spouse of its use, the actor does not exceed his or her property right and the problem is properly viewed as a domestic and not a criminal one,” but when the spouse intends permanently to deprive the other spouse of the property, a crime has been committed); LaParle v. State, 957 P.2d 330 (Alaska Ct. App. 1998) (recognizing that “[i]n most instances, both spouses have equal right to possess, use, or dispose of marital property. Thus, one spouse’s unilateral decision to draw funds from a joint checking account or to give away or sell a marital possession normally will not constitute theft,” but finding otherwise where a husband secreted the contents of a marital checking account in anticipation of a divorce).

I confess that the cited cases aren’t from North Carolina. I don’t know of an in-state case on point, but nothing in the cited cases depends on distinctive features of the forum states’ laws. I suspect that in sufficiently compelling circumstances our appellate courts would rule similarly, though my impression is that some of my colleagues disagree. Even if I’m right, the exact contours of the “not playing nice” exception are unclear. If one separated spouse joins an ascetic cult and gives all the couple’s joint property to charity, is that OK? Time will tell.

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A Useful Law Review Article

Tuesday, September 29th, 2009

Like many lawyers, I served on a law review when I was a law student. It was a good experience: I became intimately familiar with the rules of legal citation, was exposed to some areas of law that I otherwise would not have been, and of course, burnished my resume. But most of the articles that we published were unimportant. They were too abstract, too theoretical. Most were not useful to practicing lawyers, and few had any impact on the development of the law. The same can be said of most articles published in most law reviews.

Nonetheless, a few diamonds lie among the coal. One of those is not an article at all, but actually a student note, Counting Offenses, by Jeffrey Chemerinsky. It recently appeared in the Duke Law Journal, and is available here.

The abstract begins by asking “Is a criminal defendant who discharges a weapon five times in rapid succession guilty of one crime or several crimes? This question of how to divide charges has vexed legal philosophers and Supreme Court Justices.” There’s no question that it has resulted in seemingly inconsistent cases in North Carolina. For example, State v. Maddox, 159 N.C. App. 127 (2003), holds that five shots fired in quick succession are a single assault, while the court in State v. Hagans, 188 N.C. App. 799 (2008), concluded that the defendant could have been charged separately for each shot he attempted to fire into a vehicle, even though several of the shots were in quick succession to one another.

Chemerinsky argues, among other things, that the rule of lenity should be applied when there is doubt about whether a defendant has committed several crimes or has engaged in a course of conduct that comprises a single offense. Whether you’re convinced by his argument or not, his note is a useful exploration of a recurrent issue, and should prove useful to practicing lawyers addressing this issue as part of a motion to dismiss.

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Notice, Drinking, and Intensive Probation

Wednesday, September 23rd, 2009

by School of Government faculty member Jamie Markham

Back in July the court of appeals decided State v. Hubbard, a probation revocation case that I mentioned in passing but never really discussed in depth. In Hubbard the defendant’s probation officer filed a violation report alleging that Mr. Hubbard violated probation by being “so drunk that he could hardly walk” during a curfew check. At the violation hearing the defendant raised a question about exactly which condition of probation he had violated - he was not, after all, barred from possessing or consuming alcohol. After some initial confusion, the probation officer testified that regular condition number six, “report as directed by the Court or the probation officer to the officer at reasonable times and places and in a reasonable manner,” was the condition that had been violated. The trial court, however, found that Hubbard had violated probation by failing to comply with the rules of intensive supervision - a separate, special condition of probation. On appeal, the defendant argued that the court lacked subject matter to revoke his probation for violation of a condition of probation of which he had no notice.

The court of appeals disagreed and affirmed the revocation. Mr. Hubbard was correct that in general, the State must give a defendant notice before holding a probation violation hearing, including a statement of the violations alleged. G.S. 15A-1345(e). Probation may not be revoked based on conduct not alleged in the probation violation report. State v. Cunningham, 63 N.C. App. 470 (1983) (improper to revoke probation for property damage when violation report alleged only playing loud music). Mr. Hubbard was incorrect, though, that he received insufficient notice of the alleged violation in this case. The court of appeals ruled that despite some ambiguity at the hearing about which condition Hubbard violated, there was no question that he had sufficient notice of the specific behavior that constituted a violation. The violation report said he was “drinking and raising Cain,” and his probation officer testified at the violation hearing that Hubbard was “highly intoxicated” during a curfew check. This was sufficient evidence to reasonably satisfy the trial court that Hubbard had violated a condition of his probation - and it didn’t matter, the court of appeals concluded, exactly which condition it was.

It appears to me that Mr. Hubbard’s violation was a failure to report to his probation officer “in a reasonable manner” as required by the regular probation condition set out in G.S. 15A-1343. Being combative when your probation officer checks in is not reasonable. I disagree, however, with the idea that “part of [Hubbard's] intensive supervision is that . . . he’s not at home drunk.” The rules of intensive probation do not prohibit getting drunk at home. Soon, though, it will be a default condition of probation all defendants sentenced to intermediate punishment (which would include all probationers under intensive supervision) that they not use, possess, or control alcohol. S.L. 2009-372.

Even if the notice provided in Hubbard was legally sufficient, it seems to me that the best practice for probation officers is to tie every offending behavior alleged in a violation report to a particular condition of probation - especially in the “Other” block on page 3 of the DCC-10. Doing so will help both the probationer and the probation officer prepare for the hearing.

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Keep Your Eyes on the Road, Your Hands Upon the Wheel

Tuesday, September 22nd, 2009

by School of Government faculty member Shea Denning

I blogged here about a new law, that prohibits texting while driving effective December 1, 2009. Texting while driving is an infraction, a non-criminal violation of the law, punishable by a $100 fine and costs of court. As one blog-reader noted, there are significant questions about how law enforcement officers will enforce the new law, given that it is permissible to enter letters or numbers into a mobile device for purposes other than texting, such as to place a telephone call or obtain driving directions.  The reader suggested that perhaps the law was designed to cause drivers to “think twice” before texting while driving. Maybe so. But it remains to be seen whether the measure will reduce the practice.

And there is cause for concern if it does not. A 2008 report by the National Highway Transportation Safety Administration (NHTSA) summarizing studies of driver distraction notes that the auxiliary functions of cell phones, namely text messaging, downloading of audio and video, and gaming, are being performed largely “by drivers without fully-developed driving skills.” As a result, the report predicts a “synergistic acceleration” in the resulting safety problem.

It is worth noting that North Carolina, along with many other states, has done little to address the hazards associated with the traditional use of cell phones - placing and receiving telephone calls.  While minors and school bus drivers are banned from using mobile phones while driving, subject to limited exceptions, no other restrictions apply to cell phone use by adults. This is true despite the fact that studies have shown a fourfold increase in the risk of serious crash involvement among drivers using a phone at the time of a collision.

So, what if the worst happens? While typing a text message, a driver crosses the center-line of a highway, hits another car head-on, and kills the driver of that car. What offense has the texting driver committed? Involuntary manslaughter, a Class F felony? Or is the more appropriate charge misdemeanor death by vehicle, a Class 1 misdemeanor?

Reckless driving can arise to the level of culpable negligence for purposes of an involuntary manslaughter conviction even in the absence of impairment by alcohol or drugs. See State v. Wade, 161 N.C. App. 686 (2003). But does texting while driving demonstrate the thoughtless disregard of consequences or heedless indifference to the safety of others necessary to constitute culpable negligence? It seems unlikely that a North Carolina court would find that texting while driving rises to this level of culpability, particularly given that the offense results in no license or insurance points and is not negligence or contributory negligence per se in an action for damages arising out of the operation of a vehicle.

Unquestionably, though, the texting driver has committed the offense of misdemeanor death by vehicle by violating a motor vehicle law and thereby causing the death of another person.

The New York Times reported recently about a new Utah law that punishes a texting or emailing driver who drives recklessly and causes a fatality as severely as a person who drives while impaired and causes a fatality. The law was enacted after a college student who was text messaging his girlfriend while driving his SUV to work crossed the center line of the highway and hit a sedan traveling in the opposite direction, setting off a chain of events that ended in a crash that killed both occupants of the sedan, who were scientists on their way to work.

In the Utah case, the investigating officer subpoenaed phone records that showed that the student and his girlfriend had sent 11 text messages to one another in the 30 minutes before the crash. Investigators concluded the student sent his last text when he crossed the center line.

According to the Times, Alaska is the only other state to “take[] a similarly tough approach to electronic distraction.” There, too, legislation resulted from a fatal accident.

It remains to be seen whether North Carolina’s new texting ban will avert such tragedy.

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Britt, Heller, and the Right to Bear Arms

Monday, August 31st, 2009

The state supreme court issued a batch of opinions last Friday, and while several of them are notable, the one that has received the most attention is Britt v. North Carolina. (You can see the News and Observer’s story here, and a couple of commentators’ views here and here.)

Barney Britt pled guilty to PWISD methaqualone (Quaalude) in 1979. He served four months in prison and a couple of years on probation, and in 1987, in keeping with state law at that time, his civil rights were fully restored, including his right to possess firearms. Over the years, G.S. 14-415.1, North Carolina’s felon-in-possession law, was strengthened, and by 2004, it prohibited anyone who had ever been convicted of any felony from possessing any firearm (handgun, long gun, etc.) anywhere (including in the home) for any purpose (including hunting and self-defense).

Britt, who was now prohibited from possessing firearms, sued the state, arguing that the revised G.S. 14-415.1 was unconstitutional. He asserted, inter alia, that it violated the Ex Post Facto Clause’s prohibition against retroactive increases in punishment. The state obtained summary judgment against him, and he appealed. The Court of Appeals affirmed, but last week, the supreme court reversed.

The court did not find an ex post facto problem. Instead, it determined that G.S. 14-415.1, as applied, violated Britt’s rights under Article I, section 30 of the North Carolina Constitution — a provision that is textually identical to the Second Amendment to the United States Constitution. The court applied something akin to rational basis review. It noted that Britt’s crime was nonviolent and did not involve a firearm, that he had not been charged with any crime in the 30 years since his conviction, and that he had legally and without incident possessed firearms for much of that time. It concluded that the application of G.S. 14-415.1 to Britt was unreasonable because Britt had “affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety” and therefore, a regulation that prohibited him from possessing a firearm could not be “fairly related to the preservation of public peace and safety.”

Justice Brady’s majority opinion commanded four votes; Justice Hudson concurred only in the result, without explanation. Chief Justice Parker issued a three-line dissent, while Justice Timmons-Goodson dissented at greater length. She argued that the right to bear arms is subject to reasonable regulation and that prohibiting felons — like those determined to be mentally incompetent — from possessing firearms is quintisentially reasonable.

Justice Timmons-Goodson’s dissent suggests that this case will be the first step down a slippery slope, with other felons, incompetents, and persons subject to domestic violence protective orders challenging the applicable prohibitions against gun possession. An increase in challenges to those prohibitions strikes me as an exceptionally likely consequence of the Britt ruling, though of course, reasonable minds can differ about whether that’s a good thing or a bad one. Although Britt was a civil case, I suspect that most challenges will arise in criminal cases, when defendants move to dismiss charges based on constitutional concerns (or perhaps, request special verdicts from juries regarding whether the defendants pose a threat to public safety?). As to what standards the courts will or should use in deciding such challenges, time will tell — the Britt opinion doesn’t say.

Although not cited by Justice Brady, the ghost of Heller v. District of Columbia, 554 U.S. __ (2008), the case that found an individual right to bear arms in the Second Amendment, clearly animates Britt. For discussion of another court struggling to implement the right announced in Heller, see this prior post’s discussion of how a federal judge in Utah handled a related issue.

Finally, I wonder what effect this decision has on Britt’s status under federal law. Federal law contains a blanket and permanent prohibition on the possession of firearms by felons. 18 U.S.C. 922(g)(1). However, it doesn’t apply to felons who have had their “civil rights restored.” 18 U.S.C. 921(a)(20). I suppose that the Britt opinion does the trick for federal purposes, but if anyone thinks that the federal prohibition still applies to Britt, please let me know.

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Possession of Stolen Goods and Receiving Stolen Goods

Thursday, August 27th, 2009

I’m working on revising Arrest Warrant and Indictment Forms, a manual that provides charging language for several hundred common offenses. In the course of working on language for possession of stolen goods and receiving stolen goods, I noticed a couple of things that might be of interest.

First, there are two statutes that criminalize each offense. The principal larceny statute, G.S. 14-72, also criminalizes possession of stolen goods and receiving stolen goods, but there are also stand-alone statutes prohibiting receiving stolen goods, see G.S. 14-71, and possession of stolen goods, see G.S. 14-71.1. That’s an odd state of affairs, but the statutes appear to be consistent with one another, so it’s not problematic. If anyone knows why G.S. 14-71 and G.S. 14-71.1 were enacted, please post a comment or send me an email.

Second, the knowledge requirements for the offenses have an interesting wrinkle. Larceny is a felony in the circumstances set forth in G.S. 14-72(b) - when it is from the person, pursuant to a breaking or entering, and so on. Possession of stolen goods and receiving stolen goods are likewise felonies if the goods were stolen under one of those circumstances, but only if the defendant “kn[ew] or ha[d] reasonable grounds to believe” that the goods were  stolen in that manner. G.S. 14-72(c). See also State v. Southards, 189 N.C. App. 152 (2008); N.C.P.I. - Crim. 216.45. So suppose that A pickpocket’s B’s cell phone, then gives the phone to C. If A tells C that A the phone is stolen, but not that A stole the phone from the person of B, C is guilty only of a misdemeanor.

Compare that to the other common circumstance in which larceny is a felony, which is when the value of the stolen items exceeds $1,000. G.S. 14-72(a). In that case, possession of stolen goods and receiving stolen goods are felonies regardless of whether the defendant knew of the factor that elevated the larceny to a felony, i.e., the value of the stolen items. G.S. 14-72(a); State v. Brown, 85 N.C. App. 583 (1987); N.C.P.I. - Crim. 216.40. So in the example above, if the cell phone happens to be a limited edition model signed by Paris Hilton and worth $5,000, C is guilty of a felony even if C fails to recognize the value of the phone.

As an aside relevant to this point, it looks to me as though N.C.P.I. - Crim. 216.41 and 216.49C, the pattern instructions for receiving and possessing goods stolen from a construction site, are incorrect. The statute requires that the defendant know, or have reasonable grounds to believe, that the goods were stolen from a construction site, see G.S. 14-72.6, while the pattern instruction omits that requirement.

Third - and most relevant to my writing project - it appears that the state must allege in the indictment or information the factor that elevates the possession or receiving offense to felony status. That’s the rule for larceny charges under State v. Wilson, 315 N.C. 157 (1985) (”An indictment charging felonious larceny must allege facts sufficient to raise the charge to the level of a felony.”). I couldn’t find a case directly on point with respect to possession and receiving - let me know if I’m missing one - but State v. Babb, 34 N.C. App. 336 (1977), holds that when goods are stolen pursuant to a felony other than felony larceny, an indictment for receiving stolen goods must allege that felony. It arguably follows that when goods are stolen pursuant to felony larceny, an indictment for possessing or receiving stolen goods must allege the specific variety of felony larceny at issue. But cf. State v. Harper, 51 N.C. App. 493 (1981) (offering the following intriguing comment without describing the indictment at issue: “Defendant was charged with feloniously possessing stolen property in violation of G.S. 14-71.1. The indictment could have supported proof either that defendant knew or had reason to know that the property was feloniously stolen pursuant to a breaking and entering, or otherwise by means described in G.S. 14-72(b), or that the property stolen was of a value in excess of $400.”). Anyone care to argue otherwise?

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