Weapons Probationers Can’t Have

Probationers generally cannot have guns. What other weapons can they not have?

It is a regular condition of probation that a probationer may not possess a “firearm, explosive device or other deadly weapon listed in G.S. 14-269 without the written permission of the court.” G.S. 15A-1343(b)(5). Like all regular conditions, it applies by default unless the court strikes it. The condition applies to both felons and misdemeanants, and to supervised and unsupervised probationers alike. It likely also applies to most defendants placed on probation for a conditional discharge or deferred prosecution agreement, on the theory that ordinary probation rules apply in those cases unless the governing statute says otherwise. See generally State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). Though potentially serious, weapon possession is considered to be a technical violation (it is not a new criminal offense or absconding), and so may be responded to at most with a period of confinement in response to violation (CRV) or some other sanction aside from revocation.

Firearms. Clearly the condition bars possession of any firearm without written permission of the court. For felons and certain misdemeanants for whom possession of a firearm is a crime, possession would also constitution a violation of the “commit no criminal offense” condition, and in that case it would allow for revocation.

Explosive devices. It is not crystal clear what explosive devices are prohibited under G.S. 15A-1343(b)(5). The term is undefined in this context, and other definitions of “explosive or incendiary device or material,” G.S. 14-50.1, or “substance,” G.S. 14-72(b)(3), have been deemed not to apply here, State v. Sherrod, 191 N.C. 776 (2008). In Sherrod, the court of appeals reviewed the legislative history of the probation condition—including a brief discussion of recommendations made by some guy named Jim Drennan at the Institute of Government—to conclude that the condition did not bar possession of firearm ammunition, absent a means to discharge it. Id. at 779–82 (“[N]either the history nor the actual language of [G.S.] 15A-1343(b)(5) require us to include bullets within the definition of ‘explosive device’ . . . .”). Though it is not a technical violation of the weapon possession condition, possession of ammunition may be a violation of the commit no criminal offense condition for felons and certain misdemeanants, because it is a federal crime. See 18 U.S.C. § 922.

Deadly weapons listed in G.S. 14-269. The final category of weapons prohibited by the probation condition is weapons listed in G.S. 14-269. That statute prohibits the concealed carry of any “bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shurikin [a throwing star or “ninja star”], stun gun, or other deadly weapon of like kind.”

I have been asked several times over the years whether the deadly weapon prohibition would bar possession of weapons like a crossbow or long sword. I don’t see a case answering the question, but it seems to me that it probably does not. The statute’s list is not exclusive; it includes a catch-all reference to “other deadly weapons.” But they must be weapons of “like kind.” Given that the concealed weapon statute focuses (understandably) on weapons capable of being concealed—either by virtue of their small size or, in the case of a loaded cane, innocent appearance—it seems like it would not bar possession of a large and unmistakably dangerous weapon like a bow or blade. See also Wake County v. Hotels.com, L.P., __ N.C. App. __, 762 S.E.2d 477 (2014) (discussing ejusdem generis, the canon of statutory construction through which general words following a list of particular words are presumed to include only things of the same kind, character, and nature as those specifically enumerated). That said, if a judge wished to prohibit a probationer from possessing weapons like that, I think he or she probably could as a special condition of probation under G.S. 15A-1343(b1)(10), if the prohibition were reasonably related to the defendant’s rehabilitation.