The United States Supreme Court recently decided a case about what counts as a “misdemeanor crime of domestic violence” for purposes of the federal statute prohibiting individuals who have been convicted of such crimes from possessing firearms. I’ve had several questions about whether the ruling affects last year’s Fourth Circuit decision holding that North Carolina assaults generally don’t qualify as “misdemeanor crime[s] of domestic violence.” For the reasons set out below, I don’t think the Supreme Court case clearly overrules the Fourth Circuit’s decision.
Jeff Welty
Announcing Our New Podcast: Beyond the Bench
On behalf of the North Carolina Judicial College and the School of Government, I’m pleased to announce the launch of a new podcast about the court system. It’s called Beyond the Bench, and it is intended to be of interest to judges, lawyers, clerks, officers, and others who work in and around the court system. This post provides more detail about the project, but if you are ready to listen, you can get the podcast on the web here, or through the iTunes podcast store or on Stitcher.
One Case, Two Ways of Authenticating Video
Technologists tell us that we are in the age of ubiquitous video. It seems that almost everything is being recorded. Naturally, this means that more and more video recordings are being introduced in court. A recent decision by the court of appeals is a helpful reminder of the two primary methods of authenticating video.
One Phone Call
On TV and in the movies, arrestees are entitled to one phone call upon arrest. In real life, the situation is more complicated.
Cyberbullying Statute Struck Down
Last week, the state supreme court unanimously ruled that a provision of North Carolina’s cyberbullying statute, G.S. 14-458.1, “violates the First Amendment.” The case is State v. Bishop, and the opinion is here. I previously wrote here about the court of appeals ruling upholding the statute. This post summarizes the case and discusses the new opinion.
Fourth Circuit Reverses Graham: No Warrant Required for Historical Cell Site Location Information
Last year, a panel of the Fourth Circuit decided United States v. Graham, 796 F.3d 332 (4th Cir. 2015). The panel ruled that “the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical [cell site location information (CSLI)] for an extended period of time. . . . Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.” I discussed Graham here and here. Last week, the en banc Fourth Circuit reversed the panel, ruling that under the third-party doctrine, a cell phone subscriber has no reasonable expectation of privacy in historical cell site location information that he or she shares with a service provider, so it isn’t a Fourth Amendment “search” when law enforcement obtains such information, and a warrant isn’t required. The en banc opinion is here. This post discusses the opinion and considers the possibility of Supreme Court review or action by Congress.
May an Officer Assume a False Identity Online in Order to “Friend” a Suspect?
Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes.
Fourth Circuit: North Carolina Assaults Don’t Count as “Misdemeanor Crimes of Domestic Violence” for Purposes of Firearm Prohibition
It is a federal crime for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a gun. 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” means a misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” and that is committed by a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). Late last year, the Fourth Circuit ruled that North Carolina misdemeanor assault convictions generally don’t satisfy that definition.
Court of Appeals Finds Extension of Traffic Stop Unsupported by Reasonable Suspicion
Last week, the court of appeals decided State v. Bedient, a significant post-Rodriguez opinion on traffic stops. The court ruled that an officer lacked reasonable suspicion to extend a stop by a few seconds to ask the driver for consent to search. This post summarizes and analyzes the case.
Can the Police Compel You to Unlock Your Phone Using Your Fingerprint?
I’ve written before about whether a court may order a person to provide a password to a computer or a passcode to a phone to enable an officer to complete a lawful search, such as one pursuant to a search warrant. But passwords and passcodes are so old-fashioned. The cool kids are all using biometric data like fingerprints to secure their devices. So, may a person be required to unlock his or her device using a biometric identifier? Yes, said one court recently.