Law enforcement officers can’t cite every jaywalker, stop every speeder, and arrest every underage drinker, nor would most people want them to do so. Wisely exercising discretion is an important part of an officer’s work. At the same time, North Carolina has a statute that makes it a crime for an officer willfully to fail to discharge his or her duties. That statute has occasionally been used to prosecute officers who chose not to enforce criminal laws. This post considers the extent to which the statute constrains an officer’s discretion.
Jeff Welty
News Roundup
Hunter Biden has been the focus of journalistic, criminal, and political investigations for years as a result of questionable overseas business dealings and other alleged misconduct. Earlier this week, he apparently planned to put an end to his legal limbo by (1) pleading guilty in federal court to two misdemeanor counts of failure to pay taxes on over $1.5 million in income, and (2) entering into a two-year diversion agreement that would potentially result in his nonprosecution for a felony charge of possessing a firearm while being a drug user. The plea agreement also contained promises by the government not to prosecute Biden for certain other conduct and to recommend probation for the tax offenses. Although the prosecution was under the supervision of a Trump-appointed United States Attorney, critics saw the agreement as a sweetheart deal tainted by political interference. The Heritage Foundation and at least one member of Congress submitted filings to the court asking the judge not to accept the plea. And on Wednesday, Judge Maryellen Noreika did just that, expressing concern about the scope of the nonprosecution agreement and how Biden’s compliance with the deferral would be determined. The parties are apparently regrouping and attempting to reach a new agreement that the judge will accept. Meanwhile, Republicans in Congress are keen to hold hearings on the whole mess. Reuters has the basics here and CNN has some pertinent documents here. Keep reading for more news.
Illinois Supreme Court Upholds Legislative Abolition of Cash Bail
On my drive home yesterday, I heard a news story on the radio. The report indicated that the Illinois Supreme Court had just upheld a law completely eliminating financial conditions of release in the Prairie State – apparently making it the first state in the country to abolish cash bail. The story didn’t detail the legal arguments at issue in the case, or even who had challenged the law. Given the national interest in bail reform, I thought the Illinois case might be a harbinger of things to come elsewhere, so I looked into it. This post briefly summarizes what I learned.
United States v. Texas and Discretion in Arrest and Prosecution
The Supreme Court just concluded its Term with blockbuster decisions on affirmative action, free speech, and student loan forgiveness. But criminal law practitioners should be aware of a less-ballyhooed case that is significant for its broad pronouncements about the discretion of police and prosecutors. The case is United States v. Texas. This post summarizes the decision and places it in context of the ongoing national debate about discretionary decisions concerning arrest and prosecution.
News Roundup
I am embarrassed to admit that I enjoy the movies in the Fast & Furious franchise. I like exotic cars, which the films have in abundance. And there is something virtuous about Dominic Toretto, the character played by Vin Diesel. A downside of the series is that the films, particularly the early ones, glorify the spectacularly dangerous and irresponsible sport of street racing. Paul Walker, a star of the early movies, died while driving a Porsche at high speeds through the streets of Los Angeles. WRAL reports here that a bill moving quickly through the General Assembly targets street racing and street takeovers in North Carolina. Language has been added to S91 that would criminalize “operat[ing] a motor vehicle in a street takeover” or otherwise participating in or facilitating such an event. Drivers would be guilty of a Class A1 misdemeanor for a first offense and a Class H felony for later crimes. Vehicle seizure would also be possible under the law. Keep reading for more news.
Third Circuit Deems Federal Felon-in-Possession Law Unconstitutional
Earlier this month, the Third Circuit, sitting en banc, found the federal felon-in-possession statute unconstitutional as applied. The decision was based on the new interpretive approach announced in New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). The Third Circuit’s ruling is a massive decision that seems virtually certain to be reviewed by the Supreme Court. Keep reading for more details.
Does an Officer Who Receives a Giglio Letter Have a Right to a Name Clearing Hearing?
In my most recent post, I noted that a law enforcement officer who is fired will sometimes have a right to a “name clearing hearing” at which the officer may supply evidence contradicting negative information about the officer’s honesty or integrity that the agency released in connection with the officer’s termination. I ended that post by asking whether an officer who is fired in connection with a Giglio letter is entitled to such a hearing. Under most circumstances, the answer to that question is no. Keep reading for more details.
News Roundup
The General Assembly is working hard to fashion a budget for the upcoming biennium, but in the meantime, legislators are conducting other business. Of interest to this audience, H347, a bill that would legalize gambling on sports, appears to be very close to becoming law. Both chambers have passed the bill, but in slightly different versions that will need to be reconciled before final passage. Meanwhile, S3, a bill that would legalize medical marijuana, has passed the Senate and is working its way through House committees. Its fate in the House is uncertain but that is more than could be said in prior years, when similar measures have passed the Senate but have not received meaningful consideration in the House. Keep reading for more news.
News Roundup
There have been some bumps in the road in the rollout of eCourts, the new electronic platform the court system is using in a handful of pilot counties for filing and case management. Now WRAL reports that a class action lawsuit has been filed alleging that the system “is keeping people in jail longer than they should be, and led to hundreds of people being arrested for things they did not do.” For example, the plaintiffs contend that “a Wake County woman was arrested multiple times on the same warrant for charges that were dismissed by a judge.” The Administrative Office of the Courts is not a named defendant but stated in the article that it has “not substantiated that any allegations of wrongful arrest or incarceration was caused” by the new system. Keep reading for more news.
When a Law Enforcement Officer Is Fired, Is He or She Entitled to a Name Clearing Hearing?
Many, perhaps most, law enforcement officers in North Carolina are at will employees. As the saying goes, they may be fired for any reason or for no reason. But when such an officer is fired for malfeasance, and that reason is made public such that potential future employers may be aware of it, the officer may be entitled to a “name clearing hearing” at which he or she can dispute the basis for the termination.