On June 21, the Supreme Court decided a highly-anticipated Second Amendment case. In United States v. Rahimi, 602 U.S. __ (2024), the Court considered a facial challenge to 18 U.S.C. § 922(g)(8), which makes it a felony for people subject to certain domestic violence protective orders to possess firearms. Rahimi was the Court’s first opportunity to apply the revolutionary history-focused approach to Second Amendment analysis it announced in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In an 8-1 decision, with Chief Justice Roberts writing for the majority, the Court upheld the challenged statute. Several Justices wrote significant concurrences while Justice Thomas, the author of Bruen, dissented. This post summarizes Rahimi, considers whether the case amounts to a retreat from Bruen, and addresses Rahimi’s applicability to North Carolina DVPOs. The post also considers the implications of Rahimi on pending Second Amendment cases, including those challenging felon disqualification.
Crimes and Elements
Bruen Comes to North Carolina
My colleague Jeff Welty has covered the U.S. Supreme Court’s decision in New York Rife and Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), and subsequent lower court cases several times before on the blog. Under Bruen, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Id. at 17. To overcome this presumptive protection, “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 19. If the government fails to come forward with evidence showing the challenged rule is consistent with “the Nation’s historical tradition of firearm regulation,” the rule is unconstitutional under the Second Amendment. Id. at 24.
The Court of Appeals recently applied that rule in the context of G.S. 14-269.2, North Carolina’s law prohibiting possession of weapons on educational property. In State v. Radomski, COA23-340; ___ N.C. App. ___ (May 21, 2024); temp. stay allowed, ___ N.C. ___ (June 7, 2024), a unanimous panel held that the law was unconstitutional as applied to the defendant on the facts of the case. This is the first successful Bruen challenge to a state criminal law. Today’s post examines the holding and implications of the decision, and offers suggestions to defenders on how to raise, litigate, and preserve such claims.
Grant’s Pass, Homelessness, and the Constitutionality of Anti-Sleeping and Anti-Camping Ordinances
Homelessness is a challenging problem. Some cities have attempted to address it, in part, by prohibiting sleeping or camping in public places. The Supreme Court of the United States is currently considering whether, and under what circumstances, such ordinances are constitutional. I recently listened to the oral arguments in the case. Those who are currently litigating violations of anti-sleeping or anti-camping ordinances may be interested in this summary of the issues, as may those responsible for shaping municipal policy.
Spring 2024 Cannabis Update (Part II)
In Part I of my Spring 2024 cannabis update, I discussed the search and seizure issues arising in North Carolina courts around cannabis. Part II explores drug identification evidence issues surrounding marijuana prosecutions and examines potential challenges defenders might raise. This post will also cover recent developments on the state, federal, and tribal levels impacting cannabis.
One Unbroken Chain of Events: The Doctrine of Continuous Transaction in State v. Jackson
Robbery is larceny from the person by violence or intimidation. The exact relationship between the taking and the violence is vexing. There is authority for the proposition that the use of force must be such as to induce the victim to part with the property. State v. Richardson, 308 N.C. 470, 476, 302 S.E.2d 799, 803 (1983). A recent opinion of the Court of Appeals reminds us, however, that the violence need not coincide with the taking when there is a continuous transaction. See State v. Jackson, No. COA23-636, 2024 WL 1172327 (N.C. Ct. App. Mar. 19, 2024). In such cases, the evidence may support a conviction for robbery, even if the victim is incapacitated, unconscious, or dead. This post explores the doctrine of continuous transaction.
Recordings by Government Officials
This post is co-authored with SOG faculty member Kristina Wilson and is cross-posted to the Coates’ Canons blog.
When and how can state and local government officials and employees record government meetings or their interactions with citizens? Does it matter if the recording is done openly or secretly? Recording may be tempting, particularly where there is a controversial matter at issue. The ability to record can be a useful tool, but there are several laws that government actors need to know if they want to use this tool legally and effectively. This post focuses on the issues surrounding government officials and employees recording oral communications outside of the law enforcement context. A later post will examine the issues surrounding video recording.
Within the Four Corners: Scouring Indictments for Missing Elements in State v. Jackson and State v. Coffey.
Two recent opinions from the Court of Appeals illustrate the remarkable controversy currently underway over the specificity required of indictments. In State v. Coffey, No. COA22-883, 2024 WL 675881 (N.C. Ct. App. Feb. 20, 2024), our Court of Appeals ruled an indictment for felony obstruction of justice was facially defective for failure to allege an essential element of the offense: the purpose of hindering or impeding a judicial or official proceeding or investigation. By contrast, in State v. Jackson, No. COA22-280, 2024 WL 925480 (N.C. Ct. App. Mar. 5, 2024), our Court of Appeals ruled an indictment for habitual misdemeanor assault was sufficient though it failed explicitly to allege an element: causing physical injury. This post attempts to reconcile the divergent analytical approaches taken in Coffey and Jackson.
The Surest Point of All the Law: Evolving Standards in State v. Lancaster
Reminiscent of the Wars of the Roses, our Supreme Court’s recent opinion in State v. Lancaster, __ N.C. __, 895 S.E.2d 337 (2023), concerns an offense first codified in 1328 during the reign of Edward III. The common law crime of going armed to the terror of the public, our Supreme Court there held, does not require allegation or proof that the conduct occurred on a public highway; hence, there was no facial defect in an indictment omitting this putative element. Other elements not explicitly stated in the same indictment – for the purpose of terrifying, in a manner that would naturally terrify – were “clearly inferable.” This post examines Lancaster to ascertain the direction of our Supreme Court’s avowed retreat from archaic pleading requirements.
Is Force an Element of Forcible Rape?
The answer would seem to be obvious. A person is guilty of forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person. N.C.G.S. §§ 14-27.21 (first-degree); 14-27.22 (second-degree). Our Supreme Court has, at least once, found insufficient evidence of “the element of force” and reversed a rape conviction on that basis. See State v. Alston, 310 N.C. 399, 408, 312 S.E.2d 470, 476 (1984). Our Supreme Court recently held, however, that a juvenile petition for sexual battery was not defective for failure to allege force. “[O]ne cannot engage in nonconsensual sexual contact,” the Court said, “without the application of some ‘force,’ however slight.” In the Matter of J.U., 384 N.C. 618, 625, 887 S.E.2d 859, 864 (2023). The requisite force, in other words, is inherent in the act. The significance of that holding transcends its context: juvenile petitions are held to the same standards as indictments, which generally must allege all the elements, and misdemeanor sexual battery is statutorily defined using the same terms as forcible rape. This post examines the element of force in cases of rape.
State v. Calderon Refines Analysis of When Acts Support Multiple Counts of Indecent Liberties
A recent court of appeals case, State v. Calderon, ___ N.C. App. ___ (2023), sets forth a new test for determining whether multiple acts of touching a child during a single encounter can support multiple counts of indecent liberties.