A non-lawyer might be forgiven for being somewhat confused by the rules governing indictments. The basics are summarized easily enough: a trial court’s jurisdiction depends on a facially valid indictment; an indictment is facially valid so long as it sufficiently alleges all the essential elements of the offense; and the essential elements consist of what the State must prove in order to obtain a conviction. But these basics are so pocked with exceptions, so piled with caveats, that few cases are resolved by reference to them alone. Our appellate courts have decided a few cases in the last several months which illustrate this complexity. This post attempts to provide a brief recurrence to fundamental principles applicable to indictments and to throw a lifeline to prosecutors who discover a potential defect during a trial. My colleagues have blogged pretty frequently about indictment issues, most recently Shea Denning addressing a recent opinion here.
Crimes and Elements
The Common Law is Dead; Long Live the Common Law!
In State v. McLymore, 380 N.C. 185, 868 S.E.2d 67 (2022), our Supreme Court held that Section 14‑51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions,” and “the only right to perfect self-defense available in North Carolina [is] the right provided by statute.” Id. at 191, 868 S.E.2d at 72-73. At the same time, it interpreted the felony disqualifier provision of Section 14-51.4 – consistently with “common law principles” – to require a causal nexus between the felony and the use of force. Id. at 197, 868 S.E.2d at 77. The common law is apparently not so easily dispensed with. This post – my first contribution to this forum – addresses the persistence of the common law in the area of self-defense. My colleague Phil Dixon provided color commentary on McLymore here. My colleague John Rubin discussed the felony disqualifier provision (and anticipated the holding in McLymore) here.
A Refresher on North Carolina’s Needle Exchange Law and Other Harm Reduction Immunities
In response to the opioid crisis, North Carolina passed several protections designed to alleviate some of the legal liability surrounding drug use in the interest of harm reduction and public health. One of those protections authorized needle exchange programs (alternatively known as safe syringes programs). G.S. 90-113.27. A recent study examined how the needle exchange program is working in seven North Carolina counties and found that the law was not consistently applied. Brandon Morrison et al., “They Don’t Go by the Law Around Here”: Law Enforcement Interactions After the Legalization of Syringe Services Programs in North Carolina, vol. 19, Harm Reduction Journal, 106 (Sept. 27, 2022). Considering the study’s findings, I thought a refresher on the immunity provisions for syringe exchanges and similar protections would be timely. Read on for the details.
Quick Post-Bruen Update on the Constitutionality of Gun Laws
Earlier this year, the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022), holding that New York could not constitutionally require residents to show a special need (beyond the general concerns about self-defense that any person might have) in order to obtain a permit to carry a handgun outside the home. I wrote a detailed summary of the case in this prior post. North Carolina doesn’t require any such showing, so the direct impact on our state was minimal.
However, Bruen’s holding arose from a new interpretive approach. The Court rejected the intermediate scrutiny test most lower tribunals had used when analyzing gun laws and replaced it with a historical analysis in which a limit on gun rights is constitutional only if it is “consistent with the Nation’s historical tradition of firearm regulation.” Lower courts have now begun to apply this framework to assess the constitutionality of various gun laws. The early returns suggest that Bruen’s impact may be substantial across a wide range of federal and state gun laws.
Fall 2022 Cannabis Update
It has not been long since my last cannabis update, but there are some interesting new developments to report, most notably on drug identification and marijuana. Read on for the details.
Exploring the Scope of North Carolina’s Strangulation Law
What do you typically think of when you hear the word “strangulation”? If you are like most people, the word probably triggers a mental image of hands around someone’s throat. Thinking forward to the aftereffects of strangulation, you might imagine bruises around a person’s neck, redness, scratches, or other visible signs of injury.
Although those are common results, it is not uncommon for a person to present with no external injuries after having been strangled. Rather, a person could potentially be suffering from serious internal injuries. If overlooked, internal injuries can result in severe or permanent conditions.
North Carolina’s strangulation law requires both that the perpetrator “strangle” the victim and inflict “physical injury.” This post explores the meaning of those elements, the potential issues that may arise in applying them, and the approach other jurisdictions take toward the crime of strangulation. The post closes with some observations about whether North Carolina’s current definition of strangulation adequately addresses the ways in which the crime may occur.
Is It Proper to Charge a Person with RDO for Refusing to Open the Door for a Search Warrant?
I was at the magistrates’ fall conference last week when a magistrate asked me whether an occupant of a dwelling could properly be charged with resisting, delaying, or obstructing a public officer (“RDO”) for declining to unlock and open the door for an officer executing a search warrant. At first I thought so, but later became less sure. So I decided to look into it and write about it here.
New Bulletin on Units of Prosecution
I’m happy to announce the publication of my new bulletin, Units of Prosecution: Charging Multiple Counts for the Same Conduct. The bulletin explores a common issue that arises in various contexts: when does conduct constitute one continuing offense and when does conduct constitute more than one offense?
Summer 2022 Cannabis Update
It’s been nearly a year since I’ve written about cannabis issues in the state. Many of the issues I’ve discussed here before remain unresolved, but there has been recent legislation and a new case impacting this area. This post examines the current state of the law on hemp and marijuana.
Determining Eligibility for Return of Guns
Lately I have received a number of questions relating to whether it is appropriate to return guns following a temporary firearms disqualification. The issue seems to arise most commonly when a domestic violence restraining order (“DVPO”) is issued under Chapter 50B of the North Carolina General Statutes, which requires the surrender of guns by a defendant in certain circumstances and allows the defendant to seek return of the guns following the expiration of the order and final disposition of any related criminal charges. See G.S. 50B-3.1.
The issue of returning guns could pop up in other circumstances involving the seizure or surrender of guns. An interplay of state and federal law determines whether a person is disqualified from possessing firearms, temporarily or permanently, and some of the wrinkles are counterintuitive. This post examines some of the most common grounds for disqualification and discusses some limits of state authority in this area. It’s long, but I hope readers find it useful.