Last month, the North Carolina General Assembly passed S.L. 2023-14 (S 20) which largely covers changes to abortion laws. Within this bill is also a newly defined “misdemeanor crime of domestic violence,” which takes effect for offenses committed on or after December 1, 2023. This post discusses the utility of the new offense and the implications that it may have on a defendant’s gun rights.
Crimes and Elements
Is NC’s Disorderly Conduct at Schools Statute Unconstitutionally Vague?
I started wondering about that question after reading a recent decision by the Fourth Circuit Court of Appeals, Carolina Youth Action Project v. Wilson, 60 F.4th 770 (4th Cir. 2023) (summarized here). There, the court struck down two South Carolina state laws aimed in large part at regulating conduct and speech in and around schools. Those laws are similar to our version of disorderly conduct by disrupting schools. This post examines the holding of Carolina Youth Action Project and its potential implications for North Carolina law.
Guilty Knowledge and the Possession of Controlled Substances
When a defendant is charged with a crime involving the possession of a controlled substance, what kind of knowledge or intent must the prosecution show? Must the state prove that the defendant knew that he or she possessed the substance? That the defendant knew that the substance was legally controlled? That the defendant knew the particular identity of the substance? Given the proliferation of controlled substances and the fact that many cannot be distinguished without laboratory equipment, these are important questions.
What is the Difference Between Voluntary and Involuntary Manslaughter?
It is sometimes said that the distinction between voluntary manslaughter, a Class D felony, and involuntary manslaughter, a Class F felony, is a matter of intent. Involuntary manslaughter is frequently described an unintentional killing. That description fails, however, to fully distinguish the offenses since voluntary manslaughter also may be based on a death that the defendant did not intend.
Indeed, unlawfully killing another with the specific intent to do so is murder rather than either type of manslaughter. So what makes some unlawful but unintentional killings voluntary manslaughter and others involuntary manslaughter? It is the intent associated with the underlying act (such as the assault that proximately caused the victim’s death) as well as the nature of that act (was it a felony or inherently dangerous versus simply culpably negligent) that makes the difference.
Consent Upon a Sure Foundation
Is lack of consent an element of burglary? This post arises from a conversation I had with a colleague who asserted that the homeowner’s consent could legitimize an entry that would otherwise constitute a burglary. Insofar as a defendant might introduce evidence at trial to establish a lawful entry, that’s certainly correct. But does the State affirmatively have to allege and prove a lack of consent? One of the nine common law felonies, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. 4 Bl. *224. North Carolina statute divides the crime into degrees – it’s first-degree if the home is occupied – but otherwise retains the common law definition. N.C.G.S. § 14-51. Whatever the State might now have to prove at trial to obtain a conviction, the common law elements did not explicitly include a lack of consent. This post explores the issue of consent in our criminal law and attempts to determine how consent operates to prove or disprove a burglary.
Spring 2023 Update on the Constitutionality of Gun Laws
Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue.
Possession of Khat
Readers may have heard of the plant commonly known as khat or qat (or Catha edulis, for the botanically inclined). The plant is indigenous to Africa and is popular in parts of that continent, as well as parts of the Middle East, and is commonly and legally used in some of those places. When the plant is ingested, it acts as a stimulant. As with more familiar stimulants, users tend to experience mild feelings of alertness and euphoria in smaller doses; larger doses can induce delusional thinking, mania, paranoia, and heart problems (among other potential harmful effects). Users typically ingest the plant by chewing its leaves. Exotic though it may be, the plant occasionally finds its way into North Carolina. I have heard anecdotal reports of its presence in Durham, and this recent story from WRAL News noted that it was found in Johnston County as a part of an unrelated investigation. This post examines state law on possession and distribution of khat. Read on for the details.
So Your Indictment May Be Flawed: What Now?
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.
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.