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?
Crimes and Elements
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.
Does the First Amendment Protect a Right to Verbally Abuse the Police?
Editor’s note: This post contains vulgar language that isn’t suitable for children and quite possibly many adults. If you’re an email subscriber, your spam filter probably won’t like it, either. Also, it is quite long.
A federal court of appeals recently ruled in favor of a man who called a group of police officers “bitch ass fucking pigs,” “motherfuckers,” and “dirty rat bastards.” It found that his arrest on disorderly conduct charges was unjustified because “mere epithets” directed at a law enforcement officer, no matter how coarse or profane, do not constitute fighting words and are protected by the First Amendment. Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022). This raises the question: do police officers really have to put up with this?
Additions and Amendments to Organized Retail Theft Laws
The North Carolina General Assembly recently passed S.L. 2022-30 (S 766) which increases the penalties for organized retail theft, provides additional penalties for damage to property or assault of a person during the commission of organized retail theft, and clarifies the procedure for the return of seized property to the lawful owner. The new criminal provisions go into effect on December 1, 2022 and apply to offenses committed on or after that date.
Abortion and North Carolina Criminal Law after Dobbs
I was born the year before the Supreme Court decided Roe v. Wade, 410 U.S. 113 (1973). Abortion has been a constitutionally protected right very nearly my whole life, so I’ve never needed to examine the issue through the lens of criminal law. That has changed as a result of Dobbs v. Jackson Women’s Health Organization, 597 U.S. __ (2022), which overruled Roe. This post identifies some of the issues that may arise under North Carolina criminal law in a post-Roe world.
Arson Law Revisions
The North Carolina General Assembly recently passed S.L. 2022-8 which makes various changes to the existing arson laws. The new criminal provisions go into effect on December 1, 2022 and apply to offenses committed on or after that date. The law includes a savings clause which provides that prosecutions for offenses committed before the effective date are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.
Disturbing Behavior, Harassment and Threats to Public Employees
Editor’s Note: This post has been updated in response to helpful feedback from a reader.
A few weeks ago, my colleague Jill Moore asked me to participate in a recorded interview addressing whether certain disturbing or threatening behavior from citizens directed at public officials and employees could support criminal prosecution. Jill is an expert in public health law so the questions she posed related primarily to concerns raised by officials and employees who work in that field. More recently, another colleague advised that social services employees had similar questions. I thought it might be helpful to share here my thoughts on the questions they posed.
Witness Intimidation
I am an avid watcher of television legal dramas—although I can’t say whether that is because of or in spite of my profession. Even so, it is easy for me to pick up on the unrealistic portions of those shows: the ease of gathering evidence, the speed with which perpetrators are caught, the overall swiftness of the trial—the entire process usually being completed within 45 minutes. I also tend to pick up on some of the more realistic, practical aspects of the shows: the differing types of offenses, the potential constitutional issues that may arise, and the corollary offenses that attach during the process.
One of the most common and possibly most overlooked corollary offenses is witness intimidation. The perpetrators almost always engage in some sort of interference but are rarely charged in the shows. That may be because there is already so much content to fit within a 45-minute time frame. But in real-world practice, it could also be because witness intimidation is not always as straightforward as one might think. This post analyzes North Carolina’s witness intimidation law as proscribed by G.S. 14-226, as well as other issues and nuances that may arise in this context.
New Resource on Injury for Assault and Other Offenses
I am excited to announce the release of a new guide on Defining “Injury” for North Carolina Assault and Other Offenses.