North Carolina’s law governing the disclosure and release of body-worn camera footage took center stage last spring following the shooting of Andrew Brown in Elizabeth City. John Rubin wrote here about litigation on that issue, noting that one prominent feature of the statutory scheme was that determining matters of disclosure and release “takes time.” This session, the General Assembly amended the rules governing disclosure of recordings that depict death or serious bodily injury to require (1) that a court determine whether a recording be disclosed; and (2) that the court make such a determination within seven business days of the filing of a disclosure petition. This post will review those changes.
Crimes and Elements
Delta-8 THC (and beyond)
Cannabis news abounds: Virginia legalized recreational marijuana for adults 21 and up this year; our General Assembly has been considering a medicinal marijuana bill (S.B. 711); the Court of Appeals recently acknowledged (but did not decide) that precedent on the odor of marijuana as probable cause and on visual identification of the substance “may need to be re-examined” in light of legal hemp. State v. Parker, ___ N.C. App. ___, 860 S.E.2d 21, 29 (2021) (more on those issues here). I will write about the still-evolving issues with marijuana prosecutions in the state again soon. Today, though, I want to focus delta-8 THC. What is it? Is it legal? If so, how? Turns out the first question is simpler than the rest.
New Requirement that Law Enforcement Officers Intervene and Report Excessive Use of Force
The North Carolina Task Force for Racial Equity in Criminal Justice recommended in a 2020 report that state and local law enforcement agencies enact policies requiring officers to intervene in and report about circumstances in which a law enforcement officer witnesses excessive use of force or abuse of a suspect or arrestee. The North Carolina Sheriff’s Association similarly recommended in a 2020 report that all law enforcement agencies and the North Carolina Law Enforcement Accreditation Program adopt a policy requiring an officer to intervene when necessary to prevent another officer from using excessive force and to report any such intervention. This session, the General Assembly imposed such duties as a matter of state law rather than agency policy. This post will discuss current statutory law governing officer’s use of force and recent amendments enacted by S.L. 2021-137 (H 536) and S.L. 2021-138 (S 300).
Are Fake COVID-19 Vaccination Cards a Crime?
Like a growing number of schools, hospitals, businesses, and other organizations around the country, UNC announced last week that all students and employees returning to campus would be required either to provide proof that they have been vaccinated against COVID-19 or agree to participate in weekly testing for the virus. For an update on other entities that are currently implementing similar mandates, their legal authority for taking such steps, and the status of some early court challenges to these measures, Jill Moore’s recent civil blog post on those topics is a great resource.
Rather than getting vaccinated or agreeing to be tested, some people have resorted to purchasing and submitting fake vaccination cards to their school or employer. Organizations like UNC have their own disciplinary procedures to address this kind of noncompliance or fraud, but I’ve had several people ask me recently whether it’s also a crime to possess or use one of these fake cards under North Carolina law, and if so what’s the offense?
New Publication on Computer Crimes
I’m happy to announce that I recently finished an Administration of Justice Bulletin about computer-related crimes. It is a substantial expansion of my recent blog posts on the subject, providing an overview of how the statutes have been applied and some criminal scenarios that may fall within their purview. The bulletin is available here as … Read more
New Criminal Provision Prohibiting the Possession of Skimming Devices
The North Carolina legislature recently passed S.L. 2021-68 which amends the existing financial transaction card theft statute to include knowingly possessing, selling, or delivering a skimming device.
Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense
Nearly 15 years ago, the General Assembly created the misdemeanor offense of failing to appear for two years for an implied consent offense. See S.L. 2006-253 (enacting new G.S. 20-28(a3), effective for offenses committed on or after December 1, 2006). The new provision was proposed by the Governor’s Task Force on Driving While Impaired in order to impose special sanctions for a person who fails to appear in court for this particular kind of motor vehicle offense. Those sanctions include driver’s license revocation for a person convicted of a violation of G.S. 20-28(a3)(2).
In the early years after the statute was enacted, there were many questions about which offenses it applied to. Offenses charged before December 1, 2004 for which the person had already failed to appear for two years before the statute’s effective date? Arguably not, for ex post facto reasons, as Jeff opined here. What about offenses charged a bit later for which the defendant already had failed to appear before December 1, 2006? Perhaps not, given the presumption of prospective application, as I wrote here. More recently questions have arisen about how to calculate the two-year statute of limitations for such an offense. Suppose, for example, a defendant was charged with DWI on January 1, 2017. The defendant failed to appear in court. On June 2, 2021, the State charged the defendant with failure to appear for two years after being charged with an implied consent offense. Does the two-year statute of limitations in G.S. 15-1 bar the prosecution?
Incompetent Wards and the Sex Offender Registry
I received an interesting question recently when I taught about the intersection of criminal defense and Chapter 35A incompetency. Suppose a person is adjudicated incompetent in a Chapter 35A proceeding and a guardian is appointed. Suppose that same person had been convicted of a crime requiring registration as a sex offender and compliance with the other obligations of Chapter 14, Article 27A. The person is required to register changes to their address (including providing notice to law enforcement of an intention to move out-of-state), to their academic and employment status, and to notify the State of changes to their name or online identifiers, including e-mail addresses. G.S. 14-208.7; G.S. 14-208.9. What effect does declaration of incompetency have on these registration requirements? Who is responsible for ensuring that the incompetent adult complies with these registration obligations—the adult or their guardian?
An Introduction to North Carolina Computer Crimes
By now, we’re all aware of last week’s crisis that caused people to hurry to the pumps and fill up on gas. If not, here’s the news: a hacker group launched a ransomware attack on Colonial Pipeline, a company that operates pipelines for gasoline, causing shortages of gas and panic buying on the east coast. Most likely, any criminal action against the group will happen at the federal level, but this post highlights relevant North Carolina laws that could apply if this or any similar acts are prosecuted within this jurisdiction.
Online Impersonation
Loading ...If you haven’t, Catfish is a TV show that uncovers stories of online romantic relationships in which one person is involved with (and has usually sent money to) another person they have never seen. Some of the “couples” will have communicated online for several months without having ever seen one another, and the investigation usually reveals that the person on the other end was not who they claimed to be.
The show gave rise to the popular term “catfish,” which Merriam-Webster defines as the act of deceiving someone by creating a false personal profile online. Though it may be the most common, catfishing is merely one form of online impersonation. While many people may find it entertaining, catfishing and other methods of online impersonation can come with serious consequences.