For several years now, it has been an open question in North Carolina whether a justification defense to possession of firearm by felon is available. John Rubin blogged about the issue back in 2016, here. Our courts have assumed without deciding that the defense might apply in several cases but have never squarely held the defense was available, finding instead in each previous case that defendants didn’t meet the admittedly rigorous standards for the defense. This month, the Court of Appeals unanimously decided the issue in favor of the defendant. In State v. Mercer, ___ N.C. App. ___ (August 7, 2018), the court found prejudicial error in the trial judge’s refusal to instruct the jury on justification in a firearm by felon case and granted a new trial. Read on for more details.
Defense of Justification. As John wrote, the leading case on the defense is U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), which is referenced in the pattern jury instruction for possession of firearm by felon. N.C.P.I-Crim. 254A.11, n.7. That footnote quotes State v. Edwards, 239 N.C. App. 391 (2015):
The test set out in Deleveaux requires a criminal defendant to produce evidence of the following to be entitled to an instruction on justification as a defense to a charge of possession of firearm by felon: (1) that the defendant was under unlawful and present, imminent and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Edwards at 393-94.
At least 11 federal circuit courts have recognized the defense, including the Fourth Circuit. See, e.g., U.S. v. Mooney, 497 F.3d 397 (4th Cir. 2007). North Carolina now joins them. So what was different about Mercer?
State’s Evidence. The facts of the case were, perhaps unsurprisingly, a little messy—beyond the numerous witnesses and parties involved in the fracas, there are mysterious references to “Shoe” and “the candy man” in the opinion. The State’s evidence tended to show that the defendant’s cousin, Wardell, got into an altercation with a Mr. Mingo regarding a missing phone. Mingo lived in the neighborhood near the defendant’s home. The next day, Wardell (along with another man, according to Mingo) engaged in a fight with Mingo while he was on his way to see “the candy man”. Within a few minutes of the fight, Mingo contacted various family members about the incident. A group of around fifteen family members (including Mingo) then walked to the defendant’s home where Wardell was visiting, with the intention of fighting Wardell. The defendant and Wardell pulled into the driveway as the crowd was arriving, and the defendant got out of the car with a gun in his waistband. The group insisted on fighting despite seeing the defendant’s gun, and the defendant fired shots over the crowd’s head. Mingo ultimately acknowledged that at least two people in his group also had guns and shot at the defendant. The altercation came to an end without anyone being injured. The Mingo family members left and contacted the police, resulting in the defendant being charged with two counts of assault with a deadly weapon with intent to kill and one count of possession of firearm by felon.
Defendant’s Evidence. The defendant’s mother testified about the earlier fight between Wardell and Mingo. According to her, that first fight was only between those two men and did not involve a third person. She added that Mingo left that incident threatening to “get his brothers . . . and kill [Wardell].” Mercer slip op. at 6. She later heard a disturbance outside of her home and came out to discover the crowd of Mingo family members “basically ambushing her son.” Id. She saw that Mingo’s brother had a gun, and the defendant also had a gun. Mingo’s mother was encouraging her son to shoot the defendant, and the defendant’s mother tried to get in between her son and the armed person in the Mingo crowd. That person fired their gun towards the defendant, and Mingo’s mother also later fired a gun at him.
The defendant took the stand and testified that, upon his arrival at home and seeing the crowd, he tried to explain that he had no role in the earlier fight between Wardell and Mingo, but “the group kept approaching the defendant, stating they were ‘done talking.’” Id. at 7. The defendant saw at least three guns among the Mingo group. Wardell pulled out a gun, and the defendant heard people in the crowd “cocking their guns.” The defendant then told Wardell to give him the gun because Wardell “didn’t know what he was doing [with the gun].” Id. The defendant acknowledged on the stand that he knew he was a felon and therefore unable to lawfully possess a firearm, but explained he only did so out of a fear of injury or death to himself or his family members: “So at that time, my mother being out there . . . I would rather make sure we [are] alive versus my little cousin making sure, who was struggling with the gun.” Id. He repeatedly tried to get the crowd to back away to no avail, and someone shot in the Mingo group shot at “Shoe” (apparently a person in the defendant’s group). He further testified that shots were fired at him, but he couldn’t determine from whom. The defendant claimed he only fired his gun once, after a Mingo group member fired at him as he fled across the street. The gun malfunctioned after that shot, so he tossed the gun back to his cousin and ran home. The defendant turned himself in to the police the next day.
Jury Instructions at Trial. The defendant requested an instruction in writing on the justification defense for the firearm charge before the charge conference. The trial judge agreed to instruct the jury on self-defense as to the assaults, but refused to give the justification instruction, over the defendant’s objection. During deliberations, the jury sent the judge a note specifically asking about whether possession of a firearm by a felon could ever be justified. The trial judge declined to answer the question directly and instead repeated the instructions on firearm by felon and reasonable doubt. The jury acquitted the defendant of both assaults but convicted on firearm by felon. The defendant appealed, arguing that his evidence, taken in the light most favorable to the defendant, supported his proposed justification instruction.
Mercer Opinion. The opinion begins by acknowledging the Deleveaux opinion and the state of the law in North Carolina regarding the defense. John’s post summarizes most of those earlier cases so I won’t rehash them here, but suffice it to say the court distinguished the defendant’s situation in Mercer from the previous cases. The court agreed that there was an imminent threat of death or serious bodily injury—the defendant only possessed the gun once he heard other guns being cocked and saw “[Wardell] struggling with the gun.” Id. at 13. While not specifically discussed in the opinion, the large crowd determined to fight at the defendant’s home likely also helped to establish an imminent threat. The defendant didn’t recklessly or negligently place himself in the situation—the situation was unfolding as he arrived in his driveway, only to meet a large crowd (with at least some in the crowd armed) ready to fight. The defendant repeatedly tried to talk to the crowd and calm things down, and only grabbed the gun from his cousin when it was clear that talk wasn’t working—thus, there was no reasonable alternative to his act of possessing the weapon. Put another way, it was unforeseeable that the act of pulling up in the driveway of his own home would create a need to engage in criminal activity, and the defendant didn’t have other realistic options at that point to defending himself with the weapon. Finally, the causal relationship between the crime of possessing the weapon and the avoidance of the threatened harm was met—the defendant only possessed the gun once the situation became extremely serious (i.e., guns being cocked) and gave the gun back to his cousin as soon as he got away from the situation. The harm avoided was death or serious injury to himself and his family members by the Mingo crowd, and the defendant possessed the weapon no longer (or sooner) than was necessary to deal with the situation.
The State focused on the defendant’s alleged reasonable alternatives. The defendant had a cell phone and could have called 911, they argued, or he could have fled the scene sooner—he had alternatives to grabbing the gun. The court rejected this argument, citing to the defendant’s brief: “[O]nce guns were cocked, time for the State’s two alternative courses of action—calling 911 or running away—had passed.” Id. at 14.
To be clear, the opinion doesn’t say that the possession of the firearm was justified in this case. Rather, it was a question for the jury to resolve “after appropriate instruction.” Id. at 14. The fact they were not so instructed was error. The court had no difficulty concluding that this error was prejudicial. For one, the defendant was acquitted of the assault charges, presumably on the basis of self-defense. For another, the jury specifically asked the trial judge about a justification defense. This, the court held, strongly suggested that there was a reasonable probability of a different result at trial had the jury received the justification instruction. Id. at 15-16.
Impact of Mercer. Justification for firearm by felon is now here, at least with the right set of facts. Beyond that, Mercer raises another interesting point: how should this defense work with self-defense or defense of others? In another recent post, John talked about the felony disqualification in the self-defense statutes. See G.S. 14-51.4 (self-defense not available to one committing a felony). In State v. Crump, ___ N.C. App. ___, 815 S.E.2d 415 (April 17, 2018), the Court of Appeals took a strict interpretation, indicating that one engaged in contemporaneous felony conduct loses the right to self-defense, regardless of any causal connection between the felony and defensive act—that is, one is disqualified by any felony being committed at the time of the defensive act, whether or not the felony was related to the need to act defensively, and without regard to whether the felony involved violent force or serious risk of death or physical harm. Mercer suggests, however, that the disqualification doesn’t apply where the defendant has a defense to the underlying felony. The parties in Mercer agreed on the self-defense instructions, and the felony disqualification apparently wasn’t argued. A lot potentially turns on that point though. Would a defendant previously convicted of a felony always lose the right to self-defense if he picks up a gun? Or would an act excused by justification overcome the disqualification? The latter view has greater appeal as matter of logic and fairness and seems in line with the holding in Mercer: if a jury finds that a person previously convicted of a felony is justified in possessing a weapon, the possession would not constitute a felony and therefore would not disqualify the person from acting in defending himself and his family. The scenario isn’t just a thought experiment. In Crump, the court of appeals stated that the defendant stipulated to being a felon in possession and held that he was disqualified from a self-defense instruction on that basis (although the jury in Crump was still instructed on self-defense). [As an aside, a petition for discretionary review has been filed in the N.C. Supreme Court in Crump]. When the facts are contested or support a justification defense to what otherwise may be a disqualifying felony, the jury would seem to have to decide the issue.
Perhaps the trickier question is whether a defendant who doesn’t meet the strict standards for a justification instruction always loses the right to defend him or herself or others in all cases. It isn’t difficult to imagine a situation where the defendant might not meet the standard for justification (and thus is contemporaneously committing a felony), but the use of defensive force was still necessary to protect life and the requirements of self-defense were otherwise met. Or even more broadly, what about when a defendant contemporaneously commits a felony (any felony) completely unrelated to the need for self-defense? Is there a due process limit on the disqualification in that scenario? And does the disqualification apply to both statutory and common law self-defense? Mercer perhaps raises more questions than it answers in this regard.
Moving on to procedure, when deciding the case, should the jury first have to determine whether or not the possession of the weapon was justified before they are instructed on self-defense? Or, would the question of justification be part of the larger self-defense instructions? If the former, a special verdict form might be useful. We’ll have to wait for additional cases to see how justification works in other circumstances. If you have thoughts on Mercer, justification, or self-defense (or the Charlotte candy man), post a comment and let me know.