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.
What is the new law?
S 20 enacts a new misdemeanor crime of domestic violence, codified as G.S. 14-32.5. Under this new law, a person is guilty of a Class A1 misdemeanor if that person uses or attempts to use physical force, or threatens the use of a deadly weapon, against another person. The person who commits the offense must have one of the following relationships with the victim:
- A current or former spouse, parent, or guardian of the victim.
- A person with whom the victim shares a child in common.
- A person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian.
- A person similarly situated to a spouse, parent, or guardian of the victim.
- A person who has a current or recent former dating relationship with the victim.
This language tracks that of the federal law defining a misdemeanor crime of domestic violence. 18 U.S.C. 921(a)(33).
The relationships listed under G.S. 14-32.5 vary from and may be treated differently than those in and G.S. 15A-534.1 and G.S. 50B. I will explore this topic more in a future post.
Isn’t there already a law for that?
There has been some question as to the utility of the new law, especially because the conduct it prohibits seem to be already covered by existing and frequently charged statutes. For example, assault with a deadly weapon under G.S. 14-33(c)(1) would cover the conduct contemplated by the new statutes.
Additionally, G.S. 14-33(c) contains the limiting language that the enumerated conduct constitutes an A1 misdemeanor unless the conduct is covered under some other provision of law providing greater punishment. This provision has normally been interpreted to mean that if a greater offense is charged, a defendant may not also be punished for a lesser offense for the same conduct. See State v. Williams, 201 N.C. App. 161, 173 (2009) (“the language ‘unless the conduct is covered under some other provision of law providing greater punishment’ indicated legislative intent to punish certain offenses at a certain level, but that if the same conduct was punishable under a different statute carrying a higher penalty, defendant could only be sentenced for that higher offense”). There is an open question as to whether this limiting language applies to offenses that carry the same punishment, like assault with a deadly weapon under G.S. 14-33(c)(1), for example, and misdemeanor domestic violence. Under the usual interpretation, a defendant charged with both assault offenses could be sentenced for only one, unless there has been a distinct interruption in the act sufficient to constitute two separate assaults.
The new law will also expand the list of people who could be charged with Class A1 misdemeanors for acts of simple assault (a Class 2 misdemeanor). Consider a man and a woman in a dating relationship, who have each been arrested for assaulting the other. Under current law, the man would be charged with assault on a female, a Class A1 misdemeanor, while the woman would be charged with simple assault. They both could be charged under the new law and punished at the same level for the similar acts. This application also extends to other similarly situated parties, including couples in same-sex relationships.
Why does the new law matter?
The most likely answer is that the General Assembly wanted to create an offense that would count for purposes of the federal gun disqualification. My colleague, Jeff Welty, blogged about this issue several years ago. To start, note that it is a federal crime under 18 U.S.C. 922(g)(9) for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a gun.
Vinson, the Fourth Circuit case.
In 2015, the Fourth Circuit ruled in United States v. Vinson, 805 F.3d 120 (4th Cir. 2015) that North Carolina misdemeanor assault convictions aren’t considered misdemeanor crimes of domestic violence within the meaning of the federal statute. The court ruled that a man with a previous North Carolina domestic violence conviction for assault on a female had not been convicted of a “misdemeanor crime of domestic violence.” The court reasoned that the phrase “use of physical force” in 18 U.S.C. 921(a)(33) means the intentional use of physical force. The court further reasoned that North Carolina allows assault convictions that can be based on “culpable negligence” rather than intent, and consequently North Carolina assault convictions do not require, “as an element,” the “use of physical force.”
More plainly stated, under Vinson, because North Carolina assault convictions don’t require intent as an element, they aren’t “misdemeanor crimes of domestic violence” and thus don’t count for purposes of the federal gun disqualification.
Voisine, the Supreme Court case.
In 2016, the United States Supreme Court decided Voisine v. United States, 579 U.S. 686 (2016). Voisine involved two defendants who had previous domestic violence assault convictions in Maine. Under Maine law, an assault may be committed by intentionally, knowingly, or recklessly causing injury to another. Each defendant subsequently possessed a firearm and was charged in federal court with violating 18 U.S.C. § 922(g)(9). Declining the opportunity to declare that any domestic violence assault conviction involving force qualifies as a misdemeanor crime of domestic violence, regardless of the specific mens rea required by the assault statute, the Court ruled more narrowly that reckless assaults may qualify as misdemeanor crimes of domestic violence. It also stated, in dicta, that the “use” of force is not limited to the intentional use of force.
Even so, while Voisine may have cast some doubt on Vinson, it did not clearly overrule it. Thus, the Fourth Circuit’s ruling in Vinson remained and remains unbothered, meaning that North Carolina assault convictions don’t count for purposes of the federal gun disqualification.
How does the new law fit?
With the Vinson court’s ruling still intact, the new misdemeanor crime under G.S. 14-32.5 was written to closely track the language of the federal statute. Although the new offense doesn’t clearly state a mens rea, it will likely be interpreted to mean the intentional use of physical force as in Vinson and will presumably be the only North Carolina misdemeanor assault offense that would count for the federal gun disqualification under 18 U.S.C. 922(g)(9). My best guess is that once the new law takes effect on December 1, 2023, officers, magistrates, and prosecutors will begin charging this offense rather than the other misdemeanor assault offenses in domestic violence cases. Maybe then, it will be less questionable whether those defendants have lawful access to firearms after conviction.
I welcome your thoughts. If you have any questions about this offense or its application, please feel free to email me at bwilliams@sog.unc.edu.