New Restrictions on Citizen-Initiated Criminal Process

A colleague stopped into my office the other day to ask “did the General Assembly get rid of citizen-initiated warrants?” No, but it did make some significant changes to the procedure.

Background. As discussed in this prior post, North Carolina law allows judicial officials to issue criminal process — such as a criminal summons or a warrant for arrest — based on testimony from people who are not law enforcement officers. Our state isn’t completely unique in that regard, but we do seem to give citizens more power to start up the machinery of the criminal justice system than most states do. Allowing citizens to initiate criminal charges has good aspects, such as increasing access to the courts and reducing the burden on law enforcement, and bad aspects, such as the potential for abuse of the criminal process.

Legislative change. This session, the General Assembly passed S.L. 2017-176, one section of which amends G.S. 15A-304(b) — the arrest warrant statute — by adding a new subdivision (b)(2) as follows:

[A]n official shall only find probable cause based solely on information provided by a person who is not a sworn law enforcement officer if the information is provided by written affidavit. If the finding of probable cause . . . is based solely upon the written affidavit of a person who is not a sworn law enforcement officer, the issuing official shall not issue a warrant for arrest and instead shall issue a criminal summons, unless one of the following circumstances exists:

a.       There is corroborating testimony of the facts establishing probable cause from a sworn law enforcement officer or at least one disinterested witness.
b.         The official finds that obtaining investigation of the alleged offense by a law enforcement agency would constitute a substantial burden for the complainant.
c.         The official finds substantial evidence of one or more of the grounds listed in subdivision (1) of this subsection [which lists several considerations pertinent to whether to issue a summons or a warrant in cases initiated by an officer, including the defendant’s history of failing to appear, the defendant’s likelihood of flight, and whether the defendant poses an imminent danger].

Summing up the changes, the new law (1) requires citizens to put their complaints in written affidavits, and (2) encourages the issuance of a criminal summons rather than a warrant in most cases initiated by citizens.

I believe that the requirement of a written affidavit applies even when a citizen is seeking a criminal summons rather than an arrest warrant; although the requirement is set forth in G.S. 15A-304, which concerns arrest warrants, G.S. 15A-303, which concerns criminal summons, incorporates by reference the probable cause requirements of G.S. 15A-304.

Effective date. The new law takes effect December 1, 2017, for “warrants issued on or after that date.” The reference to “warrants” may be somewhat ironic in a bill that encourages the use of the criminal summons rather than the warrant for arrest. Presumably the intent is for the law to apply to all types of criminal process issued after December 1.

Likely impact. Some people would like to do away with citizen-initiated criminal process altogether. Certainly this legislation falls short of that, but the requirement of a written affidavit still strikes me as important. It may deter some citizens from bringing meritless charges because it will make it easier to prove criminal or civil liability for false statements. It may also deter some citizens from bringing meritorious charges because they are not able to express themselves clearly in writing or are not comfortable attempting to do so. I’m interested in readers’ thoughts about whether the net effect of the legislation is likely to be positive or negative, and what challenges there may be in the administration of the affidavit requirement.

19 thoughts on “New Restrictions on Citizen-Initiated Criminal Process”

  1. Cumberland County has had complainants write out their complaint for years now. It hasn’t really made a difference from a law enforcement perspective. The magistrates generally listen to the complaint and if they find merit in their story, they have the complainant complete a written form.

    In Cumberland County, citizen-initiated process effects law enforcement mainly by keeping us out of the “he said/she said” situations when there is no supporting evidence. It also helps weed out cases of little importance to the complainant, because it requires them to make the trip to the magistrate’s office in lieu of calling for a mobile clean-up crew aka law enforcement.

    However, the citizen-initiated process can be a burden on some because they have to appear in person. Going the magistrate’s office can mean nearly an hours drive depending on where you live in the county. For those without transportation, it can be impossible. We have the discretion to assist people and will if they show a real desire to prosecute and their complaint is of a relatively serious nature. But, at the end of the day, if they want to press misdemeanor charges so badly, they will find a way to get downtown.

  2. I am curious as to whether there will be a standard affidavit created or if each county will be creating their own.

  3. Thanks to NCAJ for lobbying for this change during the last days of the session. While I understand many folks have hoped this would happen for years, there were no other people down on Jones St. finding a sponsor, un-ruffling feathers, coordinating committee speakers, rallying votes and drafting the language of this bill at the end of June. Credit where credit is due.

    Many counties I work in haven’t previously required an affidavit and the Defendant has no way to challenge the claims that the Magistrate used to support a PC decision. The affidavit requirement will allow a defendant to see the claims and efficiently plan a defense. At the same time it will require a complainant’s claims to be consistent throughout the criminal process or suffer the consequences.

    I will note that the final legislative vote came mere hours after a high profile dismissal of claims made via citizens warrant.

    My personal thanks to those who voted yes and to Gov. Cooper.

  4. Would this change the way a process is issued for a domestic case? These are by far the ones with the most obvious abuse. People are wise to the fact that the right lie is going to cost someone at least a night in jail, if not longer.

    So, let’s say a woman comes in to the magistrates office and issues a properly sworn statement that her boyfriend, ‘told me he would beat my ass,” then he left. This is a case where the magistrate would typically issue a Warrant for Arrest for communicating threats and that process would include a domestic hold. Now, if all we have is that same set of facts with the new law, how do the original domestic protection statutes apply with the new legislation?

    If it does not apply to domestic charges, the law has a much smaller impact. Non-domestic charges are probably less than half the private complaints that come through my office. Admittedly, that could be skewed because of my shift.

  5. § 15A-534.1 apples to ” all cases in which the defendant is charged with [certain DV offenses]”… a judge must set the terms of pre-trial release. When you read it, it seems to presume / insinuate that all DV charges will be issued by warrant, but it doesn’t actually explicitly mandate that. Therefore, it seems to me that this new law is controlling, and that in the scenario Brett outlined the magistrates should be issuing a summons.

    There is a counter argument that the new G.S. 15A‑304(b)(e) (you can still issue a warrant if “a relevant statute provides that arrest is mandatory”) creates an exception for all DV cases because of 15a-534.1 makes arrest mandatory. But since a plain reading of 534.1 doesn’t actually say that arrest is mandatory, in my opinion, that would be a misinterpretation.

    I would also echo Brett’s point about effect of the legislation. In Guilford County at least, this is only likely to have a substantial effect if it applies to DV cases, since the standard MO for non-DV cases is a summons all ready.

    • In Guilford County the “standard MO” for all cases is a warrant. This went into effect when the police department disbanned the warrant squad several years ago. Short of sending a letter to the defendant, the police department does not actively attempt to serve summonses. Some officers do not know how to serve a summons from NCAWARE. At least if a warrant is outstanding, the officer must arrest.

      The PREFERRED MO has always been a summons. Typically, magistrates refer to GS 15A-304(b) and issue a warrant when the defendant is a flight risk, a danger to person or property, or the misdemeanor is of a serious nature. These are considerations that must be considered whether or not the charge is domestic. GS 15A-534.1 is not considered when determining what type of process to issue.

      Unless the PD miraculously trains the hundreds of officers on patrol to serve a summons in NCAWARE by December 1st, the only substantial change will be a rise in unserved papers.

  6. Now, our magistrates have determined that they are not going to give law enforcement warrants either and it is really causing us some issues here, not even for felonies! Absolutely ridiculous and is really causing us some issues here in Union County.

  7. This change is long overdue! My husband and I were falsely accused of various crimes by our neighbor and her tenant and after more than a year of court appearances, having us arrested, and many dollars in attorney fees, we were found innocent on all counts! Why did it take NC so long to make this change?

    • Hi, I am in a similar situation with a junky tenant in New Hanover County. Complete fantasy of course, but I find this bullshit statute unconstitutional. I’ve had to return to NC 3 times because the cops didn’t want to do their jobs … is why this #FUBAR law exists. Did you did file a civil rights action against the ‘magistrate’ as a prevailing party? Malicious prosecution … I head to court on January 28, 2018. I’ve lived on the coast for 7 years with no issues with anyone. However, I let evil into my life and the cops have provided him more legal protections than myself even as a taxpayer/property owner. Jeff

  8. I began reading this blog while enrolled at our local Community College for Paralegal Technologies. I have purposely trained my education towards ultimately being a magistrate to prevent these “probable cause” mishaps. I also applied to be a Guardian as Litem and was looking forward to helping out in this desperately understaffed area. I am now in total shock that a registered sex offender from another state has been able to present himself to a magistrate and secure a criminal summons against me for cyberstalking. Since when is it cyberstalking to email a children’s organization that one of their volunteers is a sex offender and should not be volunteering with them due to his status? Where is the probable cause that I “purposefully harassed” him? And where is the written complaint that is supposed to accompany the criminal summons? The “Citizen’s Warrant” was issued on December 8, 2017. A court date was set for 1/25/2018 and of course I wasn’t there because I was not served. Two LEO came to my home and gave me a new court date for yet another month out. No rights are read in this situation, yet I have lost the chance to attend the Guardian ad Litem training… and an understaffed program loses yet another volunteer.
    — Staff Sergeant Carolynn Wood, US Army (Ret.)

  9. The fact a person can go to magistrate office and straight out lie is NOT RIGHT AND NOT JUSTICE!It’s a form of revenge to a innocent person.
    I’m in Rockingham County, NC.Due to my in-laws and family war.I had not anything to do with. I got taste of Being accused of very serious charges .The defendant was high,as I pointed out to officer’s. Claimed I put gun to her head,after a argument. This was at convenience store .She was out if control,officer’s telling her if she didn’t shut up she was going to jail.She’s 2 time convicted felon .I never had any charges except traffic tickets. ALSO ,I HAD TO MAKE THE OFFICER’S SEARCH ME AND MY VEHICLE,for a gun that I knew I didn’t have.Officer did and said she can take warrant out on you,vice-versa. I’m 45yrs old and wasn’t aware this law.Was just shocked this is a law!As I go to magistrate office.She ahead of me.She by mouth told Magistrate I put gun to her head. On paper,the gun was held on my side.POINTING A GUN ,TO ME ,IS SERIOUS CHARGE!NOT MENTION NOT GOOD REPUPTION!Magistrate did not charge me with gun,because her stories was different.I even had this entire event recorded. He didn’t care look at it.He charged me with simple assault and communicating threats. She pushed car door back and it hit my leg.My spouse, insisted take warrant on her for simple assault. I DID.I’ve been 2 court dates.DEFENDANT HAS NOT CAME 1 TIME!EVEN ON CHARGES AGAINST HER.I go back court 25th.There’s order for her arrest.Ive spent numerous hours sitting in courtroom for NOTHING!I’M NOT PERSON THAT’S IN COURTROOM!
    Why is defendant in the cases that clearly lied,UNDER OATH,NOT CHARGED WITH PURGUARY???Because they willingly walk into magistrate office and LIE.THIS IS STRAIGHT RIDICULOUS AND WASTE OF LAW ENFORCEMENT TIME!

  10. Hello my name is mason white hyde el I am currently having my case reviewed by the us supreme court because magistrate David Theodore miller issued an arrest warrant in the absence of officer jerry Hartman submitting an affidavit /complaint
    On 4/20/2013. The m.a.r. was filed in 2016.
    The state knows I’ve discovered that criminal procedure wasn’t being followed and that criminal process had been illegally initiated.

  11. This Magistrate system here is not only archaic, but totally vulnerable to false complaints initiated by an angry party against another. This is especially true in “alleged” domestic violence cases where no physical violence is alleged and the allegation(s) is/are a misdemeanor and simply LABELED domestic violence due to a current or past relationship between the parties. This “Southern Justice” is riddled with opportunity for abuse from not only a complaining party, but by possibly corrupt officials acting in the Magistrates capacity. The ABSOLUTE maximum action that should be allowed in ANY Misdemeanor action, is the issuance of a criminal SUMMONS and for sure not a WARRANT as in cases marked as domestic violence a “Defendant” guilty or not guilty but not yet adjudicated guilty can be forced to spend (48) hours in jail before being allowed to bond out. The entire magistrates system needs to be immediately eliminated. Police officials should be the only parties allowed to file criminal charges as in MOST cases if honest, they are a true disinterested third party and usually would not attempt to file charges against some one out of spite or for revenge. People are arrested and subjected to jail and the dangers therin and risk a criminal record for what is in MANY cases just a false complaint for revenge

    • What makes the magistrate system more of a joke is in iredell the trend is to appoint retired police officers as magistrates. Retired police don’t give up their law enforcement certification it remains active but banked. How is a magistrate to be neutral when he is issuing warrants for his old buddies he used to work with and still drinks beer with at the local FOP?

  12. I too am shocked that I went to the local madistrate presented my concerns/complaint. The individual was arrested, as soon as she was released, she took out charges on me. What evidence she had to show I do not fully know. I charged her with harassing phone calls. For which i had sufficient evidence. How in the world did she bond out and then accuse me? How in the world would a magistrate in good standing do that? I now have a court date of my own. There is no justice. People that truly are good citizens and bother no one are lied on. Is there anything that makes sense? and can I inform anyone about this wrong practice?


  13. I am very glad that this atleast began the process of doing away with abuse of the system by warrantless claims. You have no idea how many people’s lives I have seen ruined by vindictive girlfriends/boyfriends or other dirty people that are able to take out warrants, with no evidence, at their leisure and then not have to show up in court either. They know that just the charges on someone’s record, meritless or not, basically ruins a future. This must be stopped. This didn’t exactly do much but it’s a start, we need to go further.

  14. I am very glad that this atleast began the process of doing away with abuse of the system by warrantless claims. You have no idea how many people’s lives I have seen ruined by vindictive girlfriends/boyfriends or other dirty people that are able to take out warrants, with no evidence, at their leisure and then not have to show up in court either. They know that just the charges on someone’s record, meritless or not, basically ruins a future. This must be stopped. This didn’t exactly do much but it’s a start, we need to go further.


Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.