New Restrictions on Citizen-Initiated Criminal Process

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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.

7 comments 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. It is INDEED ABOUT TIME******

  6. § 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.

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