In a post here, I noted that under state law, counties, cities, towns, and metropolitan sewerage districts have authority to create crimes through local ordinances. This is a somewhat controversial issue. As I’ve noted, one of the arguments made in the national conversation about overcriminalization is that too many minor activities are made criminal and that it’s not efficient, effective, or fair to address this activity through the criminal justice system. It’s further asserted that many low-level crimes—such as panhandling and sleeping in public places—criminalize poverty and homelessness when those issues should be treated as social needs. In fact, at a panel discussion on overcriminalization at my recent NC Criminal Justice Summit, national and state experts from across the ideological spectrum weighed in on this issue, agreeing that creating a crime is a legislative function and should be done by state lawmakers, not local governments. Those panelists included Vikrant Reddy, Senior Fellow, Charles Koch Institute; Nathan Pysno, Director of Economic Crime and Procedural Justice, National Association of Criminal Defense Lawyers; Tarrah Callahan, Executive Director, Conservatives for Criminal Justice Reform; and Mary Pollard, Executive Director, North Carolina Prisoner Legal Services and President, North Carolina Advocates for Justice. The 240 state leaders and stakeholders who attended the Summit echoed that sentiment. During live, anonymous polling during the session, attendees weighed in on three consensus reform proposals formulated by the panelists to address overcriminalization in North Carolina. One of those proposals was: Repeal code provision allowing local governments and administrative boards and bodies to create crimes. 75.72% of attendees supported that proposal, with 26.59% supporting it with caveats; 19.65% opposed it; and 4.62% were undecided.
In my last post, I presented a table showing that in 2018 NC charged a minimum of 10,946 ordinance crimes. As I discussed in that post, that’s a conservative number because it represents only charges expressly listed as ordinance violations; more likely are charged in various “free text” NC AOC charge codes. I also showed the conduct at issue in those 10,946 cases; it included things like begging and having an open container of alcohol. After the post ran, a bunch of people asked me to do a county-by-county breakdown. With help from our great Research Associate Christopher Tyner, I have that for you.
Just four counties account for 59% of the total ordinance charges: Mecklenburg, Forsyth, Wake, and Buncombe. Based on population estimates for these counties, it’s not terribly surprising to see these four in this list. It’s worth noting that Buncombe County ranks 4th in charges but only 7th in population.
Seventeen counties are in the “100 Club,” having charged at least 100 ordinance crimes in 2018. Those 17 counties account for 82% of the charges. The list of 17 counties is provided in Table 1 below.
Table 1: Seventeen NC Counties That Charged At Least 100 Ordinance Crimes in 2018
There are some surprises on this list. I wouldn’t have expected to see Orange County in spot number 7, given that it ranks 20th by population. Ditto for Wilson (11th in Ordinance Crimes; 34th in population) and Nash (14th in Ordinance Crimes; 30th in population). On the other end, while Durham County ranks 6th in population, it is only 13th for Ordinance Crimes. If you want to see the full list of all 100 NC Counties, it’s posted here.
Want to know what Ordinance Crimes are being charged in your county? A table posted here shows every county’s 2018 Ordinance Crimes by charge. For some highlights, here are the top three most commonly charged Ordinance Crimes in the four counties with the highest number of charges:
Table 2: Top Three Ordinance Crimes in the Four Counties that Charge 59% of Ordinance Crimes
Mecklenburg
“Fail Provide Proof Fare Pay” 1065 charges
Begging (“Solicit Alms/Beg for Money”) 303 charges
“Open Container of Alcohol Viol.” 270 charges
Forsyth
Begging 393 charges
“Local Ordinance—Free Text” 244 charges
“City/Town Violation” 140 charges
Wake County
“Open Container Alcohol Viol.” 473 charges
Begging 315 charges
“Local Ordinance-Free Text” 293 charges
Buncombe
“Open Container Alcohol Viol.” 335 charges
Begging 311 charges
“Local Ordinance-Free Text” 105 charges
Some have asked whether an ordinance violation always is a crime. As a general rule, a person who violates a town, city or county ordinance commits a Class 3 misdemeanor. G.S. 14-4(a). However, if the ordinance regulates vehicle operation or parking, violation is a non-criminal infraction. G.S. 14-4(b). Additionally—and importantly for this discussion—a city or county doesn’t have to make an ordinance violation a crime. Specifically, the statutes provide that if the governing body says that an ordinance violation isn’t a misdemeanor, violation isn’t a crime. G.S. 153A-123(b); 160A-175(b). For jurisdictions wishing to limit these charges, the statutory authority to specify that an ordinance violation is not a crime presents one option for doing so.
I don’t think our state has an issue with the overcriminalization of local ordinances. Being that cities and counties need enabling legislation from the General Assembly to even criminalize certain conduct, I don’t see an issue. Perhaps requiring certain offenses like barking dogs to be civil violations would be wise, but local governments should be able to regulate conduct based on the needs of the community within reason. Being that we have NC GS 160A-174 and case law that prohibits counties/cities from criminalizing identical acts already covered under state law, I don’t really see a problem.
I don’t have statistics to support it, but anecdotally speaking I would say the vast majority of ordinance violations written by officers in my jurisdiction are civil ordinance citations. It also sounds great to say poverty and homelessness should not be criminalized and instead treated as social needs. Unfortunately, the reality is when a law abiding citizen is seeking a remedy to a trespass on their property or being harassed or losing business due to panhandling, there is no other entity other than law enforcement that can respond with an effective remedy that does NOT require the cooperation of the violator. I certainly am not advocating jailing the homeless, but at some point a police officer will need a criminal alternative in order to gain compliance if the violator does not choose to cease his acts after several warnings.
Brett, trespassing is already covered by state criminal statute, so it is not a local ordinance issue. I agree that you have a point concerning panhandling, however if it is a genuine problem it would be better to have the general assembly pass the criminal ordinance dealing with it, not local government. In my experience as a criminal defense attorney, most of these city ordinance criminal violations are brought against poor people. If you don’t have a home and can’t afford to drink in a bar or sleep in a motel, you often can be criminally charged because you drink or sleep on property that is available to you but unlawful for you. There is a large element of criminalizing the poor involved. I have represented many people locked up in jail for sleeping in wooded areas or for drinking in parks even though those people were peacefully going about their business. In my experience it has been rare that those people were actually causing any problems for law-abiding citizens. (I’m in Wake County).
I have the statistics. What county are you in? I can report on criminal ordinance charges in your county.
Hello I am a citizen of buncombe county and k am married with 5 children and we moved here 2 years ago and the price of being able to live here and have a family is so hard so I got laid off awhile ago and I have been having a hard time finding work and been so stressed with anxiety. So after alot of attempts filling out stuff and emailing companies with more luck. I figured if all these people I see around here panhandling begging for money Ii thought I could ask for work so I tore off a piece of box from the house and got a marker and wrote the following. Laid off with children in process of losing home need work please help and will work three different times and put a photo of my wife and children so people wouldn’t think I was lieing about my life. So while I was standing in the grass behind the Lowe s far away from the parking lot up near the top of the road near the highway away from businesses and people and so I stood there already feeling so low and humiliated and crying at times feeling like a failure to my wife and children. I hear someone yelling at me I look over to see a police officer yelling out his window being loud and angry get out of here now and I just stood there and then he pulled down the road angrily and pulled up aggressively and said get out of here and then I said I am not breaking g any laws I am just standing here trying to get work hopping someone leaving lowes would give me a job or some work he yells back as he comes from his car aggressive and say your going to jail if you don’t leave right now he says I said I am on private property and asked a worker could I stand here I think I have a right to be here he’s so angry and says your on state property you don’t have any rights turn around put your hands behind your head and I do . So he purs the cuffs on so tight they hurt so bad. He aggressive puts me in his back seat pull away a little off to the side of the highway part and two more cops pull up and they talk. He comes back pulls me out of the car and says I am arresting you for resisting I said resisting what by that time another officer yells and aggressively says move walk now towards the other car they treated me with so much disrespect. So the other officer is taking me down town and I asked him why am I getting arrested he says your not allowed to be here and I resisted to leave I said the other office said I was on state property and I had to leave I thought I had the right to stand out here away from everything not bothering people or addressing them with a sign asking for work . He said you wasnt on state property your on common ground the people who rent out to lowes and Walmart and other business so in said I told him I had permission to be there and didn’t care and just asked me to put my hands behind my head. So I started asking the officer which k found out later he’s been on the force 8 years and is a Sargent I asked sir what are my rights and where can I stand and hold a sign and ask for work he wouldn’t answer me he just said talk to your lawyer so he took me down and got me out of the car and I asked for my sign he refused to bring it in with me so I was treated like a hard criminal at the processing k begged them to lossen the cuffs they refused and when they searched me they finally took the cuffs off and then i asked can you please take photos of my wrist they hurt and all this going on t ok me isn’t right j shouldn’t be here y’all are violating my rights who can I talk to and they basically laughed and joked among themselves and treated me like a piece of dirt. And then the office finally sits down after being in there for a hour to talk to the majurstate sorry to Mis spell my spelling isn’t so good. But anyway. He sits there and tells her what happened which he lied about a few things and then says I wasnt there I am just bringing him down here. So i get up in front of her and j said mam I don’t understand I haven’t done anything wrong as far as I know it I was just holding a sign is there anyone I can talk to about this wrongful arrest she holds up her hand and says hold it for the judge your court date is January the 20th and the officer say be quite and listen so I was shut up. I felt so trapped and felt abused and humiliated. I felt like someone that had been kidnapped and taken hostage and lightly tortured I know I wasnt but I swear on the inside I felt like it . So I had to ask 5 different times for my sign and only did he go get it after this other officer looked at me so mean and says I am so tired of hearing you ask about your sign do you want to be kept in here. So I said are you threatening me with fink ask about my sign my personal property that the officer refusing to bring in that your going to make me stay in this is jail and with all these witness heard how aggressive you came off on me and threatening me with staying in jail. And then all him and this vs. nnn other officer tell me to shut up. So bbn I did.well after processing me finger printing and taking all my stuff from me down to my socks and i believe 6 hours later i am released I to the streets of downtown Asheville to walk because i had to no one to give me a ride back to my truck in weaverville. In the rain. I even asked nicely if they could help me get a ride back to my truck they said no. There are a few other things that happend to me I havent to listed all. But I will say we live in a terrible place to be treated like I was and now I honest fear to even just walk down the street because they may harass me k don’t know. And I won’t to report what happened but I am scared they may come after my family somehow these guys are aggressive j don’t honestly know.
I do have the data. What county are you in? I will tell you how often folks in your county charge ordinance crimes.
Buncombe county and i believe you said you are a defense lawyer if so iij have a question for you was I in my right to stand there with my sign looking for work yes or no? And I went and pulled Up the maps and found out I was on I guess state property or public who ever owns the grass on the side of a highway?
I’m in Onslow County and would love to talk to you about the stats here