During a Terry stop, an officer who has reasonable suspicion that a suspect is armed and dangerous may frisk the suspect and may confiscate any weapons that the officer finds. Does an officer have the same authority during a traffic stop? In other words, if an officer reasonably suspects that a driver is in possession of a gun, even lawfully, may the officer confiscate the gun for the duration of the stop as a safety precaution? What about during a consensual encounter between an officer and a pedestrian?
News Roundup
Yesterday afternoon, the House passed the bipartisan federal criminal justice reform bill known as the “First Step Act,” sending the bill to President Donald Trump who has said that he will sign it into law. The News Roundup previously discussed some of the provisions of the bill in this post. Among other things, the bill gives judges increased discretion in sentencing certain offenses and aims to place prisoners in facilities closer to their homes so that families can visit more often. This is the final blog post of the year, we’ll resume posting on Monday, January 7. Enjoy the holidays and keep reading for more news.
My London Experience
As part of this semester’s study abroad program, I asked the 25 Carolina students to identify and write up a memorable London experience. Having given them the nearly impossible task of picking just one experience to memorialize, it’s only fair that I do the same in my last blog post from London.
Can Solicitation Become Attempt?
That in effect was the question presented in the recent N.C. Supreme Court decision in State v. Melton (Dec. 7, 2018), where the court vacated an attempted murder conviction in a murder-for-hire case. Before getting into the case, let’s review the elements of solicitation and attempt.
Second Amendment Update
Several federal circuit courts have decided Second Amendment cases over the past few months. This post summarizes them. The cases and the reasoning behind them are not all completely consistent, but collectively, the courts continue to interpret the Second Amendment as permitting substantial levels of gun control.
News Roundup
As Charlottesville newspaper The Daily Progress reports, late last week a Virginia jury convicted James Alex Fields Jr. of first-degree murder and several other charges arising from his attack on people gathered to protest a white supremacist rally in August of last year. On Tuesday, the jury recommended that Fields be sentenced to life in prison for the offenses. In a violent bookend to an already disturbing series of events in Charlottesville, Fields drove a car into a crowd of protesters, killing Heather Heyer and injuring dozens of others. Fields also faces federal hate crime charges, though a trial date for those charges has not yet been set. Keep reading for more news.
Part 2: Double Jeopardy and Beyond
For our last official criminal justice class, we heard from five more teams of students about their research projects. (At the students’ request, we also scheduled an extra evening session to watch the third best movie ever made about the law and lawyers—answer at the end of this post.) Once again, the students worked on a wide range of topics and, once again, I learned from the students. Here are some quick takeaways along with a brief discussion of one of the topics—double jeopardy, or more accurately, the absence of double jeopardy protections in the UK.
What Happens When the Jury Is Instructed on the Wrong Theory?
Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day.
Habeas Relief for Immigration Detainers Gets Put on Ice
Last Monday, North Carolina’s newly-elected sheriffs were sworn into office. A key issue in several of the campaigns was whether the candidates would or would not continue to cooperate with federal immigration enforcement. Incoming Sheriff Garry McFadden announced that he will be ending Mecklenburg County’s participation in the U.S. Immigration and Customs Enforcement (ICE) “287(g) program.” Incoming Sheriff Gerald Baker in Wake County likewise pledged to end his office’s participation in the 287(g) program, and incoming Sheriff Clarence Birkhead in Durham County announced that his office would no longer honor any “detainer requests” from ICE.
Coincidentally, on the same day that those elections were being held, the Court of Appeals decided Chavez v. Carmichael, __ N.C. App. __ (Nov. 6, 2018), which analyzed whether a defendant can challenge immigration detainers in state court on habeas corpus grounds. In addition to answering that central question, the Chavez decision also helps to clarify the sometimes-overlooked distinction between the 287(g) program as a whole and ICE detainers in particular, and it points out an important statutory limitation on the extent to which custodial law enforcement agencies may “decline to investigate” the immigration or residency status of a person in custody.