News Roundup

House Bill 2 continues to be a major topic in the local and national news this week.  As the Charlotte Observer reports, Governor McCrory defended the legislation on NBC’s “Meet the Press” on Sunday morning.  McCrory’s appearance followed his issuance of an Executive Order last week that calls for the legislature to restore a State cause of action for wrongful discharge based on employment discrimination, but does not call for changes to the controversial restroom regulations.

On Tuesday, the Fourth Circuit Court of Appeals issued a 2-1 decision that reversed a lower court’s dismissal of a transgender high school student’s lawsuit alleging that his local school board discriminated against him in violation of Title IX by banning him from using the boys’ restroom at his school.  The Fourth Circuit determined that the lower court did not “accord appropriate deference to the relevant Department of Education regulations” which the Department has interpreted as requiring schools to treat transgender students consistent with their gender identity.  As the Charlotte Observer reports, the McCrory administration filed a brief in the case supporting the Virginia restroom ban.

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Warrant Required for Testing of Unconscious DWI Suspect

The United States Supreme Court heard oral arguments this morning in three cases involving the chemical testing of impaired drivers. The question before the court in each case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. I’m eager to hear what the high court has to say about this issue and to learn whether it will impact North Carolina’s implied consent laws, which, like the laws in every other state, do provide for warrantless chemical testing, but which do not criminalize refusal to be tested. But we don’t have to wait for the Supreme Court’s opinion to see how our state’s implied consent laws are evolving in a post-Missouri v. McNeely world. The North Carolina Court of Appeals decided a significant case yesterday, ruling in State v. Romano, __ N.C. App. ___ (2016), that the warrantless withdrawal of blood from an unconscious impaired driving suspect violated the Fourth Amendment, notwithstanding a state statute that permits such actions.

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Reverse Batson Challenge Sustained

In the recent case of State v. Hurd, the N.C. Court of Appeals upheld a claim by a prosecutor that a defendant’s peremptory strike of a prospective White juror was racially discriminatory, which is the second time that our appellate courts have upheld such a claim. This post briefly reviews the legal requirements for challenges under Batson, analyzes the court’s reasons for sustaining the prosecutor’s challenge in Hurd, and considers the lack of appellate decisions in North Carolina upholding defense challenges to prosecutors’ peremptory strikes of jurors of color.

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State Supreme Court Reverses Court of Appeals Regarding Authentication of Surveillance Video

The Supreme Court of North Carolina just decided State v. Snead, a case about the authentication of surveillance video. The court adopted a more relaxed approach to authentication than the court of appeals had taken. Because the authentication of video is an increasingly common issue, it is worth digging into the case.

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News Roundup

Officer-involved shootings have been a frequent topic of national news in recent months.  This week, there have been notable developments in two North Carolina cases.  First, the News and Observer reports that a Harnett County grand jury declined to indict a sheriff’s deputy, Nicholas Kehagias, who shot and killed John Livingston in November.  The report indicates that the decision comes “after months of unease in Harnett County” that included protests in front of the courthouse by Livingston’s friends and family.  The jury reportedly was asked to consider second-degree murder charges.  Though Kehagias will not face criminal charges, the News and Observer reports that Livingston’s family will pursue a civil case against him.

The other North Carolina case in the news involves a February incident in which Raleigh police officer D.C. Twiddy shot and killed Akiel Denkins.  WRAL reports that Wake County District Attorney Lorrin Freeman announced Wednesday that no criminal charges will be filed against Twiddy.  The announcement follows an SBI investigation into the incident.  The report says that community leaders “appeal[ed] for calm in the community” at a prayer vigil on Wednesday night, and notes that local officials praised the community for maintaining calm throughout the investigation.  Keep reading for more news:

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Bartenders’ Duty to Cut Off Service to Intoxicated Patrons

Servers who work for restaurants and bars that sell alcoholic beverages pursuant to an ABC permit are prohibited by G.S. 18B-305(a) from knowingly selling or giving alcoholic beverages to a person who is intoxicated.  Violation of this provision is a Class 1 misdemeanor and may result in suspension of the establishment’s ABC permit. In cases where overserving results in injury, the restaurant or bar also may be liable for the damages that result. I’ve often wondered how servers know when to say when. After all, they are engaged in the business of selling alcoholic beverages—drinks that affect the brain functioning of everyone who consumes them. When does the statutory duty override their business interests?

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Differences Between North Carolina and Federal Possession-of-Firearm by Felon Offenses Concerning the Prior Conviction Element Disqualifying Possession of a Firearm

Federal law and North Carolina law each prohibit in their own ways the possession of a firearm by a felon and, under federal law, certain domestic violence misdemeanors as well. A recent Fourth Circuit Court of Appeals case ruled that a North Carolina felony conviction did not qualify to prove the federal offense of possession of a firearm by felon. The fact that this conviction likely would qualify for the North Carolina offense leads to this post that provides a general overview of the differences.

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