I would like to think that the blog is influential, but events this week called that hypothesis into question. Wake County Superior Court Judge Don Stephens ruled that concealed handguns may be prohibited at the State Fair, notwithstanding my suggestion here that the better reading of the law is otherwise. The AP story is here. In other news:
Goin’ to the Courthouse and We’re Gonna Get Married
The impediments to same-sex marriage in North Carolina have fallen like dominos over the past ten days. On Monday, October 6, the United States Supreme Court denied certiorari review in Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. October 6, 2014), thus declining to reconsider the Fourth Circuit Court of Appeals’ conclusion in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), that Virginia’s same-sex marriage bans, which are substantively identical to the constitutional and statutory bans in North Carolina, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Fourth Circuit issued its mandate in Bostic later that day. Four days later, United States District Judge for the Western District of North Carolina Max. O. Cogburn, Jr. ruled that North Carolina’s laws prohibiting same-sex marriage were unconstitutional and enjoined the registers of deeds named as defendants in the action pending before him from enforcing the state’s marriage laws to the extent that they prohibit a person from marrying another person of the same gender, prohibit recognition of same-sex marriages lawfully solemnized in other U.S. jurisdictions, or seek to punish clergy or other officiants who solemnize the union of same-sex couples. Minutes after Judge Cogburn issued his ruling—after 5 p.m. on a Friday—registers of deeds issued marriage licenses to eager same-sex couples, and the courthouse weddings began.
New Service: Fourth Circuit Case Summaries
Semi-retired faculty member Bob Farb has begun a new service that may be of interest to some readers. He is summarizing select published Fourth Circuit opinions. Generally, he will focus on criminal cases and civil cases that have a criminal law connection. For example, his first summary concerns Owens v. Baltimore City State’s Attorneys Office, ___ F.3d ___, 2014 WL 4723803 (4th Cir. Sept. 24, 2014), a civil case filed under 42 U.S.C. § 1983 alleging in part that law enforcement officers intentionally withheld exculpatory evidence in a murder case.
One Last Chance
As a parent, I try to be a consistent disciplinarian. I do my best to avoid empty warnings about the consequences of some action (or failure to act, as is often the case). But despite my best efforts, even when a line has been crossed or a deadline has passed, I sometimes find myself giving my kids one last chance to get it right. I see the same “one last chance” phenomenon at work in State v. Yonce, 207 N.C. App. 658 (2010).
Warrantless Stops 101: Did a Seizure Occur?
Sorting out Fourth Amendment issues in the context of warrantless stops can be tricky. I like to break the case down into five basic questions:
- Did a seizure occur?
- If so and it was a stop, was it supported by reasonable suspicion or other valid basis?
- If reasonable suspicion supported the stop, was the officer’s subsequent conduct sufficiently limited in scope?
- If the seizure was an arrest, was it supported by probable cause?
- If the arrest was supported by probable cause, was the search permissible
This flowchart illustrates the analysis:
News Roundup
There was a lot of action at the United States Supreme Court this week. The new Term opened with Heien v. North Carolina, the burned-out brake light case where the legal issue is whether a traffic stop may be based on an officer’s reasonable mistake of law. The oral argument transcript is here, and a good recap of the issues on SCOTUSBlog is here. For those reading the tea leaves, SCOTUSBlog predicts that the Court will affirm the state supreme court and rule that a stop may be based on an officer’s reasonable mistake of law. The Court also heard a case about prison beard policies and religious rights, and granted certiorari on a case that asks whether an officer may extend a lawful traffic stop to ask a few off-topic questions or have a drug dog sniff the vehicle. I may post separately on the latter case. In other news:
Does Driver’s Education Work?
Fifteen-year-old Laura Yost died on September 23 from injuries she sustained after the teenage driver of the car she was riding in turned left in front of an oncoming dump truck. A few days later, fifteen-year-old Braden Rock died after his 17-year-old sister turned left in front of an oncoming car. The next morning, 11–year-old Michael Burgess was walking across the street to board his school bus when he was struck by a car driven by a 16-year-old and seriously injured. Many have questioned in the wake of these events how such injuries might be prevented in the future.
Some have raised concerns about the legislature’s decision last session to eliminate state funding for local driver’s education programs beginning with the 2015-16 fiscal year. Yet all of the teenager drivers involved in these accidents successfully completed driver’s education, and it obviously did not inoculate them from negligent driving. Perhaps more such accidents would occur if there were no formalized driver’s education training. Unfortunately, despite the millions spent on driver’s education programs in North Carolina every year for decades, the simple truth is that we have no idea whether driver’s education has any effect on teen driving safety.
Counsel’s Unconsented-To Admission is Reversible Error, Except When It’s Not
In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180.
New Cumulative Supplement to Arrest, Search, and Investigation in North Carolina and Recent Cases Since Its Publication
The 2014 Cumulative Supplement to Arrest, Search, and Investigation in North Carolina (4th ed. 2011) is now available. It is called a cumulative supplement because it includes the material in the 2013 supplement so you only need the book and the 2014 cumulative supplement to be current. You may order it online here or contact the School of Government Bookstore Manager at 919.966.4120. Continue reading for additional details.
Guns at the State Fair
Agriculture Commissioner Steve Troxler has stated that firearms, even those carried pursuant to a concealed carry permit, will be prohibited at the North Carolina State Fair, which opens next week. Grass Roots North Carolina, a gun-rights group, contends that the Commissioner’s policy is unlawful. In the post, I’ll explore the legal issue.