From time to time, I am asked about the right of private citizens to initiate criminal charges by approaching a magistrate. The arrest warrant statute, G.S. 15A-304, requires only that a magistrate be “supplied with sufficient information, supported by oath or affirmation” to find probable cause. The statute doesn’t limit the source of that information to law enforcement officers. As most readers know, it is common in North Carolina for private citizens to seek the issuance of an arrest warrant or a summons.
I have long thought that this was a distinctive feature of North Carolina law, but it seems to be somewhat more common than I believed.
The general rule in the United States is that private citizens can’t initiate criminal prosecutions. There turn out to be quite a few exceptions, but the general rule does seem to be that only government officials of various kinds can initiate criminal prosecutions. See, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973) (stating that “in American jurisprudence . . . a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another”); Smith v. Kreiger, 389 Fed. Appx. 789 (10th Cir. 2010) (ruling that, in the federal system, prosecutors have exclusive authority to prosecute crimes and that a private citizen “has no right to initiate a criminal prosecution”); Kailey v. Chambers, 261 P.3d 792 (Colo. Ct. App. 2011) (collecting cases and concluding that private citizens cannot seek arrest warrants); Juan Cardenas, The Crime Victim in the Prosecutorial Process, 9 Harv. J. L & Pub. Pol’y 357 (1986) (stating that “[c]ourts generally grant the public prosecutor the exclusive power to initiate criminal proceedings,” and stating that “[w]here the right of a private citizen to file a criminal complaint has been recognized, it is generally statutorily based and limited to prosecution of specified crimes,” otherwise, “no private citizen can initiate a criminal proceeding, even for a misdemeanor”).
Many states have exceptions. I don’t know exactly how many states allow private citizens to initiate criminal charges. I’m not aware of anyone who has done a 50-state survey. But a few hours of looking on my part has turned up the following partial list:
- North Carolina: as noted above.
- South Carolina: a private citizen may initiate a criminal case by approaching a magistrate, though the magistrate may issue only a summons, not an arrest warrant, in response to a private citizen’s complaint. S.C. Code § 22-5-110.
- Maryland: a private citizen may apply to a “commissioner,” similar to a North Carolina magistrate, who may issue a summons or, under limited circumstances, an arrest warrant. Md. Stat. § 2-607(c)(6) .
- Virginia: private citizen complaints are permitted but must be made in writing. Va. Stat. § 19.2-72.
- Georgia: criminal process may be issued based on a request by a private citizen, though only after a “warrant application hearing” at which the potential accused has an opportunity to argue that charges should not be issued. Ga. Code. 17-4-40.
- Pennsylvania: a private citizen may file a complaint with a prosecutor. If the prosecutor approves it, the complaint is transmitted to a judicial official for issuance of process. If the prosecutor disapproves the complaint, the citizen has the right to seek judicial review of that decision. Penn. R. Crim. P. 506.
- Ohio: a private citizen “may file an affidavit charging the offense committed with a [judge, prosecutor, or magistrate] for the purpose of review to determine if a complaint should be filed by the prosecuting attorney.” Ohio Code § 2935.09. Apparently, this process was enacted in 2006, replacing a process by which a private citizen could charge a crime directly, without review by any official, by submitting an affidavit charging the offense. State v. Mbodji, 951 N.E.2d 1025 (Ohio 2011).
- Idaho: Idaho law appears to be similar to North Carolina’s: “[A] warrant for arrest may be issued upon a complaint filed upon information by a private citizen if the magistrate, after investigation, is satisfied that the offense has been committed.” State v. Murphy, 584 P.2d 1236 (Idaho 1978). See also Idaho Stat. 19-501 et seq. (describing the procedure for seeking an arrest warrant with no limitation to law enforcement officers).
- New Hampshire: at least certain minor offenses may be initiated – and prosecuted – by private citizens. State v. Martineau, 808 A.2d 51 (2002).
- Some states apparently allow crime victims or witnesses to approach the grand jury to seek an indictment. Douglas E. Beloof, Weighing Crime Victims’ Interests in Judicially Crafted Criminal Procedure, 56 Cath. U. L. Rev. 1135 (2007) (explaining that such a right exists in Texas).
Limits on charges initiated by private citizens. The above list illustrates that many jurisdictions that allow private citizens to initiate criminal charges place limitations on such cases. Some allow only low-level cases to begin with a citizen’s complaint; others require citizen-initiated cases to begin with a summons rather than a warrant; others require a citizen’s complaint to be in writing; and still others require a prosecutor or other official to review a citizen’s complaint, or give the would-be accused an opportunity to be heard.
North Carolina does not have any of these limits by statute. However, as a matter of practice, magistrates impose some of these restrictions. Most magistrates will not issue felony charges based on a citizen’s complaint. Some magistrates generally issue summonses rather than warrants in citizen-initiated cases. Some magistrates also ask citizen complainants to prepare a written statement of facts.
Is it a good idea to allow citizens to initiate criminal charges? It’s often reporters that ask me about our system of allowing citizen-initiated criminal cases. They always ask whether it’s a good system or not. Since we try to be neutral here at the School of Government, I usually just say that there are plusses and minuses.
On the plus side, if law enforcement officers in a particular area are incompetent, corrupt, or biased against a citizen or a group of citizens, allowing those citizens to approach magistrates directly gives them access to the criminal justice system. Furthermore, allowing citizens to take their concerns to magistrates directly may reduce the burden on law enforcement of investigating minor offenses.
On the other hand, allowing citizens to approach magistrates directly means that magistrates must deal with citizens whose stories may be disorganized and who may be unfamiliar with what a magistrate needs to know to determine whether charges are appropriate. It also allows citizens who are so inclined to bring vexatious, baseless charges more easily that if an officer were involved in the matter.
Readers, what’s your perspective? Should citizen-initiated charges be abolished as some have proposed? Subjected to some of the statutory limitations in place in other states? Or, has North Carolina struck an appropriate balance as it stands?
I believe citizens should have the ability to prefer certain criminal charges before a magistrate. One reason is that such citizen is able (and compelled by subpoena) to enter the courtroom and seek the relief or justice to which they are entitled. Another reason is that, in many cases, the charges are not severe enough for officers to become involved such as neighbor disputes, nuisances, etc. I agree with the current practice of disallowing citizens to take felony charges. I think this should also be applied to more serious misdemeanors and domestic violence offenses. Those crimes do (or should) be investigated by law enforcement.
Citizens need to realize that with this “power” comes responsibility. The frivolous and sometimes malicious pursuit against other citizens should be strongly discouraged. In some cases, judges have held these complainants responsible by causing them to pay costs of court and/or fines. However, this does not seem to be uniformly enforced. Such charges clog the courts, as well as, waste the time of LEO’s serving papers and the wrongly accused “defendant” being needlessly inconvenienced and embarrassed.
Sometimes, complainants want to “drop charges” in court. This may be caused by malicious intent on the part of the complainant, or it could be as a result of some intimidation caused by the defendant. In the latter instance, law enforcement should step in and charge the defendant for intimidation of a witness. However, if the complaints are determined to be baseless, citizens should be prevented from taking future charges and possibly themselves, be charged with making false police reports or other similar recourse.
The self initiated warrant system of NC is very much open to abuse. I believe it should be limited to criminal summons, so as to give the accused an opportunity to defend him/her self without an arrest record, mug shot, and online mugshots captured by dozens of companies that abuse the “public information” for monetary gain. These online companies take down their website only after not-guilty verdicts and in many cases after some payment is received. Plus, NC allows only a “one-time” in a lifetime chance to expunge your record – which includes arrest records, charges, etc. And it is a very costly process and takes 6-12 months. The burden placed on the accused solely with a sworn testimony of another person without due process is immense. This is especially true in domestic violence cases. The accused, by law, MUST spend at least one night in jail before bail is set. And the court date is set for months later, and DV court in NC is a one-judge district court that is biased towards women. While victims of domestic violence of course should be helped, the self initiated warrant results in destruction of the alleged accused’s personal and professional life, without due process. I am a victim of this process by a very vindictive woman where I was arrested multiple times on a temporary restraining order and thrown in jail multiple times, and due to the one-sided nature of DV court, and the appeals process (Superior Court which is jury based but costing 20-40k and 6-18 months), I have had to agree to a “plea deal”, which resulted in my arrest record and mug shots to stay online and on my record. I lost my job during this process, all with misdemeanor DV charges. And the definition of “domestic” in NC includes any opposing sex parties in a dating relationship – living under the same roof is not required. The self-initiated arrest warrant system, combined with difficulty in clearing your name, and politically appointed District Court judges results in an incredibly biased system in NC. I would have never appreciated this had I not gone through the system. Having spent multiple nights in jail and the emotional consequence of dealing with it while in jail as well as later during the trial phase is incureable. Malicious prosecution is almost impossible to prove, so the accused is left with defending him/her self with thousands in legal fees, the emotional burden of charges brought by a private citizen but taken up by the DA’s office at no cost to the accuser. An arrest warrant, even for misdemeanors, that can be initiated by private citizens is beyond belief in NC. The unfairness of this is so obvious that I am surprised this is even being debated. This law should be abolished and again, maybe criminal summons allowed, but not arrest warrants.
Agree very much. a friend of mine had no opportunity to argue for himself again charges his angry x made against him. Spent 24 our in a criminal jail cell. Very, very sad situation involving accusations with not one iota of truth to them. Now having to have an attorney and court time, etc.
I have personally been a victim of frivolous warrants from an ex, and am currently dealing with this. I do not understand why Mecklenburg County allows a citizen to file charges against another citizen by just word of mouth and without presenting any real proof. This policy in Mecklenburg County has practically ruined my life.
I agree with everything you have said, this girl down my same street sent me emails talking junk and i responded she then come to my house trying to fight which she quickly ran off after i accepted her challenge all the while calling the police. The next day she goes to the manager of our subdivision demanding he throw us out when she was told no she went to the magistrates office lied and i was subsequently arrested, she laughed and giggled the entire time i was being led out my home in handcuffs. I was taken to the detention ctr fingerprinted and a dna sample was taken. Ive never ever in my 32 years ever been arrested ever so i cried the entire time. She told the magistrate i had been cyber stalking her. This needs to stop in nc, anyone can go to the magistrates office and lie about anything, now you have to figure out how to hire a lawyer to defend yourself against a false accusation. Not only that but this false charge will remain on your record for any potentional employers to see no matter the disposition. So for the rest of your life you will be continuesly fighting to defend yourself for something you didnt even do. While they sit back with no financial or criminal consequences. Nc needs to do better
I am going through the exact same situation. I was thrown in jail for assault of female and communicating threats. After posting bond the next day I was served with a 50b. Two days later I’m sitting in my hotel room and officers knock on my door and I’m arrested for violating the 50b. This was a Friday and I couldn’t see a judge to set bond till Monday around noon. A bogus warrant was issued by the magistrate claiming I broke the 50b order by sending my son to retrieve something from the house. My son lived at the house!! He has lived with me his entire life! My vindictive ex called in a larceny charge and threatened to put that on my son who had just received a scholarship offer to play basketball at Georgetown College. A $180,000 education would be in jeopardy! She told him if he did not come to the magistrate office and make a statement claiming he did not live there and his father had sent him, that she would pursue charges. I went to jail for this. I lost my business for this. And even after being found not guilty of all 3 charges I have nothing left! Today is the 52nd day of me being homeless. I’m out of money. I had to spend $1000 to retrieve my truck that was she had towed from my driveway. I still have not been able to retrieve any of my belongings, even with a court order!!! I was told I only had to abide by the court order she did not!! What??? Every single friend we had together has frowned upon me trying to speak to them. My own church turned its back on me and the Pastor doesn’t return any of my messages reaching out to him. My mug shot still exist. And the 50b that is still in place will show up every time I apply for a job along with the dismissed charges of assault on female and communicating threats. This topic isn’t even debatable, it is a tragedy to put this type of power into the hands of the women who abuse the system for vidictive purposes. What is worse is the fact I reside in a small good ol boy town where she went to high school. I could tell you what happened with the police and my case but no one on this site would believe it. Another topic.
I would believe it. Wait till you hear my story!
The FUBAR journey in my Landlord [I’m the taxpayer] and former tenant who threatened me with bodily harm after I demanded rent in September. Now, 4 months later, $1,500.00 for a lawyer and tremendous waste of brain cells and resources and hindering my ability to travel freely per se … all gave rise to my mistake in believing a junkie who said he was seeking a new start for his kid. All because 2 NHC deputies who responded to my initial 911 call after being threatened on my property said “our shift is ending …” and that only emboldened the junky to play the system. 7 years in NC with not 1 negative run in with any person or authorities and now I’m being treated like a criminal because a magistrate bought off on the junky’s false-retaliatory claim that I threatened him. No need for me to threaten anyone on my property … that’s what the cops are being paid to redress … but not in this case. This law is going to result in someone taking the law into their own hands one day … if not already happened.
This is horrible and being done to me in new hampshire by my ex husband. Im poor and cant afford legal counsel to help me. There is kids involved so its keeping me from my kids. The cops keep getting involved I was on news the other day.Idont know how to make it stop and erase revierse charges. Also all the negative outcomes from being charged with no probable cause. Criminal and civil charges are everywhere for me. In two years ive been set up by police dmv and private stores in my state.. I got gotta get out of new hampshire
charges or thr fa that have
New Hampshire is the only real America Left.. all the State of STATE CORPORATE. All statutory Steam-roller as money making machine. Not withstanding Law but LEGAL-FICTION, False and Deceptive Trade Practices
Originally, I was skeptical since I come from NY which doesn’t allow this process (for very good reasons!). But in Mecklenburg County I am pleased since it leads to mediation where both parties can feel they have their positions heard by a neutral (volunteer) mediator. I haven’t seen an abuse of the system and it avoids people taking justice “into their own hands” as it were. Volunteer mediators keeps the cost low and it gives folks the understanding that the court system is available for them to resolve their conflicts.
Wait until your the defendent of a false accusation then your tune will change. Not guilty or the prosecutor dropping the charges does nothing to take away that charge, not even mediation will clear ur name.
You are wrong wrong wrong! Yeah,mediator can get involved if both parties agree in a minor case,but before that can even happens the woman is going to the magistrate and filing false charges to be vindictive,and in my son’s case to try and get custody of his child,my grand child,that he has had full custody of,only so she doesn’t have to pay child support,she has lied so many times to the magistrate and he even believed she had joint custody of the child,never has she had joint custody,so my son has been arrested twice,went jail on her word alone,now we have to fight this in court all because the magistrate wants to PROTECT THE poor woman,heck she has beaten the livin hell out of him on numerous occasions,and I couldn’t get him to swear any charges,North Carolinas system is all screwed up,we imn North Carolina in some instances are guilty until proven innocent
Going through same thing, just learning about this law, I’m also a journalist. I would like to talk to you
Justceleste are you still a journalist?
I think North Carolina law regarding this matter has struck an appropriate balance as it stands. I have been a sworn law enforcement officer for more than 41 years and I believer the system works very well. I’ve been before more than 100 magistrates, and I only encountered one who would not let a citizen pursue their own charges in misdemeanor cases which required a very limited involvement of an officer. To require more involvement of law enforcement officers in misdemeanor cases in which no or little investigation is necessary would create a very burdensome case load for law enforcement agencies.
As for felonies, a more complex procedure is required, and I believe, therefore, that citizens should not be allowed to pursue criminal charges on their own initiative. A possible exception would perhaps be when the likely charge would be a Class I felony in which an investigation by law enforcement could add very little. An example of this type charge might be the Larceny of a Dog, where the facts and suspect(s) are known to the victim.
Jeff –
Your pro & con summary weighs heavily on the side of allowing citizen-initiated charges. Pro: citizen access to the justice system. Con: magistrates have to be competent. I believe that there is insufficient access afforded citizens right now. For example, I have seen magistrates refuse to charge person A with assault even though person B swears to facts which would prove an assault by person A. The magistrate refused to charge person A only because person A went to the magistrate first and had an assault charge brought against person B. There was no difference in the credibility between A & B. Another scenario is when a police officer or assistant district attorney commits a crime. Even if the citizen captures the officer on videotape committing the crime no magistrate is likely to charge that police officer or assistant district attorney. There was an incident a few years back when a Wake County assistant district attorney during an amateur soccer match cold-cocked a player on the opposing team, knocking out the poor guy. Medical bills were involved. Apparently dozens of people saw what happened. Of course no criminal charges were brought against the ADA. No magistrate would charge the ADA knowing that the DA would just dismiss the charge & the magistrate would be in danger of being fired. That ADA was not fired. (A caveat: our current DA in Wake County would have done something about the bad seed ADA had she been in office when this incident happened.) I’m in favor of an ombudsman addition to our criminal justice system under which a citizen can appeal to an objective third party to approve prosecution when the police, magistrates, and assistant district attorneys fail.
Rather than abolish or limit citizen-initiated charges we should increase the power of citizens to initiate criminal charges.
Rand I agree. Something needs to be done to balance the scales of justice. As it stands the average Citizen has no ‘affordable’ remedy to crimes committed against them by State/County/City agents. The so called ‘civil remedies’ for criminal offences of state actors is a joke at best.
Rand and jim I agree with you also. Ironic that the magistrate Bruce A. Conway who was the FIRST to comment on this subject of the blog is under investigation by issuing 2 felony warrants to a private citizen, erroneously, maliciouisly and with negligence is commenting and recommending his OWN punishment. I am sure that Judge Mills will find this article helpful once the investigation is completed. This investigation into the corrupt Carteret county Law enforcement procedures has taken soooo long that Mr. Conway thought he would have ME arrested again, almost 1 and a half years later. With the same phony warrants with his signature that clearly stated on the bottom an arrest date of March of 2014. Welcome to North Carolina people where the cops think they can do anything to anyone and get away with it. How refreshing to find Mr. Conway elaborating on his own punishment and fancying himself an attorney or legal expert of some kind. He is as corrupt as the day is long and is just narcissistic enough to think he can get away with it. Amazing that he states “with this power comes responsibility” it is a gift from god, this narcissism. See you in court
Conway!
I have seen too many abuses to be in favor of broadening a citizen’s ability to have another citizen arrested. While the pro column is certainly valid in this piece, the con column far outweighs the pro column because of the damage caused by frivolous warrants. People are actually arrested. They have to post bond. There is a “record” for people to have to expunge. The repercussions for having been arrested on an uninvestigated allegation are severe.
That being said, this is the system we have. Good lawyers figure it out.
Citizen’s arrest, citizen’s arrest” – Barney Fife in Mayberry NORTH CAROLINA. That was my first thought.
It is simply amazing to me that Defense Attorney Rand always comments on the importance of citizen rights and the over abundance of innocent people getting their rights eviscerated by the government. Then when it comes to the individual rights of government workers themselves, he somehow believes they have no rights.
As far as Mr. Rand’s claim that magistrates only charge the first person to show up, it is absolutely baseless. NC GS 15A-304(d) states, “A judicial official shall not refuse to issue a warrant for the arrest of a person solely because a prior warrant has been issued for the arrest of another person involved in the same matter.” It is known as cross warrants and happens all the time in assault cases especially those that share a personal relationship as defined in 50B.
As far as protecting law enforcement officers, prosecutors, and other government workers, it has to be this way. Imagine if a Magistrate issued a warrant for arrest on a law enforcement officer based on ex parte information coming from a criminal. Are you kidding me? You actually think that is fair? For those of you like Mr. Rand in the world, law enforcement officers may get an initial advantage at the magistrate level, but I can assure you if turns out the officer committed the offense they will be punished more severely though extra media attention, embarrassment, and loss of job. If attorney Rand commits an assault, he can easily get the case dismissed through mediation without any negative consequences beyond an embarrassing booking process. If an officer commits an assault, it is played on the news, the news shows up at his house, he loses his job, and gets to beg for mercy in court.
Mr. Rand, cops, judges, and prosecutors are not all bad people and yes they have rights too.
To initiate criminal charges is one thing; to prosecute is something else. In 2003 a member of the NCGA introduced legislation to authorize private prosecution of felonies. A true bill from a grand jury would still have been required. The proposal got no traction, if I recall correctly, and I don’t know what motivated its introduction. But it raised the issue of which states allow private criminal prosecutions.
I have been an LEO for 20 years and I have seen the abuse of people racing to the Magistrate’s Office to try and file criminal charges first. That is a problem within our system. But, I have to say, that with the problems, we still have the best system. Our citizens have the right to swear out a warrant and have their issue heard in court. So many times, the LEOs are unable to settle a dispute based on “he said, she said” evidence. It removes the police officers from having to decide who is telling the truth and picking a side. All serious cases are investigated and presented to the Magistrate or DA (ADAs too) by the investigating officer. I have worked in District Court and have heard some crazy stuff during the misdemeanor cases. I would write a book, but no one would believe it.
I would like to know how and to whom one can report abuses of a citizen who fraudulently swear out warrants and files for no contact orders on innocent citizens in more than one NC county for his own pleasure. A citizen who does not even show up for most court appearances. Yes the victims of this abuse get their charges dismissed but thousands of dollars later and to have the records expunged. Is there not a central system that can keep track of this? Should red flags not go off in the NC legal system if a citizen habitually swears out warrants on other citizens and does not even show up for court?
I completely agree. I have been a victim of this abuse by my ex-wife. 6 times I have been dragged into court. All 6 I have been found not guilty or dismissed. All 6 were based on lies by my ex-wife in order to gain an upper hand in some issue we were having. All 6 were issued with no investigation or evidence by a magistrate. The amount of damage this has caused me has been immense. My reputation has been destroyed. I have spent thousands of dollars fighting these charges in court. If you ask me, there should be some way I can sue the magistrate for issuing these warrants without cause or have filing false report charges issued or her. I am about sickened with this system.
No one should EVER be able to go into a magistrate (a person wearing a uniform) office and file any type of charges what so ever! Ever! It makes a mockery of the court system and unfortunately a lot of liars are having a hay day! I am so sick of this happening and specifically in Carteret County. Stop the games!! Look at the records of the individuals. The person in front of you may be the one that needs arrested. A thought …..
If dismissed sue for malicious prosecution and/or abuse of process
Seems like everyone is having the same problem. My mother is going through this exact same thing. She has been arrested week after week after week for something she did not do all because of her abusive ex is on a war path to get her behind bars because he had to spend time behind bars for things we have prrof of! Word of mouth is not proof! This is an awful law and should be abolished!
I agree with Denise. What ever happened to showing proof? I am a victim of this abuse and its costing me plenty. My accuser lied and didn’t even have to appear in court! We can’t even sue the perpetrator for damages!
There are NC Statutes against both Perjury and Defamation. And they are both CRIMINAL offenses. Why aren’t you filing your own criminal complaints if someone has filed a false affidavit to a Magistrate (officer of the court)? Seems like you’ve got proof that it was false in the not guilty court findings. It seems that the courts would like to put some of the people who abuse their system out of business – given a chance. Who do you think will file the complaint if you don’t? Seems to me the “sword of justice” has a two edged blade… Use it!
I agree with the current practice of disallowing citizens to take felony charges. I think this should also be applied to more serious Class A1 Misdemeanors.
However, I think there are some changes that need to be made to make sure a person is not arrested unnecessarily.
I have worked as both a law enforcement officer and a magistrate for a combined (26) years. I have seen the system work on both sides of the pros and cons. It’s my opinion that the cons outweigh the pros and for many reasons we should take the system we currently have and look for ways to make it better.
Their are tremendous cost to both citizen(s) and taxpayers when an arrest warrant is issued. Warrants for arrest serve a great purpose when the person being arrested is violent and posing a physical threat to others but for the most part I believe most misdemeanors could be handled with a criminal summons with a chance at a mediation hearing before being ordered to appear in court.
Just like law enforcement is bogged down with investigating complaints, even more so is the magistrates office. Each complaint that an officer responds to ends up in someone being advised to see the magistrate.
The thing about criminal charges that troubles me the most is that once a person is charged with an offense, that offense shows up on their criminal record. Even if a person is found not guilty or its voluntarily dismissed, those charges follow them.
In a society where jobs are scarce its makes it tremendously hard for individuals with a criminal history to find work.
If a person is found not guilty or the case is voluntarily dismissed then why should a person even need an expunge for a charge? For this reason and many more I believe the cons outweigh the pros in our existing process, and feel that their is a need to investigate how we can make the system better.
Just like the ADA who had a confrontation on a ball field or the law enforcement officer who ends up in a domestic situation, or just everyday average Joe…We are all vulnerable to being put in a situation that could result in criminal charges. The question is should it be a summons or a warrant for arrest, should one persons word versus another alone be enough for charges? (I think not)
When people are emotional and most upset they tend to make impulsive and irrational decisions that include pursuing charges and then a short time later come back to the magistrates office desiring to drop the charges they took out. In many other cases its a matter of revenge or spite work.
I definitely believe there are areas in our current system where changes are needed to make the system better so that individual(s)are protected from unnecessarily being criminally charged and especially not being arrested versus being summonsed to court.
A good area to explore reform is in the 50b process where a vindictive spouse, girlfriend, etc can go before a magistrate, perjure themself in a sworn statement, have an ex parte “hearing”, and the accused is arrested, held until a judge is available to hear the case.
Using the fact of weekends, a vindictive person can easily cause the accused to spend the full 48 hours in jail, then spend thousands of dollars in defense of a frivolous charge that is ultimately dismissed.
This system is heavily weighted in favor of females as it is, not requiring some investigation by LEOs before an arrest is biased and unfair to the accused.
I understand that the desire to “protect” the female is strong, but when the system is brought to bear on a falsely accused male, his life, career, family may be adversely affected based solely upon perjury.
The fact that there appears to be no desire or force of statute by authorities for the pursuit of perjurous affiants again allows the abuse of this statute.
Just a thought:
Just like certain crimes have mandatory prison sentences, etc…
Maybe we should consider certain charges should be warrants for arrest and others criminal summons only? or even better….why not try mediation hearings first?
I know that mediation is not practical in a lot of situations and crimes but in many cases it is the perfect resolution.
It is interesting that in this comment thread, no one is really discussing whether the law should be reformed to require the issuance of a summons rather than an arrest warrant. (Such as in SC or MD).
It seems to me that it makes sense to allow citizens to bring these issues before the Court … however, where I am most concerned is with the arrests.
The middle ground between allowing citizens to “swear out warrants” as it is colloquially often called would be to issue summons rather than warrants. To me that resolve nearly all of the concerns I have, as well keeping some of the positive benefits I see to allowing citizens to initiate criminal charges.
I see the use of the actual “arrest” be used/abused more so than the resulting process thereafter. Such as in domestics/divorces …
while I’ve enjoyed reading everyone’s replies I am a personal victim of a private citizen warrant which resulted in the arrest and incarceration for a period of 5 days when I was taken from one county and transported to another after routine traffic stop and a routine check of license plates. when the officer asked that identify myself I thought I had no problems with my insurance or license so I didn’t understand why I was being stopped then I learned that a private citizen has executed a warrant days earlier for harassing text messages. after spending two days in one county and then transported to the arresting agency I had a total of 5 days of incarceration for frivolous falsified report filed by private citizen.
why much of your conversation is about the law from a human perspective what about loss of income employment reputation as well as having a criminal record that will follow you for the rest of your life where you always have to report that you’ve been arrested regardless of the outcome.
at 40 plus years of age never been arrested to be incarcerated and subject to strip searches to be denied an opportunity to make telephone calls to be told when you’re going to eat when you’re going to wake when you can and cannot visit with family and/or communicate with family, is neither pro nor con issue its a real issue.
the thought of having someone execute a warrant and then it’s frivolous sounds simple enough but when you have to pursue with malicious prosecution and it takes you three years to resolve an issue that they were able to get executed in one day that’s a problem. we made it all too easy for citizens to execute warrants and more difficult for individuals to defend against them 100 over 60 remedies to prevent them or criminal charges for those who do it and commit perjury.
I cry myself to sleep regularly because I have flashbacks about being incarcerated I felt denied of every human right and violated in the worst way. a simple I’m sorry will not change it a dismissal on a record does not change it because this mental emotional and psychological issues that I still deal with for those 5 days.
with all due respect I think we’ve ignored those issues when we consider the power of a citizen to take out a warrant that is not been investigated that’s what law enforcement is for, an expertise that they bring to the table that neither citizen or magistrate possess. I want we simply state it’s a misdemeanor there’s no three strikes the first arrest adversely affects your health your education your maintenance and your support systems. it doesn’t matter whether the arrest of felony or misdemeanor the bottom line is you’re not a criminal as far as the system is concerned as well as prospective employers and housing and education institutions.
the criminal justice system should be reserved for those who are properly trained. there’s a reason why police generally decline to arrest it’s because it’s not enough evidence or insufficient to move
with the warrant. and we need to have in place if the police are involved they must attach their police report to the one application account to complete the police must be required to testify I’m somewhere in that citizens warrant where the police have declined to prosecute or to issue a warrant that should speak for itself and no citizen should be able to bypass that process.
in my case the police refused to issue a warrant after properly investigating the issues I should have never been subject to the arrest the five-day incarceration waiting to be released.
the allegation of harassing text messages based on there being too many not that they were threatening life threatening or harassing but just merely unwanted. so I lost 5 days of my life is that when that person communicates with me by phone I chose to use text. and one day they got upset and took all the voice texting messages to the magistrate I got a warrant.
Oh dear god 5 days… You’re crying over 5 days in jail? Wtf that’s not traumatic. That’s child’s play. You don’t know what traumatic is!! ?
You need to stop. Someone being arrested over a false statement is not childs play and is very traumatic if youve never been in that situation before. That false accusation someone made doesnt just go away, you as the defendent have to give an arm and leg to defend yourself against something you didnt even do, not only that no matter the disposition it stays on ur record.
Its unfortunate that you aren’t allowed to sue civilly for damages. Here in Calif the court understands and you would win your civil case. The liar who destroyed your life would have to pay all court costs, plus damages awarded to you. In NC, attorneys don’t even know how to prepare that kind of civil suit.
Things need to change. Im sorry that happened to you i know exactly what ur going through.
I had the same exact thing happen to me. This psycho woman who wanted me to give her anything she wanted of mine for “free” swore out a so-called Cyberstalking Charge against me. She knew about this rule. I did not. i had an Attorney’s Letter sent to her to stop harassing me and demanding that I turn over whatever property she wanted of mine. The text messages sent to me from her were the ones actually Cyberstalking. I was kind to her but she’d go ballistic if I got better food from Meals on Wheels though we had the same meals. They determined that she was the one cyberstalking me and dropped the charges. It was insane. I had to be picked up, mugshot done, thrown in jail, let out on bail, then get a court-appointed attorney because of this Psycho. She was absolutely nuts and I was just kind to her. She was sending nude and semi-nude photos of herself to guys arrested for drugs. She had claimed she ran away from her husband for selling them. Then she was selling them herself. It was nuts. She’s committing the criminal acts and I was just trying to be kind until she got so totally out of hand. This same Magistrate had let other crooks steal everything off my parents’ property. She remembered me and let this Psycho continue to harass me while she let the other people steal OUR property despite the Will saying they don’t own it. Same Magistrate let these people’s pit bulls attack my pigs inside my bedroom. I had pictures of the dog’s attacking my pigs on my property. I lost one and the other was badly hurt. It was outright trespassing and I had pictures of my pig’s leg in the dog’s mouth, the dog jumping the fence, everything. The dog did $1900 in damage–all ignored by these crooks. Then they shot out the back window of my car when I sued them for the damage their dog did. I should have sworn out criminal charges with the Magistrate but it wouldn’t do any good. Later they let yet another steal money that she owed me for things she bought on an estate sale and never paid for. It’s insane.
Anyone have any experience with magistrates office summarily refusing to hear testimony from a Private Citizen attempting to Initiate Criminal “Cross” Charges against a State’s witness (alleged victim), based on direction from the District Attorney’s office? Re: 15A-304 (d).
Thanks
The NHC magistrate has refused to file a charge of criminal perjury against an LEO who lied under oath during a criminal trial. I have the audio recording of his testimony and witnesses both at the scene of the incident which resulted in the trial and in the courtroom who will testify to his perjury.
The DA refuses to discuss this matter, and the AG and SBI do not respond to my letters. The IA section of the DCPS swept it under the rug. SOL expires in October.
Now what do I do? I am a private citizen of North Carolina by birth.
DS
I have been subjected to abuse of the NC statutes that allow a citizen to bring an arrest warrant through a magistrate by simply swearing out a complaint. I have a terrible neighbor that decided to lie to a magistrate that I had trespassed on her property. This was a total fabrication on her part. Unfortunately, (although the case was ultimately dismissed), I have a record of an arrest in my file. This can be easily discovered by anyone. For example, should I apply to rent an apartment in Florida, the owner could see that I was arrested in North Carolina. Most probably, the Florida apartment owner is not going to be aware of the magistrate system in NC and realize that this system can produce many false arrests. Consequently, I could easily be rejected by this building owner because I was arrested at one time in NC.
The NC magistrate system in my example has now put a discriminatory black mark on my record because a vicious neighbor didn’t like me. This facet of the NC magistrate system must be reformed as most other states do not allow arrest warrants simply on the word of a citizen. Perhaps the answer may be that a summons would be issued instead of a warrant.
I agree with Bruce. I too was falsely accused by a vicious neighbor and now I have a black mark on my record! In California, if a person has a complaint, they must file a police report and take it to the DA. The DA investigates and the process starts from there. This law in NC is abusive and totally unfair. This law protects the evil doer and the innocent cannot sue the person for damages done. Here in California, an innocent can sue, and let me tell you… the judges understand the damages and always reward the innocent and punish the accuser. This law needs to be abolished, but you know what? The corrupt system in NC uses this law to make them money.
Bruce Conway, magistrate of Carteret County. Speaking about what is right and wrong, or the way it should be. All the while issuing warrants without probable cause, other than someone, or a cop wanted one. The magistrates are poorly trained in carteret county. I have subpoened them to court to answer for their stupid crap, only to have them hide behind judicial immunity. These folks are corrupt. I say this: Do away entirely with the magistrate. Let someone file a complaint, the police investigate, and the DA decide whether to charge. Also, do away with district court hearing criminal charges and domestic. A defendant has the right to jury trial in superior court anyway, de novo. District court and magistrates we can do without.
My case is in Carteret County and was also dismissed. I am learning a lot now.
Blatantly, false charges were brought against me. I want charges brought against the person who filed the false charges; after all, they raised their hand and swore it to be the truth. I have been getting kicked around from Magistrates office, to the DA office, to the Sheriff and now to the Local Police. Everyone is saying the other office should be taking care of it.
I had a question for Jeff about initiating the G.S. 15A-304 in felony cases. I’ve been bounced back and forth between the clerk of superior court a magistrate and my local police precinct concerning my case. Every time try to file a police report or petition for a warrant they either tell me it’s too petty or it’s too serious and that I need to talk to the next person. But no ones actually doing anything, I am pursuing assault and false imprisonment charges, that are felonies because I was disabled at the time, that spanned multiple occasions in
two counties. Any help you could offer would be greatly appreciated as I’m not financially able to receive legal help at this time. I forgot to mention this is a dv situation and I’m a male.
In December, 2016 I prepared an affidavit/motion to the Federal Court District of Hawaii to convene a Grand Jury to investigate governmental corruption. I asked the court to activate the GJ investigation based on Supreme Court Criminal Rules. Here is my first paragraph.
“Comes now, a citizen of these United States of America XXXXXXXXXXXXX herinafter referred to as Affiant who moves the Federal Court to Convene a Federal Grand Jury pursuant to the Federal Rules of Criminal Procedure, Title III, rule 6 (1,) and that the court forgive any legal procedural improprieties, mistakes,omissions etc: in consideration that this request has not been prepared by an attorney. This request is made in the belief that United States Citizen has the right, granted by the US Constitution to ask and require the court to act on this request, that an investigation in necessary and that this request is in the best interest of all Citizens of the United States.
On Jan 18, 2016 Judge J.Michael Seabright, Federal Judge District of Hawaii granted my request and my allegations of corruption via the Federal RICO act was forwarded to the Jury. the Affidavit contained a list of over 100 individual defendants and Enterprises.
I cannot find a similar case wherein a Citizen requested a Federal Criminal Grand Jury and the Request was accepted. Any help?
I had 6 warrents issued for my arrest. I won all cases in Salisbury nc. She used these warrents in order to steal all my property. After a year I finally got a court order ro retrieve my belongings. But she stoll my guns 26000 cash anything of value. So today I got a judgment on the money but she agreed to give me 600 for my guns that she has no idea where they are
After signing this deal I realized she doesn’t really have to pay judgment unless she tried to sell house. To me this is admission of guilt that she really has the guns and etc. People I need help before the judge signs off on this and ideas? Also there is so much more about this case it will blow your mind
This worth writing about. Including I almost died, she was a nurse at the VA. She was latter terminated. Also following after a 50b was taken out
A domestic violence trespassing change when I wasn’t even in the county. Also cyber stalking charge texting charge all filed 18 36 hrs before court cases. Help please where do I go from here
P’s all charges were found not guilty
50b was not to talk to her and family. They removed the part about owning guns to.
I was driving down the Interstate in Virginia. Driving the speed limit in a work zone and keeping enough space between the car in front of me and myself. All of a sudden, a car whips in front of me, almost causing me to wreck (I blew my horn at him and we drove on). Up the road, he whips over in front of a different car, trying to speed on up the road. Traffic slowed down and he whipped in front of me again, almost running my truck up the concrete divider. The biggest reason I slammed on my breaks, was he had two little kids in the back seat of his camero.. I called 911 and reported him, but didn’t have a tag number. He juted through traffic and I lost him. Just so happened, we got off at the same exit and I called 911 back and gave them the Tag number. We were headed in the same direction, he just didn’t know that. All of a sudden he accelerates up to 70-80mph in a 35mph zone. Finally caught up to where he was again, pulled over into a Bar parking lot. He jumps out and charges my Truck, wanting to fight in the street. I called 911 back and told them exactly what was going on and they sent Three Police Officers. They took My Statement and had me leave. They took his Statement and a Witness Statement from his friend and the Police Officer didn’t believe them. An Hour later she called me back and told me to go File Charges for Reckless Driving and possible Child Endangerment, with the Magistrates Office against him. All toll I had 4 different calls into the 911 Operator, to keep her informed.
Does anyone understand this process??
Hello Jeff,
This is a topic, that in weighing the pros and cons of our current system, has confounded me for most of my career with the state. I see the benefit, however I have also seen the rampant abuse of the system, both by citizen on citizen and by a few LEO’s using it as a referral service to pass off cases which sometimes do merit further investigation. However I believe I have come up with a solution that would maintain what we have while filtering out the waste – we can do that by taking some cues from our friends in SC and GA.
What I mean by that is instead of the state giving us 3 tools to work with (issue a CS, issue a WFA or find no PC), give us a 4th tool to refer the allegations to a probable cause hearing; much in the same structure as we already conduct small claims court, whereby the accused has a reasonable opportunity to address the allegations. The notification process would easily be handled by a magistrate summons similar in format to the one used in small claims (not a criminal process that goes on someone’s record). This also would allow a period of cooling off in many cases and potentially mediate some situations then and there without the parties even going to court or anyone getting charged.
Keep the issuance of process (CS preferred, WFA in cases where there’s a danger of injury to persons/property or flight) or denying PC, on the table as they are – the crux of the issue is that by limiting the tools at our disposal, we’re left with 3 options, none of which is the best solution in many of the citizen initiated complaints. Unfortunately we are confined to an office and only have the testimony given us when someone walks in the door and fills out a complaint form and swears to it, which I hate to say has led to innocent people being criminally charged and/or arrested (which is why I hardly ever issue a WFA for a citizen complaint unless I have good reason and evidence beyond testimony).
We also follow a similar thought process currently with the issuance of protective orders, whereby an application can be denied, granted ex parte or set for a hearing date so the other party has a chance to come in and address the allegations in the motion. This doesn’t have to be a sweeping across the board change where the legislature needs to abolish statute – do a pilot program of study in a few counties that agree to participate and look at the statistics of all the filings, dismissals, convictions, etc. and see how effective it is as an additional tool in the toolbox. I think this would be a reasonable step in the right direction to improving an existing process instead of getting rid of what we have and starting from scratch.
I know the SOG maintains a neutral position as an academic institution, but what are your thoughts on this being a feasible concept from the academic standpoint?
There is constant abuse with citizens swearing arrest warrants accusing someone isn’t evidence I was accused of stealing lamps from a hotel my wife was stopped police looked through the vehicle found no lamps when I got home from work was arrested in my driveway paid more to a bail bondsman than lamps were worth chose to represent myself knowing I was innocent and had no lamps or video showing me with any lamps sat all day judge told me to come back came back Sat all day and was told to come back was told the officer was unable to make it which was irrelevant testimony about writing a good report wasn’t needed the hotel personal never showed spoke to a lawyer after missing 2 days work paying to get out of jail he took my case left his office in morn at lunch he called said it was dismissed an refund most my money because a night clerk got in an argument with me arrest warrants by citizens must show proof evidence that can be shown summons when it is only words we are treated as guilty criminals until we prove ourselves innocent
Their is very much room for improvement. The mere fact that they don’t run a simple background check on the accusers is comically insane. I just had someone with an active restraining order against them, who had been deemed mentally ill, and not allowed to be around her own children without court ordered supervision, have me arrested, while home alone and changing my toddler. Me being a single father with COURT ORDERED custody of a child.. It even took her MULTIPLE tries to accomplish this, they even help assist the accusers by telling them what NOT to say next time so that someone might believe them.
My ex-wife did almost the exact same thing last year, after I caught her cheating on me, which allowed her to evict me from my home, while she snatch my daughter across the country and hospitalized her, and forcing me to spend thousands of dollars and wasting half a dozen polices officers time to form a posse to retriever her from Utah not a week later after being granted emergency custody.
A roommate I had in my house did that to me. She moved into my house with a insurance casualty policy (I discover that later on). She asked me to throw away some junk she had in three boxes and after I did like she asked, she said I took that stuff and filled a warrant for my arrest. Then she faxed the warrant to the insurance company and she cashed the premium. The warrant has been dismissed by the county about 20 days later. My question is this: this lady was not an American citizen, she was actually a green card holder; was the warrant valid? In other words only American citizens can initiate criminal procedure against someone else? Or legal residents can too? And if the answer to this question is “no”, would have been the warrant against me invalid from the very beginning?
Thank you.
Private prosecutions are not about accessing justice to those who are denied justice by DA’s and ADA’s. DA offices have built in incentive to proceed with ALL viable criminal inquiries, through the DEMOCRATIC electoral system. If they don’t do their jobs and protect STATE and JUSTICE interests, themeselves and their boss will be voted out of office. If a criminal case is actually prosecutable, with probable cause, evidence and reasonable expectation for success, there is NO reason for them not to pursue it, while plenty of reasons for them to INDEED pursue it. So when they don’t, it’s because the case is either BS or otherwise unwinnable. Which leads us to the truth behind private prosecutions, and why they are allowed, in that it is not about justice, but is about MONEY and producing legal fees. In Maryland, I’ve found around 50 private proseuction cases searching online. Never once have I found in any of those instances a SUCCESSFUL private prosecution, aside from those private prosecutions that the defendant PLEAD guilty themselves. I have yet to find an instance where a RULING from a JUDGE or JURY of guilty, actually occuring. The reason being, in Maryland, it’s LEGAL to bring private proseuctions, however state, federal and SUPREME COURT case law has fairly clearly and resolutely deemed interested private prosecutions a violation of due process, a violation of separation of powers, and guilty verdicts are automatically overturnable. See Sinclair v State 363 A. 2d 468, 278 Md. 243 – Md: Court of Appeals, 1976, Young v. UNITED STATES EX REL. VUITTON ET FILS S. A. ET AL. 481 US 787. I know this is a North Carolina issue, but Young v. United States applies there as well. Bringing financial incentive to lawyer in public prosecutions, where they can be make money pursuing criminals, will only result in turning innocent people into criminals. We innocent people need to speak UP. It seems the American people have forgotten that we HAVE power TO make things happen, if we only UNITE and use the democratic system. If legislators and DA’s and judges don’t listen, than it is up to US to elect legislators and represenatives who will pass laws protecting US instead of protecting special interests such as private prosecutions. The systemic penalties surrounding allowing private prosecutions extend beyond our courts and deep into society and our American values. I’m sure everyone has noticed the growing awareness of the “Self-VICTIMIZATION” attitude going around America nowadays. If you claim to be a victim, and money can be made from you being a victim, then the false victim and their interested attorney can and will turn a true innocent into the REAL victim.
This is just a way for angry and corrupt people to have people that they don’t like put in jail. I knew a man that was arrested for disturbing the peace by knocking on a woman’s door.
If your neighbor doesn’t like you they will just have you arrested for disturbing their peace when you cut your grass. Lol…
A private citizen initiated criminal charge which is allowed by our state is problematic at the very least. It opens the gate to flood the courts with frivolous criminal complaints, harassment and possible continued harassment of the defendant in answering a charge, the costs in time and that of hiring an attorney for a defense or the costs to the courts of public defenders all along with no cost to the accuser other than their time in court.
We also must look at the statutory level of evidence needed to bring a charge is that of the lowest level, just the mere word of the individual who could color their statement(s) to justify the action to be brought forward. Magistrates may ask questions but seldom do to the level that of police officers or investigators who would seek out evidence to support the charge other just the mere words of the complainant. Not just mere suspension but evidence that would rise to the level of probable cause for arrest/warrant/criminal summons. Magistrates seldom if at all ask for physical evidence to support the allegations being brought forward.
In my case which is still ongoing, the plaintiff, represented at the time, pro se, took out Criminal Summons for Cyberstalking 18CR50325 and Civil No-Contact 18CVD000011in Forsyth Co. no evidence was submitted to the magistrate(s) other than the affidavit to support the his claim. But when looking at his affidavit(s) there is no evidence to support the claims compared to the elements required under G.S. 14-196.3 and the statutes that cover a 50C, G.S. 14-277.3A(b)(2). Even though discovery is not a requirement of District Court (another topic of discussion) subpoenas were issued and answered in both cases, which showed no evidence to support the claims, in fact once it was shown no evidence existed the plaintiff changed the Criminal Charge from “threatening to inflict bodily harm” to mere harassment, this only after the plaintiff hired legal council.
Certainly this is a flawed system that requires no physical evidence needing to be presented to a magistrate other then the mere words of the complainant. If magistrates would do as law enforcement officers do and that is investigate the claim and ask for material evidence to support a charge many of these charges would never get to the bench, wasting the courts time and costs associated with the defendant hiring an attorney as well as the cost to the courts themselves. Even if found innocent or the charges are dropped the defendant now has a criminal record which can cause problems with employers doing background checks and asking questions as I had in my case with the Guardian Ad Litem program.
The system is set up for abuse by the public and a tool to harass their neighbors, ex-spouses, “political” candidates, stop political speech, stop freedom of speech, using the court as a personal means to intimidate individuals, etc…
This system must change or when individual(s) bring charges and swears to an affidavit that the claims are true but later it is found they were not truthful they should be charged with lying to the courts and prosecuted for perjury as well as be civilly liable to pay the attorney costs of the defendant.
As a former law enforcement officer when I took reports from individuals calming their homes were broken into (obviously not, insurance scam) I informed the individuals that if it was found that they were lying to the police I would follow up with criminal charges against them for filing a false police report. Amazing how many then backed off their claim of that stolen property. It was a major scam that they didn’t want to make payments and had an insurance waiver that if stolen they no longer had to make any payments.
The same can apply to citizens taking out criminal summons or now since the law has changed in some more severe charges the individual is fingerprinted and mug shots taken and being placed under bond. This opens a pandora’s box for abusing of the system!
Many magistrates are not attorneys, just appointed to the position by the Chief Judge, have no law enforcement background or law degree, but merely have some type of college degree and go through a magistrates training course. They do not have the legal background nor have case law knowledge in how to apply the appropriate decision in allowing a charge or complaint to move forward. Most just sign off on the charge and let the courts sort it out ignoring the consequences and burden placed upon the defendant! At the very least they could advise the complainant to contact their law enforcement agency to investigate their claims and let them seek out charges.
This must change!
Can an initiator of thus type of warrant drop the complaint/ warrant without legal ramifications?
I knew that I was not alone as a victim of false charges. A tenant who went through 3 magistrates in Transylvania County before she fooled one into issuing 3 criminal warrants for my arrest on September 9, 2019. This was the day before a civil hearing for a no-contact order, also based on claims without facts. Once all of these charges, civil and criminal, I am considering writing a press release on my personal experience and/or pursuing justice