The United States Supreme Court recently decided a case about what counts as a “misdemeanor crime of domestic violence” for purposes of the federal statute prohibiting individuals who have been convicted of such crimes from possessing firearms. I’ve had several questions about whether the ruling affects last year’s Fourth Circuit decision holding that North Carolina assaults generally don’t qualify as “misdemeanor crime[s] of domestic violence.” For the reasons set out below, I don’t think the Supreme Court case clearly overrules the Fourth Circuit’s decision. Continue reading
Tag Archives: domestic violence
It is a federal crime for a person who has been convicted of a “misdemeanor crime of domestic violence” to possess a gun. 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” means a misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,” and that is committed by a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). Late last year, the Fourth Circuit ruled that North Carolina misdemeanor assault convictions generally don’t satisfy that definition. Continue reading →
In the 2015 legislative session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases to include dating couples. Continue reading →
A judge who issues an emergency or ex parte domestic violence protective order must order the defendant to surrender all firearms in his care, custody or control if the judge makes certain findings about the defendant’s prior conduct. Among the findings that trigger the weapons-surrender requirement is a finding that the defendant used or threatened to use a deadly weapon or has a pattern of prior conduct involving the use or threatened use of violence with a firearm. A defendant served with such an order must immediately surrender his firearms to the sheriff. If the weapons cannot be immediately surrendered, he must surrender them within 24 hours. But what if the defendant does not turn over any firearms? May the protective order authorize the sheriff to search the defendant, his home, and/or his vehicle for such weapons?
Here’s a question I get occasionally: What language should I use to charge aiding and abetting a violation of a domestic violence protective order (DVPO)? Here’s a similar one: If someone is arrested for aiding and abetting a violation of a DVPO, is the person subject to the 48-hour pretrial release law for domestic violence offenses? I know the scenario immediately. Continue reading →
[Author’s Note: This post has been substantively edited to make corrections in response to helpful comments from readers.]
A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.). Continue reading →
Same sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the Administrative Office of the Courts, that magistrates could be charged criminally for refusing to marry same-sex couples. As noted in this recent news article, a number of magistrates have resigned as a result. But the issue I’ve been asked most about is how same-sex marriage relates to our domestic violence laws.
Background. In State v. Byrd, 363 N.C. 214 (2009), the state supreme court concluded that an ex parte domestic violence protective order, or DVPO, was not a “valid protective order” for purposes of the sentencing enhancement under G.S. 50B-4.1(d). (As explained in this prior post about Byrd, the enhancement provides that a felony that also constitutes a DVPO violation shall be punished one class higher than it otherwise would be.) The ruling cast broad doubt on the validity of ex parte DVPOs, and the General Assembly subsequently enacted legislation that appeared to be intended to reverse Byrd and to bolster the efficacy of ex parte DVPOs. Today, the court of appeals considered whether the legislation achieved its desired outcome.
The case is State v. Poole. As a side note, the State was represented in the case by new School of Government faculty member LaToya Powell, back when she was still at the Attorney General’s office. Poole involved the following series of events.
- October 14, 2011: The defendant’s wife sought and obtained an ex parte DVPO based on the defendant’s threatening and harassing behavior. The order required the defendant to surrender his firearms to the officer who served the order.
- October 17, 2011: A deputy sheriff served the DVPO on the defendant.
- October 18, 2011: Officers returned to the defendant’s home and found a shotgun. The defendant was “arrested for violating the DVPO and indicted for ‘owning, possessing, purchasing, or receiving a firearm’ in violation of [G.S.] 14-269.8.”
Defendant’s motion to dismiss. The defendant moved to dismiss the charge, apparently on two grounds. First, he noted that G.S. 50B-1 defines a “protective order” as an order issued after a “hearing by the court or consent of the parties.” He argued that Byrd held that an ex parte proceeding is not a “hearing,” and therefore, that an ex parte DVPO is not a “protective order.” And if an ex parte DVPO is not a “protective order,” he reasoned, it cannot support a prosecution under G.S. 50B-3.1(j) (making it a Class H felony to possess a firearm in violation of a “protective order”), and its counterpart, G.S. 14-269.8. Second, he argued that prosecuting him criminally for violating an ex parte order violated due process principles.
Court rulings. The trial judge agreed, but the State appealed and the court of appeals reversed.
Ex parte DVPOs can support charges under G.S. 50B-3.1. It dealt with the statutory argument first. It noted that the General Assembly enacted S.L. 2009-342 immediately after Byrd, and observed that the amendment added G.S. 50B-4(f) and G.S. 50B-4.1(h), both of which expressly define the term “valid protective order” to include ex parte DVPOs. Although the defendant was charged under G.S. 50B-3.1, which was not amended, rather than G.S. 50B-4 or G.S. 50B-4.1, the court of appeals ruled that the amendments manifested a legislative intent to confer full legitimacy on ex parte DVPOs. Furthermore, it noted, G.S. 50B-3.1(a) expressly refers to “an emergency or ex parte order,” so a violation of that statute in particular may be predicated on an ex parte DVPO.
No due process violation. The court then ruled on the constitutional issue, concluding that the defendant was not deprived of due process when he was prosecuted for violating an ex parte DVPO. The court noted that due process usually requires that a person be given notice and an opportunity to be heard before he or she may be deprived of liberty or property, but stated that prior notice and an opportunity to be heard may be dispensed with in exceptional circumstances. It ruled that the need to protect victims of domestic violence is a purpose sufficiently important to justify the use of ex parte orders, especially given that such orders are subject to review at an adversarial hearing within 10 days.
Conclusion. Perhaps the legislative response to Byrd could have been drafted to avoid any ambiguity about the status of ex parte DVPOs. But whatever ambiguity existed before Poole, little remains afterwards. Violations of ex parte DVPOs are no different from violations of other types of orders that may be issued under Chapter 50B, and may result in charges under G.S. 50B-3.1 as well as 50B-4.1.
Under G.S. 15A-534.1, when a defendant is charged with assault, stalking, communicating threats, or certain other crimes against “a spouse or former spouse or a person with whom the defendant lives or has lived as if married,” a judge, rather than a magistrate, must set the defendant’s bond. The same rule applies when a defendant is charged with domestic criminal trespass or with violating a domestic violence protective order. If, after 48 hours, a judge hasn’t yet set the defendant’s bond, a magistrate acquires the power to set the bond. For example, if a defendant is arrested on Friday night, normally no judge will be available until Monday. Therefore, on Sunday night, after 48 hours have elapsed, a magistrate should set a bond for the defendant.
The constitutionality of the statute was generally upheld in State v. Thompson, 349 N.C. 483 (1998), which concluded that the statute was regulatory, rather than punitive, and “serves the General Assembly’s legitimate interest in ensuring that a judge, rather than a magistrate, consider[s] the terms of a domestic-violence offender’s pretrial release.” Note that the purpose of the 48 hour rule is not to allow the defendant to cool down. Id. If the defendant needs to cool down, the judge may detain the defendant for a “reasonable period of time,” with proper findings, to allow for that. G.S. 15A-543.1(a)(1). But that period of time transpires after the bond hearing, not before.
There are a few recurrent issues that arise with respect to the 48 hour rule.
First, the rule is sometimes called a “48 hour hold.” I don’t like that description, because it suggests that the defendant should always be held without bond for 48 hours. In fact, the rule doesn’t authorize a hold for any reason other than the unavailability of a judge. If a judge is available — basically, if court is in session — then the defendant should not be held. He or she should be taken promptly before the judge. If a defendant is held for 48 hours even though a judge has been available in the interim, dismissal of the charges is warranted. Id. See also State v. Clegg, 142 N.C. App. 35. But cf. State v. Jenkins, 137 N.C. App. 367 (2000) (although there was a session of court at 9:30 a.m. and the defendant was not taken before a judge until 1:30 p.m., the defendant’s bond hearing took place within a “reasonably feasible” period of time and dismissal was not required).
Second, the extent to which the rule applies to same-sex couples isn’t clear. It certainly does when one member of a same-sex couple is charged with violating a domestic violence protective order obtained by the other. (Such orders can be issued to “current or former household members,” which obviously encompasses some same-sex couples. G.S. 50B-1(b)(5).) But what about when the charge is assault, or one of the other crimes for which the rule applies only to “a spouse or former spouse or a person with whom the defendant lives or has lived as if married”? Can a same-sex couple in North Carolina live together “as if married,” given that state law precludes same-sex marriage? If a same-sex couple marries in another state, then moves to North Carolina, are the members of the couple “spouses” for this purpose? There’s no case on point, and the criminal law faculty here at the School of Government disagree about the right answer and about the best practice given the uncertainty in this area. My own view is that the rule does apply to same-sex couples, based in part on the contrast between G.S. 50B-1(b)(2) (which specifies “persons of opposite sex who live together or have lived together,” when defining the relationships that can support a domestic violence protective order) and G.S. 15A-534.1(a) (which says nothing about “opposite sex” when defining the relationships that trigger the 48 hour rule). But let me repeat that others here disagree, and more importantly, that the courts haven’t spoken. I’d be very interested to know what the practice is out there, and whether any counties have a written or unwritten policy about this issue.
Third, I was recently asked whether the rule applies to opposite-sex relationships in which a legal marriage is impossible, such as between first cousins, [update: first cousins can marry in North Carolina but not double first cousins, G.S. 51-3] or between people who are already married to others. I think so. The purpose of the law is to ensure that domestic violence cases are handled carefully, by legally-trained judicial officials, presumably because of the risks of repeat violence inherent in such cases. That purpose is served by interpreting “as if married” to mean “romantic, not just roommates,” rather than as requiring a careful inquiry into the defendant’s eligibility to marry the alleged victim.
Federal law makes it illegal for a person to possess a gun after having been “convicted in any court of a misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” is a misdemeanor that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by” a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). In North Carolina, the most common misdemeanor charges used in domestic violence cases are simple assault and assault on a female. Is a person convicted of one of those crimes as a result of domestic violence prohibited from possessing a gun?
One might think not, on the theory that neither simple assault nor assault on a female “has, as an element” any particular relationship between the defendant and the victim. But in United States v. Hayes, __ U.S. __, 129 S.Ct. 1079 (2009), the Supreme Court held that while a domestic relationship between the defendant and the victim of the prior domestic violence crime must be established beyond a reasonable doubt in order to convict a defendant under section 922(g)(9), a domestic relationship need not be an element of the prior conviction. In other words, it interpreted the “has, as an element” language in section 921(a)(33) to apply only to the phrase “the use or attempted use of physical force, or the threatened use of a deadly weapon,” and not to the part of the definition of “misdemeanor crime of domestic violence” directed to the relationship between the defendant and the victim.
But there is another legal issue here. In United States v. White, 606 F.3d 144 (4th Cir. 2010), the Fourth Circuit reversed a conviction under section 922(g)(9) where the defendant’s predicate misdemeanor was a Virginia conviction for “domestic assault and battery.” The court reasoned as follows. (1) Virginia follows the common law of assault and battery, under which offensive touching, no matter how gentle, is a battery. (2) Offensive touching that doesn’t cause or risk physical harm doesn’t constitute “physical force” as required by the definition of “misdemeanor crime of domestic violence” in section 921(a)(33). (The court acknowledged a circuit split on this issue, but felt bound by Johnson v. United States, __ U.S. __, 130 S.Ct. 1265 (2010), in which the Supreme Court held that a Florida battery was not a “violent felony” for purposes of the Armed Career Criminal Act because it did not require “physical force,” which the Court construed to mean violent force.) Therefore, a conviction for “domestic assault and battery” does not automatically qualify as a misdemeanor crime of domestic violence. (3) The court then applied a “modified categorical approach” that allowed it to consider not only of the definition of the Virginia crime, but also “the trial record – including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” However, the sparse state record did not allow the court to determine whether the defendant’s prior conviction involved mere unconsented touching or something more, so the conviction could not serve as a predicate to the federal conviction under section 922(g)(9).
So, how might White apply to North Carolina offenses like simple assault or assault on a female? Like Virginia, North Carolina does not have a statutory definition of “assault.” Instead, the meaning of the term is established by common law. Jessica Smith, North Carolina Crimes 84 (6th ed. 2007). And although most of the relevant cases are either very old or unpublished, it appears that any unconsented touching is a battery, and that any battery is an assault. See, e.g., State v. West, 146 N.C. App. 741 (2001) (noting that “[a]ssault on a female may be proven by finding either an assault on or a battery of the victim,” and defining battery as any “unlawful touching” or the application of “any force, however slight” to the victim). See also State v. Williams, 2008 WL 4635507 (N.C. Ct. App. Oct. 21, 2008) (unpublished) (“[The victim] testified that defendant touched her several times and that the touching was unwanted. Since the evidence indicates an actual battery took place, the State had no burden to prove the victim was put in fear or apprehension of harmful or offensive contact.”); State v. Clay, 2005 WL 3046634 (N.C. Ct. App. Nov. 15, 2005) (unpublished) (“[I]f a criminal defendant intentionally touches or applies force to another in a manner that is neither consensual nor privileged, that defendant has committed a battery and, necessarily then, an assault.”); State v. Bozeman, 2005 WL 2277055 (N.C. Ct. App. Sept. 20, 2005) (unpublished) (“At trial the State presented [evidence] that defendant had poked Farrar, clearly applying force to her person. There was no evidence presented that Farrar had authorized defendant to touch her or that defendant was in some way privileged to do so. Therefore, defendant’s poking of Farrar was unlawful.”). But cf. State v. Hemphill, 162 N.C. 632 (1913) (“It may be true that every touching of the person of another, however slight or trifling the force may be, if done in an angry, rude, or hostile manner, will constitute an assault and battery, but not so if there was no intention to hurt or injure, and it was so understood by the other party, and there was in fact no injury.”); State v. Corbett, 196 N.C. App. 508 (2009) (holding that simple assault is not a lesser included of sexual battery, and arguably suggesting that a mere unwanted touching isn’t an assault unless it involves the possibility of injury or bodily harm) (citation added after post originally published).
Further evidence that a non-violent but unconsented touching is an assault under North Carolina law comes from our pattern jury instructions. The basic pattern jury instruction for simple assault is N.C.P.I. – Crim. 208.40. It defines an assault as “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” It doesn’t refer to battery at all. But in 2010, a new pattern jury instruction, N.C.P.I. – Crim. 208.41, was promulgated, to be used in assault cases “involving physical contact.” It reads in part:
Provided there is a battery involved, choose the most appropriate definition of assault as follows: (An assault is an intentional application of force, however slight, directly or indirectly, to the body of another person without that person’s consent.) (An assault is an intentional, offensive touching of another person without that person’s consent.)
Thus, N.C.P.I. – Crim. 208.41 supports the idea that any unconsented touching constitutes an assault under North Carolina law, even if the touching does not involve violent force. So I don’t think that North Carolina convictions for simple assault or assault on a female arising in a domestic setting are automatically “misdemeanor crime[s] of domestic violence” under federal law, at least under the Fourth Circuit’s interpretation.
However, I believe that the vast majority of such assaults will qualify as misdemeanor crimes of domestic violence under the “modified categorical approach.” The AOC arrest warrant form for simple assault is AOC-CR-102. The charging language states that the defendant did “assault and strike” the victim. (Likewise, the charging language for assault on a female states that the defendant did “assault and strike” the victim.) It seems to me that under the modified categorical approach, the use of the word “strike” is sufficient to imply the use of violent force. The Court’s opinion in Johnson hints at that conclusion, and in any event, Webster’s New World Collegiate Dictionary (4th ed. 2007) defines “strike” as “to hit with the hand or a tool, weapon, etc.; smite . . . to give a blow to; hit with force. . . . [or to cause] violent or forceful contact.” Even if “strike” doesn’t do the trick, the form includes room for a description of the assault, e.g., “by hitting her on the head with his fist,” which may establish the required violent force.
The upshot is that even after White, most defendants convicted of simple assault or assault on a female arising out of a domestic dispute are likely barred by federal law from owning a gun. And judges, when asked to return guns to such defendants under G.S. 50B-3.1(f) (allowing for the return of firearms surrendered pursuant to a domestic violence protective order once the order expires and all criminal charges have been addressed), should refuse when the charging documents in the defendant’s assault case reflect the use or threat of violent force.