This session, the General Assembly passed S.L. 2017-94, which creates a rebuttable presumption that certain domestic violence homicides are premeditated and deliberate and therefore constitute first-degree murder. WRAL explains here that the measure is known as Britny’s Law “in memory of Britny Jordan Puryear, a 22-year-old who was shot and killed by her live-in boyfriend, Logan McLean, in their Fuquay-Varina home on Nov. 6, 2014, after a four-year abusive relationship.” The bill raises many questions, which this post attempts to answer. Continue reading
Tag Archives: domestic violence
Domestic violence protective orders (DVPOs) are available to “persons of the opposite sex who are . . . or have been in a dating relationship,” and who are able to establish that the person that they are or were dating committed an act of domestic violence against them. Persons of the same sex who are or were in a dating relationship don’t have the same opportunity. Is that constitutional? The Supreme Court of South Carolina just addressed a related question, and its opinion suggests that the answer is no. Continue reading →
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 →
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session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases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.