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?
domestic violence
Can the Person Protected by a DVPO Be Charged with Violating the Order?
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.
I’ve Been Arrested . . . But Committed No Crime
[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.).
Same Sex Marriage and Domestic Violence
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.
Court of Appeals Upholds Validity of Ex Parte DVPOs
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 … Read more
Domestic Violence Cases and the 48 Hour Rule
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 … Read more
Ban on Gun Possession by Defendants Convicted of a “Domestic Violence Misdemeanor”
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 … Read more
Legislative “Fix” for State v. Byrd
Remember State v. Byrd, the case that held that ex parte domestic violence TROs aren’t “protective orders” under Chapter 50B? I blogged about it here, and I highlighted a more detailed summary by John Rubin here. Byrd always seemed like a likely candidate for a legislative “fix,” and in fact, the General Assembly passed, and … Read more
State v. Byrd and Violations of DVPOs
I thought that I might blog today about the Sotomayor confirmation hearings, but they’ve been thoroughly dull. The only piece I’ve seen that makes them seem even a little bit interesting is this one, which I understand to be written by a liberal commentator unimpressed with the judge. Fortunately, my colleague John Rubin rescued me … Read more
State v. Byrd and Violations of DVPOs
Editor’s note: Several readers have reported technical difficulties with the blog. I’m trying to solve the problem, but in the meantime, (1) it seems to be limited to users of Microsoft Internet Explorer, so using a different browser may help, and (2) the last two days’ posts should be viewable here and here. My apologies. … Read more