In 2010, the North Carolina General Assembly enacted G.S. 14-415.4, which allows a person convicted of a nonviolent felony to regain his or her firearm rights if he or she meets the statutory criteria for restoration (including, among other things, waiting twenty years after completing his or her sentence). The law took effect February 1, 2011, meaning that a person who meets the statutory criteria is eligible to utilize the restoration procedure whether his or her offense or conviction occurred before or after February 1, 2011. See S.L. 2010-108 (H 1260), as amended by S.L. 2011-2 (H 18) (clarifying effective date). A restoration order has the effect of lifting the state law ban, in G.S. 14-415.1, on possession of a firearm by a felon. See G.S. 14-415.4(a), (b). It also removes the ban on issuance of a handgun permit, G.S. 14-404(c)(1), and a concealed handgun permit. G.S. 14-415.12(b)(3). Continue reading
Tag Archives: felons
On Monday, the United States Supreme Court unanimously decided a case about the disposition of a defendant’s guns after the defendant has been convicted of a felony. The case is Henderson v. United States. This post discusses the case and its implications for North Carolina. Continue reading →
G.S. 14-415.1 makes it unlawful for “any person who has been convicted of a felony to . . . possess . . . any firearm,” with limited exceptions. In State v. Garris, 191 N.C. App. 276 (2008), the court of appeals held that a defendant may be “convicted and sentenced only once for possession of a firearm by a felon based on his simultaneous possession of [multiple] firearms.” In State v. Wiggins, __ N.C. App. __, 707 S.E.2d 664 (2011), the court extended the logic of Garris to a defendant who obtained two guns simultaneously, then used the guns to shoot three people in a two-hour period. The defendant was convicted of three counts of violating G.S. 14-415.1, one for each time he used the weapons, but the court of appeals ruled that “the fact that Defendant may have fired [the] weapons . . . on more than one occasion during the commission of several substantive crimes does not support multiple possession-based convictions and sentences.”
Last week, however, in State v. Lee, the court declined to apply Garris to a case in which the defendant robbed multiple convenience stores, using the same gun, over the course of five weeks. The court affirmed the defendant’s convictions of multiple counts of possession of a firearm by a felon, stating: “If the evidence shows that the defendant possessed a weapon on different days and in different locations, the holding from Wiggins is not controlling, and the defendant can be charged with multiple possession offenses.” In other words, “each possession of the weapon was [sufficiently] separate in time and location” to allow a conviction in connection with each robbery.
The line between Garris and Wiggins isn’t a bright one. For example, suppose that a defendant robs a pedestrian at gunpoint in downtown Raleigh at 11:59 p.m., then robs another pedestrian a block away at 12:01 a.m. the next day. I assume that although the crimes technically took place on “different days,” Wiggins would apply. But what if we extend the time gap from 10:00 p.m. to 3:00 a.m., and place one robbery in Raleigh and one in Cary? Are we now in Lee territory? What if the time gap is even bigger, but the geographic gap is smaller — for example, what if a defendant robs the same business at gunpoint twice, a week apart? My guess is that Lee applies, but we’ll have to wait for further cases for a more precise test.
I’ve blogged previously about the Britt and Whitaker cases. Britt held that a particular convicted felon retained his right to bear arms under the state constitution, and that G.S. 14-415.1 — which purports to prohibit all felons from possessing firearms — was unconstitutional as applied to him. Whitaker rejected a similar claim made by another convicted felon and made clear that Britt was an exceptional result, driven by the fact that the plaintiff in Britt had committed a single, non-violent felony many years earlier, and had since remained completely out of trouble.
Rather than wait for the courts to accumulate case law about which felons are entitled to possess guns and which are not, the General Assembly jumped into the issue during the just-concluded session. It enacted S.L. 2010-108, which attempts to clarify and limit the circumstances under which felons may retain or regain their gun rights. The statute appears to be consistent with the thrust of Britt and Whitaker, although I am sure that it will be challenged by someone who falls outside its scope.
My colleague John Rubin has drafted the following excellent summary of the legislation, for those interested in a bit more detail. I grateful for his willingness to share it:
[The law] [a]mends various statutes, described below, to allow people convicted of certain felonies to apply for restoration of the right to possess firearms and to create an exception from the firearm restrictions for certain white collar criminal convictions. Provides that changes become effective February 1, 2011, and apply to offenses committed on or after that date. Also directs North Carolina Attorney General, effective July 20, 2010, to request the U.S. Department of Justice and other federal agencies to review these changes and determine whether a person who qualifies under them may purchase and possess a firearm under federal firearms restrictions.
New G.S. 14-415.4 contains the new restoration procedures. The new statute gives the responsibility for hearing restoration petitions to the district court in the district where the person resides. New G.S. 14-415.4(i) states that restoration does not constitute an expunction or pardon, and G.S. 14-415.4(l) states that the knowing and willful submission of false information is a Class 1 misdemeanor and permanently bars restoration of firearm rights.
The initial prerequisite for restoration is that the person must have no more than one conviction for a “nonviolent felony,” which does not include any Class A, B1, or B2 felony or any Class C through I felony that involves an assault as an essential element, possession or use of a firearm or deadly weapon as an essential or nonessential element, or other specified circumstances. Multiple nonviolent felony convictions arising out of the same event and consolidated for sentencing count as one felony. A person is ineligible for restoration for various reasons listed in the statute, including having been adjudicated guilty of or having received a prayer for judgment continued or a suspended sentence for one or more misdemeanor crimes of violence or other listed misdemeanors. To obtain restoration, the person must have had their civil rights restored for at least 20 years, which typically occurs automatically under G.S. 13-1 following a person’s completion of all incidents of his or her sentence. The new statute also states that a person who was convicted of a nonviolent felony in another jurisdiction is eligible for restoration if his or her civil rights, including the right to possess a firearm, have been restored for at least 20 years in the other jurisdiction; this provision may inadvertently make the waiting period for restoration of firearm rights in North Carolina considerably longer for people with convictions from other jurisdictions because they may not be able to obtain restoration of their firearm rights in the other jurisdiction for some time after their citizenship rights have been restored there. New G.S. 14-415.4 establishes other criteria a person must satisfy to obtain restoration of firearm rights, such as a one-year period of residency in North Carolina.
The act amends G.S. 14-415.1 (possession of firearm by a felon) to provide that a convicted felon whose firearm rights have been restored is not subject to the prohibition in that statute; similarly, the act amends G.S. 14-404(c) (handgun permits) and G.S. 14-415.12(b) (concealed handgun permits) to provide that people whose firearms rights have been restored are eligible to obtain the indicated permits if they meet the other criteria for issuance. The act also amends the above statutes to exempt from the firearms restrictions felony convictions pertaining to antitrust violations, unfair trade practices, or restraints of trade. People convicted of these felonies do not need to apply for restoration of their firearms rights (unless convicted of other nonviolent felonies); the changes exempt them from the firearms restrictions.
The state supreme court issued a batch of opinions last Friday, and while several of them are notable, the one that has received the most attention is Britt v. North Carolina. (You can see the News and Observer’s story here, and a couple of commentators’ views here and here.)
Barney Britt pled guilty to PWISD methaqualone (Quaalude) in 1979. He served four months in prison and a couple of years on probation, and in 1987, in keeping with state law at that time, his civil rights were fully restored, including his right to possess firearms. Over the years, G.S. 14-415.1, North Carolina’s felon-in-possession law, was strengthened, and by 2004, it prohibited anyone who had ever been convicted of any felony from possessing any firearm (handgun, long gun, etc.) anywhere (including in the home) for any purpose (including hunting and self-defense).
Britt, who was now prohibited from possessing firearms, sued the state, arguing that the revised G.S. 14-415.1 was unconstitutional. He asserted, inter alia, that it violated the Ex Post Facto Clause’s prohibition against retroactive increases in punishment. The state obtained summary judgment against him, and he appealed. The Court of Appeals affirmed, but last week, the supreme court reversed.
The court did not find an ex post facto problem. Instead, it determined that G.S. 14-415.1, as applied, violated Britt’s rights under Article I, section 30 of the North Carolina Constitution — a provision that is textually identical to the Second Amendment to the United States Constitution. The court applied something akin to rational basis review. It noted that Britt’s crime was nonviolent and did not involve a firearm, that he had not been charged with any crime in the 30 years since his conviction, and that he had legally and without incident possessed firearms for much of that time. It concluded that the application of G.S. 14-415.1 to Britt was unreasonable because Britt had “affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety” and therefore, a regulation that prohibited him from possessing a firearm could not be “fairly related to the preservation of public peace and safety.”
Justice Brady’s majority opinion commanded four votes; Justice Hudson concurred only in the result, without explanation. Chief Justice Parker issued a three-line dissent, while Justice Timmons-Goodson dissented at greater length. She argued that the right to bear arms is subject to reasonable regulation and that prohibiting felons — like those determined to be mentally incompetent — from possessing firearms is quintisentially reasonable.
Justice Timmons-Goodson’s dissent suggests that this case will be the first step down a slippery slope, with other felons, incompetents, and persons subject to domestic violence protective orders challenging the applicable prohibitions against gun possession. An increase in challenges to those prohibitions strikes me as an exceptionally likely consequence of the Britt ruling, though of course, reasonable minds can differ about whether that’s a good thing or a bad one. Although Britt was a civil case, I suspect that most challenges will arise in criminal cases, when defendants move to dismiss charges based on constitutional concerns (or perhaps, request special verdicts from juries regarding whether the defendants pose a threat to public safety?). As to what standards the courts will or should use in deciding such challenges, time will tell — the Britt opinion doesn’t say.
Although not cited by Justice Brady, the ghost of Heller v. District of Columbia, 554 U.S. __ (2008), the case that found an individual right to bear arms in the Second Amendment, clearly animates Britt. For discussion of another court struggling to implement the right announced in Heller, see this prior post’s discussion of how a federal judge in Utah handled a related issue.
Finally, I wonder what effect this decision has on Britt’s status under federal law. Federal law contains a blanket and permanent prohibition on the possession of firearms by felons. 18 U.S.C. 922(g)(1). However, it doesn’t apply to felons who have had their “civil rights restored.” 18 U.S.C. 921(a)(20). I suppose that the Britt opinion does the trick for federal purposes, but if anyone thinks that the federal prohibition still applies to Britt, please let me know.
