North Carolina law prohibits a person who has been convicted of a felony from possessing a firearm. The prohibition, set forth in G.S. 14-415.1, contains narrow exceptions, such as for antique firearms. The question has arisen in several cases whether a person with a prior felony conviction may possess a firearm if necessary to defend himself or others—in other words, whether the person may rely on a justification defense.
firearms
Vinson, Voisine, and Misdemeanor Crimes of Domestic Violence
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.
Fourth Circuit: North Carolina Assaults Don’t Count as “Misdemeanor Crimes of Domestic Violence” for Purposes of Firearm Prohibition
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.
Differences Between North Carolina and Federal Possession-of-Firearm by Felon Offenses Concerning the Prior Conviction Element Disqualifying Possession of a Firearm
Federal law and North Carolina law each prohibit in their own ways the possession of a firearm by a felon and, under federal law, certain domestic violence misdemeanors as well. A recent Fourth Circuit Court of Appeals case ruled that a North Carolina felony conviction did not qualify to prove the federal offense of possession of a firearm by felon. The fact that this conviction likely would qualify for the North Carolina offense leads to this post that provides a general overview of the differences.
Frisking a Person for a Weapon When a State Allows Carrying a Concealed Weapon with a Permit
Sometimes a legislature enacts a statute that has consequences beyond the direct impact of the statute’s provisions. West Virginia’s statute allowing the carrying of a concealed weapon with a permit may be such an example, based on the February 23, 2016, ruling of the Fourth Circuit Court of Appeals in United States v. Robinson. The court ruled that a West Virginia officer did not have reasonable suspicion to conduct a frisk because there was insufficient evidence of dangerousness, relying in part on a person’s right in West Virginia to carry a concealed weapon with a permit. And this ruling may impact cases in other states, such as North Carolina, that have a statute similar, although not identical, to West Virginia’s. This post discusses this ruling and its potential impact in North Carolina state courts.
Changes to the Gun Permit Laws
North Carolina has two kinds of gun permits: pistol purchase permits and concealed carry permits. Both types of permits are issued by sheriffs. The statutes concerning both kinds of permits were amended during the 2015 legislative session by S.L. 2015-195. This post summarizes the most important changes.
President Obama’s Actions on Gun Control Are Probably Lawful, but Are not Likely to Have a Major Impact
President Obama recently announced a series of executive actions and policy initiatives regarding gun violence. The President’s actions have been praised enthusiastically by some and condemned stridently by others. This post summarizes the actions and assesses their legality and likely effectiveness. In short, the actions are almost certainly lawful, but are unlikely to reduce gun violence significantly.
Second Circuit Decides Major Gun Control Case
The Second Circuit just decided a case regarding gun control legislation in Connecticut and New York. It’s important in its own right, and because it concerns two issues that the Supreme Court could soon take up: bans on assault weapons and on high-capacity magazines.
Restoring State Firearm Rights as a Condition for Restoring Federal Firearm Rights
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).
State v. Elder: DVPO Cannot Authorize Search for Guns
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?