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. Continue reading
Tag Archives: firearms
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 →
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?
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 →
Regular readers know that I try to keep abreast of changes in gun laws, both because guns are involved in a significant number of serious crimes and because the gun laws themselves are often criminal provisions. There’s been considerable recent media coverage of a proposal by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to change the legal status of a specific type of ammunition. Depending on who you talk to, the move is either a technical reclassification that will improve officer safety at no significant cost to law-abiding gun owners, or President Obama’s first step towards gun control by executive action. As usual for a School of Government piece, this post doesn’t take a side, but does provide some facts. Continue reading →
A man in Charlotte was struck by a stray bullet on July 4th. The police say that “it appears that it was not an intentional shooting but that someone . . . fired a celebration shot into the air” and happened to hit the man. The shot could have been fired anywhere in a several mile radius and prospects for identifying the shooter appear to be slim. A story about the incident is here.
The story notes that stray bullet impacts, while not common, do occur from time to time. It refers specifically to a 1987 tragedy in which “a stray gunshot killed a 16-year-old girl floating on a raft in the crowded Ocean Island wave pool at Carowinds.” An ABC News story about New Year’s Eve gunfire and the harm it causes is here.
The story led me to think about what criminal charges would be appropriate in such a case if the shooter could be identified. To abstract away from the Charlotte incident, imagine the following fact pattern: Gary Gunslinger legally owns a rifle. It is his birthday and he is hosting a family cookout in his backyard. Gary has had a drink or two and decides to celebrate by shooting his rifle into the air. He’s not trying to hit anyone, but a bullet strikes Valerie Victim as she stands waiting for a bus a mile away.
If Valerie is killed, the first issue is whether any homicide charge applies. If Gary’s conduct is so reckless that it amounts to malice, a second-degree murder charge would be proper. Although I couldn’t find a case on point, I would expect a court to look at that issue through a framework similar to that used to examine vehicular homicides. Factors like the extent of Gary’s intoxication, the number of shots fired, the recklessness with which the shots were fired, whether Gary owned the gun legally, and whether Gary had any history of reckless behavior with a gun would all be relevant. If a court were to find the evidence insufficient to establish malice, then involuntary manslaughter would be a proper charge.
Let me pause for a quick reader poll. Assuming that Gary had consumed two beers, fired four shots into the air, and has no known history of irresponsibility with a gun, which charge would you consider most appropriate?
If Valerie were injured but not killed, Gary could be charged with an assault by culpable negligence. (For a discussion of the negligence theory of assault, see Jessica Smith, North Carolina Crimes 113 (7th ed. 2012).)
A few other charges are possible. If Gary’s yard were fenced in, perhaps he could be charged with discharging a firearm from within an enclosure. G.S. 14-34.9. There aren’t any appellate cases citing that section, so it isn’t clear how far the term “enclosure” reaches. Finally, if Gary lived in a jurisdiction that prohibited the discharge of firearms, he could be charged under the appropriate ordinance. For example, Section 15-13 of the Charlotte City Code prohibits “shoot[ing] any firearm in the city,” except at a range or with the city’s permission. Most other larger cities have similar ordinances, though many, unlike Charlotte’s, contain an exception for self-defense. Cf. G.S. 160A-189 (“A city may by ordinance regulate, restrict, or prohibit the discharge of firearms at any time or place within the city except when used in defense of person or property or pursuant to lawful directions of law-enforcement officers, and may regulate the display of firearms on the streets, sidewalks, alleys, or other public property.”).
If folks see the issue differently, think I’ve missed a likely charge, or have other comments about this type of conduct, please weigh in by posting a comment.
The court of appeals just reversed a defendant’s conviction for possession of a firearm by a convicted felon. It’s a case with interesting facts that raises questions about whether the owner or the driver of a vehicle is responsible for its contents.
State v. Bailey began when two Roxboro officers heard several gunshots at an apartment complex. Responding to the scene, one of the officers saw a car leaving the area. The officer stopped the car. The defendant was in the passenger seat, and his girlfriend was driving. The officer asked whether there were any weapons in the car, and the defendant said that there was a gun in the backseat. The gun turned out to be an AK-47 semiautomatic rifle. It was warm, as if it had recently been fired.
Additional relevant facts include the following:
- “[T]he rifle was registered to” the defendant’s girlfriend. As an aside, although this statement may reflect the trial testimony, North Carolina does not have a registry for long guns, so I am not sure exactly what it means.
- The car was titled in the defendant’s name. However, the defendant testified at trial that although he had helped buy the car, his girlfriend used and controlled it.
- A shell casing that was compatible with the rifle was found in the apartment complex.
- The defendant testified, and denied possessing or firing the rifle. He claimed that he and his girlfriend left the complex upon hearing gunshots.
- A gunshot residue test performed on the defendant was inconclusive.
- The defendant’s fingerprints were not found on the rifle.
The defendant was charged with, and convicted of, possession of a firearm by a convicted felon, but the court of appeals ruled that the State’s evidence was insufficient to support the conviction.
It reasoned that the defendant was not in actual possession of the gun, so the State needed to prove constructive possession. Further, because the defendant was not in sole control of the car, the State needed to offer “other incriminating circumstances” beyond the defendant’s presence there. And the court found no such circumstances, noting the lack of physical evidence tying the defendant to the gun and concluding that the defendant’s knowledge of the gun’s presence was not enough to render him in possession of it.
The court’s conclusion is in line with State v. Alston, 131 N.C. App. 514 (1998), a similar case in which officers found a gun in a car with a female driver and a male passenger. The gun in that case was registered to the driver, the car was not registered to either occupant, and the court of appeals found that there was insufficient evidence that the passenger was more than merely present alongside the gun.
On the other hand, recall State v. Mitchell, __ N.C. App. __, 735 S.E.2d 438 (2012), a case I blogged about here. In that case, the court of appeals affirmed a male driver’s conviction for possessing a gun found in the female passenger’s purse inside the glove compartment of the vehicle.
All of these are close cases, and reasonable minds might differ about which set of facts is the strongest for the State. In each case, the court of appeals emphasized that the driver of a vehicle controls the vehicle and is responsible for its contents. In Bailey, though, the registered owner of the vehicle was inside the car, and one could argue that in that setting, ultimate authority rests with the owner. In drug cases, the court has indicated that ownership of a vehicle provides a measure of control. See, e.g., State v. Hudson, 206 N.C. App. 482 (2010) (stating that “[i]n car cases . . . ownership [is] sufficient” to create an inference of constructive possession and observing that “courts in this State have held consistently” that both drivers and owners of vehicles have the power to control the vehicles’ contents). And in the context of standing to object to an allegedly unlawful search of a vehicle, ownership of a vehicle is generally sufficient to confer standing. Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (ruling that defendants lacked standing because they were “passengers occupying a car which they neither owned nor leased”). In fact, ownership may be more significant than who is driving in the Fourth Amendment context. Cf. State v. Hodges, 195 N.C. App. 390 (2009) (holding that the driver of a car lacked standing to object to a search because he “claimed no ownership interest in the vehicle” and deferred to the passenger regarding authority to search the vehicle).
The court’s opinion in Bailey was unanimous, so we’ll have to wait and see whether the State chooses to seek further review, and if so, whether the supreme court is interested in the issue.
This week, the court of appeals decided State v. Price, an interesting gun rights and Fourth Amendment case.
Facts. The defendant was standing in a forest, near a deer stand, holding a rifle, in full camouflage, when a wildlife officer approached him. The officer asked the defendant for his hunting license, under the license check authority of G.S. 113-136(f). The officer then asked the defendant whether he was a convicted felon, and the defendant admitted that he was. The officer called another officer for backup, and they seized the defendant’s gun. The defendant was subsequently charged with possession of a firearm by a felon.
Trial court proceedings. The defendant moved to suppress his statement about his criminal record, and his gun, apparently on the basis that the inquiry regarding his record unduly prolonged the license check and that without the admission, there would have been no basis for seizing the gun. The judge agreed with the defendant’s argument but ordered dismissal, rather than suppression, as the remedy. The defendant also argued that the felon-in-possession statute, G.S. 14-415.1, was unconstitutional as applied to him, because his possession of a firearm did not pose a danger to the community. The judge stated that he agreed with that argument, too, but that he was “dismissing [the case] not based on those grounds,” instead relying on the Fourth Amendment violation. Confusingly, the judge eventually signed two written dismissal orders, one based on the Fourth Amendment violation and one based on the Second Amendment claim. The State appealed.
Second Amendment issue. The court of appeals first addressed the defendant’s constitutional challenge to G.S. 14-415.1. The court observed that under Britt v. State, 363 N.C. 546 (2009), and State v. Whitaker, 201 N.C. App. 190 (2009), as-applied challenges to the statute require consideration of the following factors:
- The type of felony conviction(s) at issue, including whether the conviction(s) involved violence
- How long ago the conviction(s) took place
- “The felon’s history of law-abiding conduct since the crime”
- “[T]he felon’s history of responsible, lawful firearm possession during a time period when possession of firearms was not prohibited”
- “[T]he felon’s assiduous and proactive compliance with the 2004 amendment” to G.S. 14-415.1 (rendering it applicable to all guns everywhere rather than just handguns outside the home)
The court rejected the defendant’s as-applied challenge, noting that he had three prior felony convictions, two for selling marijuana and one for an attempted deadly weapon assault. The assault conviction was “more recent,” as it took place in 2003. And, while there was “no evidence . . . that the defendant has misused firearms, there [was] also no evidence” that the defendant had complied with the Felony Firearms Act, as he possessed his hunting rifle in violation of the statute. The court’s discussion is consistent with my general impression that individuals with felony convictions are much more likely to win the argument that they are constitutionally entitled to possess firearms when that argument is made proactively in a lawsuit against the state than when the argument is raised as a defense after being arrested in possession of a gun.
Fourth Amendment issue. The court also reversed on the Fourth Amendment issue, concluding that once the defendant produced his hunting license to the wildlife officer, he was free to leave. Thus, the further discussion regarding the defendant’s criminal record was consensual, not part of a seizure, and was outside the scope of the Fourth Amendment. (And once the defendant admitted to being a felon, the rifle itself was properly seized as evidence of a crime that was in plain view.) This result is generally consistent with the courts’ treatment of traffic stops, where the return of the driver’s license to the driver generally marks the end of the seizure and the beginning of a consensual encounter. My paper on traffic stops – available here – discusses that issue in detail.
Can a concealed carry permit holder carry a concealed handgun in a park? On a playground? The legislature has changed the law in this area twice in recent years and I get lots of questions about it. This post summarizes the basics.
Concealed weapons generally are forbidden. Carrying a concealed weapon of any kind, including a gun, is generally against the law in North Carolina. G.S. 14-269 (making it “unlawful for any person willfully and intentionally to carry concealed about his person” a deadly weapon, including any “pistol or gun”).
Concealed carry with a permit generally is allowed. If a person obtains a concealed handgun permit, the person may carry a concealed handgun “unless otherwise specifically prohibited by law.” G.S. 14-415.11(a). In other words, having a concealed carry permit brings the permit holder outside the scope of the generic concealed weapons prohibition. G.S. 14-269(a1)(2).
When concealed carry with a permit isn’t allowed. Even concealed carry permit holders can’t carry everywhere. Concealed carry is prohibited in certain places, most of which are listed in G.S. 14-415.11(c). So, for example, even permit holders can’t carry on school grounds, G.S. 14-269.2, in courthouses, G.S. 14-269.4, in a “law enforcement or correctional facility,” G.S. 14-415.11(c)(5), or on any private premises where a notice prohibiting concealed handguns has been posted. There are other exceptions, too, and there are exceptions to some of the exceptions, but they don’t concern parks so I won’t get into them in this post.
Where do state parks fit in? Permit holders may carry concealed weapons in state parks under G.S. 14-415.11(c1).
Where do local parks fit in? Most of the questions I’ve had are about local parks. State law does not prohibit concealed carry in local parks, so any limitations on concealed carry in local parks would have to come from local government. Generally, however, local governments don’t have the authority to regulate or restrict concealed carry. G.S. 14-415.23 (stating that “no political subdivisions . . . of the State nor any county [or] city . . . may enact ordinances . . . concerning legally carrying a concealed handgun,” except as provided in that section). The apparent purpose of this preemption statute is to prevent the creation of a patchwork of local regulations that would make moving around the state with a concealed weapon impossibly complex. Most states have similar statutes.
There are exceptions to the preemption statue, and at one time, parks were among them. Before 2011, G.S. 14-415.23 provided that local governments could “adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun . . . on local government buildings, their appurtenant premises, and parks.”
In 2011, though, the General Assembly amended this exception to the preemption statute, essentially replacing “parks” with the narrower phrase “municipal and county recreational facilities that are specifically identified by the unit of local government.” Recreational facilities were defined to “include only the following: a playground, an athletic field, a swimming pool, and an athletic facility.” S.L. 2011-268. I received many questions about the new law, like what constitutes a playground, whether an athletic field included the adjoining bleachers and bathrooms, and whether a greenway was an athletic facility. But before we got definite answers to those questions, the legislature changed the law again.
This year, the General Assembly further amended G.S. 14-415.23, changing the definition of recreational facilities to include only:
- athletic fields, “including any appurtenant facilities such as restrooms,” but only during scheduled, organized athletic events
- swimming pools, “including any appurtenant facilities used for dressing, storage of personal items, or other uses related to the swimming pool”
- “[a] facility used for athletic events, including, but not limited to, a gymnasium”
The law now specifies that greenways and “open areas” aren’t recreational facilities. S.L. 2013-369. Playgrounds have been removed from the definition. I have been asked many times why the General Assembly chose to remove playgrounds. I don’t know, and I’m not aware of any meaningful legislative history that would answer the question. If readers are aware of information on point, please let me know or post a comment.
Current law in a nutshell. As things stand now, local governments generally lack the authority to prohibit concealed carry in parks. They may prohibit concealed carry at the recreational facilities listed in the statute, which include neither playgrounds nor greenways.
Local governments retain the authority, under G.S. 14-415.23, to prohibit concealed carry in “local government buildings and their appurtenant premises.” Therefore, if there are buildings in a park, concealed carry may be prohibited in the buildings and on related premises like adjoining parking lots. It isn’t clear exactly what counts as an “appurtenant” premise with respect to G.S. 14-415.23, but in Blackwelder v. Holyoke Mut. Fire Ins. Co., 10 N.C. App. 576 (1971), the court of appeals discussed the meaning of “appurtenant private structure” as used in a fire insurance policy. Generally, the court stated that “appurtenant” means connected in use to, or incidental to the use of, another location.
In order to prohibit concealed carry at a location where it has the power to do so, a local government must pass an ordinance and post conspicuous signs.
Constitutional right to carry? It might be possible to argue that there is a federal or state constitutional right to carry concealed weapons that is broader than state law currently protects, but that strikes me as an uphill battle. Existing law suggests that concealed carry may be completely prohibited, so North Carolina’s system of allowing permit holders to carry concealed handguns in most places appears to be more permissive than is constitutionally required. See District of Columbia v. Heller, 554 U.S. 570 (2008) (interpreting the Second Amendment by examining founding-era cases and materials and noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues”); N.C. Const., Art. I, Sec. 30 (providing the same general right to bear arms as the Second Amendment but also stating that “[n]othing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice”).
Open carry. I may do a future post on open carry in parks, which raises a different set of issues and on which the law is less clear.