The General Assembly has amended G.S. 14-190.5A, the “revenge porn” statute. The statute now (1) applies to live streams as well as recordings, and (2) is not limited to images captured in the course of a “personal relationship.” However, it still leaves open questions about various types of digitally-generated images. Continue reading
Tag Archives: general assembly
In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law: Continue reading →
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading →
The General Assembly reached an agreement on coal ash and has adjourned for the session. Shortly before departing, it approved a technical corrections bill that has become law. The bill contains several criminal law provisions, some of which arguably are not “technical.” But let’s not get technical about what’s technical!
Bob Farb sent a summary of the bill out yesterday afternoon, and I’ve pasted it below for those who haven’t seen it. It includes several provisions that I have previously noted on the blog, including one regarding vapor cigarettes for jail inmates and one regarding the disposition of seized weapons. But the bill contains additional items of possible interest as well, so here’s the entire summary:
S.L. 2014-115 (H 1133): Miscellaneous criminal law changes. This 58-page session law makes miscellaneous changes to a variety of statutes, including criminal provisions, which are effective on August 11, 2014, unless otherwise noted. The section numbers and pages of the session law are noted to facilitate locating the provisions.
- Amended G.S. 15A-830(a)(7), involving the Crime Victims’ Rights Act, revises the listing of offenses included within the act to reflect reclassifications and repeals, and specifically states that the changes do not adversely affect the rights granted to victims before these changes become effective. Section 2.1 (pages 2-3).
- Amended G.S. 7A-273(2) (magistrates’ authority to accept guilty pleas) includes open burning offenses under Article 78 of G.S. Chapter 106. Section 20 (page 13).
- Effective for offenses committed on or after December 1, 2014, amended G.S. 14-258.1 allows local confinement facilities to give or sell vapor products or FDA-approved tobacco cessation products to inmates in their custody. Section 23 (page 13).
- A clerk of superior court’s reporting duties under G.S. 14-404(c1) to the National Instant Criminal Background Check System (NICS) involving pistol permits issued by sheriffs are delayed from beginning on July 1, 2014, to January 1, 2015, and clarifies that the clerk must determine which information can “practicably be transmitted” to NICS. Section 23.5 (pages 13-14).
- Amended G.S. 15-11.1(b1)(4) allows a court order transferring a seized firearm to a law enforcement agency to be issued without a written request of the head of the agency. Section 24.5 (page 14).
- Amended G.S. 20-4.01(41a) includes within the definition of a “serious traffic violation” the unlawful use of a mobile telephone while operating a commercial motor vehicle. Section 28.3 (pages 18-19).
- Amended G.S. 20-37.13 provides that the issuance of a commercial driver’s learner’s permit is a precondition to the initial issuance of a commercial driver’s license and also a precondition to the upgrade of a commercial driver’s license if the upgrade requires a skills test. Section 28.5 (page 19).
- Local acts for five counties (Harnett, Pamlico, Perquimans, Scotland, and Warren) are repealed that had governed the disposition of deadly weapons after a conviction. Disposition in these counties are now governed by G.S. 14-269.1 (confiscation and disposition of deadly weapons) in the same manner as the other 95 counties. Section 61 (page 53).
Shea noted yesterday that the General Assembly has begun its 2014 session, and she summarized one of the bills that the legislature may take up. This post notes several other significant bills under consideration.
Background. In even-numbered years, the legislature has a “short session” during which only certain matters may be considered. The most important categories of legislation that may be advanced are (1) budgetary adjustments and (2) bills that passed “crossover” in the previous session, meaning that they were approved by one chamber but not yet approved or rejected by the other. A complete explanation of the rules, and a list of all the bills that passed crossover in 2013, is here.
Bills related to criminal law. Some of the bills of interest that the General Assembly may consider are:
- H31, which would amend habitual DWI so that any prior conviction of habitual DWI, regardless of how long ago it took place, would render a new DWI a habitual DWI.
- H40, which would amend habitual DWI so that two, rather than three, previous DWI convictions are needed to trigger the offense.
- H183, which would allow public and private hospitals to conduct chemical analyses of blood or urine in DWI cases.
- H217, which would, among other things, make transfer to superior court mandatory in certain serious sex crime cases involving older juveniles.
- H888, which would authorize the Legislative Research Commission to study the criminal laws concerning the possession and distribution of prescription opiates.
- H908, which would expand the use of investigative grand juries, currently authorized only in drug trafficking cases, to certain fraud and white collar investigations.
There are a few other criminal law bills that passed crossover, but they look like pretty small potatoes.
New bills may crop up. Every short session, new bills get introduced that didn’t pass crossover the previous session and that have nothing to do with the budget. There are a variety of legislative rules that permit that. For example, a new bill may be introduced if two-thirds of the members of each chamber sign on to a joint resolution authorizing its introduction. So the list above certainly does not represent the entire universe of criminal law bills that will be considered this session. Stay tuned for future developments.
The General Assembly has passed H 937, which awaits the Governor’s signature. It is an omnibus gun bill, following rather closely on the heels of the omnibus firearms bill enacted in 2011, which I covered in part here. Assuming that it becomes law – and I am not aware of any prospect of a veto [update: it has been signed by the Governor] – at least two of its provisions will have a substantial effect on the criminal justice system. The bill:
- Creates the new status offense of armed habitual felon, which generally provides that a person who has been convicted of one “firearm-related felony,” and commits a second, shall be sentenced as a Class C felon with a minimum 120 month prison term.
- Expands the gun enhancement in G.S. 15A-1340.16A to apply to all felonies, rather than just Class A through Class E felonies. The enhancement now adds 72 months, rather than 60, to prison terms for Class A through Class E felonies; 36 months to Class F and Class G felonies; and 12 months to Class H and Class I felonies.
The bill makes a number of other changes, generally designed to expand the rights of gun owners, particularly concealed handgun permit holders. It:
- Amends G.S. 14-269 and G.S. 14-269.2 to allow concealed handgun permit holders to bring firearms onto school grounds and into parking lots for state government facilities so long the firearms are “in a closed compartment or container within the person’s locked vehicle.”
- Amends G.S. 14-269.3 to allow concealed handgun permit holders to bring firearms into “establishment[s] in which alcoholic beverages are sold and consumed,” such as bars and restaurants, and into “assembl[ies] where a fee has been charged for admission.”
- Amends G.S. 14-415.23 to remove local governments’ authority to prohibit concealed handguns at playgrounds and on greenways, and clarifies the extent of local governments’ authority to prohibit concealed handguns at certain other recreational facilities such as athletic fields and swimming pools.
- Imposes a 48-hour time limit on clerks of court to report to the NICS system certain mental-health related court determinations, such as involuntary commitment orders or findings of insanity or incompetence.
- Amends G.S. 14-415.17 to provide that “the list of [concealed carry] permit holders and the information collected by the sheriff to process an application for a permit are confidential and are not a public record.” The bill also provides that gun dealers’ records are not public records.
- Amends G.S. 14-277.2 to allow concealed carry permit holders to carry concealed handguns at parades and other gatherings.
- Retains, unlike earlier versions of the bill, G.S. 14-402 through 14-405, the statutes that require a person to obtain a handgun purchase permit from the sheriff before buying or receiving a handgun. The bill reduces the amount of time within which a sheriff must decide whether to issue a permit from 30 days to 14 days; gives a sheriff the authority to revoke a permit after issuance under certain circumstances; and makes most records related to such permits exempt from the public records law.
- Clarifies and further expands the rights of certain judicial officials to carry concealed handguns.
Many of the foregoing changes will be effective October 1, 2013.
Jeff previously posted his “cocktail party review” of significant criminal law legislation passed this year by the North Carolina General Assembly, or at least legislation people might be interested in asking you questions about. Consider this the après-party review, when we go through the entire house, look for anything left behind, and give everything a good once-over. You’ll find two documents of interest on the School of Government’s website. One is a summary I prepared of all of the criminal law legislation enacted this year. The other is our omnibus summary of legislation affecting the courts (including civil matters of interest as well as criminal legislation), a group effort by the courts and criminal law faculty at the School. In addition to legislation that Jeff, Jamie, Shea, and Jessie discussed in previous posts (such as changes to the Racial Justice Act and Justice Reinvestment Act, expanded authorization for continuous alcohol monitoring, creation of new offenses, etc.), below are some other noteworthy criminal law enactments.
- A new offense of cyberbullying of a school employee by a student (no. 23 in the criminal legislation summary)
- A new offense of filing a false lien or encumbrance against a public official (no. 24)
- A new offense of habitual misdemeanor larceny (no. 26)
- Revised procedures for hearing motions for appropriate relief in noncapital cases (no. 29)
- An extension of time, from October 1, 2012, to July 1, 2013, for local forensic labs to obtain accreditation and certification (also in no. 29)
- Expanded authority for expunction of nonviolent offenses, both misdemeanors and felonies (no. 39)
- Expanded forfeiture of public employee retirement benefits on conviction of certain crimes (no. 40)
As always, be sure to note the effective date of the legislation, which is indicated in connection with each summary.
Jamie’s post yesterday about the legislature’s amendments to the JRA was great, and absolutely essential for criminal lawyers. Shea’s recent post on the expansion of continuous alcohol monitoring was equally valuable. But, let’s be honest, no one is going to ask you at a cocktail party about changes to the CRV rules for misdemeanants. (Unless you go to a lot of parties with Jamie.) What follows is the cocktail party review of the criminal law legislation enacted during the 2012 legislative session. It isn’t everything the legislature did, it isn’t detailed, some of it has already been featured on the blog, and by no means is it everything you need to know to practice law, but it will get you through most of the questions your neighbors, college roommates, friends from church, and crazy cousins are likely to ask you about what the General Assembly has been up to. Heck, print it out and put it in your purse or pocket as a cheat sheet!
- Increased Penalties for Some Second-Degree Murders. Second-degree murder is currently a Class B2 felony. A first offender sentenced as a Class B2 felon in the presumptive range is likely to serve somewhere between 11 and 14 years in prison. Apparently concerned that such a sentence is too lenient, the General Assembly enacted S.L. 2012-165, which increases second-degree murder to a Class B1 felony, resulting in typical sentences about 50% longer than current law. However, the act excepts second-degree murders in which malice is based on recklessness (such as DWI homicides), as well as second-degree murders based on the distribution of drugs. Such murders remain Class B2 offenses. The act is effective December 1, 2012, for offenses committed on or after that date. A more detailed discussion of the act can be found here.
- New Sentencing Procedure for Juveniles Convicted of First-Degree Murder. On June 25, 2012, the United States Supreme Court decided Miller v. Alabama, summarized here, holding that the Eighth Amendment prohibits the automatic sentencing of juvenile murderers to life without parole. (The Court previously ruled that juvenile offenders may not be sentenced to death.) Because North Carolina law provided that life without parole was the sole punishment for juveniles convicted of first-degree murder, the law violated Miller. The General Assembly responded quickly. Barely a week after Miller, it passed S.L. 2012-148, designed to bring the state into Miller compliance. Under the bill, when a defendant is convicted of first-degree murder based on a crime committed before the defendant turned 18, the trial judge must conduct a sentencing hearing. If the defendant was convicted solely under the theory of felony murder, he must be sentenced to life with the possibility of parole after 25 years. If he was convicted under another theory, such as premeditation and deliberation, the court must consider mitigating factors such as the defendant’s age and immaturity before deciding whether to impose life with the possibility of parole after 25 years, or life without parole. The act became effective on July 12, 2012, when it was signed by the Governor. It also applies to any resentencings conducted in eligible cases. However, the act does not itself require that any resentencings be conducted.
- Racial Justice Act Amendments. In S.L. 2012-136, the General Assembly, over the Governor’s veto, substantially revised the Racial Justice Act, G.S. 15A-2010 et seq. Among other changes, the bill (1) appears to require that the defendant show that race played a role in the defendant’s case, not merely in capital cases generally in the county, prosecutorial district, judicial division, or state (though another section of the bill appears to suggest that evidence of discrimination at the level of the county or prosecutorial district might be sufficient); (2) limits the relevant time period to 10 years before the defendant’s crime to two years after the defendant’s death sentence; (3) removes race-of-victim discrimination as a basis for a claim under the Act; (4) provides that while statistical evidence of discrimination may be considered, such evidence “alone is insufficient”; and (5) provides that “[a] capital defendant who filed a trial motion alleging discrimination, or a motion for appropriate relief alleging discrimination . . . is not entitled or authorized to file any additional motions for appropriate relief based upon this act.” The bill states that it is effective immediately and applies to all cases filed but not yet decided under the former version of the Racial Justice Act, i.e., to all cases other than the Marcus Robinson case in Cumberland County. However, the constitutionality of that provision is likely to be the subject of litigation.
- New Terrorism Offense. In S.L. 2012-38, the General Assembly created the criminal offense of terrorism. A person commits the offense if he commits an act of violence with the intent to “[i]ntimidate the civilian population at large, or an identifiable group of the civilian population” or “[i]nfluence, through intimidation, the conduct or activities of the government of the United States, a state, or any unit of local government.” Terrorism is a separate offense, usually punishable one class higher than the underlying act of violence. The act is effective December 1, 2012, for offenses committed on or after that date. A more detailed exposition of the crime can be found here.
- Theft of Metals. The price of many metals has been very high recently, leading to increased thefts of metals such as manhole covers and copper air conditioning coils. The General Assembly addressed this problem in S.L. 2012-46. The act regulates metal purchasers, particularly purchasers of “nonferrous” metals such as copper. It requires them to obtain a permit from the sheriff, and to keep – and to make available to law enforcement – records of the individuals who sell metals to them. It prohibits metal recyclers from buying air conditioning coils and catalytic converters from most individual sellers, and strictly limits cash transactions, especially for copper. A violation of these regulations is a misdemeanor for the first offense and a felony for second and subsequent offenses. The act also creates the new crime of injuring another’s property for the purpose of obtaining nonferrous metals. The crime may be a misdemeanor or a felony of various degrees, depending on the extent of the property damage involved and whether anyone is injured. The act becomes effective October 1, 2012.
- Sale of a Child. In S.L. 2012-153, the General Assembly created the new offense of “unlawful sale, surrender, or purchase of a minor.” It is a Class F felony, and carries the possibility of sex offender registration if ordered by the sentencing judge. The bill fills what appears to have been a gap in prior law, as discussed here. The law takes effect on December 1, 2012.
- Children Conceived During Sex Crimes. In S.L. 2012-40, the General Assembly provided that a court may terminate a person’s parental rights regarding a child when “[t]he parent has been convicted of a sexually related offense under Chapter 14 of the General Statutes that resulted in the conception of the juvenile.” So, for example, a person convicted of a rape that resulted in a pregnancy may have his parental rights terminated as to the resulting child.
I’m back from a fantastic vacation, and am grateful to Jamie for keeping the blog afloat while I was gone. Blogging is a lot of fun but it can also be a little bit of work, and it’s great to have colleagues who are willing to shoulder the load when needed.
Because I have a short presentation coming up about gun control in North Carolina, I spent some time looking at the legislation enacted this session regarding firearms. There are quite a few changes of note, so I thought I’d share the key points.
The General Assembly considered a number of bills related to the regulation of firearms in the 2011 session. The most important enacted bill was S.L. 2011-268, Amend Various Gun Laws/Castle Doctrine, legislation strongly supported by the NRA. As the short title suggests, the bill contains multiple provisions, most but not all of which expand gun rights. Significant components of the bill are as follows:
- Repeals existing G.S. 14-51.1, Use of Deadly Physical Force against an Intruder, and effectively replaces it with new G.S. 14-51.2 et seq. The new provisions codify some aspects of the law of self-defense, specifically guaranteeing the right to use deadly force against an intruder into a home, motor vehicle, or workplace, whereas the previous statute applied only to homes. The new statute also provides that there is no duty to retreat before using such force.
- Amends G.S. 14-269.8(a) so that individuals subject to domestic violence protective orders are no longer prohibited from owning firearms. However, it remains unlawful for a person to possess firearms while subject to such an order.
- Enacts new G.S. 14-408.1, which makes it a felony to solicit an illegal gun sale or to give a dealer or seller false information with the intent to deceive the dealer or seller about the legality of a gun sale.
- Amends G.S. 14-269, Carrying Concealed Weapons, in several ways.
- Amends the provision in subsection (a1)(2) that allows a person who holds a concealed carry permit to carry a concealed handgun to specify that it applies only when “the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit.”
- Adds new exemptions for district attorneys, assistant district attorneys, and district attorney investigators who have concealed carry permits, except while in a courtroom or while drinking, and for certain retired law enforcement officers who have concealed carry permits. As to district attorneys, assistant district attorneys, and district attorney investigators who have concealed carry permits, the bill also adds new G.S. 14-415.27, and amends the concealed carry permit statute, G.S. 14-415.11, with the net effect being that those individuals may carry concealed weapons almost anywhere in the state except courtrooms and where prohibited by federal law.
- Allows detention and corrections officers to keep firearms locked in their vehicles at work.
- Amends G.S. 14-288.8, which regulates “weapons of mass destruction,” such as bombs, grenades, machine guns, and short-barreled weapons, and amends G.S. 14-409, Machine Guns and Other Like Weapons. The bill adds new provisions to both statutes that allow a person to possess such weapons under state law so long as the person may possess the weapons under federal law. The relevant federal laws are codified at 26 U.S.C. § 5801 et seq.
- Expands concealed carry permit holders’ authority to have weapons on certain state property. For example, permit holders now may keep weapons securely locked in their vehicles on the grounds of the “State Capitol Building, the Executive Mansion, [and] the Western Residence of the Governor,” and may carry concealed handguns in state parks.
- Amends G.S. 14-415.23, Statewide Uniformity, to allow local governments to prohibit the carrying of concealed weapons at playgrounds, athletic fields and facilities, and swimming pools. Local governments may not, however, prohibit the storage of firearms in locked vehicles at recreational facilities.
The General Assembly also enacted S.L. 2011-56, Repeal Crossbow Purchase Permit Requirement, which repeals the portion of G.S. 14-402, the purchase permit statute, that had prohibited the sale or purchase of a crossbow without a permit issued by the sheriff. The statute remains applicable to handguns.
The legislature considered a number of firearms-related bills that didn’t pass, including H 111, Handgun Permit Valid in Parks and Restaurants, which would have allowed concealed carry permit holders to carry concealed handguns in state parks, and in restaurants where alcohol is sold unless expressly prohibited by the proprietor. Note that S.L. 2011-268, summarized above, includes the state park provision, meaning that the restaurant provision is the only provision of this bill that was not otherwise enacted. However, this bill passed the House, and so may be considered by the Senate in the 2012 legislative session.
The legislature also considered, but did not pass, H 241, the North Carolina Firearms Freedom Act, which would have declared that “[a] personal firearm . . . or ammunition that is manufactured . . . in North Carolina and that remains within the borders of North Carolina is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.” Even if passed, this bill would likely would have had no effect, as the General Assembly lacks the authority to determine the constitutionality of federal laws. Finally, the General Assembly did not act on S 765, No Firearms Questions During Medical Exams, which would have prohibited health care providers from asking patients about gun ownership and from refusing to see patients who are gun owners. Somewhat similar legislation was enacted in Florida, and is now the subject of a lawsuit backed by the American Medical Association and other physician groups, as described here.
I would be especially interested in your thoughts and comments about which parts of the enacted legislation will be most controversial, useful, troublesome, or interesting; feedback on those issues would help inform my upcoming presentation.