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. Continue reading
Tag Archives: guns
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. Continue reading →
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. Continue reading →
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. Continue reading →
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. Continue reading →
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 →
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 →
Agriculture Commissioner Steve Troxler has stated that firearms, even those carried pursuant to a concealed carry permit, will be prohibited at the North Carolina State Fair, which opens next week. Grass Roots North Carolina, a gun-rights group, contends that the Commissioner’s policy is unlawful. In the post, I’ll explore the legal issue.
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.
On balance, Americans like freedom, choices, and guns. It would seem to follow that Americans would support a free market that gives us an array of choices among guns. Yet some gun rights advocates are pressuring gun dealers not to sell so-called smart guns, which can “recognize” their owners and can only be fired by them.
Death threats to gun dealers. This Washington Post story recounts the experience of Andy Raymond, owner of Engage Armaments in Rockville, Maryland, after he agreed to sell the Armatix iP1 smart gun. The gun is a .22 caliber semi-automatic pistol that won’t shoot unless it is in proximity to a special watch worn by the owner. If the gun is stolen, or if a child somehow obtains the gun, it won’t fire. (It also won’t fire if the watch battery is dead or the owner forgot to wear the watch that day.) The story notes that Raymond “endured an outpouring of vitriol from gun rights activists who fear the technology will be used to curtail their Second Amendment rights by limiting the kinds of guns they can buy in the future.” Vitriol is an understatement. Raymond received death threats, as he explains in a short and emotional video linked to the article. He has changed course and will not sell the gun after all. A California gun dealer previously had a similar experience.
Not a smart choice for self-defense? It’s reasonable to argue that the current crop of smart guns aren’t the best choice for self-defense, because they are complex and potentially failure-prone. This Forbes piece makes that argument well. But Raymond’s viewpoint is that the consumer should be free to choose the mix of safety features, reliability, and stopping power that he or she prefers.
Worries about New Jersey’s smart gun law. Those who oppose the sale of smart guns sometimes cite the fear that the sale of such guns will trigger – so to speak – a 2002 New Jersey law that requires all handguns sold in the state to be smart guns within about three years after such guns first become “available for retail sales.” The law is here. It defines availability to mean that “at least one manufacturer has delivered at least one production model of a [smart gun] to a registered or licensed wholesale or retail dealer in New Jersey or any other state.” The state’s Attorney General is supposed to report to the legislature and the governor every six months regarding the availability of smart guns. (According to the Brady Campaign to Prevent Gun Violence, the required reporting is not happening.) Two years after availability, the Attorney General is supposed to instruct the Superintendent of State Police to draw up a list of smart guns. The Superintendent has six months to finish the list. Six months after the list is complete, the sale of handguns other than smart guns becomes a crime.
Worries about the New Jersey law are overblown. I doubt that worries about activating the law should keep gun rights advocates, or gun dealers, up at night, for two reasons. First, the availability threshold may already have been passed. Several manufacturers either offer such guns or are on the brink of offering them, according to this Department of Justice report. At least two dealers have briefly expressed a willingness to sell smart guns, though no actual dealer sales have been reported. (Another manufacturer sells an accessory for converting guns into smart guns.) Second, whether or not the tipping point has been reached, the law, which was written before the Supreme Court’s landmark Heller and McDonald cases regarding gun rights, is likely unconstitutional.
The broader context. The general concern that the availability of smart guns will result in calls for wider adoption of the technology may be well-founded, as this Christian Science Monitor article observes. Indeed, outside the gun context, safety features once viewed as complicated, unreliable, and intrusive – like seat belts and air bags – have become mandatory and accepted. Whatever the worries, though, I doubt that the technology can be suppressed in the long run. There is a market for the guns, with between 14 and 59 percent of gun owners, depending on the survey, expressing an interest. And this is America, where we like freedom, choices, guns . . . and technology.