About a year ago, Shea wrote about red flag laws, sometimes called gun violence restraining orders or extreme risk protection orders. More than a dozen states have such laws, and several bills are pending in the General Assembly that would enact a red flag law here. But are red flag laws constitutional? Continue reading
Tag Archives: second amendment
Several federal circuit courts have decided Second Amendment cases over the past few months. This post summarizes them. The cases and the reasoning behind them are not all completely consistent, but collectively, the courts continue to interpret the Second Amendment as permitting substantial levels of gun control.
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 →
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 →
There’s been a great deal of litigation recently about firearms and the Second Amendment. But guns aren’t the only “arms” sometimes carried for self-defense, and there have been several recent cases about the status of knives under the federal Constitution and state constitutions. Continue reading →
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.
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.
Case study: the Neenah stop. Recently in Neenah, WI, a woman called the police to report a man with a gun strapped to his back walking down the street. The call was placed to the non-emergency police number and the caller didn’t report that the man was doing anything threatening, but she did suggest that the police check on the situation. As a result, an officer stopped the man and his companion. The officer engaged in a protracted dialogue with the man, at one point telling the man that he would be shot in the head if he made any furtive movements. Other officers also responded, and at least one drew her weapon. The man who was stopped remained calm throughout the interaction and was eventually permitted to depart. The full 18-minute video of the stop is here. A local news article about the stop is here. It has generated quite a bit of controversy. Were the officer’s actions lawful and justified by public safety concerns? Or was it an unjustified response to lawful open carry? This post breaks down the legal issues.
Legality of open carry. From media reports and statements made by the officer during the stop, there appears to be no question that open carry is legal in Wisconsin. In fact, it seems that during a recent revision of its disorderly conduct statute, Wisconsin changed the law to protect open carry. Wis. Stat. § 947.01(2) (“Unless other facts and circumstances indicate a criminal or malicious intent . . . a person is not in violation of . . . this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.”)) As I noted in this prior blog post, open carry is generally legal in North Carolina as well.
Was the stop justified? A Terry stop requires reasonable suspicion that the subject of the stop is engaged in criminal activity. Carrying a gun openly isn’t criminal in itself. Nor, under most circumstances, is it particularly indicative of other criminal activity. In some instances, though, such as when there is a large group of armed individuals in an unusual location, or when an individual displays his or her firearm in a menacing manner, a Terry stop may be appropriate. There is limited case law in this area, and the few reported decisions aren’t always consistent. Consider the following:
- United States v. Black, 707 F.3d 531 (4th Cir. 2013) (“[W]here a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention.”)
- United States v. Williams, 731 F.3d 678 (7th Cir. 2013) (two judges found reasonable suspicion to support a Terry stop based principally on a 911 call reporting a group of about 25 people outside a rowdy bar, three or four of whom had their “guns out”; one judge would have found no reasonable suspicion in light of increasing legal support for open carry)
- Burgess v. Wallingford, 2013 WL 4494481 (D. Conn. May 15, 2013) (unpublished) (holding that a Terry stop was justified based on reports “that a man carrying a weapon [openly] on his person was pacing outside of a pool hall”; this provided reasonable suspicion of disorderly conduct; the court states that “[w]eapons cause unique concerns for the safety of the public and the police”).
- Banks v. Gallagher, 2011 WL 718632 (M.D. Pa. Feb. 22, 2011) (unpublished) (holding that an investigative detention was proper in light of “multiple fearful calls to 911 by concerned citizens, the unusual and unprecedented circumstance of nearly a dozen armed men in a family eating establishment refusing to explain their purpose,” and other factors)
- Schubert v. City of Springfield, 589 F.3d 496 (1st Cir. 2009) (holding, in connection with a 42 U.S.C. § 1983 claim, that an officer properly stopped a pedestrian who was wearing a holstered handgun and walking towards a courthouse; that the gun seems to have been somewhere between concealed and carried openly, so the case isn’t perfectly on point)
I tend to think that the Neenah stop was improper, as there wasn’t much to suggest criminal intent on behalf of the subject. But again, the law’s not completely settled in this area.
Scope of the stop. Assuming arguendo that the Neenah stop was lawful at its inception, I doubt that the officers were justified in detaining the subject for more than 15 minutes. Much of the stop consisted of the officer remonstrating with the subject about the Second Amendment. Investigative stops must be brief, and it was clear early on that the subject was calm, rational, and interested more in publicity than in criminal activity.
Alternatives for officers. None of the foregoing means that officers can’t respond to community concerns about people carrying guns openly, a phenomenon that is unsettling to many citizens. An officer can always seek to engage a person carrying a gun in a consensual conversation. That conversation may allay any concerns the officer has, or it may increase the officer’s concerns to the point that an investigative detention is justified.
Further reading. The Pennsylvania Chiefs of Police Association published this short paper for officers about dealing with people carrying guns openly. Some of it is specific to Pennsylvania, but much of it strikes me as sound advice for North Carolina officers as well. Michigan’s Law Enforcement Action Forum published this analysis of the legal issues officers face when dealing with open carry. If others are aware of other resources, please let me know or post a comment.
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.
Remember Britt v. State, 363 N.C. 546 (2009), in which the state supreme court ruled that a man with a single, non-violent felony conviction from 1979 had a state constitutional right to possess a firearm, making the felon-in-possession law, G.S. 14-415.1 unconstitutional as applied to him? I blogged about Britt here, but several years have now passed, and Britt has given rise to an interesting line of cases. Here are short summaries of Britt’s progeny, followed by a couple of additional comments:
- State v. Whitaker, 201 N.C. App. 190 (2009) (defendant was charged under G.S. 14-415.1; his motion to dismiss under Britt was properly denied as he had three felony convictions, including one for taking indecent liberties with a minor and one that was just two years old, as well as numerous misdemeanor convictions; the court of appeals analyzed the Britt issue under a five-factor test; I blogged about Whitaker here)
- State v. Buddington, 210 N.C. App. 252 (2011) (defendant was charged under G.S. 14-415.1; he filed a motion to dismiss under Britt, which the trial judge granted; the court of appeals reversed, finding that the defendant presented no evidence at the hearing on the motion and ruling that neither the unverified motion nor the statements of defense counsel constituted evidence that could support the trial court’s findings of fact)
- Baysden v. State, __ N.C. App. __, 718 S.E.2d 699 (2011), aff’d by equally divided court, __ N.C. __, 736 S.E.2d (2013) (plaintiff had prior felony convictions for (1) sale of marijuana in 1977, and (2) possession of a sawed-off shotgun in 1972; he apparently found the “rusted up and inoperable” shotgun on the beach; he subsequently worked for the Department of Defense for over 25 years; the court of appeals concluded that he “is in essentially the same position as Mr. Britt,” and deemed G.S. 14-415.1 unconstitutional as applied to him; the court stated that recent statutory changes to the Felony Firearms Act allowing certain individuals to regain their gun rights are “not particularly relevant to the required constitutional analysis”)
- Johnston v. State, __ N.C. App. __, 735 S.E.2d 859 (2012) (plaintiff had prior felony convictions for (1) conspiracy to commit larceny and receiving stolen goods in 1978, and (2) arson, conspiracy to burn a building, and fraud in 1981; the court of appeals ruled that his Second Amendment claim must be evaluated under intermediate scrutiny and remanded to give the state the opportunity to meet that burden; as to the plaintiff’s Britt claim, the court ruled that there was insufficient evidence before the trial court to determine the issue, particularly about the facts underlying the plaintiff’s prior convictions)
Two additional points are worth noting:
- Statutory procedure for restoration of gun rights. After Britt, the General Assembly enacted G.S. 14-415.4, which provides a statutory procedure for certain individuals “convicted of a single nonviolent felony” to regain their gun rights at least 20 years after their other civil rights have been restored, i.e., after they have completed their sentences. As noted above, the court of appeals has ruled that the existence of this statutory procedure is not relevant to the constitutional issues at the heart of Britt.
- Dan Hardway. Remarkably, most of the key cases in this area have been handled by a single lawyer. Dan Hardway represented Mr. Britt, Mr. Baysden, and Mr. Johnston, and has had an impressive record of success. (I’ve never met Mr. Hardway.) It’s worth noting that in each case, the plaintiffs proactively sued the state, seeking to regain their gun rights, as opposed to waiting until they were charged with a violation of G.S. 14-415.1 and raising the constitutional issue as a defense. That strikes me as very sound strategy.