In State v. McLymore, 380 N.C. 185, 868 S.E.2d 67 (2022), our Supreme Court held that Section 14‑51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions,” and “the only right to perfect self-defense available in North Carolina [is] the right provided by statute.” Id. at 191, 868 S.E.2d at 72-73. At the same time, it interpreted the felony disqualifier provision of Section 14-51.4 – consistently with “common law principles” – to require a causal nexus between the felony and the use of force. Id. at 197, 868 S.E.2d at 77. The common law is apparently not so easily dispensed with. This post – my first contribution to this forum – addresses the persistence of the common law in the area of self-defense. My colleague Phil Dixon provided color commentary on McLymore here. My colleague John Rubin discussed the felony disqualifier provision (and anticipated the holding in McLymore) here. Continue reading
Tag Archives: self-defense
Last month, the Court of Appeals decided State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021), and a summary of the opinion is available here. Austin addressed several noteworthy self-defense issues, including the sufficiency of the state’s evidence to rebut the presumption of reasonable fear under the “castle doctrine” statutes added in 2011 and whether the trial court’s jury instructions on that issue were proper.
But first, the court had to decide whether the statutory language conferring “immunity from liability” meant that the defendant was entitled to have this issue resolved by the judge at a pretrial hearing. That’s a question I’ve been asked fairly often over the past few years, and my sense is that prior to Austin there were divergent practices on this point around the state.
This post takes a closer look at that portion of the court’s opinion, and explores what we now know and what we still don’t.
The common law right to use defensive force in North Carolina rests on three fundamental principles: necessity, proportionality, and fault. Ordinarily, when a person uses defensive force, the force must be reasonably necessary to prevent harm; the force must be proportional to the threatened harm; and the person using defensive force must not be at fault in the conflict. See John Rubin, The Law of Self-Defense § 2.1(b), at 14–15 (UNC School of Government, 1996). North Carolina’s new statutes on defensive force continue to rely on these principles. As under the common law, the statutes do not always refer to these principles in describing the circumstances in which a person may use defensive force. But, as this post is intended to show, the basic principles of necessity, proportionality, and fault remain central to the statutory rights. Continue reading →
In State v. Harvey, ___ N.C. ___, ___ S.E.2d ___ (June 14, 2019), a five to one majority of the North Carolina Supreme Court affirmed the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018), holding that the trial judge properly refused to instruct the jury on perfect and imperfect self-defense in a homicide case. In so ruling, the majority in the Supreme Court and Court of Appeals relied on the “belief” doctrine created by our courts over the last 25 years. The opinions, four in all, show that our courts are continuing to wrestle with the implications of that doctrine. Continue reading →
Several years ago (some might say that’s an understatement) I wrote The Law of Self-Defense in North Carolina, in which I looked at over 200 years’ worth of North Carolina court opinions on self-defense and related defenses, such as defense of others and defense of habitation. The book’s approach reflected that North Carolina was a common law state when it came to self-defense. The right to act in self-defense depended primarily on the authority of court decisions. The General Assembly’s adoption in 2011 of three defensive force statutes—G.S. 14-51.2, G.S. 14-51.3, and G.S. 14-51.4—changed that. An understanding of the law of self-defense in North Carolina now must begin with the statutory law of self-defense. Continue reading →
Consider the following scenario: Driver Dan is traveling down a dark county two-lane road in his sedan. Traffic is light but slow due to the cold weather and mist. Another driver in a truck appears behind Dan and starts tailgating him, getting within a few feet of his bumper. After unsuccessfully trying to pass Dan, the other driver begins tailgating Dan even more, now staying within inches of his bumper. When the cars ahead turn off and the road is clear, slows to let the other driver pass, but the other driver continues closely riding Dan’s bumper for several miles, flashing high beams at times. Eventually, the other driver pulls alongside Dan and begins “pacing” him, staying beside Dan’s car instead of passing. The other driver then begins to veer into Dan’s lane, forcing Dan’s passenger-side tires off the road. As Dan feels the steering wheel begin to shake, he fears losing control of his car and decides to defend himself with his (lawfully possessed) pistol. He aims through his open window at the other driver’s front tire and shoots, striking it and halting the other vehicle. The other driver stops without further incident, and Dan leaves. Dan is eventually charged with shooting into an occupied and operating vehicle, a class D felony and general intent crime.
Vote here, and then read on for the answer. Continue reading →
Defensive Force in the Home
We now have a number of appellate opinions interpreting the defensive force statutes enacted by the North Carolina General Assembly in 2011. In State v. Kuhns, ___ N.C. App. ___ (July 3, 2018), we have our first opinion squarely addressing the provisions of G.S. 14-51.2, which deals with defensive force in a home, workplace, or motor vehicle. This post focuses on the home, where the conflict in Kuhns occurred, but some of the same principles apply to the workplace and motor vehicles. Continue reading →
Earlier this year, in State v. Gomola, ___ N.C. App. ___, 810 S.E.2d 797 (Feb. 6, 2018), the Court of Appeals addressed a self-defense issue that has sometimes puzzled the North Carolina courts. The question in Gomola was whether a person can rely on self-defense to a charge of involuntary manslaughter. The Court answered with a decisive yes . . . if the basis for the involuntary manslaughter charge is an unlawful act such as an assault or affray. Continue reading →
I previously wrote here about the statutory felony disqualification for self-defense in North Carolina, adopted in 2011 by the General Assembly alongside expanded castle protections and clearer stand-your-ground rights for law-abiding citizens. The felony disqualification, in G.S. 14-51.4, states that a person loses the right of self-defense if he or she “[w]as attempting to commit, committing, or escaping after the commission of a felony.” A literal interpretation of the provision places “felonious” defendants in a lose-lose situation: if they defend themselves, they can be prosecuted for their use of force even if the force is otherwise permissible; if they don’t defend themselves, they could suffer injury or even death. In my earlier blog post, I suggested that the felony disqualification may include a “nexus” requirement—that is, that the disqualification applies only if the defendant’s felony in some way creates or contributes to the assault on the defendant and the resulting need for the defendant’s use of force. The Court of Appeals in the recent case of State v. Crump took a literal approach, appearing to make the felony disqualification an absolute bar to self-defense if the defendant contemporaneously engages in a felony. Continue reading →
Self-Defense and Retreat from Places Where the Defendant Has a “Lawful Right to Be”
Our appellate courts are beginning to issue decisions concerning the impact of the General Assembly’s 2011 changes to North Carolina law on self-defense. A case earlier this summer addressed whether a defendant has a duty to retreat before using deadly force in self-defense in a place where he or she has a “lawful right to be.” See State v. Bass, ___ N.C. App. ___, 802 S.E.2d 477, temp. stay and rev. granted, ___ N.C. ___, 800 S.E.2d 421 (2017). In Bass, the Court of Appeals held that the defendant did not have a duty to retreat and further had the right to have the jury instructed that he did not have a duty to retreat. Continue reading →