Yesterday the court of appeals vacated Brady Lorenzo Shackelford’s convictions for felony stalking on the basis that the prosecution of Shackelford for violating G.S. 14-277.3A impermissibly infringed upon his constitutional right to free speech. This post will review the court’s opinion in State v. Shackelford, ___ N.C. App. ___ (March 19, 2019), consider how it might affect future prosecutions, and suggest statutory amendments to stave off future constitutional challenges.
Tag Archives: stalking
When setting conditions of pretrial release in domestic violence cases, magistrates and judges often order a defendant not to contact the victim. Those directives clearly apply to a defendant once he is released from jail subject to those conditions. But what about a defendant who remains in jail? Is he also subject to a no contact condition included on a release order? The court of appeals addressed that issue yesterday in State v. Mitchell.
Cyberstalking and the 48 Hour Rule
G.S. 14-196.3 prohibits “cyberstalking,” which the statute generally defines to mean using electronic communications to threaten, extort, make an abusive or embarrassing false statement about, or repeatedly harass another person. As Jessie noted in this prior post, cyberstalking has become a frequently charged offense. It can be committed by text message, email, Facebook, and other means.
I’ve been asked several times recently whether the so-called 48 hour rule, set forth in G.S. 15A-534.1, applies to cyberstalking. That statute provides that for certain domestic violence crimes, bond must normally be set by a judge rather than a magistrate. The statute allows a defendant to be held for up to 48 hours if a judge is not immediately available. I’ve previously written about the 48 hour rule here.
The 48 hour rule applies to “all cases in which the defendant is charged with assault on, stalking, communicating a threat to, or committing [certain felonies] upon a spouse or former spouse or a person with whom the defendant lives or has lived as if married, with domestic criminal trespass, or with violation of [a DVPO].”
Does the statute’s reference to “stalking” include cyberstalking? I don’t think so, for two reasons.
- First, although the 48 hour rule has been around since 1995, S.L. 1995-527, “stalking” was only added to the statute in 2007, S.L. 2007-14. Both the original stalking statute, G.S. 14-277 (enacted by S.L. 2001-518), and the cyberstalking statute (enacted by S.L. 2000-125) existed at that time. The General Assembly’s decision to add the term “stalking” but not the term “cyberstalking” to G.S. 15A-534.1 may have been a deliberate choice. To the extent that the statutory language is ambiguous, the rule of lenity suggests that the term “stalking” should be strictly construed not to include cyberstalking.
- Second, the cyberstalking statute is clearly patterned on the harassing phone calls statute, G.S. 14-196, not on the “regular” stalking statute, and the General Assembly chose not to include harassing phone calls in the 48 hour law.
Based on the foregoing, I don’t think that the 48 hour rule generally applies to cyberstalking charges. However, there’s one possible limited exception. The cyberstalking statute encompasses certain threatening communications. One could argue that the 48 hour rule should apply to cases of cyberstalking that involve threats based on the provision in G.S. 15A-534.1 regarding “communicating a threat.” (The same argument could be made for harassing phone calls that involve threats.)
I’ve always thought of the reference in G.S. 15A-534.1 to communicating threats to mean simply that the 48 hour rule applies to charges under G.S. 14-277.1, the communicating threats statute. And I’ve always thought of the 48 hour rule as binary – either it applies to all the charges under a certain statute or it doesn’t apply to that statute at all. But I can see a contrary argument, and I don’t think that there’s a case that squarely addresses the issue.
I’d be interested in feedback about whether, in practice, the 48 hour rule is ever being applied to harassing phone calls or to cyberstalking. But the issue may not arise very often, because in most cases, a phone call or an electronic communication that includes a threat would likely be charged under G.S. 14-277.1, a Class 1 misdemeanor to which the 48 hour rule clearly does apply, instead of or in addition to being charged as a harassing phone call or cyberstalking (both Class 2 misdemeanors).
It is also worth noting that some conduct that violates the cyberstalking statute will also violate the current “normal” stalking statute, G.S. 14-277.3A, to which the 48 hour rule also clearly applies.
Stalking Statute Not Unconstitutionally Vague
The Fourth Circuit recently rejected a vagueness challenge to the federal stalking statute. Because of the similarity between the federal statute and North Carolina’s stalking law, I thought the decision was worth mentioning here.
The federal stalking statute makes it a crime to “engage in a course of conduct that causes substantial emotional distress to [the victim] or places [the victim] in reasonable fear of the death of, or serious bodily injury to, [the victim or his or her spouse, intimate partner, or immediate family member]” with the intent to kill, injure, harass, intimidate, or cause fear or emotional distress to the victim. 18 U.S.C. § 2261A(2). (Because it defines a federal offense, the statute also includes the jurisdictional requirement that the defendant used a facility of interstate commerce such as the mail or a computer network to commit the crime.)
The North Carolina stalking statute makes it a crime to harass a victim repeatedly or to engage in a course of conduct with respect to a victim knowing that a reasonable person in the victim’s place would, as a result, fear for the safety of himself or herself, or his or her “immediate family or close personal associates” or would suffer emotional distress due to fear of death, injury, or continued harassment. G.S. 14-277.3A.
You can see that the statutes are pretty similar, and that they’re both pretty elastic. In other words, they can encompass a wide range of conduct. Supporters of such laws argue that such flexibility is necessary because stalking may take many forms. Critics of such laws argue that they are vague and overbroad.
That leads us to the Fourth Circuit’s recent case, United States v. Shrader, __ F.3d __ (4th Cir. April 4, 2012). The facts are awful. The defendant and a woman identified in the opinion as D.S. dated while the latter was in high school. The relationship ended, but the defendant harassed and threatened D.S., eventually killing D.S.’s mother and a friend, and wounding a neighbor, during an armed invasion of D.S.’s home. The defendant was imprisoned for his crimes, but was later released, and resumed his efforts to terrorize D.S. I’ll spare you the details, but his conduct involved threatening to kill D.S., telling her that he hoped one of her children would be killed, and attempting to contact her children. He was charged with, inter alia, stalking D.S. under the federal stalking statute. He was convicted and appealed, arguing in part that the stalking statute was unconstitutionally vague. The Fourth Circuit rejected his argument, stating that “a common sense reading of the statute adequately defines the prohibited conduct,” and noting that the defendant’s conduct went far beyond any possible gray area.
I’m not aware of an appellate decision addressing a vagueness challenge to the current North Carolina stalking statute. The predecessor to the current statute was upheld against a vagueness challenge in State v. Watson, 169 N.C. App. 331 (2005). A few minutes on Westlaw suggests that vagueness challenges to other states’ laws have generally met the same result. See, e.g., State v. Bernhardt, 338 S.W.3d 830 (Mo. Ct. App. E.D. 2011); State v. Stockwell, 770 N.W.2d 533 (Minn. Ct. App.2009); State v. Haines, 213 P.3d 602 (Wash. Ct. App. Div. 1 2009); People v. Stuart, 797 N.E.2d 28 (N.Y. 2003).