[00:00:00.858] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. This is a podcast dedicated to covering criminal law issues in North Carolina and beyond. I'm your host, Phil Dixon, a faculty member here at School of Government, and I'm joined by always in the studio by Paul Bonner, our technician on the ones and twos. Thank you, Paul. Plenty to cover today. Apologies, I haven't been back in the studio for a little bit, but we're getting right back on track. First one up today is State v. Chambers. This is a case recently decided by the North Carolina Supreme Court. I believe we covered the Court of Appeals decision in this case some episodes ago, but this deals with the relatively new 15A-1215. This statute deals with juror substitution, substituting a juror. And we passed this updated version of 1215 in 2021. And the idea was to allow substitutions of a juror even after the jury has begun deliberating. The way it reads, any time before the jury renders a verdict, a juror may be substituted. So you could put in an alternate if someone gets sick or dies or is unable to finish deliberations. Could even be for misconduct. The statute instructs the judge to tell the jury, when this happens, you've got to start over completely from scratch. It's worth noting, this is how the federal system works. Under federal criminal rule of procedure 23B, parties can agree to a jury verdict from less than 12 jurors or fewer than 12 jurors can be permitted to return a verdict if anybody has to be excused. And I believe they also will substitute alternate in at that point if one is still around. North Carolina, though, has traditionally had a more strict and restrictive rule. There's an old 1997 state Supreme Court case, State v. Bunning, that's 346 N.C. 253, that seemed, by all accounts, to prohibit substitution of a juror after deliberations have begun. When you read Bunning, it points to Article 1, Section 24 of the North Carolina Constitution and talks about the right to a unanimous verdict in open court. And our case law, including Bunning, has interpreted that provision of the state constitution to mean you're entitled to a verdict by the 12-person jury who starts deliberating your case. Bunning was a capital sentencing hearing, and this turns out to be significant for Chambers. The jury had been impaneled. They had heard the guilt and innocence phase of this capital murder. They began deliberating on the penalty phase to decide whether the death penalty was warranted or not, and a juror became unavailable. The trial court allowed a juror to be substituted into those deliberations. And Bunning really found that to be basically structural error. It required a whole new do-over on sentencing hearing. That's what the Court of Appeals followed in this Chambers case. That's what happened here. And this was a weird case. I mean, this was another murder case, Chambers. The guy was representing himself. The guy was not present in the courtroom for much of these proceedings. Jury becomes unavailable, trial court subs one in during deliberations, and the Court of Appeals points to Bunnings and says, this is structural error. The defendant doesn't even have to show prejudice, sort of automatic new trial. They examined this new GS, new-ish GS 15A, 1215A, and said, hey, it looks like this conflicts with the North Carolina Constitution as interpreted in Bunning and other cases. So Constitution wins when there's a conflict between the Constitution and a statutory act of the legislature. The state sought review of that decision in the Supreme Court, the state Supreme Court, who granted review. And I think many of us commentators and observers really expected the Supreme Court to validate the legislative act in 1215. I expected that they would overrule Bunning and say, this is just no longer required under the state constitution. But they didn't, interestingly enough. The majority examines this Bunning decision and says, well, yes, it's sort of couched in state constitutional language. But when you really study the opinion, its analysis is grounded in the statutes that existed at the time. So under 1215, as it existed in 1997, when Bunning was decided, You really could only sub an alternate up to the start of deliberations. But once they began deliberating, it was no longer permissible to sub someone in. If the jury couldn't finish the task, you had to just mistry the case and do it over. Here, though, the state Supreme Court said with this change to GS 15A, 1215 and 2021, that reasoning of Bunning no longer applies. It's really the statutory analysis that matters, not the constitutional cloak of the opinion. The important thing here, according to the Supreme Court, is that you are entitled to a 12-person jury, you are entitled to a unanimous jury, and you're entitled to an impartial jury, an unbiased jury. But those protections exist with the application in 1215. No more than 12 can ever deliberate. If you do have to sub in a new juror after deliberations, then the whole entire jury is instructed to begin deliberations from scratch. The legislative intent now is clearly to permit this. Again, it's permitted in the federal system. And so it is permitted here. Again, I thought it was interesting they did not squarely overrule bunning. And I think under bunning in a capital case, this could not be done in once penalty deliberations have been passed. have begun. You could sub in an alternate during deliberations in the guilt innocence phase. You can sub in an alternate after the conclusion of the guilt innocence phase, but before deliberations begin in the penalty phase, we don't think you can sub in someone in a capital case once the penalty deliberations have begun. And that's really just an application of our statutes. There's one 15A-2000 that speaks to when people can be substituted in in a capital case. According to the Supreme Court in Chambers, the situation here, non-capital murder case, was a quote-unquote far cry from the circumstances the court was addressing. So, bunning is narrowed, I think, to the specific circumstances of a capital punishment phase, deliberation, substitution, because one jury is supposed to really decide the case, both stages, the guilt and innocence and the penalty phase. So, once the penalty phase has begun, deliberations have begun, It violates the statute and arguably violates that right to an impartial jury as interpreted by Bunning, but not so in your routine case. And really not so, I believe, even when we're talking about some other kind of bifurcated proceedings, such as The jury has decided guilt innocence on a DWI, but now they're going to decide aggravating factors in a sentencing proceeding or habitual felon proceeding, violent habitual felon, and the like. Nothing says a juror still can't be substituted in once deliberations have begun, even in a bifurcated trial. Justice Riggs was dissenting in part, joined by Justice Earls. For my appellateers out there, there is a preservation piece that says, you know, an improperly constituted jury, if that's the claim being made on appeal, that claim is automatically preserved even without an objection. And of course, there was none here because the guy was representing himself and not present in the courtroom when this happened. They only agreed with the majority up to that point. They would have said 1215 was unconstitutional and that this practice should not be allowed, but that was the minority view. It did not win out. For all intents and purposes, at least for everything outside of a capital penalty phase deliberation, jurors may be substituted in at any point. I didn't think a surprising result, but a surprising way of getting there to me. And an important thing for practitioners, not something I think that's going to come up a ton, but it is important to know when it does come up. Turning away from the state cases just for a moment, but staying on jury issues, this case caught my eye a couple months back from the Fourth Circuit. This also deals with how and when a juror can be removed during jury deliberations. Of course, this was a federal trial for true crime fans. This is USV Lafitte, and Lafitte was the banker in South Carolina who was helping Alex Murdaugh, the infamously corrupt attorney who was running fraud schemes and involved in murders and whatnot. There have been TV shows and podcasts and books about the Murdaugh case and fraud. Well, this guy was an essential part of it, Lafitte, or allegedly an essential part of it. The plan was to sort of rip off these personal injury clients of Alex Murdaugh. with false pretenses and fraud on the settlement money. And altogether, at least this guy's share was alleged to have been around $2 million of defrauded clients. So he is charged in the District of South Carolina in federal district court with wire fraud, bank fraud, conspiracy, other stuff. This is just kind of funny. Two different jurors, at least, were having issues once the case had been heard, the jury is back there deliberating. One juror says, hey, I've really got to go get my medicine, but I'm also kind of feeling pressured by the rest of the jurors to change my vote. So the trial court calls in the lawyers and starts discussing this. Then the jury sends another note saying, hey, one of the jurors here is not applying the law and is being really difficult. A second note is sent from a third juror who says, I'd like to be replaced. I'm having anxiety. The court says, let's start with the last juror, this juror who says they're feeling anxiety. The judge proposes to the parties, how about I interview this juror in chambers? We'll see what's going on and we'll go from there. And the parties collectively agree to that. So the district court judge talks with this juror and she kind of equivocates a little bit. She now says she would like to stay on the jury. She does want to serve as a juror. She doesn't want to be replaced, but she disliked the reactions that she was getting from other jurors about her decisions and views on the evidence in the case. The trial judge asked her if she could perform her duties. She said no. And the judge, right then in chambers, says, all right, ma'am, well, I'm going to release you. You're free to go. I'm replacing you with an alternate juror. Does this without any notice or opportunity to be heard to the parties, which seems like potentially a problem there. The funny part is this trial judge goes to question the other juror who sent a note and said that they needed to go get medicine and this juror had already left. He just left and walked out of a federal district court trial and didn't come back. That's a brave soul from my view and I have to wonder if there was any kind of like contempt proceeding for him just excusing himself in the middle of the party. Fine. The parties decide, you know what, we're fine with this guy who left for his medicine. We're fine with just replacing him with an alternate. We don't have any objection to that. But the defense did object to the sui sponte removal of the female juror who said she was experiencing anxiety based on the other jurors attitudes towards her in deliberations. So this defendant Lafitte actually wins a new trial on two different grounds out of all of this mess. And I thought this was just an important compliment to the Chambers case because a juror can be removed, as I said, because they're no longer able to perform their duties, because they've committed some kind of misconduct, like talking about the case with other jurors before deliberations. Doing independent research, you know, visiting the crime scene. Otherwise, just like not following the instructions of the court. Any of that, I think, can properly get you removed. And of course, just the normal stuff like, hey, I'm sick. I have an emergency with my child, elderly family member, that sort of thing. But you cannot remove a juror just simply based on their view of the evidence. And I think that really means even if it's irrational and illogical, when the juror does not accept or doesn't want to give the evidence the same weight as the other jurors, well, that is the juror's right to do. There is a constitutional right to an impartial jury under the Sixth Amendment to the U.S. Constitution, and again, under Article I, Section 24 of the state constitution. We had a big U.S. Supreme Court case about that right not too long ago. That was Ramos v. Louisiana. I think that dealt with whether the juries had to be unanimous, and eventually the majority said they did. Some jurisdictions, like Louisiana, allowed split verdicts. the court looks at this history in the feed and says, yeah, we think that's what happened here. You cannot replace a juror simply based on their views about the strength or weakness of the evidence. Any hint that the juror was removed for that reason is grounds to want to either not remove them or to give them a new trial. And the court, if I recall, sort of equivocates and it's like, We're not sure what the standard of review exactly should be, but here we think it's pretty clear there was a reasonable possibility she was removed because of her views on the case. They said, trial judge, you could have called this jury back in. You could have re-instructed them to continue deliberations, clarify any of the instructions. You could have recessed for the night and let everybody go home, cool off, come back the next day. You could have declared a mistrial and just mistried it, do over for everybody, but you didn't do any of these things. You replaced her instead based on the limited record of that in-chambers conversation between the judge and the juror. we think that you did so for an improper reason. So I think the good takeaway for defenders there is you want to be objecting if it sounds like the judge is removing a juror just based on their view of the evidence. Again, not clear if this is structural error or subject to harmless error, but here it wasn't harmless. Either way, we're not deciding that standard of review, but we will grant a new trial to Lafitte for this violation of the right to an impartial jury. And separately, they took the trial judge to task for the procedure used here. It would have been fine to interview the juror in chambers and then come back to the parties and tell them what transpired, give them an opportunity to be heard and make their arguments. But to dismiss the juror on the trial judge's own motion without any opportunity to be heard, well, that violated the defendant's due process right to be present at all stages of the proceeding. There is that Fifth Amendment right and a comparable state constitutional right to be present. Here, the lawyer agreed that the judge could interview the juror in chambers, but there was no discussion ahead of time about summary dismissal of the juror. And same thing, the court said, this is not harmless. we would give them a new trial separately just on this ground alone. I thought a good interesting compliment again to Chambers and the takeaway I think is just that you're entitled to be heard when these kinds of decisions are being made as defense counsel and that it is improper to remove a juror just because the other jurors don't like how she sees the case. You can hang that jury, you can make them deliberate longer, but you can't sub in an alternate based on one person not buying the state's arguments. Those are our jury issues for the day. New trial for Mr. Lafitte. Quick couple on self-defense I wanted to cover. I don't do a lot with self-defense, but these Castle Doctrine cases got my eye. We adopted Castle Doctrine some years ago, and it basically says when somebody is forcibly entering your home, workplace, or vehicle... There's a presumption that applies where you're presumed to be justified in using deadly force. So these cases are sort of about the limits of when that presumption applies. And it's a pretty crazy set of facts. In State v. Carwile, the victim was the initial aggressor. This victim enters the defendant's home. He's masked. He's carrying a chainsaw. which I can't really imagine anything more frightening. He assaults the defendant with a chainsaw, hits him in the head with it, but the defendant fights back. He pushes this victim out of his home. They sort of fight in the front yard, is how I read the case, and at a certain point, this victim drops the chainsaw, backs away, sort of holding his hands up, and takes off running. and he makes it about 500 feet away from the residence in the parking lot of a car dealership. Well, the defendant follows him, and I think a couple of family members also joined in, and they beat this guy to death. The attacker is, you know, killed by the person he was attempting to victimize. They try this defendant on first-degree murder, and the jury ultimately convicts on second. The defense was asking for an instruction on Castle Doctrine, saying, hey, this all started when this victim came into our guy's house. He came armed. He came to attack him. He did attack him in his home. The defendant is presumed to be justified to be able to use deadly force. No, the trial court said, well, we're not buying it. This guy was 500 feet away. The threat had passed. The defendant had to go chase this guy down. The court of appeals agrees with that. This guy gets no relief on appeal. His second degree murder conviction stands. The court of appeals said any forcible entry here was over. The victim clearly had discontinued his efforts to assault this guy. He was no longer in the home. He was no longer armed. He had held up his hands. He had backed away. He had ran away. He was no longer in the home or the curtilage, because this also applies within the curtilage of the home, not even moving towards the defendant or towards the home. There is a presumption of reasonable fear that justifies this when those conditions are met. But when the victim has clearly discontinued his efforts to enter and is 500 feet away on some other property, you better have a different argument for why you're entitled to use deadly force here. The jury did not believe that he was justified in using deadly force, and that struck me as correct. By contrast, we have the State v. Williams case. And as I just mentioned, when the statute here talks about the Castle Doctrine presumption in the context of residences, it expressly includes the curtilage of the home, the area and the immediate surrounding area around the home, part of the comfort and convenience of the home. But when it talks about this presumption in the context of cars, motor vehicles, there is no such comparable language. And I think that's just sort of normally how we think of cars. Like you don't think of the car curtilage of your car. If it's parked on your property, the curtilage might be part of your residence. But when the car is out on the street, you don't own the street by virtue of your car just being there. Curtilage is a concept tied to real property. But here, the interesting set of facts, here the victim approaches the defendant while the defendant's in his car. This victim opens the passenger side door and begins attacking the defendant. This goes on for a little bit. The defendant fights back a little bit. I think there was a sock filled with like metal balls or something involved. I think they each had a weapon like that. But at some point, the defendant jumps out of the car. The victim approaches the defendant in the street and continues the attack. And the defendant, again, standing outside, right outside of his car, shoots and kills this person. Same thing, the defendant wanted a castle doctrine instruction saying, hey, this all started when I was an occupant of the car. He forcibly entered the car. He attacked me. I was presumed to be entitled to use deadly force. And the trial court said, no, we're not going to give you that instruction. You were no longer an occupant at the time that you use deadly force at the time of the shooting. The jury doesn't get that instruction and they come back and convict this guy of voluntary manslaughter. The Court of Appeal says, trial court, you got this one wrong. The statute is ambiguous here as far as whether you can be an occupant while standing right outside the door of your car. But looking at the purpose of the statute, it is to protect yourself in the car. Here, the assailant basically drove the defendant out of his car by attacking him in the car and then approached him again while he's standing outside beside his car. You're still entitled to a presumption of reasonable fear on those facts. So this goes back for a new trial on manslaughter charges. Interesting couple of cases, interesting sort of parameters of this Castle Doctrine stuff. You can read more about the Castle Doctrine and recent cases on it on the criminal law blog. Both my colleagues, Joe Hyde and John Rubin, have done a lot of work in those areas and they do good work. But it is not something that I typically focus on a lot. Those, however, sort of caught my eye as important. Moving on to Fourth Amendment. We talked about this case, U.S. v. Chattree, some time ago. This was a case about geofencing warrants out of the Fourth Circuit. Geofencing, of course, if you don't recall, is when the police go to Google typically and get a bunch of information about what all phones were in a certain area at a certain time. Google provides an anonymized list of data From that, the police can sort of narrow down the list of suspects. They submit a second, shorter list of phones they want information on, and Google provides a little bit more detail as to those phones. And at the end of the day, the police can say, we think we have a suspect. Please give us his or her account information so we can identify it. I know we covered this earlier. That's what was happening here. A guy robbed a bank, got away with about $200,000 cash. Police had zero leads, but they could see he was carrying a Google phone. And so they go through this process of obtaining a search warrant for this geofencing information from Google, and it ultimately leads to the guy's apprehension. As we covered in the other episode where we talked about this case, Mr. Chatterjee loses his suppression motion at the trial level and he loses on appeal. A divided panel of Fourth Circuit affirmed the trial court or really the trial court decided the case on good faith grounds that even if this was potentially unconstitutional, the officers were entitled to rely on the warrant in good faith. That's the Leon good faith exception. Upon appeal, first go-round, the Fourth Circuit, a majority of the Fourth Circuit says, we think that's right, but we think it's because this isn't a search at all. Mr. Chatterjee had to turn on location services. That was voluntarily sharing his information with Google. He ran the risk that that information would be shared with whomever asked. Not only does the exclusionary rule not apply, this isn't even a search. But a judge dissented from that and would have held that it was a search and was potentially a Fourth Amendment problem. Mr. Chatterjee sought en banc review. He asked the whole Fourth Circuit to sit as 15 judges and review that panel decision, and they agreed. We got a decision recently on this. My colleague Jeff Welty wrote about the initial Chattery panel decision. Just a heads up, we did get this en banc decision the other day. I'm not sure we have any more clarity here, really. Out of the decisions, the court first affirms per curiam. We affirm without comment, unsigned. Then there are eight separate concurrences and one dissent with different judges joining different portions of everybody's, all these different opinions. Some of the judges would have just affirmed to the trial court on grounds that the officers were entitled to rely on the warrant in good faith and stopped there without going any further. Other judges felt strongly that the majority got it right here, that there was no Fourth Amendment search and that this is just not a problem, what a valuable investigative technique this is. One writes to compare this kind of information to more traditional police work, crime scene clues like DNA, fingerprints, tire tracks, that sort of thing. It's just data that you're leaving behind and police were smart to go for it. Several judges here, though, would have ruled that this was a search, but that the good faith exception applied. So I guess sort of that this was good enough for this one time, but moving forward, you might need to do it differently. My favorite was an opinion that said, we don't think that initial step of getting the big dump of all the anonymized data on the front end of who was in a certain location at a certain time, We don't think that is a search, but as you go through the further steps in the process and you start narrowing down the information and eventually getting to the point where you can identify specific account users, somewhere in that process, we do think it transforms into a search. Judge Gregory here was the sole dissenter, and he would have found that this violated the Fourth Amendment full stop. All in all, I don't think I've ever seen an opinion like this, but all in all, we have seven judges saying that no search occurred, seven saying that a search did occur. One doesn't say, but would have just applied good faith to resolve the case. So where does that leave us? I'm not real sure. This is probably an issue that will have to be revisited, not only because we didn't get a whole lot of clarity from the Fourth Circuit here And an en banc decision for them to split like this, I think it's probably fair to say is highly unusual. It's also in conflict with the Fifth Circuit, which has said this is a Fourth Amendment search and it never will be constitutional based on how broad it is and how it lacks particularity as to one person. Furthermore, Google has since changed their protocols on how long they store this data and how available they're going to make it for how long so that law enforcement can get it. So they're retaining data for shorter periods of time. A different geofencing search might call for a different outcome. I mean, here it was two hours. It was for the 30 minutes immediately before, up to the 30 minutes immediately after the bank robbery, including the time in between. Two-hour snippet of data where police were able to sort of pinpoint locations. and phones maybe not a big deal, but something like an eight-hour stretch of time or multi-day stretch of time might get us to a different result. As confusing as the holding is and as split up reasoning as there is on these different opinions, it is still a really good read for people interested in these emerging technologies and Fourth Amendment issues. There's a big discussion. I think what the court is really struggling with is the impact of USV Carpenter, the cell phone ping case. And in Carpenter, we had seven days of cell site location data that the police obtained from a phone company. And the seminal decision in Carpenter was that, hey, you need a warrant to do that. Cell phones are ubiquitous. Everybody has to have a cell phone these days. These tower pings and cell site location information from the phone company, that is not information you voluntarily share with the phone company. That is just happening by virtue of the phone functioning. And so longer term tracking by cell site location data as what happened in Carpenter and longer term being defined as seven days, that requires a warrant. And so some of the judges, I think the judges here that would find a search say, we think Carpenter really changed the landscape as to phones and location data and We need to analyze these differently than we traditionally apply things like the third party doctrine, which is what the original panel decided the grounds on. Again, sort of you voluntarily shared this information with the third party. You lost any expectation of privacy in it, just like you would with the bank or the phone numbers you dial. Other judges really want to keep Carpenter cabined to his specific facts and want to apply a more traditional Fourth Amendment analysis. There's a big discussion about a case, I don't know if we've mentioned it on this podcast or not, but Leaders of a Beautiful Struggle. was another Fourth Circuit case dealing with pervasive ongoing surveillance. I mean, Baltimore was flying surveillance, basically planes over the city capable of, you know, seeing individual faces, license plates, tracking somebody. They integrated that data with on the ground data like automated license plate readers and the like. and created for a time what was a really pervasive system of surveillance where they could really tell intimate details of people's lives. I think it was like as long as it was a sunny day, as long as it wasn't too cloudy out for the planes to be able to see. This nonprofit group, Leaders of a Beautiful Struggle, successfully sued and obtained a preliminary injunction getting Baltimore to shut down that practice, arguing Carpenter and saying this kind of ongoing long-term tracking is a Fourth Amendment problem, even if I don't normally have an expectation of privacy in my public movements, you know, driving down the street, walking down the sidewalk. There's a big discussion of beautiful struggle and these more traditional Fourth Amendment concepts like third-party doctrine and good faith. If you're seeing this, it may be still worth challenging and raising Fourth Amendment issues, too. Under the Fourth Circuit, though, I think a fair read is that police don't need a warrant for this right now. But again, the devil is always in the detail on these Fourth Amendment cases, and it depends. How much data did they get? How many people were swept up in it? How long a period of a time was it? How big of a geographic area was covered? Depending on those details, it could warrant a different result. And again, I'm not sure Google's making this data so easily available anymore. In conclusion, to my points about Chantry, I would just note that it looks like the state Supreme Court may be considering adopting a good faith exception in North Carolina. Long-time practitioners in North Carolina know we have a case called State v. Carter. It recognizes that one of these few instances, really, where the state constitution provides greater protections from unreasonable search and seizure than the Fourth Amendment. That is, under Fourth Amendment jurisprudence, As we say, they recognize this Leon good faith exception where even if a warrant is unconstitutional, if it's not so obviously unconstitutional that a reasonable officer could tell it's issued by a neutral magistrate, And it's not so crazy that an officer would look at it and think, man, there's no way this is a valid warrant. It's a way the government often gets a pass. And as they did in Chattree, it's like, well, even if this is a problem, at least at the trial level, this is what the district court judge held. Even if this is a problem, it wasn't so obviously a problem that the cops should have known. North Carolina has long held. We don't recognize that good faith exception. The legislature's many years ago adopted a statutory good faith exception and I think was urging the Supreme Court to overrule Carter. and to adopt a state Leon Good Faith component, but that has never happened. However, I hear from my friends in the appellate world that it may be Julius or maybe one other, the name of which escapes me right now, but We did have this sort of ominous language in the Julius decision a while back, and that's another case we covered on this show, where it was like, well, yeah, this is a Fourth Amendment problem, but we're going to remand to see what the appropriate remedy is. Well, usually the appropriate remedy is application of the exclusionary rule. that's it, if it's exclusionary rule applies and North Carolina's typically suppressed. We have occasionally seen cases where the Court of Appeals will split the baby and say, well, we think good faith applies to the federal constitutional claim, but as to any claim brought under the state constitution, well, the good faith exception doesn't help you. If the Supreme Court walks back Carter, then we may see the rise and evolution of a state-based good faith exception to the state constitution beyond the statutory one we have now that just deals with substantial violations of Chapter 15A. Something to keep an eye on and something we will definitely cover and be writing about on the blog hear if and when it happens, but that is always a good reminder. You do want to bring your claims in these search and seizure cases under both the state and federal constitutions. Let's wrap up with a couple of gun things. We covered NANS, State v. NANS, in the last episode, talking about a facial and as applied Second Amendment challenge to our state firearm by felon law. His predicate felony disqualifying him was animal cruelty and really bad facts, both of his underlying offense and of his current offense, which was murder and firearm by felon. The Court of Appeals has cited this Canada case from the Fourth Circuit to say, we're not buying into any of this facial challenge stuff. You know, facial challenge means it's always unconstitutional. It's unconstitutional. It's applied to everyone. And there's just no way that's true as to firearm by felon. Certainly some felons, people convicted of violent stuff. are subject to the ban on possession of firearm by felon. And his as-applied challenge in that Nance Clay's case, as we discussed, it fared no better. They said, animal cruelty, we think is pretty violent, and this guy had a really violent history all around. So didn't win his challenges. No successful Second Amendment claim there. What I thought was so interesting about Nance was, you know, Nance cited the Fourth Circuit case Canada rejecting facial challenges, but it didn't cite Hunt that was decided, I think, the same day as Canada out of the Fourth Circuit. And we talked about Hunt on this show, but Hunt said, and also felons can sort of never succeed on as applied challenges because felons as a class can be disarmed. So I sort of took that absence of citation to Hunt and the fact that the Court of Nans went through the specifics of the guy's felony and his criminal history and his circumstances as saying, hey, we're not going to follow that Hunt case. We're going to do case by case, felony by felony analysis. You can still raise your Second Amendment claims as to a different felony if you had something besides animal cruelty. Well, that was the case from about February to May. But in State v. Ducker, the Court of Appeals shuts all of this down. Ducker was convicted. His predicate disqualifier was attempted fleeing to elude arrest. That's as low a level felony as it gets, a class I felony. I think it was about 13 years old at the time he gets caught with this firearm. And he had mostly stayed out of trouble since that felony in 09, but he had committed a misdemeanor DVPO violation in 2018, which will become relevant in a moment. Officers get a tip that this guy's carrying a gun despite being a felon. They find him with a gun and they charge him with firing by felon. He smartly moves pretrial to dismiss the charges based on a Second Amendment violation and for a violation of the comparable right in Article 1, Section 30 of the North Carolina Constitution. Again, Mr. Ducker brings facial and as applied challenges. He loses, he's convicted at trial. Procedurally, I thought it was interesting, he tried to bypass the Court of Appeals and go straight to the North Carolina Supreme Court. They wouldn't do that. So he goes to the Court of Appeals, as normal folks do, and he unanimously loses all of his challenges. As to the facial challenge, just like in Nance, the court said we're bound by Nance. First of all, one panel of the Court of Appeals has already decided this. That's NRA civil penalty. We're stuck with it. But they, too, pointed to the candidate decision from the Fourth Circuit. it's hard to square with common sense logic and really case law like Heller and McDonald, City of Chicago v. McDonald, where the U.S. Supreme Court has sort of repeated the line that bans on possession of firearm by felons are presumptively constitutional. So we reject the idea that our state firearm by felon is facially unconstitutional. There are some set of facts where this can be applied, at least to dangerous felons. But then the court goes on to say, we're also not going to entertain these as-applied challenges. Is it unconstitutional as of this defendant? Yeah, because the defendant was arguing, hey, my felony is nonviolent. The Third Circuit has held in the range case that certain nonviolent felonies can't constitutionally justify the federal ban on firearms. This situation is like that. And as I said, there was sort of hope after the NAND's decision earlier this year that this was an argument that would be entertained. But the Court of Appeals says, no, we adopt the reasoning of the Fourth Circuit in that Hunt case. There is no need for case-by-case or felony-by-felony analysis. The Second Amendment right to possess arms only applies to law-abiding and responsible citizens, and convicted felons are not that right. and therefore they are not protected by the Second Amendment whatsoever. It might be different if you have been pardoned, the Hunt case recognized that, or if the statute of your conviction has been deemed unlawful or unconstitutional. But absent that, if you've got any felony, it's going to keep you from advancing a successful as-applied Second Amendment challenge in North Carolina. On that point, I think it's still worthwhile for defenders to consider raising the Second Amendment claim until the U.S. Supreme Court weighs in because there is a split with at least the Third Circuit where some circuits are saying certain felonies don't trigger the federal ban. Other circuits like the Fourth and the Eighth are saying across the board, doesn't matter what your felony is. And I think it's a fair question. I mean, we have a lot of crimes that are felonies in North Carolina. We have a lot of felonies that are not completely nonviolent. Here, the court sort of was like, well, fleeing to elude is not per se violent, but it's not exactly the safest thing to do in the world either. But then they go on to say, but it doesn't matter because felons just exist outside of the protections of the Second Amendment. But something like fleeing to elude or something like obtaining property by false pretense or felony larceny, there's a lot of felony littering should those really justify at least a 20 year ban on your gun rights in North Carolina because you can't apply for restoration after 20 years. You still might want to bring these claims for the time being until the Supreme Court says yes or no to whether some felons might have successful as applied challenges. But at least if the court of opinion here in Ducker stands, Not going to be very easy. Now, I know Ducker is seeking review of this and PDR has been filed in the state Supreme Court. And we're still waiting for the state Supreme Court to weigh in on these issues. I mean, they didn't take up Radomski, the first big Second Amendment case about weapons on educational property. And they as far as I know, they haven't granted review in the Nance case that we just talked about. But maybe they will want to jump in on Ducker. What about that state constitutional claim that Ducker advanced here? The court says, just like we did in Nan's case, we look at the Brit factors. There's a case called Brit v. North Carolina where a plaintiff affirmatively sued the state of North Carolina for declaratory judgment to say, I think the firearm by felon law is unconstitutional as applied to me, and he won. But I think we talked about this some on the last episode. Britt's conviction was 30 years old at the time that the law on firing by felon changed at some point that said used to be felons could still have a gun in their home or workplace. And then that changed. He turned in his guns when that happened. He had been completely law abiding in 30 years since his conviction. And he was proactive. He didn't wait till he was charged with a crime. He sort of went on the offensive and sued to say, I want you to say I can have my guns. And he won. But there have been very few, if any other successful Brit challenges. And the Brit challenge here, the state constitutional claim goes nowhere. They seem to set a very, very high bar for it. They've said, yeah, your conviction was 13 years old, but we've denied people relief on convictions up to 18 years old. And, you know, again, Brits was 30. So I don't think they have exactly set a firm rule. But if you want to say your conviction is old, that better be something more like 25 or 30 years old, not 13 or 18 years old. Unlike the guy in Brit who went on the offense, this guy raises this issue after he's charged. I mean, they don't come right out and say it, but I think a fair implication is that that factor is not going to go in your favor if you're bringing this up defensively in the context of a criminal charge. Remember, Ducker had this subsequent conviction in 2018 for misdemeanor. It was a misdemeanor DVPO violation, but I'm not sure if it matters at all. I mean, the factor is what's your history of law-abiding behavior since your felony conviction? So even if it was disorderly conduct or resisting arrest or something like that, I think it would probably count against the defendant. So they said you don't have a history of being law-abiding because nine years after your felony conviction, you got another misdemeanor. You know, the BRIT factors does look at whether the felony is violent or dangerous. It looks at the nature of the felony, excuse me, including whether the felony was violent. And again, here the court said, well, not exactly violent, but this is dangerous, that attempting to flee to elude officers. On balance, these BRIT factors favor the state. No relief for Mr. Ducker under the state constitution either. So again, I think these are all just saying it's going to be a very high bar to advance a Second Amendment claim that our firearm by felon statute is unconstitutional as things stand now. And this state constitutional challenge seems maybe even harder after the Ducker decision. I really do think our state Supreme Court might weigh in here, if for no other reason than to fix the BRIT test. One of the factors in the BRIT test is history of compliance with the 2004 amendment to the firearm by felon statute. Obviously, that's not a factor that's going to come up for most people these days, are dealing with felony disqualifications. It's been the law now for 21 years, I guess. So maybe they'll give us some more clarity on this, but we'll have to wait and see. In closing, I would just like to note what the U.S. Supreme Court didn't do recently in this area. They had been sitting on two cases. One was Snope v. Brown. It was originally Bianchi v. Brown following a change of some parties. And they were also sitting on Ocean State Tactical LLC versus Rhode Island. The Snope case dealt with Maryland's ban on AR-15s and other assault weapons like that. They have an outright full ban. You cannot possess or own an AR-15 in the state of Maryland. And about nine other states and the District of Columbia have a similar ban. Rhode Island had passed a ban on high-capacity magazines, defined as anything holding more than 10 rounds. As I understand it, both of these cases were relisted and conferenced by the U.S. Supreme Court justices 15 different times. I'm not sure if that's a record, but that's a pretty high number. And ultimately they deny review in both cases. So the lower court decisions upholding these bans on high-capacity magazines and assault weapons, including the AR-15 stand. Justice Kavanaugh wrote separately in the Snope case to say, our denial of review here does not equate to an approval of the Fourth Circuit's decision in the Bianchi case upholding this ban. AR-15s are one of the most popular guns in America. They are owned by millions of Americans. They account collectively for about 20% of all gun sales in the country, and they are far and away the most popular civilian rifle. A couple of the conservative justices would have heard this, and Justice Thomas, it sounds like, would have ruled for the challengers in this. But that's an interesting case. I summarized that Bianchi v. Brown case, which again turned into Snoke v. Brown at the U.S. Supreme Court. And then there's this Ocean State tactical LLC versus Rhode Island, but they've ducked for now on both things. Justice Kavanaugh did write that like, we need to address this AR-15 issue and maybe we'll do that in the No telling if and when the Supreme Court is going to review something. And still a lot of questions. I mean, even if we assume that the Court of Appeals in Ducker got it right and the Fourth Circuit got it right in the Hunt case, and I think there's a comparable case out of the Eighth Circuit that, you know, sort of shut down these challenges to fire him by felon. There's still other questions like... What about the federal ban on people who use drugs? I think we talked about that a few episodes back. What does that mean for like people in marijuana legal states? What about weapons like knives and pepper spray and that sort of thing and state bans and limits on those? Still a rich and interesting area of law that's developing and plenty more to come on that, I'm sure. So we'll look forward to covering it and other issues in the next episode. Big thanks to Paul Bonner, my studio extraordinaire. Big thanks to the School of Government for all of its help and resources. Thanks to Monica Yelverton, my Associate Director of Programs and Services for Public Defense Education. Thanks to my brother, David Dixon, for composing, our theme music you can find more of his work at david dixon music facebook or instagram and most of all thank you listeners i appreciate all of your support if you have questions comments concerns or other feedback for me you can always reach me at my email that's dixon sog.unc.edu again d-i-x-o-n at SOG.UNC.EDU. I can't wait to get back in the studio. I promise I won't make you wait so long next time for the next episode. Please, I'd love to hear from you if you do have thoughts. So until then, see you next time.
Episode 19: NC Criminal Debrief
This episode covers recent developments in North Carolina regarding juror substitutions during deliberations, self-defense law, and constitutional challenges to NC’s firearm by felon law, as well as the recent en banc decision by the Fourth Circuit on geofencing warrants and more.