Episode 7: NC Criminal Debrief

[00:00:11.422] [SPEAKER_00] Welcome everybody to our first 2023 episode of the North Carolina Criminal Debrief. It is good to finally be back in the studio. I should be getting back into a more regular schedule after that long and much appreciated break. I'm here with DJ Paul Bonner on the ones and twos in the SOG studio. Thanks as always to Paul. Lots of stuff to cover, so let's jump right in. Start with news as we do. One of the things I wanted to flag was a follow-up. We've talked a little bit about the Bruin case on Second Amendment rights out of the Supreme Court. We've been seeing courts around the country struggle with how to interpret that and lots of formerly acceptable restrictions on firearm ownership and possession being invalidated on Second Amendment grounds. I think the most significant one of those was recently out of the Fifth Circuit. My colleague Jeff Welty flagged this and I mentioned it on an earlier episode that a district court, I believe in Texas, had ruled that federal law says if you are under a domestic violence restraining order, you may not possess a firearm. Well, that was challenged in district court in Texas and struck down on Second Amendment grounds. That was appealed up to the Fifth Circuit Court of Appeals. And applying the Bruin framework, whereby the government has the burden to justify regulations on firearms by looking at historical analogs, the Fifth Circuit said this was no good. It violates the Second Amendment to prohibit people who are under a domestic violence restraining order from possessing firearms. Said, you know, we recognize this is a laudable policy goal and that the idea is to protect women, but women weren't given these kinds of protections at the time of the founding. There were no similar restrictions on firearm ownership by people with domestic violence. Domestic violence wasn't really recognized as a thing. at the time of the founding, so ban on DVPO gun ownership has been invalidated by the Fifth Circuit Court of Appeals. Imagine that case may well get up to the U.S. Supreme Court, so it's something we'll be keeping an eye on. Meanwhile, a little closer to home, it's been in the news that our state legislature is considering First, I read that we were considering getting rid of the purchase permit requirement. You don't need a permit to purchase a rifle or shotgun in North Carolina, but you do have to get a permit to purchase a handgun. And of course, you also need a separate permit, a carry concealed permit, to carry it concealed. Both the purchase permit and the carry concealed weapon permit are apparently being considered for repeal. In which case, anyone who's lawfully able to purchase a gun would be able to do so, would not have to get a permit from the sheriff first, and anybody with a legal gun would be able to carry it concealed in any place, presumably where guns could be carried. So lots of movement there. There are other issues around Bruin stemming and flowing around the country. I'll continue flagging those as notable ones come up. Turning to other news, the American Bar Association recently released a study on the practice of plea bargains. To the surprise of I'm sure no one in the court system, it found that most cases are resolved by plea. Trials have become almost a non-existent thing in many places. 98% of cases are resolved by plea. Similar statistics exist in many states. The report discusses things like the trial penalty, racial disparities, encouraging innocent people to plead guilty, and all of these other sort of well-known problems of a system of guilty pleas. The report ends with a call for more data and study on this practice. It notes the need for discovery early on in a case and certainly before any plea offer has been made. Bail reform, it notes, may help. The report was also critical of appeal waivers whereby you're pleading guilty now but agreeing not to challenge it down the road no matter really what in many cases. So, an interesting report. I encourage attorneys all the time, hey, you know, put 12 in a box. We got to try more cases, y'all. But, you know, a fair counterpoint to that is that the system is not really conducive to it. DAs have a lot of discretion to bring multiple accounts, to bring enhancements. And that can really disincentivize taking something to trial. I mean, think about our trafficking laws. Unlike federal law in North Carolina, you can be punished for possession of the cocaine, transporting the cocaine, sale of the cocaine, the packaging and manufacturing of the cocaine, and a conspiracy if there's one. All for the same pile of drugs. So five, six ways of trafficking for one thing. Whether a DA is bringing one trafficking count in that kind of situation or five or six may really influence whether someone is ready to take something to trial or not. Same thing with habitual felon. I think habitual felon was really designed with the idea that we want a way to punish the worst of the worst. But the way the habitual felon law works is any three felonies plus a fourth gets you there. So some DAs and some DAs offices are selective in bringing a habitual felon enhancement. Others have sort of if you qualify, we bring it kind of policy. And so that even something really minor, think obtaining property by false pretense for fraudulently getting a pizza or something otherwise really insignificant, if that's someone's fourth felony, in some places they're going to be charged as a habitual felon. And often that's the plea bargain is we'll let you plead to the regular felony and lose the habitual felon. in exchange for your plea. I think even someone who has a defense and who may be, you know, factually innocent may well get incentivized in that kind of situation to take a plea even when they didn't do it. So, well-known problem, I think, to criminal system actors. Not something I think is likely to change on a broad scale without some institutional reform, but interesting nonetheless and nice to see the issue getting that kind of national press. Turning to the U.S. Supreme Court, just wanted to note they're off to a really slow start this year as far as opinions go. Normally we see at least one or two opinions even as far back as November. Certainly we tend to see some by December. The first opinion of this term was issued on January 23rd. We've had three more since then for a grand total of four published opinions from the U.S. Supreme Court so far this term. Today is February 27th. So lots more pending. As I've noted before on this show, there's not a ton of criminal stuff, at least nothing that's directly relevant in North Carolina. But there are some other interesting cases that may affect NC in some other areas. You know, one I was kind of hoping we'd get some clarity on, we had, this court had granted review and heard argument in a case called NRA Grand Jury. This case presented questions about whether legal advice that's mixed in with non-legal advice Is that covered by attorney-client privilege? Well, after argument, the court dismissed that as improvidently granted. There's an acronym for that called DIGGED, dismissed as improvidently granted. So that means they dismissed the case without making a decision and decided it wasn't something they wanted to resolve. The court is also sitting on some relists, relisted petitions, several of which deal with this controversial sentencing enhancement of acquitted conduct. In federal sentencing guidelines, if you are found not guilty of an offense, But at sentencing on other offenses, the judge finds by preponderance of evidence that you did actually commit the thing you were found not guilty of. That can be used against you, and that's known as acquitted conduct enhancement. As I mentioned, that is controversial, I believe, and I know some of the current Supreme Court justices have expressed an interest in taking on this issue and potentially getting rid of that. But For now, nothing yet. So cross our fingers that those issues get up to the Supreme Court and we get some kind of opinion on that. Last bit of Supreme Court news, still no public results from the Supreme Court's investigation of itself regarding the leaked opinion in Dobbs. Of course, Dobbs was the case that overruled Roe v. Wade. Someone leaked it. Apparently, they've not found out who. Apparently, the justices were not required to swear or give any affidavits or anything like that, just sort of gave their word they weren't involved. Other court staff and interns, clerks were apparently had phones looked at and had to give statements under oath, but so far nothing on that. So we'll be keeping an eye on all of these stories and anything coming from the court that affects criminal law. Moving on to the robot revolution. NPR recently ran a story about a California startup called Do Not Pay. The idea here was to have artificially intelligent assisted smart glasses that a person would wear to traffic court and try to defend themselves in court. The smart glasses could basically hear and see things in real time and feed computer generated legal advice into someone's ears about how to defend yourself in court. So a pro se person would basically have a robot in their ear telling them, here's when to object, here's the kind of question you want to be asking on cross. Very interesting stuff, but the Bar Association did not think so. There were threats that this would entail the unauthorized practice of law, including threats of, like we have in North Carolina, many states do, a crime unauthorized practice of law so they were threatened not only with civil action but criminal prosecution for this and in response the company backed off and decided we'll focus on non-legal areas where this stuff can potentially assist people Similar AI technology was recently used and this computer was able to pass four law school exams at the University of Minnesota Law. Apparently the AI was not exactly an A student, but it was indeed able to pass. So the nerdy folks over at SCOTUSblog, if you don't know, SCOTUSblog is a resource for everything about the Supreme Court. It's a great place to keep up with legal developments there. In response to this story about AI passing law school exams, The folks over at SCOTUSblog decided to mount an investigation and test one of these AI systems. So they got on ChatGPT, one of the chat bots I guess that's out there, and asked some basic and some not so basic legal questions of the system. Needless to say, it does not appear that computers will be displacing live lawyers anytime soon, at least once we're past the very basics. So they asked ChapGPT 50 questions about the Supreme Court. The computer got 21 of those correct. Many times they were partially correct, but left out important information or other inconsistencies. When asked how many justices were appointed by former President Trump, it said two and named correctly Gorsuch and Kavanaugh. But the AI apparently forgot that it was actually three, the third being Amy Comey Barrett. There's an acronym in Supreme Court lore called CVSG, Call for the View of the Solicitor General. This is when the government is not a part of a case, but the court asks for the government to weigh in with its view. So CVSG, Call for the View of the Solicitor General. It correctly identified that acronym, but then incorrectly added that this can happen when the government is a party. Well, that's not. It's for when the government's not a party. Funny, it also stated that deceased former Justice Ginsburg dissented in the gay marriage case Ogberfell. She did not dissent in that case and was squarely in the majority. Maybe the funniest one was when asked about what are the duties of the court's most junior justice, the chatbot responded in part that those duties included maintenance of the court grounds and buildings. It correctly was able to identify a justice who was impeached back in 1804, but it also created another impeachment of a justice out of whole cloth. It said a person it named, who was never a justice, was impeached in 1933. There was no such impeachment. All that's to say, lawyers, I think your job is safe from AI for now. Give it a few years, we'll see. Turning to some state law issues, I recently wrote about our needle exchange law. This is a thing where under chapter 90, subsection 113.27, a government or nonprofit entity can basically register with the state to run a needle exchange program. and they basically give out clean needles and injection supplies, and they will dispose of used needles. If the program is going, both employees and volunteers of the program are immune from charge or prosecution, and so are participants, the people that are getting these clean needles and dropping off used needles. The participants in these programs do register. They usually get a card from the entity that they can then show to law enforcement upon request and say, hey, you know, yes, I am participating in this program. These needles, you know, should not be charged as paraphernalia. I'm immune from charge or arrest. And it covers the needles both used, even the residue in used needles. clean needles, injection supplies, all of that is covered. Well, we recently had a study examine how this was working in four North Carolina counties that have the program, and the study found widespread problems. Surveying the people participating found that law enforcement was largely not abiding by this law very well. We would see instances of law enforcement charging people despite them having the proper documentation, we would see law enforcement seizing the injection supplies with or without a charge, sometimes seizing the card that documents the person's participation. Those types of problems that the study categorized as coercive law enforcement experiences, those were found in every single county. But there was some difference. Haywood County on the high end was at about a 50% in terms of reports of these coercive encounters by program participants. Johnston County on the other end of the spectrum was doing the best. Only around 12% of participants reported a negative experience there. Since then, I've been thinking about this and I've fielded some more questions after my blog post on it. I've heard of other stuff too, like even if law enforcement doesn't charge the person, doesn't seize their supplies, they'll try to recruit the person into informant work. I've also heard of situations where clean needles that are ostensibly covered by the program that officers claim that is probable cause to search the vehicle, even if the needles themselves aren't going to be treated as contraband. I've even heard of a situation where the driver, there's needles in the car, the driver claims the needles, the driver is covered by the needle exchange program, so they charge the passenger with paraphernalia for the needles. The contours of the law in all these situations is not yet clear, but at a minimum defenders and other people in the court system should be familiar with this law, raise the defense as needed when it's relevant. And it's important to note, actual drugs are not covered by this law. I mean, the residual amounts in a used needle that's on its way to a needle exchange program to be dropped off, that is covered. But if there's a package of heroin beside the clean needles, that is not a part of the immunity here. I'd note too that the law gives officers immunity here for an improper criminal charge, as long as they're acting in good faith. Well, given the problems that we've seen in the study and across the state with these programs, I guess I'd note that good faith, we don't have a definition of it yet, but I don't think just complete ignorance of the law is a good faith excuse here. Officers need to be aware of this as well, and I think whether you're an officer on the streets or the magistrate where the charge is being sought, if there's a plausible claim that someone is participating in this program, there should be an attempt to verify that participation. If it's not possible to verify them, I don't think anyone's going to get in trouble for charging them. But where there's no attempt to verify, even in the face of documentation or a colorable claim, I think that's getting closer to bad faith and may even be potentially triggering civil liability for officers. So do what you can, folks, to get the word out on the street to the officers and other court system actors as far as that. Note that that's in context of several other harm reduction measures that we've seen in recent years. Under our paraphernalia law, Folks have immunity for any sharps on their person if they disclose it to an officer who's about to search them before the search. And you'll see officers say this all the time, hey, before I search you, is there anything in your pockets that might cut me or prick me? If you're in that situation and you have a needle in your pocket and an officer asks you that, or you know you're about to be searched, so you volunteer to the officer, hey, I've got a needle in my pocket, I don't want it to prick you, you're immune for that sharp. So when law enforcement's about to search you, if there's a sharp and you disclose it ahead of time, you can't be charged for that sharp. That is written into our paraphernalia law now. Likewise, drug testing kits, so basically a kit used to determine the identity and purity of any given substance, those have been written out of our paraphernalia law. So formerly a drug testing kit, something used to test drugs, that would be considered paraphernalia. But because of an amendment to our drug paraphernalia law, 90-113.22, those are no longer considered contraband. We've also allowed the distribution and administration of Narcan, the overdose prevention drug. That's in 90-96.2. Something I didn't realize and that I learned while preparing this story was anybody can get a hold of Narcan. The law says if you're in a position where you think you'd be able to help someone with it, you're a person entitled to get it. And there's movement to potentially make this more available, I guess. at your local pharmacies. And I think some places this is really being handed out basically like candy. Other places just know you likely can get a prescription from either your doctor or pharmacist. We also have a Good Samaritan Law, but again, sort of studying this for the first time and looking at it in the context of this harm reduction story made me realize how narrow our Good Samaritan Law is. So this is the idea here is to encourage people to report overdoses. If I fall within the protections of the law, I see somebody overdosing and I call to report it and get help, both the caller and the overdosing person are immune. but it's really narrow. It only applies to misdemeanor possession offenses and felony possession of cocaine or heroin offenses when they involve less than one gram of drugs. So only coke and heroin, only less than a gram, very notably not including fentanyl, any mixtures, or any larger amounts. A gram of cocaine is not a whole lot as far as users go. It's a fair amount of heroin, but really not cartel-level amounts. Very narrow protections there. So all of these are things that we've passed in the recent years in the interest of harm reduction, of recognizing basically people are going to use these intravenous drugs, they're dangerous, and we don't want them to die from it in the interest of keeping it illegal. But you have all these measures, and you can compare those to the continued efforts to keep the stuff criminalized. I think we recently heard from the Attorney General's office that they were gearing up sort of fentanyl and opiate-based special prosecution teams. Folks still get a felony for possession of most of these things. They still get trafficking at four grams. They'd still be subject to death by distribution, whether it was they sold one time to one person and that person died, or whether they're a serious dealer, it doesn't apply. The laws are broadly applicable. It doesn't matter. These laws broadly apply regardless of the situation and I think easily and commonly sweep up user level defendants. Interesting to watch that policy sort of struggle continue to play out in the state. Onto another drug issue I also recently wrote about on the blog. And when I say the blog, I'm talking, of course, about the North Carolina Criminal Law blog. I encourage listeners to check that out if they're not already familiar with it. I have been hearing some anecdotal reports on a Seen in the news at least once or twice recently, Kat, that's K-H-A-T, in our state. This is a plant that's from the Horn of Africa and the Middle East. You chew the leaves and it has a stimulant effect. Mild stimulant in small doses, sort of alertness, mild euphoria. Higher doses, more like mania, paranoia, heart problems, sort of like other stimulants. This stuff, this plant cot, is both common and legal in some of those countries where it's from. But not so much here. But as I wrote, it is a funny little thing. Cot contains, while growing or within the first 48 hours of harvest, it contains a schedule one substance called cathinone. If that sounds familiar, it's because it's basically bath salts. That's basically one of the things that's used as bath salts. So again, while it's growing or within the first 48 hours of harvest, it has cathinone. After that time though, it breaks down into a schedule four called caffeine. Not caffeine as in coffee, caffeine. We actually have a 2009 case on this. There, the trial court erred by instructing the jury that cot was a schedule one controlled substance. As we just went over, it's not, not necessarily. The compounds in it may be, or it may be a schedule four, but you gotta call it what it is, which is cathinone or caffeine. Cot itself is not regulated or illegal. It's those substances within it that make it illegal. Note that we have a trafficking provision for substituted cathinone, but there is no trafficking of cathinone or caffeine. Substituted cathinone to my non-chemistry brain, as best I can tell, is a synthetic derivative of cathinone. And we have a specific thing, and I think this was targeting bath salts, that says no trafficking in substituted cathinone sets an amount. But there's no such analog for cathinone or caffeine. So most serious stuff you're going to get here is really going to be sale, possession with intent to sell and deliver, manufacturing, maybe conspiracy. So a couple of things to keep in mind, I guess. Note that with the Schedule IV, the caffeine that the cathinone breaks down into, under 9095d2, possession of a Schedule IV is usually a Class I misdemeanor, and a Unless there's more than 100 doses, it stays at a misdemeanor level. And I guess we should caveat that and say, yeah, for the possession offense, it's got to be under 100 doses or more than 100 doses to get to felony territory. Less than that could still get you to possession with intent territory, but there would need to be that other evidence indicating an intent to distribute. I raise all that to say the dose is going to matter, you know, and what's a dose of this stuff? I don't really know. But if we're talking possession level amounts, the difference will be between felony and any amount for possession of the schedule one cathinone versus misdemeanor for the schedule four caffeine, as long as you're less than 100 doses. Interesting stuff that sort of seems to me to present a little chemical problem for the state in proving these cases. Of course, under State v. Ward, the government's usually gonna have to show a reliable chemical analysis as a matter of Rule of Evidence 702 to get this stuff in. Defenders, my advice to y'all is get an expert, as I've called it in the blog post, to help with the ephemeral nature of this stuff. I think you should probably consult with an expert as well as on the issue of dose. And another interesting thing here is the knowledge element of drug possession. This blog post made me really look at it harder and think about it. Thanks to Jeff Welty for helping me think through some of these issues. I would just note, and this applies for any drug case, you know, knowledge and knowing possession is required for possession of drugs in North Carolina. And knowing possession means knowledge that you possess a controlled substance. A person in this situation say they can't claim, I thought that cathinone was legal. That doesn't work. If I just moved from Yemen and this stuff is legal in Yemen, I know it contains cathinone and caffeine, but I just didn't know we had a law against that. That's just ignorance of the law. It doesn't work. It doesn't work any more than I say, I thought this cocaine was fine. But the person can claim, hey, I didn't know cathinone or caffeine was in this plant. Just like you might claim, I didn't know that bag of sugar I bought at the store was full of cocaine. So interesting to watch. I think this will be interesting to watch as these cases start to pop up in the state. You know, I don't expect there to be a whole ton of this stuff. but certainly in communities where there's larger populations of folks from the Middle East or North African countries where it's popular, you may well see it, and it sort of raises some interesting questions. Moving on to one final drugs note, there was an announcement I think last week maybe, or the week before, from the Drug Enforcement Administration about THC-O. I've had a lot of, let's say, concerned citizens contact me about this statement by the DEA. Basically, THC-O is a synthetic cannabinoid. It's not found naturally in cannabis, unlike Delta-8-THC or Delta-9-THC or THC-V or CBD or all these other cannabinoids that we sometimes talk about on the show. THCO can be derived from cannabinoids that are sourced out of hemp, but THCO doesn't naturally arise in any kind of cannabis. The DEA, I think correctly, has identified, hey, that THCO, we're going to treat it as synthetic THC because it's not a natural derivative or isomer of cannabis. So the story headlines though that made around in light of this announcement were that Delta-8 and Delta-9 THC-O are illegal. That's correct, but it's important to note what we're talking about. Delta-8 and Delta-9 THC-O are properly treated as synthetic THC. That is different from your normal Delta-8 or Delta-9. Those are not illegal. And we still have no regulation on that, both either at the federal level or on the state level, not so much as a age limit even. Even with all that said, retailers and consumers may still have sort of a defense, even on this THCO stuff, in that if it's still being sold at the store and I buy it at the store, not realizing that it's in a controlled substance, just like with cot, that could get you there depending on the formulation. Certainly it would be mitigation at least. So an interesting development there in the cannabis realm, minor perhaps in the scheme of things, but just be aware THCO is no bueno. Okay, turning to a pair of state cases, good reminder about probation and the exclusionary rule. Can I just say I hated doing probation when I practiced. I would often turn down clients who were offering to pay me for probation because I would look at the case and just think there's not a lot to be done here. It's a lesser burden of proof. The rules of evidence don't really apply. I just could not stand doing it. And that is no disrespect to all the wonderful folks who are out there doing great work in probation violation court. just was not for me, and these cases reminded me why a little bit, in part. We had one from the Court of Appeals on December 29th, State v. Boyette, and here the defendant tried to suppress evidence in the probation violation hearing that he claimed had been unconstitutionally obtained. No dice, the court said. Not only is it that the formal rules of evidence do not apply, except for privileges, the rules of evidence do not apply at probation. That extends to evidence that would be subject to suppression under the Fourth Amendment. There's just no exclusionary rule in probation court, period. Another thing to keep in mind when defending these cases is you're not gonna make a successful suppression argument. An even more poignant example of that in action was the December 16th case, State v. Gieter from the North Carolina Supreme Court. Here, the defendant was already on supervised probation. Officers obtained a search warrant for his house where they found illegal drugs and an illegal gun. A probation violation was filed for the existing probation case based on those new crimes, but they left the violation pending while that new case on guns and drugs was being resolved. Well, the defendant gets the evidence from the search warrant suppressed. Says the warrant was bad, the court agreed, the evidence is suppressed, those new criminal charges were all thrown out, dismissed. But that was not enough to save him at probation. That same evidence that had been suppressed was used at the probation violation hearing to violate, find he did commit new crimes, and revoke his probation. And that, according to the court, was no problem because the exclusionary rule just does not apply, even when the evidence that had been seized was found to have been unconstitutionally seized. No bar to use that in probation. This latter one, Geeter, is not really about this rule. It's more about probation extensions and good cause, an issue that I'm not going to cover and I will probably never cover that kind of issue because I do not like probation. The suppression angle was really interesting and a good reminder for the defenders out there in the field of how this stuff can work in practice. All right, wrapping up, I wanted to quickly summarize two recent Fourth Circuit cases. My colleague Jeff Welty recently posted about this. The case is called Sharp v. Winterville, the town of Winterville. Well, I actually used to live in Winterville. It's right beside Greenville in eastern North Carolina. The town there apparently has a policy of banning the live streaming of police encounters during a traffic stop. So Mr. Sharp, the plaintiff here, was a passenger in the car that was stopped. He started live streaming the police and they said, you know, you can't do that. If you do that again, we're gonna arrest you. Next time we're gonna take your phone, yada yada. So when the encounter's over, eventually he sues and alleges a First Amendment violation by the police, both for their interference with this live streaming and over the policy itself. This case gets up to the Fourth Circuit. I believe it's now at the Fourth Circuit for the second time. And here's what the panel did. They said there was, at the time of this, there is or was no clearly established right to live stream the police. so the officer gets qualified immunity. But that town policy on prohibiting live streaming during a traffic stop, that might violate the First Amendment, so remand the case down for more hearings on that question. They don't come right out and say that recording the police is protected, but this opinion strongly implies it. We don't directly have that holding in the Fourth Circuit, but this opinion acknowledges live streaming, just like recording, will generally fall under First Amendment protections. And we've seen before, back in an unpublished case in 2009 in the Fourth Circuit, we had the recording issue out there, and same thing there. They said, well, it wasn't clearly established that you had the right to record the police then, so qualified immunity to the officer then. Very light on analysis, that opinion. Since then, there's really vast agreement among other federal circuit courts of appeals that the right to record police is now clearly established. And after our unpublished case in the Fourth Circuit back in 09, some of the federal district courts in our circuit have started acknowledging that, that yes, hey, there's a clearly established First Amendment right to film government officials doing their job, and that includes the police. So arguably the right is now clearly established. This just goes to whether qualified immunity applies and whether the officer can be held individually liable. The live streaming is a nice little twist on that. It's a slight difference, but it is a difference between me recording something so that I have a video of events later versus me live broadcasting something in real time. So that's going back down for more findings. I don't think it goes further than this at this posture because we're just at the summary judgment qualified immunity stage of the case. But, you know, it's possible it could be back at the Fourth Circuit for a third time. And depending on how that goes, maybe even all the way up to the U.S. Supreme Court, there was a judge dissenting here. It was a divided panel. And the dissenting judge would have ruled that, you know, we're looking at this all wrong. It's really a Fourth Amendment question. And of course, this was fine under the Fourth Amendment. Not exactly criminal case, but sort of criminal adjacent, and I thought something worth flagging. I wanna wrap up with one final Fourth Circuit case again. This one's out of South Carolina. We'll see how it ties to North Carolina in just a second. We recently got the decision in Carolina Youth Action Project versus Wilson. Basically, it's a class action challenge to certain disorderly conduct crimes in South Carolina. They have one that bans the use of obscene or profane language in public or within hearing of a school or church. They have another one that bans interfering with or disturbing students or teachers at a school or acting obnoxiously at a school. These are very real crimes in South Carolina. Between 2020 and 2014, there was about 37 referrals of kids 18 and under for school-based incidents under that first one, obscene and profane language in public within hearing of the school. And for an earlier time period, in regards to the other one, interfering with or disturbing students or teachers or acting obnoxiously, there was about double those numbers. These kids, those are referrals to DJJ, the Department of Juvenile Justice, to decide whether or not they want to file a juvenile petition. But interestingly, or I guess notably, even when these cases are dismissed and the department chooses not to proceed against the children for these criminal offenses, the state keeps a record of the referral, both in DJJ and with the local prosecutor. So sort of never really dies. As I mentioned, basically they got a class certified filed to attack this law and argue that it was unconstitutionally vague as a matter of due process. District court here granted the class summary judgment finding this was unconstitutionally vague and issuing a permanent injunction against the government for any future enforcement against this category of kids 18 and under. And they ordered the state to get rid of those records it keeps on these kids, basically just as if they had been expunged. Sort of weighty remedy imposed by the federal district court here. The state attorney general appealed and a divided panel of the Fourth Circuit affirms. They pointed to the fair notice doctrine or fair notice component of the due process clause of the 14th Amendment. You can't have a crime if the law is so vague that it fails to give the average person adequate notice of what's prohibited. That's void for vagueness doctrine. Here, the statutes use the word disorderly, obnoxious, obscene, and they don't really give you any guidance beside that. There's this choice quote from the opinion. It said, I quote, it's hard to escape the conclusion that a person passing by a schoolyard during recess is likely witnessing a large-scale crime scene. if the words disorderly, obnoxious, or obscene are to be given their normal meanings. The court here pointed out that South Carolina courts, they have not narrowed the reach of this in interpreting it either. The average person cannot tell what is criminal or what is not. And there was evidence brought before the district court here that different officers would treat different Similar situations, differently. Cussing in the hallway might get you a detention in front of one officer one day, it might get you a referral for disorderly conduct another day, and it's really hard to predict. So they noted that the school resource officers here, the way these statutes were written just gives them way too much discretion and not enough fair notice to the students. There was also evidence that black students in South Carolina were charged at a rate of seven times higher than white students. That's not great. And all of that was about the first law, the disorderly or obnoxious or obscene language, but the other part of it, the disturbing schools law, didn't fare any better. The court said with the prohibition on interfering or disturbing school, quote, it is hard to know where to start with the vagueness problems, end quote. They mentioned an utter failure to describe the specific conduct covered. So again, these laws are enjoined. The records were ordered destroyed. All of that remedy was upheld at the fourth circuit. And they concluded with this quote, laws imposing such weighty costs on free expression must define their bounds. So students have fair warning of what is prohibited and the discretion of those who enforce the laws is adequately constrained. It's a good reminder. Why is this relevant to us? We have a disorderly conduct statute, and that's in 14-288.4. Subsection A6 of our disorderly statute says it's the crime of disorderly conduct to, I quote, disrupt, disturb, or interfere with the teaching of students or to disturb the peace and order of public or private schools. Now, that is pretty close to the second part of the disorderly law in South Carolina that we just went over. Has anyone challenged this before, raised this argument? Yeah, they did. Back in 1967, in a case called State v. Wiggins, a group of, I believe, black civil rights protesters held signs and silently marched around a high school protesting civil rights and segregation. They were convicted, properly so, according to the Wiggins Court, of disorderly conduct by disturbing or disrupting schools. Very light on the analysis, but that 1967 Wiggins case says, no vagueness problem here. It's gotta be a substantial disruption. This is a substantial disruption. There was evidence that kids inside the schools ran to look out the windows and stare at the protesters and that they had to be wrangled back inside by their teachers. Where does that leave us? Unlike South Carolina courts, North Carolina arguably does have that limiting principle. Hey, it has to be a substantial disruption. But I wonder if that Wiggins case would come out the same these days. Is this really fair notice of what is prohibited? Again, it hasn't been brought in a while and there wasn't much analysis to it when it was raised before. And that was in an era where we were in the process of the early stages of desegregating the state racially. Is this really fair notice for under North Carolina law? I've gone through the cases, there are a lot of disorderly conduct cases, and they do seem to apply the substantial interference rule pretty fairly, I'd say. Little things, giggling, talking, banging on the wall, that's not gonna get you there. Doing stuff like throwing a chair or taking over the office do get you there. But reading the South Carolina Youth Action Project case and thinking about our disorderly conduct law made me think there might really be a question about how vague this is. I mean, disrupt, disturb, or interfere with the teaching of students or disturb the peace and order of a public school. I think a lot of those quotes we heard from the Fourth Circuit would apply to this law too. I mean, how much discretion is the SRO vested with here? How is an average person going to know, hey, this is only disorderly conduct that's going to get me detention versus this is disorderly conduct that's going to get me charged with a crime? That line between sort of normal mischief and criminal mischief to me is not really clearly defined here. So I think defenders, juvenile defenders in particular, if you're dealing with a disorderly conduct at school charge, you might think of raising this void for vagueness challenge and marshal some evidence about how is it charged in your jurisdiction? What are the practices? How many people are getting convicted of it? Is there evidence of racial disparity like there was before the court in the Carolina Youth Project? I think all of that would be helpful. I did a quick look trying to find some statistics about how frequently this is charged and how much people are convicted and whether there was any breakdown of the racial demographic data. And I didn't see anything, but I did a very cursory search. Think about that. Great food for thought. And that is it for today. I really hope everyone's 2023 is off to a great start. Thank you for listening. If you like what you hear, please like and subscribe and tell a friend. We can be found on the SOG website, on Stitcher, Apple Music, and Spotify. Thanks again to Paul Bonner, our studio technician and engineer. Thanks also to Monica Yelverton, Associate Director of Programs and Services for her logistical support. Thanks to the SOG for hosting us. For any questions, comments, or feedback, please feel free to email me. I'm at dixon at sog.unc.edu. Again, that's d-i-x-o-n at sog.unc.edu. I would love to hear from listeners, so don't be shy. Shoot me any thoughts that you have or topic suggestions, whatever. Thanks again, y'all. Talk to you soon.