Hurricane Irene Brings With It The Usual NC State Of Emergency

Gov. Beverly Perdue (D-NC) issued Executive Order Number 103 today which declares a state of emergency for 39 eastern North Carolina counties due to the approach of Hurricane Irene. The counties are:

Beaufort, Bertie, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Cumberland, Currituck, Dare, Duplin, Edgecombe, Gates, Greene, Halifax, Harnett, Hertford, Hyde, Johnston, Jones, Lenoir, Martin, Nash, New Hanover, Northampton, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Pitt, Robeson, Sampson, Tyrrell, Washington, Wayne, Wilson

As Bob Owens notes, these are essentially all the counties east of Interstate 95. He is also correct in asserting that it invokes a ban on off-premises carry of a firearm in the affected counties due to the provisions of NCGS 14-288.7 which goes into effect when a state of emergency is declared under Article 36A of Chapter 14. I must correct his assumption that it is only that part of a county on the east side of I-95 that is impacted. As the order above states, it is the whole county and not just part of it.

Gov. Perdue invoked the State of Emergency using both sections of the General Statues that deal with emergency management and states of emergency.

Section 7.

This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages.

Bev Perdue is incorrect in her assertions that the declaration of the State of Emergency does not trigger firearm restrictions. As I noted last year when she invoked a State of Emergency in the face of Hurricane Earl, if she uses Article 36A of Chapter 14 of the General Statutes, it invokes G.S. § 14-288.7 which states in part, “it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area” if a state of emergency is declared. Just because she is the governor does not give Bev Perdue the authority to ignore plainly written state laws when it is politically inconvenient for her.

The relevant section on the declaration of an emergency under Article 36A is § 14‑288.15. This section grants the power to the governor to declare a state of emergency AND to impose further restrictions on firearms and alcohol as enumerated in § 14‑288.12(b) which include:

The ordinances authorized by this section may permit prohibitions and restrictions:
(1) Of movements of people in public places, including directing and compelling the evacuation of all or part of the population from any stricken or threatened area within the governing body’s jurisdiction, to prescribe routes, modes of transportation, and destinations in connection with evacuation; and to control ingress and egress of a disaster area, and the movement of persons within the area;
(2) Of the operation of offices, business establishments, and other places to or from which people may travel or at which they may congregate;
(3) Upon the possession, transportation, sale, purchase, and consumption of alcoholic beverages;
(4) Upon the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline;
and
(5) Upon other activities or conditions the control of which may be reasonably necessary to maintain order and protect lives or property during the state of emergency.

I thought Gov. Perdue had learned her lesson giving the uproar over the State of Emergency at the start of last year’s dove season. Subsequent Executive Orders 75, 78, and 87 which declared states of emergency had this statement:

This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and not under my authority under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages.

Notice that these Executive Order explicitly noted that they were not adopted under Article 36A of Chapter 14 of the General Statutes. By contrast Executive Order 103 was adopted “pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes.”

I don’t know whether it was a drafting error in Executive Order 103 that included both Chapter 166A and Chapter 14 or not. I do know that legally – the Governor’s proclamation notwithstanding – that the method she chose to invoke her  powers just triggered a ban on the off-premises possession of firearms in those counties named above.

And as we all know, this is the basis of the suit brought by the Second Amendment Foundation and Grass Roots North Carolina against Governor Perdue and Secretary of Crime Control and Public Safety Young. Bateman et al v. Perdue et al is still proceeding albeit too slowly for my tastes!


5 thoughts on “Hurricane Irene Brings With It The Usual NC State Of Emergency”

  1. Also, as noted at Confederate Yankee "Governor Purdue made this declaration while the state was at work, meaning everyone who has a carry permit and lives east of Interstate 95 who was away from home instantly became a criminal by proclamation."

    Hopefully, no one got caught by that bad timing.

    wv: buffies – Hopefully, they have plenty of buffies on hand to deal with the inevitable post-hurricane vampire hordes.

  2. Here's my inquiry to Sheriff Bizzell of Johnston County (also posted on my blog):

    Sheriff Bizzell,
    I note that Governor Bev Perdue's Executive Order 103 has this in Section 7:

    "This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages."

    Unfortunately, there are many who are of the opinion that the Governor has no legal authority to invoke Article 36A of Chapter 14 in an a-la carte fashion. She can invoke Article 1 of Chapter 166A, which has done with some previous Executive Orders if she so chooses, and I note she has in the past.

    I typically go armed everywhere I can, as it is within my rights, and often carry openly. I carry openly when I shop for groceries. I plan to do so tonight to be sure I'm well supplied for Hurricane Irene.

    Could you please clarify for me how your deputies will be informed regarding encounters with legally armed citizens during this state of emergency that on the one hand makes it illegal to possess arms off of our own property, but on the other hand, the Governor has unilaterally modified a codified statute declaring that she is not invoking the prohibition on firearms portion of it?

  3. Also, just out of curiosity…

    The statute in question simply says it applies "in any area […] In which a declared state of emergency exists". What is the difference in the other method of declaring a state of emergency that would prevent it from triggering this statute?

    The statute itself does not differentiate between how the state of emergency is declared – thus, based on the plain language, it should apply in any declared state of emergency, regardless of which section is used to declare it.

  4. Never mind, I found it. G.S. 14-288.1 defines a "declared state of emergency". Interestingly enough, it seems local officials can also invoke the weapons ban.

    "§ 14‑288.1. Definitions.

    Unless the context clearly requires otherwise, the definitions in this section apply throughout this Article:

    "§ 14‑288.1. Definitions. […] (3) "Declared state of emergency": A state of emergency found and proclaimed by the Governor under the authority of G.S. 14‑288.15, by any mayor or other municipal official or officials under the authority of G.S. 14‑288.12, by any chairman of the board of commissioners of any county or other county official or officials under the authority of G.S. 14‑288.13, by any chairman of the board of county commissioners acting under the authority of G.S. 14‑288.14, by any chief executive official or acting chief executive official of any county or municipality acting under the authority of any other applicable statute or provision of the common law to preserve the public peace in a state of emergency, or by any executive official or military commanding officer of the United States or the State of North Carolina who becomes primarily responsible under applicable law for the preservation of the public peace within any part of North Carolina."

    Also interesting is that it seems the governor's authority to declare a disaster under Article 1 of Chapter 166A requires – unless the President has declared a disaster under the Stafford Act – that a local official has declared a state of emergency under Article 36A Chapter 14 – thus invoking the weapons ban anyway.

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