North Carolina

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NC Castle Doctrine Bill Scheduled For Final Vote Tonight

February 28, 2011 by

The North Carolina State Senate has put the Third Reading or final vote for S. 34 – The Castle Doctrine – on the Senate calendar for this evening’s session. It passed its Second Reading with a 37-13 vote. Normally, it would have had the Third Reading then but for an objection from one of the anti-gun senators.

In something of an anomoly, one of the senators voting against the bill in the Second Reading was St. Sen. Ed Jones from eastern NC. Senator Jones is one of the co-sponsors of S. 34 and is still listed as a co-sponsor.

S. 34 as passed out of committee is a strong bill with support from both the NRA and Grass Roots NC. The fear is that the anti-gun legislators will attempt to add amendments which will weaken the bill. GRNC sent out an alert last evening telling members to ask their state senator to pass the bill as it is currently written.

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Castle Doctrine Passes Second Reading In NC Senate

February 24, 2011 by

S. 34, The Castle Doctrine, passed its Second Reading in the North Carolina State Senate today. It passed this reading with only one minor amendment that merely clarified the language. It will now go to its Third (and final) Reading.

As mentioned on Tuesday, the Senate Judiciary II Committee approved substitute language which strengthened the bill. Moreover, both the NRA and Grass Roots NC have endorsed the updated bill.

The legislative calendar does not state when the final vote in the State Senate will be held on S. 34. After it passes the Senate, it still must be approved in the State House. As soon as I have more updates, I will post them.

As a sidebar, I was at a training meeting the last two days with limited access to a computer. I love my new iPhone but it is hell to try to do a blog post on it. My thumbs must be too fat!

UPDATE: According to GRNC, the objection of one anti-gun NC State Senator is what held up the 3rd Reading and final vote on S. 34. It will be held on Monday.

UPDATE II: WRAL published a video of the actual debate on the bill in the NC Senate. It is an hour long video so you may only want to skip through it to listen to highlights.

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Update On Castle Doctrine Hearings In North Carolina

February 20, 2011 by

Grass Roots North Carolina released this alert today on the Castle Doctrine bill hearing in the State Senate:

Senate Bill 34: “Castle Doctrine” received its first hearing in the NC Senate Judiciary II Committee yesterday, and thanks to your input and the efforts of two pro-gun Senators, it is likely to be passed out of the committee far stronger than it its original version.

In the days leading up to the meeting, members of the GRNC Legislative Team worked the committee, handing out comparisons between current NC law, the three Castle Doctrine bills thus far introduced, and other states which have adopted similar laws. Chaired by longtime GRNC supporter Sen. Austin Allran (R-Catawba, GRNC ****), the first meeting was intended to give all parties their say on the bill.

Although SB 34 is presently a weak bill based on a compromise made in the previous legislative session, Judiciary II co-chair Buck Newton (R-Nash/Wilson, ****) and SB 34 sponsor Andrew Brock (R-Davie/Rowan) are preparing amendment language to address weaknesses in the bill, potentially bringing it to a version similar to GRNC’s preferred version, HB 74.

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Second Castle Doctrine Bill Introduced In North Carolina

February 10, 2011 by 1 Comment

A second (and stronger) Castle Doctrine bill has been introduced in the North Carolina General Assembly. This bill expands the castle doctrine to include your vehicle. More importantly, it introduces a “stand your ground” provision if one is attacked in any location where you have the right to be.

According to correspondence with Paul Valone, head of Grass Roots North Carolina, this bill was modeled on the State of Florida’s Castle Doctrine bill.

The primary sponsors of this bill are all Republicans. They represent a diverse group including a police officer (Hilton), a retired Clerk of Superior Court (Randleman), a retired Marine (Cleveland), and a medical social worker (Brown).

HOUSE DRH30070-LH-51 (01/19)
Short Title: Castle Doctrine.

Sponsors:
Representatives Hilton, Randleman, Cleveland, and R. Brown (Primary Sponsors).

A BILL TO BE ENTITLED

AN ACT to provide when the use of force or the use of deadly force is justifiable in defense of self, others, or one’s home or vehicle, or in preventing the commission of a forcible felony, and to provide immunity from criminal prosecution and civil action in those circumstances.

The General Assembly of North Carolina enacts:

SECTION 1. Chapter 14 of the General Statutes is amended by adding a new Article to read:

“Article 62.

“Justifiable Use of Force.

“§ 14‑470. Definitions.

The following definitions apply in this Article:
(1) Criminal prosecution. – The term includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) Deadly force. – Force that is likely to cause death or great bodily harm. The term includes the following: (i) the firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm and (ii) the firing of a firearm at a vehicle in which the person to be arrested is riding. The term does not include the discharge of a firearm, which is loaded with a less‑lethal munition, by a law enforcement officer or correctional officer during and within the scope of his or her official duties.

(3) Dwelling. – A building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(4) Forcible felony. – Treason; murder; manslaughter; rape, sexual offense, sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; felonious stalking; malicious use of explosive or incendiary device; and any other felony which involves the use or threat of physical force or violence against any individual.

(5) Law enforcement officer. – Any person employed or appointed as a full‑time, part‑time, or auxiliary law enforcement officer, correctional officer, probation officer, post‑release supervision officer, or parole officer.

(6) Less‑lethal munition. – A projectile that is designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person’s body.

(7) Residence. – A dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(8) Vehicle. – A conveyance of any kind, whether or not motorized, which is designed to transport people or property.

“§ 14‑471. Use of force in defense of person.

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if either of the following applies:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under the circumstances permitted pursuant to G.S. 14‑472.

“§ 14‑472. Home protection; use of deadly force; presumption of fear of death or great bodily harm.

(a) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if both of the following apply:

(1) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.
(2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(b) The presumption set forth in subsection (a) of this section does not apply if any of the following apply:

(1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or title holder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.
(2) The person sought to be removed is a minor child or minor grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.
(3) The person who uses defensive force is engaged in a forcible felony or is using the dwelling, residence, or occupied vehicle to further a forcible felony.
(4) The person against whom the defensive force is used is a law enforcement officer, as defined in G.S. 14‑470, who enters or attempts to enter a dwelling, residence, or vehicle in the lawful performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(c) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(d) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

“§ 14‑473. Use of force in defense of others.

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

“§ 14‑474. Immunity from criminal prosecution and civil action for justifiable use of force.

(a) A person who uses force as permitted in G.S. 14‑471, 14‑472, or 14‑473 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in G.S. 14‑470, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.

(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a) of this section, but the agency shall not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(c) The court shall award reasonable attorneys’ fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (a) of this section.

“§ 14‑475. Use of force by aggressor.

The justification described in G.S. 14‑471, 14‑472, and 14‑473 is not available to a person who is doing any of the following:

(1) Is attempting to commit, committing, or escaping after the commission of a forcible felony.

(2) Initially provokes the use of force against himself or herself unless one of the following situations exists:
a. The force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant.
b. In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

“§ 14‑476. Defense to civil action for damages; party convicted of forcible or attempted forcible felony.

(a) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.

(b) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.

(c) In any civil action where a party prevails based on the defense created by this section:
(1) The losing party, if convicted of and incarcerated for the crime or attempted crime, shall, as determined by the court, lose any privileges provided by the correctional facility, including, but not limited to the following:
a. Canteen purchases.
b. Telephone access.
c. Outdoor exercise.
d. Use of the library.
e. Visitation.
(2) The court shall award a reasonable attorneys’ fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney; however, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the losing party is incarcerated for the crime or attempted crime and has insufficient assets to cover payment of the costs of the action and the award of fees pursuant to this subdivision, the party shall, as determined by the court, be required to pay by deduction from any payments the prisoner receives while incarcerated.
(3) If the losing party is incarcerated for the crime or attempted crime, the court shall issue a written order containing its findings and ruling pursuant to subdivisions (1) and (2) of this subsection and shall direct that a certified copy be forwarded to the appropriate correctional institution or facility.

(d) A law enforcement officer is not liable in any civil or criminal action arising out of the use of any less‑lethal munition in good faith during and within the scope of his or her official duties.”

SECTION 2. G.S. 14‑51.1 is repealed.

SECTION 3. This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

UPDATE: Grass Roots North Carolina sent out an alert this evening regarding this bill – HB 74 – and the other one – SB 34 – which was introduced a few days earlier.

WHAT MAKES HB 74 BETTER?

Last Friday, the NRA issued an alert backing SB 34, sponsored by Senators Andrew Brock, Doug Berger and Kathy Harrington. While the pro-gun sponsors have the best of intentions, SB 34 and its companion bill, HB 52, (Reps. Tim Spear, Bill Owens and Jim Crawford) are dangerously flawed.

SB 34 and HB 52 are substantially similar to SB 928, which passed the Senate in the last session but was killed in the House when Rep. Deborah Ross and former Rep. Hugh Holliman (who was defeated by GRNC in the last election) denied it a committee hearing.

The problem is that SB 928 passed the gun-hostile Senate in a greatly weakened fashion: Although the original Edition 1 offered victims protection both inside and outside the home, particularly in motor vehicles, the amended Edition 2 offered protection ONLY WITHIN THE HOME, meaning it offered little beyond present law.

By contrast, HB 74 is the result of longstanding collaboration between Rep. Hilton and GRNC. Drafted by GRNC in 2005, it was substantially improved by Hilton and legislative staff in the 2009-2010 session, when it was introduced as HB 1131.

The bottom line is that while SB 928 might have been the best bill attainable in the last, gun-hostile session of the legislature, you have worked hard to produce a pro-gun majority this year in both chambers, and you deserve better.

ADDITIONAL PROTECTIONS OF HB 74:

* Better definitions, including defense against “forcible felonies;”
* Presumption of reasonable fear to victims of carjackings;
* “Stand your ground” protection: No duty to retreat when attacked outside the home; and
* Better protection against lawsuits: If attackers or survivors file malicious lawsuits which are thrown out of court, they would bear the full cost of litigation, freeing crime victims of tens of thousands of dollars in legal fees.

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More On Castle Doctrine In North Carolina

February 8, 2011 by 1 Comment

As I posted earlier this evening, a Castle Doctrine bill has been introduced in the North Carolina State Senate. The bill has 16 co-sponsors including two Democrats. The majority of the co-sponsors are newly elected freshman Republicans. Three women and one African-American are among the co-sponsors.

The bill has been referred to the Senate Judiciary II committee for hearings. Two of the three co-chairmen of that committee are also co-sponsors of this bill.

With a Republican majority in both the NC House and Senate, this may be the year in which we get the castle doctrine passed. The text of the bill is below. Having not read other states castle doctrine bills, I don’t know how it compares. I don’t think it is as broad as the one in Texas where deadly force can be used outside the dwelling. That said, it is a start.

SENATE BILL 34
Short Title: The Castle Doctrine. (Public)
Sponsors: Senators Brock, D. Berger, Harrington; Apodaca, Clary, Daniel, Goolsby, Gunn, Hise, Jones, Newton, Pate, Preston, Soucek, Stevens, and Tucker.
Referred to: Judiciary II.
February 7, 2011
*S34-v-1*
A BILL TO BE ENTITLED
AN ACT TO CLARIFY WHEN A PERSON MAY USE DEFENSIVE FORCE TO PROTECT AGAINST THE UNLAWFUL AND FORCIBLE ENTRY INTO THE PERSON’S DWELLING BY ANOTHER, TO PREVENT THE REMOVAL OF A PERSON AGAINST HIS OR HER WILL FROM THE PERSON’S DWELLING, AND TO PROVIDE THAT A PERSON IS JUSTIFIED IN USING DEFENSIVE FORCE IN THESE CIRCUMSTANCES AND SO IS IMMUNE FROM CRIMINAL PROSECUTION AND CIVIL ACTION FOR THE USE OF SUCH FORCE.

The General Assembly of North Carolina enacts:

SECTION 1. Article 14 of Chapter 14 of the General Statutes is amended by 10 adding a new section to read:

Ҥ 14-51.2. Home protection; presumption of fear of death or great bodily harm; immunity from criminal prosecution and civil action for justifiable use of force.

(a) The following definitions apply in this section:
(1) Criminal prosecution. – The term includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) Dwelling. – A building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is 19 designed to be occupied by people lodging therein at night.
(3) Law enforcement officer. – Any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, probation officer, post-release supervision officer, or parole officer.
(4) Residence. – A dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(b) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if both of the following apply:
(1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling or residence, or if that person had removed or was attempting to remove another against that person’s will from the dwelling or residence.
(2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(c) The presumption set forth in subsection (b) of this section does not apply in any of the following circumstances:
(1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling or residence, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.
(2) The person sought to be removed from the dwelling or residence is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.
(3) The person who uses defensive force is engaged in, attempting to escape from, or using the dwelling or residence to further any criminal offense that involves the use or threat of physical force or violence against any individual.
(4) The person against whom the defensive force is used is a law enforcement officer who enters or attempts to enter a dwelling or residence in the lawful performance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(5) The person against whom the defensive force is used (i) has discontinued all efforts to unlawfully and forcefully enter the dwelling or residence and (ii) has exited the dwelling or residence.
(d) A person who unlawfully and by force enters or attempts to enter a person’s dwelling or residence is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(e) A person who uses force as permitted by this section is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.”

SECTION 2. G.S. 14-51.1 is repealed.

SECTION 3. This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

(Democrat co-sponsors are in bold type)

UPDATE:  It is my understanding from others that a stronger castle doctrine bill will be introduced into the NC House within the next week or so. The bill above is the same as S. 928 (including a weakening amendment) that passed the State Senate in the last session of the General Assembly. In other words, it is a start but could be improved and strengthened.

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Castle Doctrine Bill Introduced In NC

February 7, 2011 by

Just got this by Twitter from the NRA-ILA. I will have more on the bill later tonight after I finish teaching class.

North Carolina: 2011 legislative Session Begins with the Introduction of Castle Doctrine Legislation in Raleigh!

Monday, February 07, 2011

The North Carolina General Assembly convened last week, and the NRA is working with state legislators to introduce several pro-gun reforms. Our legislative goals include Right-to-Carry reforms that will expand where permit holders may lawfully carry their concealed firearms, eliminating the archaic requirement that law-abiding citizens request permission from their local sheriff before purchasing a handgun, passing a solid Castle Doctrine law, and fixing the problems with the current statutes relating to a declared state of emergency.

State Senators Andrew Brock (R-34), Doug Berger (D-7) and Kathy Harrington (R-43) have already introduced Senate Bill 34, which would codify the “Castle Doctrine” in the home, as well as establish immunity from civil lawsuits for those who use lethal force to defend themselves or their loved ones while in their home.

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Another Snow Storm, Another State of Emergency For NC

January 10, 2011 by

WRAL-Raleigh is reporting that Governor Beverly Perdue has declared a state of emergency for North Carolina.

Gov. Beverly Perdue declared a state of emergency for North Carolina Monday to mobilize resources to respond to snow and ice forecast across the state.

Snow fell across parts of western and central North Carolina around dawn, and areas along the coast and south of Fayetteville saw some accumulation, but the Triangle was still waiting for flakes at 2 p.m.

There is nothing yet on the Governor’s website as to the wording of the Executive Order declaring the state of emergency. The state of emergency declared on Christmas Day by Lt. Governor Walter Dalton was only under the authority of the North Carolina Emergency Management Act and did not invoke the restrictions on firearms off-premises. That was the first state of emergency declared during the Perdue administration that did not invoke state of emergency restrictions on firearms.

I have hope that she has learned her lesson regarding snow storms and restrictions on firearms.

UPDATE: It looks like the Governor has learned her lesson. The text of Executive Order No. 78 includes this:

Section 7.

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.

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Here We Go Again With A State Of Emergency

December 26, 2010 by

Here we go again.

North Carolina Lt. Gov. Walter Dalton declared a state of emergency on Christmas Day for the entire state. He did this after consulting with Gov. Beverly Perdue. The state of emergency was declared due to heavy snow. News reports don’t detail why it was the Lt. Governor who made the declaration and not the Governor. While it is not specified, I am presuming that this state of emergency was declared under authority granted by NCGS 14§ 288.15. Neither the Governor’s nor the Lt. Governor’s website has posted the actual Executive Order declaring the state of emergency.

As most will remember, it was the declaration of a state of emergency by the City of King, Stokes County, and the Governor due to a snow storm which lead to the first post-McDonald case, Bateman et al v. Perdue et al. In North Carolina, a declaration of a state of emergency triggers a ban on off-premises carry of firearms and ammunition. NC Gen. Statues 14§ 288.7 bans transportation and off-premises possession of “dangerous weapons”:

Transporting dangerous weapon or substance during emergency; possessing
off premises; exceptions.
(a) Except as otherwise provided in this section, it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area:
(1) In which a declared state of emergency exists; or
(2) Within the immediate vicinity of which a riot is occurring.
(b) This section does not apply to persons exempted from the provisions of G.S. 14-269
with respect to any activities lawfully engaged in while carrying out their duties.
(c) Any person who violates any provision of this section is guilty of a Class 1
misdemeanor. (1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c).)

G.S. 14 § 269 deals with the carrying of concealed weapons. The only exemptions it provides to those “carrying out their duties” involve law enforcement and military personnel. The holder of a NC Concealed Handgun Permit does not have “duties” and therefore could not be considered an “exempted person” under G.S. 14 §  288.7.

Back in September when a state of emergency was declared due to anticipated problems from Hurricane Earl, the Governor’s Office declared that they had structured it so that it would not invoke the ban on off-premises possession of firearms. As I said then and I will say now, nothing in the law allows the Governor (or Lt. Governor) to arbitrarily decide which part of a law will be valid or not.

Since coming into office in January 2009, Governor Bev Perdue has declared seven states of emergency. Three have been snow or winter storm related, three have been due to tropical storms or hurricanes, and one was due to a rockslide which closed Interstate 40 in Haywood County.

It is interesting to contrast her use of state of emergency powers with that of her predecessor Mike Easley. In his eight years in office, Easley declared 25 states of emergency. Most of Easley’s declarations were combined with declaring a state of disaster and, more importantly, were limited to the locale where the problem existed. They did not extend statewide. The exceptions were the back to back years of multiple major hurricanes hitting the state in 2004-2005. Finally, he only declared a state of emergency due to snow once in those eight years.

All I can say is that if you are carrying concealed or are traveling with a firearm in your vehicle, be careful.

UPDATE: See my post on the Executive Order proclaiming a state of emergency.

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Rumor Mongerer

September 3, 2010 by

I guess that is what I am according to the people in Gov. Beverly Perdue’s office. I had called this afternoon to ask when the declared state of emergency would be lifted.

The young lady who answered the phone didn’t know exactly but was sure it would be in effect for a few more days. She asked if I lived in coastal North Carolina and was I affected by the storm. I replied no but I was concerned about it due to the impact of the declaration on my ability to be transport or possess a firearm outside the home.

She immediately got defensive and flustered. The position of the Governor’s Office was that the state of emergency did not ban this because it wasn’t a riot. She was adament that Chapter 14, Section 288 of Article 36A only dealt with riots. Actually it is entitled “Riots and Civil Disorders”. She pointed me to the Governor’s Office Blog for a release by Chris Mackey, Gov. Perdue’s press secretary, as if it were the definitive word on this:

We’ve received a number of questions about dove hunting season. Executive Order 62 did not trigger the provisions of G.S. 14-288.7 and there was never any intention by the issuance of Executive Order 62 to restrict the transportation or possession of off premises firearms. The order was written in such a way that the rights of North Carolina gun owners were not infringed upon.

I’m sure the pronouncement of a press secretary will go over really well when you try to use it as a defense in criminal court.

The young lady in the Governor’s Office did opine that she wished those spreading the “rumor” about the impact of the Executive Order would stop. The only problem is that the law reads the way it does and not the way the young lady, the Governor, or her press secretary would like it to read.

The entirety of Chapter 14 of the NC General Statutes can be found here. I would encourage readers to scan the statutes beginning at § 14‑288.1. Definitions. and continue through § 14‑288.20. Certain weapons at civil disorders. Much of this section does indeed deal with riots and I won’t disagree about that. However, if you read carefully you will see the words “catastrophe”, “storm”, “fire”, “flood”, and “calamity.”

G.S. 14‑288.7 does not discriminate between storm and riot if an emergency has been declared. It does not read “in an area in which a state of emergency exists; AND, Within the immediate vicinity of which a riot is occurring.” The two clauses are connected by OR which means that they are independent clauses and either will trigger the prohibition on transport or possession off-premises.

Where I think the Governor’s Office has it wrong is that they assume she must specifically invoke the provisions of G.S. 14‑288.12.(b)(4) which prohibits “the possession, transportation, sale, purchase, storage, and use of dangerous weapons and substances, and gasoline” to impose restrictions on the possession and transportation of firearms. Actually, the declaration of the state of emergency triggers the lesser restrictions on possession and transportation and G.S. 14‑288.12.(b)(4) allows the Governor or local officials to go over and beyond that.

If excellent attorneys such as Alan Gura, Kearns Davis, and Andrew Tripp read the law this way – and they do – then I don’t think I’m off base in my statement of the facts regardless of what Bev Perdue and her minions may think.

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Hurricane Earl and North Carolina Law

September 2, 2010 by 2 Comments

Bateman et al v. Perdue et al was the first case to be filed after the Supreme Court incorporated the Second Amendment to the states with its decision in the McDonald case. Bateman challenges North Carolina’s emergency powers law which makes it a Class 1 misdemeanor to transport or possess a firearm off your own premises. As Alan Gura noted in his complaint, North Carolina is often hit by hurricanes.

As of 11am on Thursday, the National Hurricane Center estimates that Hurricane Earl is approximately 300 miles south of Cape Hatteras, North Carolina. It is a Category 4 hurricane with sustained winds of 140 mph near the eye of the storm. Even if the eye of the storm doesn’t make landfall, the outer bands of the storm will have hurricane force winds and these will hit sometime this evening or in the early morning hours of Friday.

Governor Perdue issued Executive Order No. 62, “Proclamation of a State of Emergency by the Governor of the State of North Carolina Due to Hurricane Earl” on Wednesday, September 1st. The order is effective immediately and could last for up to 30 days. The proclamation declares a state of emergency exists. Section 3 delegates her power by Article 36A of Chapter 14 of the NC General Statues to the Secretary of Crime Control and Public Safety “to such further action as is necessary to promote and secure the safety of populace in North Carolina.” The Executive Order does not specify that it is limited to certain eastern North Carolina counties such as Dare and Hyde.

NC Gen. Statues Section 14-288-1.10 defines a State of Emergency as follows:

The condition that exists whenever, during times of public crisis, disaster, rioting, catastrophe, or similar public emergency, public safety authorities are unable to maintain public order or afford adequate protection for lives or property, or whenever the occurrence of any such condition is imminent.

NC Gen. Statues Section 14-288-7 bans transportation and off-premises possession of “dangerous weapons”:

Transporting dangerous weapon or substance during emergency; possessing
off premises; exceptions.
(a) Except as otherwise provided in this section, it is unlawful for any person to transport
or possess off his own premises any dangerous weapon or substance in any area:
(1) In which a declared state of emergency exists; or
(2) Within the immediate vicinity of which a riot is occurring.
(b) This section does not apply to persons exempted from the provisions of G.S. 14-269
with respect to any activities lawfully engaged in while carrying out their duties.
(c) Any person who violates any provision of this section is guilty of a Class 1
misdemeanor. (1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c).)

G.S. 14-269 deals with the carrying of concealed weapons. The only exemptions it provides to those “carrying out their duties” involve law enforcement and military personnel. The holder of a NC Concealed Handgun Permit does not have “duties” and therefore could not be considered an “exempted person” under G.S. 14-288-7.

G.S. 14-288-7 makes no exemptions for recreational shooting, it makes no exemptions for hunting, and it makes no exemption for concealed carry permit holders. If you possess or transport a firearm off your premises during the state of emergency, you will have committed an offense that the state considers a Class 1 misdemeanor. It does not matter that you live in an area that has received no rain, no wind, and no damage from Hurricane Earl.

I predict that on Saturday at noon, unless the state of emergency is lifted, there will be widespread lawlessness occurring across the state of North Carolina as that is the opening of dove season. Furthermore, I understand from another message board that the Louis Awerbuck Tactical Carbine class begins on Saturday in Durham at the Durham Pistol and Rifle Club. One wonders if North Carolina will enforce its own laws with the same rigorousness that Chicago seems to have enforced their gun ban. That is, rarely, if ever. If they do attempt to enforce it, I doubt that there will be enough jail space to hold all of the scofflaws.

UPDATE: The NC Wildlife Resources Commission released this tonight:

FOR IMMEDIATE RELEASE

Dove Season Opens as Scheduled on Sept. 4

RALEIGH, N.C. (Sept. 2, 2010) – Despite North Carolina’s current state of emergency, dove season will open as scheduled at noon on Sept. 4.

After Gov. Perdue declared a state of emergency on Wednesday due to the impending arrival of Hurricane Earl, the N.C. Wildlife Resources Commission received numerous calls from the public asking if dove hunting will be allowed beginning this weekend. The Governor’s Office has informed the N.C. Wildlife Resources Commission that nothing in the current emergency declaration, Executive Order 62, invokes any provision of law that would prohibit lawful hunting activities, including transporting a firearm to and from a hunting location (subject to local emergency ordinances to the contrary). Hunters in coastal areas should stay tuned to local media for the latest updates on Hurricane Earl and related emergency conditions that could affect the safety of themselves or others.

For more information on hunting, visit www.ncwildlife.org.

While the Governor’s Office states that nothing in the emergency declaration invokes any provision of the law that would prohibit hunting or transportation of a firearm to and from the dove fields, that is not how the law reads. The law does not say it is at the Governor’s discretion to invoke or not invoke a prohibition on the transport or possession of a firearm off-premises. I will note that the Governor’s Office gives themselves some wiggle room by saying “subject to local emergency ordinances to the contrary.”

It is obvious to me that they are starting to feel some heat. Now if the General Assembly would just get off its duff and do away with the ban totally we wouldn’t be in this Twilight Zone situation.

UPDATE II: Grass Roots North Carolina, one of the organizational plaintiffs in Bateman et al v. Perdue et al, released this statement tonight. It looks like their legal counsel agrees with my interpretation of the law.

GRNC Alert 09-02-10:

NORTH CAROLINA GOVERNOR LIES ABOUT STATE GUN BAN

State of emergency order makes criminals of concealed handgun
permit-holders, sport shooters and hunters…

“Even if EO 62 were worded…to expressly permit the possession of
firearms, the governor has no constitutional or statutory authority to
suspend the effect or enforcement of a valid NC criminal law.”

The State of Emergency order issued by Governor Beverly Perdue in
response to Hurricane Earl makes carrying a firearm outside one’s home
or place of business a Class I misdemeanor. Beyond law enforcement and
the military there are no exceptions: Not for hunters, sport shooters
or concealed handgun permit-holders.

Worse, with the legislature out of session, there is no immediate way
to address the crisis. As NC gun owners are aware, GRNC is among
plaintiffs on a lawsuit against the State of Emergency law, arguing
that it violates the Second Amendment, but legal redress is months, if
not years away.

PERDUE’S LIE

Gov. Perdue’s office has been issuing various denials to input about
the gun ban implications of the SoE, but the most blatant misstatement
is this:

“Thank you for contacting the Office of the Governor. After checking
with legal counsel, we are pleased to inform you that THE CURRENT
STATE OF EMERGENCY WAS WRITTEN IN SUCH A WAY THAT THE RIGHTS OF NC GUN
OWNERS ARE NOT INFRINGED UPON. . However, local
authorities still have the authority to establish states of emergency
within their jurisdictions that may impact your right to carry
weapons.”

Office of the Governor Bev Perdue

20301 Mail Service Center

Raleigh, NC 27699

1-800-662-7952 (for NC residents only)

919-733-4240

919-733-2120 (fax)

governor.office@nc.gov

http://www.governor.state.nc.us/

THE TRUTH

From GRNC legal counsel Ed Green:

“On Sept. 1, 2010, Governor Perdue issued Executive Order No. 62
declaring “that a state of emergency exists in the State due to the
approach of Hurricane Earl.” Nothing in EO 62 mentions gun owners or
the possession of guns in any way. Nothing in EO 62 purports to
suspend the operation of any NC law.

“NCGS § 14-288.7 clearly and unambiguously forbids the possession of
any firearm off one’s premises during any declared State of Emergency,
with exceptions only for law enforcement and military in the course of
their duties. Under NC law, whenever a State of Emergency is declared,
no citizen may possess any gun outside of their home.

“Even if EO 62 were worded (or amended) to expressly permit the
possession of firearms, the governor has no constitutional or
statutory authority to suspend the effect or enforcement of a valid NC
criminal law. Once she declared a State of Emergency, Gov. Perdue
legally disarmed all NC civilians outside their own homes, including
the thousands of otherwise legally licensed hunters expected to take
to the fields for the opening of Dove season at noon Saturday.”

UPDATE III: A good article by Paul Valone in the Examiner on this. Paul is the president of Grass Roots NC and is the Charlotte Gun Rights Examiner.