North Carolina

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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.

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NC Wildlife Resources Commission on Crossbows

July 29, 2010 by

I received this from the NC WRC today:

Crossbow Hunting

The use of crossbows is now a legal hunting method by licensed hunters anytime bow-and-arrow hunting is allowed. However, state law requires that anyone buying or otherwise receiving a crossbow in North Carolina must first obtain a pistol permit from the sheriff’s office in their county of residence or hold a valid concealed handgun permit. Questions about obtaining pistol permits and issuance of concealed handgun permits should be directed to the local sheriff’s department.

The N.C. Wildlife Resources Commission does not regulate the sale or purchase of firearms and crossbows.

They must be getting a lot of calls about the requirement to have a pistol permit or CHP before you can buy a crossbow in North Carolina. I would say it is time for the General Assembly to get their act in gear and remove the permit requirements from crossbow purchases. They must have gotten scared after seeing Carol Bouquet as Melina Havelock in the James Bond movie “For Your Eyes Only” when they imposed that requirement.

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NC Hunting Regs Released

July 12, 2010 by

Big changes are coming to North Carolina hunting regulations starting August 1st. While there are many changes regarding deer seasons, the biggest changes that I see are Sunday hunting with a bow is allowed on private property and crossbows will be allowed anytime bow and arrow hunting is legal. Falconry is also allowed on Sundays. Many of these changes which were proposed in March 2009 were opposed so they had to go to the General Assembly for review. Four bills were introduced to reverse some of the proposed changes but they were never approved.

Sunday hunting was strongly opposed by the Christian Action League but they don’t have the clout in the General Assembly that they did in years gone by.While a couple of their backers in the General Assembly did introduce a bill to ban Sunday hunting, it died for lack of a referral by the Democratic caucus to the Rules Committee.

The North Carolina Bowhunters Association fought the introduction of crossbows for anyone but the handicapped. They said they were “working with the NC Legislature and the Wildlife Resource Commission to stop the inclusion of crossbows in archery season and to disallow the loss of the last (and best) week of archery season to muzzle loader season.” They lost on both counts though they did have bills introduced to disallow the use of crossbows. Crossbows are allowed for hunting in all the states that surround North Carolina.

Crossbows will still require a permit to purchase them from the local sheriff’s department. It is the same permit as is required to purchase a pistol. I don’t know who originally dreamed up that stupid requirement nor when it went into place.

The full list of changes can be found in on the NC Wildlife Resources Commission website.

I see some Sunday hunting with a crossbow in my future!

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Paper Recognizes Futility of NC’s Emergency Powers Gun Ban

July 9, 2010 by 2 Comments

The Greensboro Daily News ran an editorial yesterday regarding the emergency powers gun ban that is being challenged by Alan Gura, the Second Amendment Foundation, and Grass Roots NC. They strongly suggested that the state change the law so that it didn’t get to the Supreme Court like the McDonald case.

The unsigned editorial noted that:

Surely, legislators had something else in mind other than banning guns in cold weather when they wrote this measure decades ago. And it certainly would not be worth enforcing this law, except when someone is using the gun to commit a crime — stealing firewood, maybe.

From my research of the time period when this bill was first passed, I think the General Assembly intended to keep firearms out of the hands of demonstrators and civil rights protesters in the late 1960s.

The Daily News concluded:

There should be a compelling reason why someone who is the legal owner of a firearm should be barred from carrying it from his home to a shooting range, even if the governor has declared a state of emergency because of cold weather. That might make sense in some kinds of emergencies — a breakdown of civic order, for example — but the law should make distinctions. The blanket prohibition doesn’t seem justified, and the state should stipulate that it is not enforceable as it’s written.

This case isn’t one that should go all the way to the Supreme Court for resolution.

They are most certainly correct that this is a case in which the State of North Carolina should fold and fold quickly.

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The Next Case: Bateman et al v. Perdue et al

June 29, 2010 by 2 Comments

Alan Gura’s next case has a name. The official title is Bateman et al v. Perdue et al, Case No. 5:10-cv-265, and it was filed yesterday with the United States District Court for the Eastern District of North Carolina, Western Division.

The named plaintiffs are Michael Bateman, Virgil Green, and Forrest Minges, Jr as well as Grass Roots North Carolina and the Second Amendment Foundations. They are seeking to overturn the North Carolina General Statue that forbids the carrying, possession, sale or purchase of firearms and ammunition during declared states of emergency.

Specifically, they are asking the U. S. District Court for:

An order permanently enjoining defendants, their officers, agents, servants,
employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing N.C. Gen. Stat. §§ 14-288.7, 14-288.12(b)(4), 14-288.13(b), 14-288.14(a), and 14-288.15(d), forbidding the carrying, possession, sale or purchase of firearms and ammunition during declared states of emergency.

In February 2010, the City of King and Stokes County declared a state of emergency due to heavy snowfall and local power outages. The proclamation from the City of King forbade the sale or purchase of firearms and ammunition, as well as the possession of firearms and ammunition off an individual’s premises. If you had a North Carolina Concealed Handgun Permit, it didn’t matter as the state of emergency proclamation superceded it.

I have posted the entire complaint and other filings on Scribd. You can read the main filing here.

Bateman v Perdue 1-Main

UPDATE: Paul Valone, President of Grass Roots North Carolina and the Charlotte Gun Rights Examiner, has more on the background of the case in his column.

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Alan Gura’s Next Target – North Carolina’s Emergency Powers Gun Bans

June 29, 2010 by 2 Comments

I just found this on the Second Amendment Foundation’s website.

SAF SUES TO OVERTURN NORTH CAROLINA’S ‘EMERGENCY POWERS’ GUN BANS

The Second Amendment Foundation along with Grass Roots North Carolina and three individuals are suing to overturn the law in North Carolina that allowed the Town of King to impose a ban on possession and sales of firearms due to … lots of snow.

Having read the law and seen when it was adopted, I’ve always felt it was a racist reaction to the civil unrest on college campuses during the late 1960s. The General Assembly was especially interested in tamping down any civil unrest at the historically black colleges and universities. This was very true in my hometown of Greensboro where the authorities kept a much closer eye on historically black NC A&T State University than on Women’s College (now UNC-Greensboro).

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Keyword: NRA

May 27, 2010 by

Lexicalist.com is a website that analyzes word usage on the Internet and then breaks it down by demographics. The three demographics analyzed are age, gender, and geography.

Even two weeks after the NRA Annual Meeting, North Carolina is still buzzing about the NRA coming to Charlotte as seen by this map from Lexicalist.com.


Demographics of “nra” on May 26, 2010 (from Lexicalist.com).

I used the keyword “NRA” to generate this map. As you can see, people are still buzzing more about the NRA today than they were a month ago. Lexicalist.com estimates that it is up 128%.

Go here for the full breakdown.