Publicola

Now the fisking on North Carolina's SB 919 as promised.

For the history of the Bill in its path through the N.C. legislature look here.

To read SB 919, the Homicide Prevention Act/Domestic Violence in it's entirety look here.

Now the fisk...


GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2003


SENATE BILL 919
RATIFIED BILL


AN ACT TO ENHANCE THE SAFETY OF VICTIMS IN SERIOUS DOMESTIC
VIOLENCE CASES.

Wait - they are gonna provide firearms & instructions on their proper use to domestic violence victims??? Oh yeah, a bill's title doesn't have to have anything to do with its contents.

The General Assembly of North Carolina enacts:

SECTION 1. Chapter 50B of the General Statutes is
amended by adding a new section to read:
"§ 50B-3.1. Surrender and disposal of firearms;
violations; exemptions.
(a) Required Surrender of Firearms. - Upon
issuance of an emergency or ex parte order pursuant to this
Chapter, the court shall order the defendant to surrender to the
sheriff all firearms, machine guns, ammunition, permits to
purchase firearms, and permits to carry concealed firearms that
are in the care, custody, possession, ownership, or control of
the defendant if the court finds any of the following
factors:
(1) The use or threatened use of a deadly
weapon by the defendant or a pattern of prior
conduct involving the use or threatened use of
violence with a firearm against persons.
(2) Threats to seriously injure or kill
the aggrieved party or minor child by the
defendant.
(3) Threats to commit suicide by the
defendant.
(4) Serious injuries inflicted upon the
aggrieved party or minor child by the
defendant.

If it was only item number 4 & part of number 1 (where it speaks of actual use) then I might see this as useful, but to include threats implies that those threats can be established solely on the word of the person seeking the order. But as written is has the potential to be a tool in the hands of vindictive people who are in no way threatened. I can certainly believe that more than one person in NC would use this solely to make their ex miss out on hunting season. Or ruin a gunsmiths or gun dealers business.

But more on the machine gun language towards the end.

(b) "Ex Parte or Emergency Hearing. - The court
shall inquire of the plaintiff, at the ex parte or emergency
hearing, the presence of, ownership of, or otherwise access to
firearms by the defendant, as well as ammunition, permits to
purchase firearms, and permits to carry concealed firearms, and
include, whenever possible, identifying information regarding
the description, number, and location of firearms, ammunition,
and permits in the order."

This hearing would exclude any & all input from the person who is to be the object of a restraining order. The idea is that some situations are so time critical that waiting for the defendant (i.e. the person who would be the object of the restraining order) to be notified & appear would endanger the plaintiff (the one seeking the restraining order). Of course this assumes that restraining orders actually stop people from committing crimes. But I can see the necessity for this in certain, very limited situations.

Asking the plaintiff for any info on the presence of weapons & ammunition may not seem like a bad thing, but wait till we get to the next part.

"(c) Ten-Day Hearing. - The court, at the 10-day
hearing, shall inquire of the defendant the presence of,
ownership of, or otherwise access to firearms by the defendant,
as well as ammunition, permits to purchase firearms, and permits
to carry concealed firearms, and include, whenever possible,
identifying information regarding the description, number, and
location of firearms, ammunition, and permits in the order."

So correct me if I'm wrong, NC law provides for a hearing to be held ten days after an emergency protection order is issued. At this hearing the person restrained by the order has a chance to speak his mind.

However, asking him about what firearms he has is problematic. Practically his answers will be compared with those of the plaintiff & should any discrepancy arrive as to how many weapons he has or had then it's very likely that the judge will issue a search warrant to find out if he has weapons that he's not telling about.

There's another problem with this but I'll save that for the end.

"(d) Surrender. - Upon service of the order, the
defendant shall immediately surrender to the sheriff possession
of all firearms, machine guns, ammunition, permits to purchase
firearms, and permits to carry concealed firearms that are in
the care, custody, possession, ownership, or control of the
defendant. In the event that weapons cannot be surrendered at
the time the order is served, the defendant shall surrender the
firearms, ammunitions, and permits to the sheriff within 24
hours of service at a time and place specified by the sheriff.
The sheriff shall store the firearms or contract with a licensed
firearms dealer to provide storage."

So the defendant will be required by law to surrender all firearms & ammunition. The sheriff will then either store them his/herself or contract with a gun dealer to store them. I know some NC gun dealers who are already basing their future purchases on fees for storing weapons under the provisions of this law. (yes I know some shady NC gun dealers - not the 'selling guns to felons' kind of shady, but the 'mark it up 50% then offer you 10% off' kind of shady.)

"(1) If the court orders the defendant to
surrender firearms, ammunition, and permits, the
court shall inform the plaintiff and the defendant
of the terms of the protective order and include
these terms on the face of the order, including
that the defendant is prohibited from owning,
possessing, purchasing, or receiving or attempting
to own, possess, purchase, or receive a firearm for
so long as the protective order or any successive
protective order is in effect. The terms of the
order shall include instructions as to how the
defendant may request retrieval of any firearms,
ammunition, and permits surrendered to the sheriff
when the protective order is no longer in effect.
The terms shall also include notice of the penalty
for violation of G.S. 14-269.8."

Please note that it says the defendant has to be informed of how he/she "may request" the return of his property once the protective order is no longer in effect. That means that once any & all restraining orders expire you don't get a call or letter from the sheriff telling you to come pick up your shootin' irons. You must take action yourself when the restraining order expires.
Now practically speaking this shouldn't be a big deal, depending upon the action required. I know the second a protective order expired (as in 12:01 a.m.) I'd be at the sheriff’s office wanting my property returned. But still I'm not happy that the sole burden of retrieval seems to be on the defendant.


"(2) The sheriff may charge the defendant a
reasonable fee for the storage of any firearms and
ammunition taken pursuant to a protective order.
The fees are payable to the sheriff. The sheriff
shall transmit the proceeds of these fees to the
county finance officer. The fees shall be used by
the sheriff to pay the costs of administering this
section and for other law enforcement purposes. The
county shall expend the restricted funds for these
purposes only. The sheriff shall not release
firearms, ammunition, or permits without a court
order granting the release. The defendant must
remit all fees owed prior to the authorized return
of any firearms, ammunition, or permits. The
sheriff shall not incur any civil or criminal
liability for alleged damage or deterioration due
to storage or transportation of any firearms or
ammunition held pursuant to this section."

So after they take your property & all restraining orders expire they want you to pay to get your property back. In other words if you're squeaky clean & everything turned out to be a judge erring on the side of caution then before you can recover your firearms you have to pay the sheriff.

& I've been arguing this a lot lately with some friends, but just what constitutes 'reasonable'? For some sheriffs I'm sure they'd think $100 per month per gun was reasonable. My idea of reasonable in this situation can also be defined as the sheriff paying me $100 a month for taking my firearms (out of his own pocket so as not to burden the taxpayers any further).

& to top it all off, the sheriff is immune from criminal or civil action if any of the firearms that were taken from you were damaged - after you paid for their supposed storage! Under that language a sheriff could take a drill & a blowtorch to every single one of your firearms, let them soak in saltwater & then after collecting his fee give the firearms to you in a large bag.

"(e) Retrieval. - If the court does not enter a
protective order when the ex parte or emergency order expires,
the defendant may retrieve any weapons surrendered to the
sheriff unless the court finds that the defendant is precluded
from owning or possessing a firearm pursuant to State or federal
law."

Sounds o.k. doesn't it? You get to start whatever steps are necessary to get your firearms back if there's no further restraining order against you after the emergency order expires.
Course where it gets sticky is the 'state or federal' law language. If I remember correctly in NC a felon may keep a firearm at his/her home (& solely at the home) for defense of life at the home. It’d be interesting to see if a NC judge would opt to go with the stricter federal guidelines or not.

"(f) Motion for Return. - The defendant may request
the return of any firearms, ammunition, or permits surrendered
by filing a motion with the court at the expiration of the
current order and not later than 90 days after the expiration of
the current order. Upon receipt of the motion, the court shall
schedule a hearing and provide written notice to the plaintiff
who shall have the right to appear and be heard and to the
sheriff who has control of the firearms, ammunition, or permits.
The court shall determine whether the defendant is subject to
any State or federal law or court order that precludes the
defendant from owning or possessing a firearm. The inquiry shall
include:
(1) Whether the protective order has been
renewed;
(2) Whether the defendant is subject to
any other protective orders; or
(3) Whether the defendant is disqualified
from owning or possessing a firearm pursuant to 18
U.S.C. § 922 or any State law.
The court shall deny the return of firearms, ammunition, or
permits if the court finds that the defendant is precluded from
owning or possessing a firearm pursuant to State or federal
law."

So if the protection order expires then not only must you go through another hearing, but the plaintiff who started all this & the sheriff will be there. & there's a 90 day time limit for this. That's gotta suck for active duty military who are called out of country for more than 90 days at a time.
But there is still the question of whether state or federal law would take precedent in the case of a convicted felon, although the implication seems to be that they're to look closely at federal law as it's specifically mentioned.

"g) Motion for Return by Third-Party Owner. - A
third-party owner of firearms, ammunition, or permits who is
otherwise eligible to possess such items may file a motion
requesting the return to said third party of any such items in
the possession of the sheriff seized as a result of the entry of
a domestic violence protective order. The motion must be filed
not later than 30 days after the seizure of the items by the
sheriff. Upon receipt of the third party's motion, the court
shall schedule a hearing and provide written notice to all
parties and the sheriff. The court shall order return of the
items to the third party unless the court determines that the
third party is disqualified from owning or possessing said items
pursuant to State or federal law. If the court denies the return
of said items to the third party, the items shall be disposed of
by the sheriff as provided in subsection (h) of this section."

So if you have a friend or relative's guns or ammo then within 30 days that third party can ask the court to have his guns returned. But the plaintiff will be notified & have a chance to speak at the hearing, along with the sheriff. However it does say the court shall surrender the items to the third party unless said third party is somehow disqualified from owning or receiving firearms.
Of course this too would suck for someone out of town for a month or longer as there is a 30 day time limit.
If the third party request is denied (or by implication if said third party doesn't make the request for their return in time) then it's up to the sheriff as to how they are disposed of.

"(h) Disposal of Firearms. - If the defendant does
not file a motion requesting the return of any firearms,
ammunition, or permits surrendered within the time period
prescribed by this section, if the court determines that the
defendant is precluded from regaining possession of any
firearms, ammunition, or permits surrendered, or if the
defendant or third-party owner fails to remit all fees owed for
the storage of the firearms or ammunition within 30 days of the
entry of the order granting the return of the firearms,
ammunition, or permits, the sheriff who has control of the
firearms, ammunition, or permits shall give notice to the
defendant, and the sheriff shall apply to the court for an order
of disposition of the firearms, ammunition, or permits. The
judge, after a hearing, may order the disposition of the
firearms, ammunition, or permits in one or more of the ways
authorized by subdivision (4), (4a), (5), or (6) of G.S. 14-
269.1. If a sale by the sheriff does occur, any proceeds from
the sale after deducting any costs associated with the sale, and
in accordance with all applicable State and federal law, shall
be provided to the defendant, if requested by the defendant by
motion made before the hearing or at the hearing and if ordered
by the judge."

So if you're disqualified from owning or possessing firearms the sheriff gets to dispose of your firearms in a certain manner. You do get the cash from any sale, minus a cut off the top to cover the sheriff's expenses.
But the above also applies if you don't file your request to have your firearms back within the time allotted, or if you can't pay for the sheriff's 'reasonable storage fees' within 30 days of asking for your firearms back. Nice racket ain't it?

"(i) It is unlawful for any person subject to a
protective order prohibiting the possession or purchase of
firearms to:
(1) Fail to surrender all firearms,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms to the sheriff
as ordered by the court;
(2) Fail to disclose all information
pertaining to the possession of firearms,
ammunition, and permits to purchase and permits to
carry concealed firearms as requested by the court;
or
(3) Provide false information to the court
pertaining to any of these items."

More on this one at the end.

"(j) Violations. - In accordance with G.S. 14-
269.8, it is unlawful for any person to own, possess, purchase,
or receive or attempt to own, possess, purchase, or receive a
firearm, as defined in G.S. 14-409.39(2), machine gun,
ammunition, or permits to purchase or carry concealed firearms
if ordered by the court for so long as that protective order or
any successive protective order entered against that person
pursuant to this Chapter is in effect. Any defendant violating
the provisions of this section shall be guilty of a Class H
felony."

So if you have a box of .22 Long Rifle cartridges or a shotgun shell hiding behind a box in the closet while a restraining order is in effect & they find out, then you too could be a felon. & I'll spare y'all the usual rant about the absurdity of making mere possession of a firearm a crime at all.

"(k) Official Use Exemption. - This section shall
not prohibit law enforcement officers and members of any branch
of the United States armed forces, not otherwise prohibited
under federal law, from possessing or using firearms for
official use only."

But of course, cops & soldiers are exempt while on duty.
If having a restraining order is such an indication of violent, potentially criminal behavior, then isn't it just a little disturbing that they feel the need to specifically exempt cops & soldiers from this law? Either the restraining orders are not that big of a deal or the standards for our police & military have gone downhill. I'm inclined to believe the former, but I am still disturbed that the legislators thought it necessary to exempt police & military. Is it their opinion that a lot of cops & soldiers get restraining orders filed against them? Or do they simply feel any agent of the government should not be burdened with the laws they enact against mere citizens?

& what about the citizen who wants to perform his duty? Ya know, the duty of protecting yourself, your family & community. On general principles I have problems with any law that excepts someone from criminal activity simply because they work for the government.


"(l) Nothing in this section is intended to limit
the discretion of the court in granting additional relief as
provided in other sections of this Chapter."

The question I have is who is the object of relief they refer to here? Does this mean the plaintiff may seek additional relief? Or does it mean the defendant may seek additional relief? Or does it mean both? Being in a time crunch I will have to wonder for a while. At least until I have the time & motivation to go over the rest of that Chapter.


SECTION 2. G.S. 14-269.8 reads as rewritten:
"§ 14-269.8. Purchase [or possession] of firearms by
person subject to domestic violence order prohibited.
(a)XItX [In accordance with G.S. 50B-
3.1,] it is unlawful for any person to Xpurchase or
attempt to purchase any gun, rifle, pistol, or other firearm
while there remains in force and effect a domestic violence
order issued pursuant to Chapter 50B of the General Statutes,
prohibiting the person from purchasing a firearm.X
[own, possess, purchase, or receive or attempt to own, possess,
purchase, or receive a firearm, as defined in G.S. 14-409.39(2),
machine gun, ammunition, or permits to purchase or carry
concealed firearms if ordered by the court for so long as that
protective order or any successive protective order entered
against that person pursuant to Chapter 50B of the General
Statutes is in effect.]
(b) Any person violating the provisions of this section shall
be guilty of a Class H felony."

The words or sentences surrounded by brackets [ ] are what's been added to the law. The words or sentences surrounded by capital X’s are what has been crossed out of the law. I really have to break down & learn how to underline & cross stuff out one day.

Before this law it was only unlawful to attempt to purchase or attempt to purchase a firearm while there was an active restraining order against him/her. Thus one may have kept any & all firearms one had. You just couldn't buy anything new. But now it includes possession & not just of firearms, but ammunition as well. & not only the act of possession, owning, receiving, or purchasing but any attempt to do so.

" SECTION 3. This act becomes effective December
1, 2003, and applies to offenses committed on or after that
date.
In the General Assembly read three times and ratified
this the 10th day of July, 2003."

So it passed both houses & once the governor signs it it'll take effect on December 1rst, 2003.

Now on to the stuff I said I'd get to at the end.

One additional question is raised by this law, but it only would apply to a subset of firearms owners. If I remember correctly the NFA of '34 requires that any person who possesses a firearm affected by the act (short barreled shotgun or rifle, a machine gun or a silencer) must receive BATF approval prior to moving the weapon to another location (trips to the range & gunsmith excepted). The request must be made in writing & the approval granted before any move or transfer of the firearm in question is made. Violating this section is a felony. So it is conceivable that SB 919 may require a person to transfer a firearm in violation of the NFA of '34. Which would mean if you don’t comply with SB 919 then you’re likely to be charged with a felony under its provisions, but if you do comply without getting prior BATF approval then you’re likely to be charged with a felony under the NFA of ‘34? It all hinges on exactly how quick the BATF will grant approval. Interesting dilemma isn't it? Face state charges or face federal charges.

But this question pales in comparison to what comes next.


SB 919 violates the U.S. & North Carolina Constitutions. There's a conflict. & not just in the usual way about restricting &/or prohibiting a person from exercising their Right to arms. It's unconstitutional in a way that the courts will actually recognize. In fact they have to.

Ya see, section 1 c says that the court will inquire about any & all firearms & ammunition the defendant has. That's not great IMHO but it's not unconstitutional.
However contrast that with Section 1 i 1 & 2. I'll reprint the relevant part below for your convenience:


"(i) It is unlawful for any person subject to a
protective order prohibiting the possession or purchase of
firearms to:

(1) Fail to surrender all firearms,
ammunition, permits to purchase firearms, and
permits to carry concealed firearms to the sheriff
as ordered by the court;

2) Fail to disclose all information
pertaining to the possession of firearms,
ammunition, and permits to purchase and permits to
carry concealed firearms as requested by the court;"

How is that unconstitutional you may ask?

Let me print the relevant part of the constitution for you:

"Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Still don't see it? Here's the most direct hint I can give you:

"...nor shall be compelled in any criminal case to be a witness against himself..."

That's right. SB 919 makes it unlawful to with hold information about yourself. That violates the 5th Article of the Bill of Rights. You cannot be made to be a witness against yourself, but SB 919 clearly states that should you with hold any information about firearms or ammunition in your possession, then you are subject to a felony charge.

But don't take my word for it. I refer you to Haynes v. United States, 390 U.S. 85 (1968).

In Haynes the Supreme Court held that a registration requirement violated the 5th Amendment when that registration could be used to pursue further charges. There is no difference in requiring someone to register their firearms, especially those they may not be lawfully entitled to have & requiring someone to inform a judge about their firearms, which under the conditions of SB 919 may be unlawful for them to have.

SB 919 provides that a person who does not comply with this law is guilty of a class H felony. That is compelling someone to comply with this law, including the section that requires a person to give information that may be used against him/her in a criminal proceeding.

SB 919 conflicts with the 5th Amendment to the U.S. Constitution & the Supreme Court's decision in Haynes. Barring any new angles all inferior courts are required to follow the decisions made by the Supreme Court, for good or bad.

Now if any of you who cannot stand the sound of sheep find fault with this analysis please let me know. But if I'm not mistaken this law is in conflict with the Constitution's provisions against compelled self-testimony.

& The N.C. Constitution contains this little gem:

"Sec. 23. Rights of accused. In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty. "

So this law is in conflict of 2 constitutions. But wait, there's more.

Again from the N.C. Constitution I offer you this:

"Sec. 25. Right of jury trial in civil cases. In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable."

Now this is a bit shady because it clearly mentions civil cases as opposed to criminal, but it does seem to state that in any matter concerning property that a jury, not a judge shall make the final decision. So the only question is whether or not the forfeiture of a person's firearms with no criminal prosecution would constitute a civil proceeding.

& I fear my reputation would suffer if I didn't include this part of the North Carolina Constitution:

"Sec. 30. Militia and the right to bear arms. A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty. they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice."

Just as with the U.S. Constitution's prohibition on government infringing upon the Right to own & possess weapons, the N.C. Constitution protects the citizen from having their Right to Arms infringed. (Although I find the language concerning concealed weapons to be an infringement of the Right to Arms& as such contradictory with the preceding section of that amendment).

In summation not only do I find SB 919 to be burdensome on those who would not commit crimes of violence, but pretty damned useless against ones that would. It's not based on good sound policy & is on its face in conflict with the N.C. & U.S. Constitution's provisions concerning compelled testimony.

Consequently I am not satisfied with the NRA's explanation of their actions concerning this bill. They either didn't bother to read it fully before they decided not to oppose it (not making a decision either way is still failing to oppose it), their interests wouldn't have been served by it's failing to pass or it's passage served some purpose of theirs.

No matter what the NRA's motivations were, with the passage of SB919 North Carolina is in a worse state than when I left it. For this I am truly sorry.