Wake Forest Law Review
11Oct

Give a man a fish and you feed him for a day. Teach a man to fish and he sues you for failing to protect his constitutional rights: North Carolina Court of Appeals holds the State has a duty to protect your right to fish

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Trent Turk

In 2018, the North Carolina General Assembly passed a slate of amendments to the State Constitution.[1] Among these amendments was the creation of a State Constitutional right to hunt, fish, and harvest wildlife.[2] The amendment was ratified in 2018 by 57% of North Carolina voters.[3]

Now codified as N.C. CONST. Art. I. § 38, the provision reads:

 “The right of the people to hunt, fish, and harvest wildlife is a valued part of the State’s heritage and shall be forever preserved for the public good. The people have a right, including the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to laws enacted by the General Assembly and rules adopted pursuant to authority granted by the General Assembly to (i) promote wildlife conservation and management and (ii) preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. Nothing herein shall be construed to modify any provision of law relating to trespass, property rights, or eminent domain.”[4]

On November 10th, 2020, a group of individuals spearheaded by the Coastal Conservation Association of North Carolina filed a lawsuit against the State of North Carolina, alleging that the State was “fail[ing] to satisfy its obligation” to protect the fish population of the State under the public-trust doctrine and the new constitutional right.[5] Specifically, the plaintiffs alleged that “the State has breached its duties under the public-trust doctrine by mismanaging North Carolina’s coastal fisheries resources, resulting in a decades-long, uninterrupted, dramatic decline in these resources overall, as well as a decline in the health of multiple, specific species and/or stocks of these fish.”[6] They further alleged, “The once vibrant public fishing for [popular fish species] in North Carolina’s coastal waters has all but vanished.”[7]

As stated in Fabrikant, “The public-trust doctrine is a common law principle providing that certain land associated with bodies of water is held in trust by the State for the benefit of the public.”[8] It is ancient in its origins but was first recognized in North Carolina in 1903.[9] “The public-trust doctrine… involves… public-trust lands which are lands and associated bodies of water that the State holds in trust for the benefit of the public; and Public-trust rights, which are  those rights held in trust by the State for the use and benefit of the people of the State in common.”[10]

Plaintiffs’ essential argument was that the public-trust doctrine, as paired with the new amendment, “imposes a fiduciary duty on the State to manage and regulate the harvest of these fish in a way that protects the right of current and future generations of the public to use public waters to fish.”[11]

It took the State only a short time to respond to this complaint with a motion to dismiss.[12] The State claimed sovereign immunity from the suit, that the public-trust doctrine did not create an affirmative fiduciary duty on the State, that the public-trust doctrine did not create a cause of action because only the State has the power to enforce the doctrine, and that the State was not violating the constitutional rights of its citizens in regards to its regulation of the fisheries.[13]

The Wake County Superior Court denied this motion in its entirety, and the State immediately appealed from that order.[14]

The key decision the North Carolina Court of Appeals was tasked with making was whether or not the North Carolina constitutional right to hunt and fish places an affirmative constitutional duty on the State to preserve the fish population for the people of the State. The Court answered this question with a resounding and unanimous yes.[15]

Judge Hampson, writing for a unanimous Court, held, “The State contends the language of [N.C. CONST. Art. I. § 38] places no affirmative constitutional mandate on the State to preserve the right of the people to hunt, fish, and harvest wildlife for the public good. We disagree.”[16] Looking to the wording of the provision, the Court held, “[t]he plain meaning of… ‘shall be forever preserved’ places an affirmative duty on the State to protect the people’s right to fish.”[17]

The Court rejected wholesale the State’s contention that N.C. CONST. Art. I. § 38 means only that the State must liberally permit the public to engage in hunting and fishing activity.[18]  Instead, the Court found that such a duty must exist because “the right to fish and harvest fish would be rendered meaningless without access to fish . . . Therefore, the State’s duty necessarily includes some concomitant duty to keep fisheries safe from injury, harm, or destruction for all time.”[19]

The Court also agreed with plaintiffs and held that “protecting fisheries falls within the purview of the public-trust doctrine . . . .”[20] The Court also held, as a matter of first impression, that claims under the public-trust doctrine are not barred by sovereign immunity.[21]

Because the plaintiffs were alleging colorable claims under the North Carolina Constitution and the public-trust doctrine, the Court held that none of the State’s claims to sovereign immunity had merit.[22] Since plaintiffs also alleged “facts, which if proven, may tend to show the State did not properly manage the fisheries so as to forever preserve the fish populations for the benefit of the public,” the motion to dismiss for failure to state a claim was also properly denied.[23]

Substantial questions still remain about the extent of the right to hunt and fish in North Carolina. The first being whether the holding will be disturbed in any way by the North Carolina Supreme Court. The decision also begs the question of what exactly the State’s duty looks like in practice and how it will be enforced in the future.

These questions will have to be answered in the near future. For now though, we are left with the powerful pronouncement that the State of North Carolina must keep our fisheries “safe from injury, harm, or destruction for all time.”[24]

[1] See Joel Luther, What Would The Six Constitutional Amendments On The NC Ballot Do?, DUKE TODAY (October 25, 2018), https://today.duke.edu/2018/10/what-would-six-constitutional-amendments-nc-ballot-do.  

[2] N.C. CONST. Art. I. § 38.

[3] See North Carolina Election Results, N.Y. TIMES(May 15, 2019, 2:10 PM), https://www.nytimes.com/interactive/2018/11/06/us/elections/results-north-carolina-elections.html.

[4] N.C. CONST. Art. I. §. 38.

[5] Plaintiffs’ Complaint at 2-3, Coastal Conservation Ass’n v. North Carolina (N.C. Super. 2020) (20-CV-012925) 2020 WL 13032832.

[6] Id. at 6.

[7] Id. at 7.

[8] Fabrikant v. Currituck Cty., 174 N.C. App. 30, 41, 621 S.E.2d 19, 27 (NC. App. 2005).

[9] Shepard’s Point Land Co. v. Atl. Hotel, 132 N.C. 517, 528, 44 S.E. 39, 42 (N.C. 1903).

[10]Town of Nags Head v. Richardson, 260 N.C. App. 325, 334, 817 S.E.2d 874, 882 (N.C. App. 2018).

[11] Plaintiffs Complaint, supra note 5 at 109.

[12] Defendant’s Motion to Dismiss at 1, Coastal Conservation Ass’n v. State of North Carolina  (N.C. Super. 2021) (20-CV-012925) 2021 WL 7161607.

[13] Defendant’s Brief in Support of its Motion to Dismiss at 1-2, Coastal Conservation Ass’n v. State of North Carolina  (N.C. Super. 2021) (20-CV-012925) 2021 WL 7161607

[14] Coastal Conservation Ass’n v. State of North Carolina, No. 20-CVS-12925, 2021 WL 9405572, at 1 (N.C.Super. July 28, 2021).

[15] Coastal Conservation Ass’n v. State, 2022-NCCOA-589, ¶ 34.

[16] Id.

[17] Id. at ¶ 37.

[18] Id.

[19] Id.

[20] Id. at ¶ 18.

[21] Id.

[22] Id. at ¶ 21, 30, 40.

[23] Id. at ¶ 39.

[24] Id. at ¶ 37.

Photo by Maël BALLAND via Pexels

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3Feb

Fourth Circuit Affirms Conviction of Felon In Possession of Firearm

Categories: 4th Cir. Blog
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By Eric Jones

On December 18, 2015, the Fourth Circuit issued a published opinion in the criminal case United States v. Stover.  Lavelle Stover was convicted of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).  At trial, Stover motioned to suppress the firearm that he discarded in front of his vehicle, but the motion was denied.  On appeal Stover argued that the firearm should have been suppressed as the product of an illegal seizure under the Fourth Amendment.  The Fourth Circuit affirmed his conviction.

The Arrest and Trial

In the early morning hours of March 13, 2013, police noticed Stover sitting in a vehicle that was double-parked in a small private parking lot.  When they returned several minutes later and saw that Stover was still double-parked, the officers decided to approach the vehicle because there had recently been several violent robberies in the area.  The uniformed officers activated their emergency lights and aimed a spotlight on Stover’s vehicle as they pulled in to block the car in the parking lot.  As the officers exited the patrol car, Stover exited his vehicle and made his way to the front of his car.  He completely ignored the officers’ ordering him to stop and return to his vehicle.  Stover tossed a loaded nine millimeter handgun into the grass in front of his vehicle.  One officer proceeded along the right side of Stover’s vehicle and confronted him with his gun drawn, believing that Stover was preparing to run.  At that point Stover silently complied with the officers’ orders and returned to his vehicle.

At trial in the District Court for the District of Maryland, Stover motioned to suppress the handgun on the theory that it was the product of an illegal seizure under the Fourth Amendment.  The District Court found that Stover had not submitted to police authority until after abandoning the firearm, and thus the protections Fourth Amendment did not apply.  The firearm was entered into evidence, and Stover was convicted by a jury and sentenced to 57 months in prison.  Stover filed a timely appeal.

The Fourth Amendment’s Protections Against Illegal Seizure

As the Fourth Circuit explained, the moment that Stover was seized is vital to determine whether or not the firearm should have been suppressed.  If the officers had reasonable suspicion to stop Stover, the Fourth Amendment is not implicated and the weapon was properly entered.  If there was not reasonable suspicion to stop the defendant, however, the Circuit Court explained that the exact circumstances of the stop are important to determine whether an illegal seizure has occurred.  The Fourth Circuit applied a two-part test outlined in California v. Hodari D..

First, the Circuit Court asked whether the Fourth Amendment was implemented due to a show of authority by the officers.  In order to determine whether a show of authority had occurred, the Supreme Court has explained that you must consider whether “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”  As applied here, the Fourth Circuit held that blocking in Stover’s car with a marked police car, activating the emergency lights, using their spotlight, and approaching Stover’s vehicle in uniform all clearly indicated that a show of force had been made, and thus the Fourth Amendment protects against unreasonable seizures.

The second part of the two-part test in order to determine whether the firearm could be admitted into evidence asks precisely when the defendant was seized.  The Fourth Circuit explained that after submitting to police authority, the Fourth Amendment protects against unreasonable seizure.  If the defendant has not capitulated to the police’s orders, however, there has been at most an “attempted seizure,” and the protections of the Fourth Amendment are not applicable until after the defendant has submitted.  The Fourth Circuit explained that if a defendant is fleeing from the police, he has not submitted and thus anything he tosses to the side as he runs is not subject to the protections of the Fourth Amendment.  If, however, the defendant has submitted (by being tackled, by stopping voluntarily, or any other submission), the Fourth Amendment applies to anything found on his person.

Stover Did Not Submit to the Officers until After Abandoning His Firearm

In this case, the Fourth Circuit held that Stover had not submitted to the officers until after abandoning the firearm, and thus the Fourth Amendment was not applicable.  The Court relied on the fact that Stover exited his vehicle despite the flashing emergency lights and direct orders to remain in his vehicle.  He then proceeded toward the front of his car, directly away from the officers, and did not indicate that he heard them or intended to comply.  Only after abandoning his firearm and being confronted by the armed officer did Stover submit to their authority and follow their commands.  Thus, because Stover was not seized until after he threw the handgun into the grass, he simply abandoned it and it was not seized by the police.

One Circuit Judge dissented in this case, arguing that Stover acquiesced to the officers’ orders by remaining on the scene and simply attempted to abandon his firearm while remaining under police control.  If this were the case, the legality of the seizure would have been determined by whether or not the officers had reasonable suspicion to stop Stover.  The majority, however, held that ignoring verbal orders and proceeding away from officers is not consistent with submitting to the police, and thus no seizure had yet occurred.

The Fourth Circuit Affirmed Stover’s Conviction

Because the evidence indicated that Stover had not submitted to the police and may have been attempting to flee when he abandoned the handgun, the Fourth Circuit affirmed that he had not been seized and thus his firearm was not the product of an illegal search or seizure.  Because the handgun was properly admitted as evidence, therefore, the Circuit affirmed Stover’s conviction.

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