Wake Forest Law Review
6Apr

Second Chance at the Second Amendment: N.C. Senate Bill 562 Expands Opportunity for Firearm Ownership

Categories: Current Issues Blog
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By: Charlie Ellis

Forgiveness seems to be an obsolete virtue in modern American society.  With the rise of cancel-culture on social media[1] and a country with polarization metrics higher than any point in the last twenty years,[2] “forgiveness” and “civility” are merely buzzwords for two sides who only wish to point out flaws in their opponent.  In the midst of a growing national divide, North Carolina’s legislature passed Senate Bill 562 (“the Act”) in an attempt to help individuals with a past criminal record secure civil rights.  The Act significantly expands expungement opportunities for these citizens and shines as a beacon of bipartisan hope and forgiveness in the dark world of American politics.[3]  One of the Act’s most significant aspects is a new avenue for expungement beneficiaries to access one of America’s most fundamental rights: the right to bear arms.

North Carolina’s Department of Public Safety (“NCDPS”) describes their mission as “the administration of a fair and humane system which provides reasonable opportunities for adjudicated offenders to develop progressively responsible behavior”[4] and to provide “opportunities for offenders to become productive citizens.”[5]  One significant characteristic of becoming a “productive citizen” is access to the essential rights provided to all Americans within the Constitution.  North Carolina allows adjudicated offenders access to the majority of fundamental rights, such as voting, immediately upon completion of a sentence.[6]  However, public policy considerations led North Carolina’s legislature to infringe on the essential right of self-protection by forcing non-violent offenders to wait twenty years for restoration of their firearm rights.[7]  Although the Act does not specifically address gun rights, access to an expungement at an earlier date provides these same non-violent offenders with the ability to obtain firearms before the previously required twenty year mark.[8]

The only other avenue to firearm restoration available under North Carolina law is to apply for an expungement.[9]  An expungement completely wipes a conviction off of the offender’s record and allows the individual to live their life as if the offense never occurred.[10]  Before the Act, an applicant could expunge a non-violent misdemeanor or felony but had to certify that “other than the conviction(s) listed above, I have not been convicted of any felony or misdemeanor.”[11]  Basically, the expungement was limited only to the single charge and was severely restricted in the scope of its application.[12]  Problems continually arose for individuals seeking expungements that had a prior adjudication to the charge they wished to expunge.  For firearm rights, this precluded some non-violent offenders from a full restoration for far too long.  G.S. 14–415.4 requires a person to fill out a “Petition and Order for Restoration of Firearm Rights,” which dictates the adjudicated offender’s citizenship rights have been restored for twenty years prior to submission.[13]  The Act now provides a solution to these problems allowing for an expungement of multiple misdemeanors after a seven-year period with no other convictions and does not preclude a felony expungement if an individual has prior misdemeanor convictions.[14]  While the Act does not necessarily expand the category of people eligible to eventually obtain full firearm rights, it can expedite the process for those individuals by ten years.[15]

North Carolina concealed carry permits are heavily regulated for any person attempting to carry a protective firearm, and a citizen seeking a permit must endure an arduous application process.[16]  North Carolina’s concealed carry law requires a person twenty-one years or older to participate in a gun safety course that “involves actual firing of handguns and instruction in the laws of this State governing the carrying of a concealed handgun and the use of deadly force.”[17]  If the applicant has previously been adjudicated of a felony in any court, the applicant may not immediately have their firearm rights restored.[18]  As previously stated, adjudicated offenders only have two avenues of relief: either wait the twenty year period required by G.S. 14–415.4, or obtain an expungement.[19]  The twenty year time-frame is wholly inconsistent with the stated mission of NCDPS to create “productive citizens” with “responsible behavior.”[20]  Theoretically, if NCPDS properly fulfilled its duty, the adjudicated offender should be capable of productive participation in society with no restrictions on their liberty.[21]  To be clear, the petition for firearm restoration under G.S. 14–415.4 only applies to non-violent offenders,[22] which makes the twenty-year waiting period appear arbitrary and borderline violative of North Carolina citizens’ fundamental rights. 

Firearm rights are civil rights.  The Second Amendment to the United States Constitution states that “the right of the people to keep and bear arms, shall not be infringed.”[23]  Although the clause “shall not be infringed”[24] appears to set an explicitly clear bar on any type of encroachment, that issue is one for another day.  The important thing to recognize is that North Carolina’s legislature took a step toward opening gun rights to all citizens, and the Act should be celebrated as a noteworthy piece of bipartisan legislation.

[1] Julia Manchester, 64 Percent View ‘Cancel Culture’ as a Threat to Freedom: Poll, The Hill (Mar. 29, 2021, 12:14 PM), https://thehill.com/homenews/campaign/545387-64-percent-say-they-view-cancel-culture-as-a-threat-to-their-freedom-poll?rl=1.

[2] Political Polarization in the American Public, Pew Research Ctr. (June 12, 2014), https://www.pewresearch.org/politics/2014/06/12/political-polarization-in-the-american-public/.

[3] The Second Chance Act (Senate Bill 562), N.C. Second Chance Alliance, https://ncsecondchance.org/thesecondchanceact/ (last visited Mar. 29, 2021).

[4] Division of Adult Correction, N.C. Dep’t of Pub. Safety, https://www.doc.state.nc.us/admin/mission_code.htm#:~:text=Mission%20Statement,to%20develop%20progressively%20responsible%20behavior (last visited Mar. 29, 2021).  

[5] Id.

[6] N.C. Gen. Stat. Ann. § 13-1 (2013); A Misdemeanant & Ex-Felon’s Guide to Voting in North Carolina, N.C. State Bd. of Elections, https://www.dconc.gov/home/showdocument?id=4102 (last visited Mar. 29, 2021).

[7] Petition and Order For Restoration of Firearm Rights, N.C. Jud. Branch, https://www.nccourts.gov/assets/documents/forms/cv654-en.pdf?4tqxbrLvOPWIB2i6xD3RzkMbHwwiM9Dl (last visited Mar. 29, 2021).

[8] See Second Chance Act, supra note 3.

[9] See id.; see also N.C. Gen. Stat. Ann. § 15A-145.5 (2020).

[10] N.C. Gen. Stat. Ann. § 15A-145.5 (c2).

[11] Petition and Order of Expunction Under G.S. 15A-145.5, N.C. Jud. Branch (rescinded December 1, 2020).

[12] Id.

[13] Petition and Order For Restoration of Firearm Rights, supra note 7.

[14] Petition and Order of Expunction Under G.S. 15A-145.5, N.C. Jud. Branch, https://www.nccourts.gov/assets/documents/forms/cr281_2.pdf?TwO2O8Q1sv2gWYGLpi6Ocp9q_ko6PXDr (last visited Mar. 29, 2021).

[15] Compare waiting period between Petition and Order For Restoration of Firearm Rights, supra note 7 and Petition and Order of Expunction Under G.S. 15A-145.5, supra note 11.  

[16] N.C. Gen. Stat. Ann. § 14-415.12 (2015).

[17] Id. at (a)(4). 

[18] Id. at (b)(3).

[19] Petition and Order For Restoration of Firearm Rights, supra note 7.

[20] Division of Adult Correction, supra note 4.   

[21] Id.

[22] Petition and Order For Restoration of Firearm Rights, supra note 7.

[23] U.S. Const. amend. II.

[24] Id.

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23Feb

Fourth Circuit Vacates Decision Dismissing Defendant’s Motion to Suppress Evidence Unlawfully Obtained in Violation of the Fourth Amendment

Categories: 4th Cir. Blog Criminal Cases
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By Taylor Ey

Anonymous Tip to Police, Pretextual Traffic Stop, and Subsequent Frisk

Today, the Fourth Circuit issued its published in the criminal case of United States v. Robinson, deciding 2-1, the Court reversed and vacated the decision of District Court of the Northern District of West Virginia, holding that Defendant Robinson’s motion to suppress evidence should have been granted.  In this case, the West Virginia police department received an anonymous tip.  The tipper reported that the tipper saw a man load a gun in a 7-Eleven parking lot, the man subsequently concealed the gun, and then left the parking lot in a car.  Only a few minutes passed when the police stopped a car matching the tipper’s description.  The police stopped the car because the driver and passenger’s failure to wear a seatbelt in violation of West Virginia traffic law.  Defendant Robinson was the passenger in the car.  He complied with the police requests to exit the car.  Then an officer frisked Defendant Robinson and found a firearm in one of Defendant Robinson’s pockets.  Defendant Robinson was indicted by a grand jury on one count of being a felon in possession of a firearm and ammunition.  Defendant Robinson sought to exclude the evidence recovered by the officer during the stop and frisk.  The district court referred Defendant’s motion to a magistrate.  The magistrate recommended that the evidence did not indicate that the officer had reasonable suspicion that Defendant was dangerous.  However, the district court did not grant his motion to suppress.  At issue in this case is whether the officer complied with the Fourth Amendment when the officer conducted the stop and frisk.

Under Terry v. Ohio, Whether the Officer Had Reasonable Suspicion that Defendant Robinson Was Both Armed and Dangerous when the Officer Conducted the Stop and Frisk

Under Terry v. Ohio, the test for whether a stop and frisk is lawful is to determine if the officer had reasonable suspicion that the suspect was both armed and dangerous at the time of the stop and frisk.  This question is two-fold: the officer has to have reasonable suspicion that the suspect is armed and that the suspect is dangerous.  In this case, the question of whether the police had reasonable suspicion that Defendant Robinson was armed at the time of the traffic stop and frisk was not at issue due to the anonymous tip.  However, because this case arose in West Virginia, and West Virginia allows its citizens to carry concealed weapons, the question on appeal was whether the police had reasonable suspicion that Defendant Robinson was dangerous at the time of the traffic stop and frisk.

The Court applied the totality of the circumstances test to determine whether the officer had reasonable suspicion that Defendant was dangerous.  First, the Court considered that, in West Virginia, carrying a concealed firearm is not prohibited by law, thus the fact that Defendant was carrying alone was not enough to give the officer reasonable suspicion that he was dangerous because the state legislature decided that its citizens could carry.  The Court noted that this same approach has been adopted by the Third, Sixth, and Seventh Circuits.  The Court was worried that allowing an officer in states that allow for concealed carry to have reasonable suspicion of danger if a suspect is carrying would eliminate Fourth Amendment protections for carriers and would not allow them to exercise their Second Amendment rights.  Further, the Court was concerned that such a rule would create a “serious and recurring threat” to their privacy, and it would give police officers “unbridled discretion.”

Second, the Court looked at the circumstances surrounding the stop.  These included that there was an anonymous tip, that Defendant Robinson failed to answer the officer’s question of whether he had a gun on his person, and that Defendant Robinson was in a “high-crime area” at the time of the stop.  The Court concluded that the circumstances did not give the officer reasonable suspicion.  Instead, Defendant Robinson was otherwise cooperative during his encounter with the police, he never made a gesture that he was reaching for a weapon, and the officer did not give Defendant Robinson enough time to respond to the question about whether he was armed.  Even though Defendant Robinson was in a high-crime area, the Court reasoned that this was just the area where you would expect to find people carrying a weapon to protect themselves.

Looking at the Totality of the Circumstances, the Fourth Circuit Reversed the District Court’s Decision Denying Defendant Robinson’s Motion to Suppress and Vacated His Conviction and Sentence.

The Dissenting Opinion Articulated Three Reasons for Disagreement with the Majority

The three reasons that the dissenting judge articulated for his opinion were (1) that an officer need only reasonable suspicion that the suspect is armed and thus dangerous, (2) that West Virginia allows its citizens to carry a concealed weapon does not minimize the danger to officers and officers should still be allowed to stop and frisk under the Fourth Amendment, and (3) that even though Defendant Robinson may have been innocent, “reasonable suspicion need not rule out the possibility of innocent conduct.”

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