Evaluation of the Amber Guyger case under NC Law

In the pending Texas case, Amber Guyger entered the darkened apartment of Botham Jean, shot and killed him. She claimed that she erroneously believed the apartment to be hers and believed that Mr. Jean was a burglar. As an off-duty police officer, her firearm was easily accessible. Since the apartment was dark, she could only perceive Mr. Jean as a silhouette. After shouting commands and without turning on the lights, she fired her weapon and killed Mr. Jean. Only after shooting him, did she turn on lights thereby ascertaining that she was not in her apartment after all. The authorities filed the lesser crime of manslaughter. What would have happened in North Carolina?
ISSUE #1: Is this murder or manslaughter? The undisputed facts show only that the lawful occupant, Mr. Jean was shot by Ms. Guyger. The only way a manslaughter charge could have been filed in the Texas case is if the affirmative defense of Imperfect Self-Defense was accepted whole-heartedly by the Texas authorities. Imperfect Self-Defense occurs when the defendant believed it is necessary to kill her adversary in order to save herself from death or great bodily harm. In addition, defendant’s belief must be reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. (State v. Ross (1994) 338 N.C. 280, 283, 449 S.E.2d 556, 559–60.)
Whether Ms. Guyger’s belief was reasonable is quite debatable and should be put before the trier of fact. If Ms. Guyger would have turned on the lights, she would have realized immediately that she was the interloper. Is it reasonable for her to shoot into the dark apartment when her safety had not been threatened? At trial, it would be Ms. Guyger’s obligation to prove the affirmative defense and the jury would decide whether she has sustained that burden or not. The self-defense case is not so ironclad that it negates the probable cause to believe that a second-degree murder was committed. The proper charge under North Carolina law would be second-degree murder and not the lesser charge of manslaughter.
ISSUE #2: Does Ms. Guyger have a good affirmative defense? Under North Carolina law, would Guyger’s mistake of fact constitute a complete or partial affirmative defense? Short answer: no. In North Carolina, she would properly face a second-degree murder charge and should be convicted of the same. Amber Guyger was the aggressor, did not have a lawful right to be in Mr. Jean’s apartment and did not act reasonably.
Under North Carolina law, a person can use deadly force if the person reasonably believes that the conduct is necessary to defend herself against the other’s imminent use of unlawful force or if that person is in their own home. (NCGS § 14-51.2, NCGS § 14-51.3)
According to her version, Mr. Jean’s silent presence would not be sufficient to cause a reasonable person to believe that any force was imminent and despite her confusion, Ms. Guyger was not in her home and did not have a lawful right to be there; only Mr. Jean did. Only Mr. Jean had the right to defend his home against the true intruder, Ms. Guyger, and any force he could have used would have been lawful. (NCGS § 14-51.2.) Under North Carolina law, only Mr. Jean was a lawful resident of the apartment and could use deadly force.

Footnotes:
1. As an off-duty police officer acting in the capacity of a private person, her actions should be judged as any other civilian.
2. The lawful occupant of a home is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself 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 home and (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 shall be rebuttable and 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 home. (NCGS§ 14-51.2. (b)(c))

SEX WITH AN IMPAIRED PARTNER: CONSENT IS NOT ENOUGH

In North Carolina, a man can be charged with second-degree forcible rape for having sex with a partner who is “mentally incapacitated” or “physically helpless” due to excessive alcohol or drug consumption. Even if the sexual partner is the instigator of sexual contact, that person may legally not be able to consent. Just as a child or a developmentally disabled person cannot consent, the legal doctrine of “force implied in law” protects persons who are “unconscious or insensibly drunk.” Under the category of “physically helpless,” a sexual partner cannot consent if she is or becomes unconscious or asleep or is either physically or verbally unable to resist or communicate an unwillingness to engage in sex.

If a woman is significantly impaired and does not become unconscious, she is “mentally incapacitated.” “Mental incapacitation” is defined as being unable to appraise the nature of her conduct or resist the sex act. If the impairing substance was administered without her knowledge, she cannot consent. However, under North Carolina law, she can consent if she chose to ingest the impairing substance. The law does not protect a woman who voluntarily ingests intoxicating substances through her own actions. But if she passes out or blacks out, she then becomes “physically helpless,” and cannot consent.

Therefore, even if a drunk, but not unconscious, woman can consent, realistically, what is the likelihood that she
will be able to recall that consent? With intoxication and impairment comes a reduction in inhibitions and lapses or loss of memory. So is it not logical for a person who is very intoxicated to act in a manner inconsistent with her typical behavior or moral standards and later not recall her actions and words? If she believes she passed out, she qualifies as a “physically helpless” victim and it is irrelevant whether she voluntarily ingested the alcohol or drugs. If she does not recall whether she verbally consented to sex or if she recalls incorrectly due to her impairment, a rape charge could be filed resulting in a “he said/she said” trial.

Finally, what if the male who is claiming consent was also drinking? He is susceptible to the same impaired recall or memory loss as the impaired woman. Is his testimony reliable? The statute places the burden of realization on the male who knows or “should reasonably know” that the woman is mentally disabled, mentally incapacitated, or physically helpless. (N.C.G.S.§ 14-27.20, § 14-27.22) Impaired decision making and failure to rationally process information can cause an impaired man to ignore the obvious signs of his partner’s impairment which could result in a rape charge.

Once Upon a Time, Privacy Vanished

“In folktales a vampire couldn’t enter your home unless you invited him in. Without your consent the beast could never cross your threshold. Well, what do you think your computer is? Your phone? You live inside those devices so those devices are your homes. But at least a home, a physical building, has a door you can shut, windows you can latch. Technology has no locked doors.”

“Posting online is like leaving your front door open and telling any creature of the night it can enter.” ― Victor LaValle, The Changeling

DEMENTIA AND FIREARMS

Dementia is not a specific disease. It describes a group of symptoms associated with a decline in memory or other thinking skills severe enough to reduce a person’s ability to perform everyday activities. Alzheimer’s disease accounts for 60 to 80 percent of dementia cases. 

Eighty-eight percent of Alzheimer’s disease patients undergo behavioral changes. The most common changes are agitation, anxiety, irritability, disinhibition, delusions, and hallucinations. Delusions are often paranoid or persecutory (i.e. delusions that someone was stealing from them or other abuses). The patients incorrectly perceived a non-existent attack or misidentified someone they knew as an imposter or a stranger.

One-third of all Americans over the age of 65 own a gun and an additional 12% live in a household where another person owns a gun. In 2010, there were 4.8 million persons diagnosed with Alzheimer’s, In 2050, the number of persons with Alzheimer’s is expected to reach 13.8 million. When a family member is diagnosed with dementia, securing or removing firearms from the patient’s home is often not a consideration.
At some point, all persons with irreversible dementia will lose their ability to safely handle a firearm. Since, individuals with dementia do not have the ability to the determine when their condition makes them dangerous, family members typically must be vigilant to cognitive and behavioral changes.
Death by suicide occurs most often in the early stages of dementia. Suicide is now the 10th leading cause of death in the United States. Nearly 45,000 Americans killed themselves in 2016. It is predominantly men who use guns to commit suicide, and men are much less likely to seek help than women. As the disease progresses, the risk of death shifts from self-harm to harm to family and caregivers.
The use of firearms requires complex mental skills that are usually lost in early dementia and continue to worsen as the disease progresses. Loss of one’s ability to consistently recognize familiar people and places, an increase in physically aggressive behavior, disorientation and fear may place families and caregivers at risk. “Delusions of home intruders or confusion about the identity of persons in their lives may lead persons with dementia to confront family members, health aides, or other visitors. Access to a firearm may increase the potential for injury or death in such a situation.”
Gun removal is the best option but depending on the fluctuating moods of the patient, once removed, they guns can be re-purchased or the “theft” could be reported to the police. Removing ammunition and locking weapons in a gun safe are possible solutions.
If these precautions do not work, Red-Flag laws also known as Extreme Risk Protection Orders or Gun Violence Restraining Orders permit families and law enforcement to petition a court to temporarily suspend a person’s access to firearms if there is documented evidence that an individual is threatening harm to themselves or others. After a family member files a petition, the court holds a hearing and determines whether the person poses a serious threat of violence to themselves or others. The judge can issue an order restricting access to firearms for up to one year and can also refer the person in crisis for evaluation to ensure they get the help they need. Once a petition is filed, the court notifies the subject and a hearing is held. If the evidence of a threat is upheld by a judge, the order is put in place for one year and can be renewed annually should circumstances warrant. The subject may request one hearing a year to rescind the order. 
The Red-Flag statutes are law in six states and have been modestly successful in reducing suicide. However, this law could significantly mitigate the risk posed by that small proportion of legal gun owners who, at times, may pose a significant danger to themselves or others. When a gun owner has a dementia diagnosis, a Red-Flag law could be a life-saver.

Sources:
Agitation, broadly defined to include non-compliance, refusal to cooperate with the caregiver, obstinence, resistance, crying, kicking, and being “hard to handle.”
Anxiety is defined as worried or frightened behavior displayed for no apparent reason, or tense and fidgety behavior.
Irritability is rapid emotional fluctuations between frustration and impatience.
Mega, Cummings… Neurology, “The spectrum of behavioral changes in Alzheimer’s disease,” http://n.neurology.org/content/46/1/130.full
Healy, Melissa, As more older Americans struggle with dementia, what happens to their guns? Los Angeles Times, 5/11/18.
Guns and Dementia, Susan Jeffrey 7/21/2014
https://www.alz.org/maryland/documents/gun_safety.pdf
Betz, McCourt, Annals of Internal Medicine, Firearms and Dementia, 8 May 2018,
https://www annals.org/aim/fullarticle/2680727/firearms-dementia-clinical-considerations
Swanson et.al., Duke Law & Contemporary Problems, Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides? 2017

RESTORATION OF FIREARM RIGHTS AFTER INVOLUNTARY COMMITMENT: THE STATE COURT HEARING (Part 4)

In order to actually get your firearm rights restored, the involuntary commitment must have occurred in a state which has a law outlining the path to restoration. And that state law must conform to federal requirements.1

In a state restoration hearing, the judge must consider the following factors:
(1) the circumstances regarding the involuntary commitment,
(2) the petitioner’s record and
(3) the petitioner’s reputation in the community of residence.

The court must find that the petitioner “will not be likely to act in a manner dangerous to public safety,” and that “the granting of the relief would not be contrary to the public interest,” in order to restore firearm rights.

The law in North Carolina requires that the court consider:
(1) the petitioner’s mental health and criminal history records,
(2) the petitioner’s reputation, developed at a minimum through character witness statements, testimony, or other character evidence, and
(3) any changes in the petitioner’s condition or circumstances since the original determination or finding relevant to the relief sought i.e. the involuntary commitment.

If the state where the involuntary commitment occurred does not have a law which includes the federally mandated factors, that court’s findings will be subject to a federal bar. Additionally, since the NICS Improvements Amendment Act (NIAA) was passed in 2008, if your state’s restoration statute predates 2008, it may be inadequate. If the federally required factors and findings are not part of the state’s restoration statute, it would be fruitless to make this motion until the state’s law is changed.

____________
1. 18 U.S.C. § 925(c)

RESTORATION OF FIREARM RIGHTS AFTER INVOLUNTARY COMMITMENT PART 3: THE FEDERAL PROHIBITION

A. Relevant Laws:
-Under The Gun Control Act of 1968, 18 U.S.C. 922(g)(4), persons who were adjudicated as a “mental defective” or committed involuntarily to a mental institution were prohibited from receiving or possessing a firearm.
-Under the Brady Handgun Violence Prevention Act of 1993, federal firearms licensees were required to conduct a criminal background check or NICS (National Instant Criminal Background Check System) before transferring a firearm to a non-licensee. Part of this check was the required representation that the transfer to the non-licensee would not violate federal, state or local law. A written statement issued by the chief law enforcement officer had to confirm that the transferee had not been adjudicated as a mental defective or been committed to a mental institution. Consequently, any person who had been adjudicated a mental defective or been committed to a mental institution (FN1) was prohibited for life from possessing a firearm.
-In 2008, the NICS Improvement Amendments Act of 2007 (NIAA) was signed into law thereby providing a mechanism wherein a person who had been involuntarily committed could have firearm rights restored.

B.Restoration of Firearm Rights per NIAA
There are two paths to restoration of firearm rights:
1) Federal: 18 U.S.C. 925 (c) wherein the application is made to the United States Attorney General. The petitioner must show that the circumstances regarding the mental disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. This path to relief is currently illusory as it has not been funded and consequently no applications are being reviewed. (Jeffries v. Sessions at p. 17 (E.D. Pa. 2017)
2) State: North Carolina General Statute § 14-409.42 meets the criteria specified in NIAA (FN2) and courts can restore firearm purchasing rights to a person who had them previously removed because of a mental health adjudication or involuntary commitment. However, North Carolina’s statutory scheme has not been certified by the ATF. (see State Progress in Record Reporting for Firearm-Related Background Checks: by Becki Goggins, SEARCH and Anne Gallegos, National Center for State Courts February 2016 fn.8)

C. Conclusion
In the states who have enacted restoration relief laws, restoration of rights under state law will remove the bar to firearm possession. North Carolina currently has a legally sufficient program so a restoration of rights in state courts (FN3) will apply in both the state and federal jurisdictions. When firearm restoration relief is granted under a federal or state program which meets the requirements of the NIAA, or when certain automatic relief conditions are met, the mental health disability is “deemed not to have occurred” for purposes of the federal firearm prohibition.
Persons in states with no statutorily sufficient laws will not have their firearm restoration rights restored unless their legislature or courts (FN3) provide a remedy.
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FOOTNOTES
(1)“Adjudicated as a mental defective” means: a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease is a danger to himself or to others and lacks the mental capacity to contract or manage his own affairs. This term shall include a finding of insanity by a court in a criminal case or those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.
“Committed to a mental institution” refers to the formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily and a commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
(2) In order to establish a relief from disabilities program, a state must comply with the NIAA requirements, as follows: 1. Pass state law or administrative order 2. Complete an application 3. Indicate the lawful authority that will consider the petition 4. Abide by due process 5. Create a proper record of the proceeding 6. Create proper findings 7. Allow for de novo judicial review of denial 8. Update state and federal records once made aware that the disqualifier no longer applies 9. Establish a written procedure to address updating requirements (recommended)
(3) There is currently a split in opinion between the sympathetic 6th Circuit and the hostile 3rd Circuit.

THE ENIGMATIC PJC: Part I WHAT IS IT?

The Prayer for Judgment Continued (PJC) is a strange sentencing concept. It is an acceptance of responsibility but not a conviction. It is a resolution of a criminal or traffic charge but not a dismissal. It isn’t appealable and uncertainty exists as to whether PJC charges can be expunged.
The PJC is a sentencing option. If a person admits responsibility for a crime or gets convicted by plea or trial, a judge has three options for sentencing:
1) Impose an immediate sentence such as a fine and or incarceration,
2) impose a sentence but suspend it or
3) impose a Prayer for Judgment Continued. Whether the PJC acts as a final resolution depends on the words and intent of the judge.
a) A PJC may signify the final resolution where the court intends that judgment will be continued indefinitely and no additional proceedings will occur. An example is when upon a conviction of multiple charges, a sentence is imposed on some charges and a PJC is imposed on others. Here, no further proceedings are contemplated.
The PJC is viewed as a way for a judge to exercise discretion and reduce the impact of a criminal proceeding. By withholding judgment in an appropriate case, a judge can minimize the effects and consequences of the crime or offense.
In traffic cases, the PJC resolution saves the defendant from incurring license and insurance points. A PJC may be used once every three years per insurance policy, not per driver.
and twice every 5 years for DMV purposes.
b) A PJC may be continued for a specified period of time and if during that period of time, the defendant fails to comply with the conditions of the PJC, the prosecutor will “pray for judgment” and ask the judge to impose judgment. Until the expiration of the duration of the specified period of time, the PJC can still revert to a conviction.
c) A PJC may act as a placeholder when the sentencing must be delayed such as when defendant is tried in absentia or when the judge needs additional information before imposing sentence.

The next blog post is part 2 of this series: Can a PJC be expunged?

Homicide and Manslaughter Charges Now Filed for Hazing Deaths

Injuries and death caused by hazing are no longer excused or treated with a slap on the wrist. Prosecutors are bypassing misdemeanor hazing charges for the much more serious murder and manslaughter charges when death results from a hazing ritual.
“Go back a generation or two, and hazing was accepted conduct, part of the fraternity experience, part of the football experience,” said David LaBahn, president of the Association of Prosecuting Attorneys. Now it’s no longer ‘boys will be boys’ and ‘why is the prosecutor getting involved in this?’ I think there is much more acceptance out there that this is unlawful behavior.”
Three cases: LSU, Penn State and Baruch College illustrate this new reality:
At LSU: On September 13, 2017, at the Phi Delta Theta house, an 18-year-old pledge died of acute ethanol intoxication with aspiration after playing a drinking game. His blood alcohol content was .496 percent, more than six times the legal limit. He and other pledges had received text messages ordering them to report for “Bible study at the chapter house. “Bible study,” was question-and-answer game during which pledges were forced to drink “a pull” from a bottle of alcohol if they answered questions incorrectly. The 19-year-old fraternity member who was in charge of the hazing event and who aggressively insisted that the pledge drink was charged with negligent homicide and misdemeanor hazing. Nine other students are currently facing hazing misdemeanors and expulsion.
At Penn State: On February 2, 2017 at the Beta Theta Pi house, pledges were forced to line up for a “gauntlet” of drinking stations. First, they passed a vodka bottle down the line. Each pledge was ordered to drink before moving to the next station. The pledges were then ordered to “shotgun” a beer, and made to drink from a wine bag. Finally, the were obligated to finish with beer pong. In a group message sent shortly before midnight, one of the fraternity members texted that an 18-year-old pledge had fallen 15 feet down a flight of stairs and would need help.” Video from the fraternity showed the pledge stumbling and hitting his head on a railing, on the stone floor and on a furniture. A few times, a fraternity brother walked into the lobby, saw the pledge lying on the couch and failed to render aid. Instead he was “back-packed.” A backpack stuffed with textbooks was placed on his back to weigh him down so that he would not roll over and choke on his vomit. While he drifted in and out of consciousness, fraternity brothers splashed water on his face in an effort to revive him. Twelve hours after the gauntlet game commenced, 911 was alerted but by then he had died. Eighteen Penn State students were charged: eight with involuntary manslaughter and ten with hazing misdemeanors and furnishing alcohol to minors.
At Baruch College: On December 9, 2013, a Pi Delta Psi pledge participated in a ritual called the “Glass Ceiling.” He was blindfolded and made to wear a backpack weighted with sand while crossing a frozen field as members of the fraternity tackled him. During at least one tackle, he was lifted up and dropped on the ground in a move known as “spearing.” He complained his head hurt but continued participating and was eventually knocked unconscious. Fraternity members carried him inside and contacted a national fraternity official who told them to hide fraternity items. Some members left the house, while others changed his clothes and conducted internet searches to diagnose his symptoms. When the pledge experienced trouble breathing, he was driven to the hospital where he died of severe head trauma. Initially, 37 people were charged in connection with his death and faced assault and hindering apprehension charges. Five fraternity members were charged with third-degree murder which did not require a specific intent to kill. Eventually, four of the men who had been charged with murder pleaded guilty to reduced charges of voluntary manslaughter and hindering apprehension.

REVENGE PORN LAW- TAKE 2

In an effort to keep pace with the posting of sexual or private images, videos and live stream on social media, the North Carolina Revenge Porn statute, G.S. 14‑190.5A, has been significantly modified. The Revenge Porn law is the mechanism by which public disclosure of intimate images is criminally punished. Previously the law required that a “personal relationship” exist between the defendant and the subject of the image but no longer. All that is required is the publication of intimate content intended for humiliation, coercion, intimidation or financial loss. Violation of the statute is a felony for adults and repeat offender minors and a misdemeanor for those under 18. The crime is complete if the defendant:
(1) posts an image, video or live stream,
(2) of “naked human parts” (genitals, pubic area, anus, woman’s nipple) or sexual, excretory or lewd exhibitionistic activity,
(3) of a person who is identifiable either in the image or by accompanying information,
(4) without that person’s consent or with an expectation that the image would remain private and
(5) disclosure is intended to harass, intimidate, embarrass or cause financial
loss to the depicted person.
Under this modification, the defendant does not even have to know the victim and the victim doesn’t have to be aware of the taking of the image(s). Photographing a person with a telephoto lens when they were unclothed or engaging in a sexual act would qualify if performed with the required intent.
I can foresee First Amendment challenges to some of the wording used: “normal or perverted” and “clad in revealing or bizarre costume.” Additionally, the legislature expressly mentioned that the scenario wherein an identifiable person’s head was superimposed onto another body was not within the scope of this law but would be “studied” and may be the the subject of the next modification.

UNLIMITED EXPUNCTIONS FOR DISMISSED/NG CHARGES IF NO FELONY PRIORS

Awaiting Governor Cooper’s signature is SB 445 which modifies NCGS § 15A-146. The new proposed law permits an unlimited number of expunctions for charges which were dismissed or disposed of by a finding of “not guilty” or “not responsible” as long as that person has not sustained a felony conviction. This is a major modification of the law which previously required that no previous expunctions had been granted and the dismissals must have occurred within a 12-month period or within the same court session.
Additionally, a person may file a petition for expunction of a nonviolent misdemeanor or nonviolent felony conviction if the person has no other misdemeanor or felony convictions. Non-violent felony convictions can be expunged 10 years after the conviction date or when any active sentence, period of probation, and post-release supervision has been served, whichever occurs later. Nonviolent misdemeanor convictions may be expunged after 5 years after the conviction date or probation or post-release supervision completion. This is a substantial reduction from the current waiting period of 15 years. (NCGS § 15A-145.5) Once signed, this law will be effective on December 1, 2017.
Update: This bill was signed into law and takes effect December 1. 2017.