The Difference between a Formal Deferred Prosecution and a Conditional Discharge

Persons charged with Class H or I felonies or any misdemeanor except Driving under the Influence can earn a dismissal of the charges by participating in a Deferred Prosecution or a Conditional Discharge. This blog focuses on a comparison of these alternatives to prosecution.
Both the deferral and the conditional discharge have the same pre-requisites:
(1) The victim has been notified and given an opportunity to be heard,
(2) Defendant has no moral turpitude prior convictions,
(3) Defendant has never been placed on probation and
(4) The defendant is unlikely to commit another offense, other than a Class 3 misdemeanor, in the future. (NCGS§ 15A-1341(a1), (a4)).

In a Formal Deferral, the prosecutor enters into a written agreement with the defendant prior to trial. The agreement lists the terms by which the defendant can obtain a dismissal. The defendant may or may not admit responsibility or guilt to the charge but in either case, the admission does not constitute a plea of guilty. If the defendant fails to abide by the terms of the deferral, he is still free to proceed to trial. (State v. Ross (2005) 173 N.C. App. 569, 620 S.E.2d 33.)1

But if the defendant goes to trial and gets convicted, or if the prosecutor requires a guilty plea as a pre-requisite to participation, a Conditional Discharge is the procedural mechanism to earn a dismissal.
If a defendant fails to abide by the terms of the Conditional Discharge, judgment is entered on the conviction. But if the defendant successfully fulfills the terms of the Conditional Discharge, any plea or finding of guilty previously entered is withdrawn and the court must discharge the person and dismiss the proceedings.

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1) A defendant does not plead guilty simply by admitting his guilt in fact to an offense. A guilty plea is a formal process that requires the formal acceptance of the plea by the court and a judicial determination that there was a factual basis for the plea.

Chalking a Tire Is an Unconstitutional Search

Chalking a tire to determine how long a car has been parked was ruled to be a search in violation of the Fourth Amendment. The Sixth Circuit in Michigan ruled that a search occurs when the government: (1) trespasses upon a constitutionally protected area, (2) to obtain information.

Chalking a tire constituted a common law trespass because parking enforcement officers made intentional physical contact with the property of another when it placed a chalk mark on the tire. This intrusion, though minimal and not resulting in damage, was a trespass nonetheless.

Furthermore, the trespass was “conjoined with . . . an attempt to find something or to obtain information” in that the purpose of the chalk marks was to identify vehicles which had been parked in the same location for a certain period of time. That information is then used by the City to issue citations.

Not all warrantless searches are unconstitutional, only unreasonable searches. The court ruled that the vehicles were parked legally, there was no probable cause probable cause to believe that the vehicle contained evidence of a crime” or even an “individualized suspicion of wrongdoing.” Consequently, the automobile exception did not apply nor was there a reduced expectation of privacy.

The Community Caretaker exception to the warrant requirement also was inapplicable since the purpose of chalking is to raise revenue, and not to mitigate public hazard and no injury or ongoing harm to the community at large would result by a lawfully parked vehicle in a proper parking location.

So if you are lawfully parked but exceeding the allotted time on the sign, the parking enforcement cannot chalk your tires to determine whether you have exceeded the prescribed time. If they do, challenge it as an unconstitutional search and cite Taylor v. City of Saginaw (US Court of Appeals, Sixth Circuit, 4/22/2019)

NC STALKING CONVICTION BASED ON SOCIAL MEDIA POSTS IS UNCONSTITUTIONAL

Brady Shackelford fell in love with “Mary,” a woman from his church. He did not make a good impression and she refused to go out with him. He sent her emails and letters but she was not interested. In fact, she told the minister to tell Mr. Shackelford to stop contacting her. He stopped contacting her but began waxing poetic on Google Plus about his broken heart and his frustrations that Mary didn’t return his undying affection. These unrequited love social media posts resulted in felony stalking charges because Mary claimed she felt “like she was being stalked” and obtained a “no contact” order to avoid him. The “no contact” order prohibited Mr. Shackelford from contacting Mary or posting any information about her on social media.

The NC. stalking law criminalized social media posts made on Mr. Shackelford’s own Google Plus account because the posts referenced Mary and the posts made her feel “harassed.” (N.C. Gen. Stat. § 14-277.3A)

The reason that the stalking law was ruled unconstitutional in Mr. Shackelford’s case was that the law as-applied to him criminalized his social media posts. This content-based speech while annoying was not threatening and could not be prohibited either by a no-contact order or by the stalking statute. It was his First Amendment right to speak about his broken heart as long as he just posted it on his own Google Plus page.

(In The Court of Appeals of North Carolina No. COA18-273 Filed: 19 March 2019 Mecklenburg County, Nos. 16 CRS 10028-30, 34, State of North Carolina v. Brady Lorenzo Shackelford)

Firearm Restoration after Involuntary Commitment Hearing: Practical Considerations (Part 5)

In order to have one’s firearm rights restored after an involuntary civil commitment, a restoration hearing must occur. The judge must 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.

Practical Issue #1: The Need for a Cooperative Mental Health Professional

If the Involuntary Commitment occurred in a different state or city, the motion to restore firearm rights will occur in that location. I have encountered a refusal on the part of treating psychiatrists to travel to another state to testify.

Practical Issue #2: Expensive fees for record review, report preparation, travel time and testimony

The treating psychiatrist must agree to review all previous psychological and hospital records as well as their own in order to properly opine as to any changes in the petitioner’s condition since the involuntary commitment. The moving party must pay for all the expert’s time in reviewing records, traveling to court and testifying. This fee can be extremely expensive.

Practical Problem #3: Petitioner’s continuing need for psychotropic medication, treatment and therapy

In cases where firearm rights have been successfully restored, the facts typically portray the involuntary commitment as an aberration in the life of a person who otherwise has no mental health issues. Other courts have refused to consider the effect of the passage of time or the effect of rehabilitation on the issue of restoration of gun rights.
If the petitioner continues to seek mental health treatment and takes psychotropic medication, the prosecutor can argue that the petitioner’s mental stability is precarious and uncertain.

The law of the state at issue will dictate whether a motion can be brought and whether the petitioner’s post-commitment mental state can be considered or whether rehabilitation is relevant.

These issues must be considered before a petition to restore firearm rights can be brought.

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.

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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.