The General Assembly Must Amend Existing Law and Ban or Regulate Non-Native Venomous Snakes in NC

In 2017, the North Carolina General Assembly directed the N.C. Department of Natural and Cultural Resources and N.C. Wildlife Resources Commission to 1) jointly study and develop a list of potential designated representatives for the storage and safekeeping of reptiles regulated under G.S. Chapter 14 Article 55, and 2) study and develop recommendations for potential procedural and policy changes to improve the regulation of certain reptiles pursuant to Article 55 of Chapter 14. Although the report was prepared and submitted on December 31, 2017, over three years have passed and the General Assembly has failed to amend the law. https://ncleg.gov/documentsites/committees/ERC/ERC%20Reports%20Received/2017/Dept%20Natural%20Cultural%20Resources/2017-Dec%20DNCR-WRC%20jt%20rpt.pdf

The report stated that in 1949 when Article 55 was passed, the law was designed to prevent the unsafe handling of native venomous snakes in public spaces during religious events. The report noted: “With current technology, it is now possible to order a variety of potentially dangerous animals from all over the globe and have them shipped to one’s door.”

The report noted the significant danger inherent in the easy procurement of non-native venomous snakes. (1) The increasing number of people improperly keeping these snakes leads to increased violations of the law and (2) the need for the investigation and involvement by NC Museum of Natural Sciences, NC Zoo employees, and law enforcement officers who must handle and transport these dangerous snakes. The investigatory personnel is then put at risk for venomous snake bites by non-native snakes for which there is no locally available antivenom.1

The current NC law requires only that venomous snakes must be housed in a sturdy and secure enclosure. Enclosures must be designed to be escape-proof and bite-proof, have an operable lock, and be properly labeled. (NCGS § 14-417). If the snake escapes, the owner must notify the local law enforcement immediately. Violation results in a Class 2 Misdemeanor. If the snake harms or kills a person outside of the possessor’s family, the penalty is an A1 misdemeanor. If the possessor intentionally releases the venomous snake, the penalty is an A1 misdemeanor.

Other states typically favor either a complete ban on ownership of non-native venomous snakes or legal possession with a permit or license. North Carolina has no state prohibition and leaves it up to the individual counties to ban the snakes. Only North Carolina and several other unregulated states have no pre-requisites or limitations to non-venomous snake ownership.2

The General Assembly must immediately act to amend the existing law on possession of non-native venomous snakes. Without a doubt, the safest course of action for the public as well as for the enforcement personnel is a complete ban on possession of non-native venomous snakes.

Alternatively, should the General Assembly refuse to ban these “pets,” at a minimum, the 2017 report’s recommendations must be considered as well as the imposition of a permit or license requirement with periodic inspections, felony penalties for death or injury due to an escaped snake, substantial fines and restitution for all costs incurred in the capture, care, and boarding of the snake while civil and or criminal charges are pending. Additionally, the law should mandate humane enclosures and require training as a prerequisite to the issuance of any permit or license.

Permit or License Requirements
Under Tennessee law, venomous snakes are deemed “inherently dangerous” and permit applicants must have at least two years experience in the handling or care of the Class I species for which the applicant is applying, or, in the alternative, must take a written examination, developed and administered by the agency, evidencing basic knowledge of the habits and requirements, in regard to proper diet, health care, exercise needs and housing of the species to be covered by the permit, and has a protocol in place should the venomous snake escape. The possessor must live on-site or have a resident caretaker and the property size must be no less than one acre for a personal possession permit and three (3) acres for a commercial propagator facility permit, and may not be located in a multi-unit dwelling or trailer park. (Tenn. Code Annot. § 70-4-401, §70-4-403, and §70-4-404)

In Florida, permit applicants must provide a complete inventory of reptiles, have at least 1,000 hours of experience for each family of venomous reptiles requested, maintain an incident/disaster plan and a venomous reptile bite protocol, and provide at least two references, one of whom must have a venomous reptile permit. Those seeking the license must pay a fee of $100 and also have a bond of $10,000.

Periodic Inspections of Permitted Snakes
Florida law forbids possession of venomous snakes unless the owner has obtained a special permit or license from the Fish and Wildlife Commission. The commission conducts periodic inspections to determine whether the snakes are securely and properly penned. (F.S.A. 379.372(1)). Failure to abide by the regulations results in revocation of the permit or license, a violation of the criminal statute, and an assessment of the costs associated with or incurred due to the capture, transport, boarding, veterinary care are due upon the finding of guilt of any criminal or civil violation of the law. (F.S.A. 379.401).

Humane Enclosure Restrictions
Indiana law requires that a venomous snake of less than 6’ long be allocated an enclosure not less than 1.5 times the length of the snake and snakes 6’ long and above be allocated an enclosure of at least 2 times the length of the snake. Additional requirements for cage materials, features, and locks are specified in the statute. (312 Ind. Admin. Code 9-11-13.5.)

In summary, the NC General Assembly must act immediately to protect the public from these dangerous reptiles by enacting a complete ban on non-native venomous snakes. If the legislature refuses to ban the snakes, they must ensure public safety by considering the concerns enunciated in the 2017 REPORT TO THE NORTH CAROLINA ENVIRONMENTAL REVIEW COMMISSION ON CHAPTER 14, ARTICLE 55 OF THE NORTH CAROLINA GENERAL STATUTES: SUBMITTED JOINTLY BY THE NORTH CAROLINA DEPARTMENT OF NATURAL AND CULTURAL RESOURCES AND NORTH CAROLINA WILDLIFE RESOURCES COMMISSION as well as requiring a strict permit or licensing protocol with periodic, random inspections, require humane enclosures, hold possessors of snakes to best practices for snake maintenance and handling and increase civil and criminal penalties for violations of the law.

No longer can public safety be jeopardized by persons such as Christopher Gifford, owner of 75 snakes and the recently escaped venomous spitting Zebra Cobra. One needs only to watch one of Mr. Gifford’s TikToc videos to recognize the inherent danger of permitting non-native venomous snakes to be possessed by the public.

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1 “A point of major concern to the agencies and individuals involved in Article 55 violations over the years has been the quantity and variety of venomous snakes encountered that has no locally available antivenom (often not even available in nearby states). This increases the agencies’ concern about the safety and welfare of their employees and the public.” (Id., at p.7)
2 Nebraska, New Mexico, South Carolina, and Wisconsin also have no requirements.

Reducing Opportunities to Discriminate by Limiting the Police’s Ability to Detain

Gov. Roy Cooper’s Task Force on Racial Equity recently released a report calling for widespread changes to address racial bias within North Carolina’s policing and criminal justice systems. “Black drivers are twice as likely to be pulled over as white drivers,” the report states, citing statewide law enforcement data, and “once pulled over, black drivers are twice as likely to be searched, yet less than 10% of these searches lead to arrest. These disparities contribute to the distrust of law enforcement in communities of color.”
By eliminating Pretext Stops and creating a two-tiered system of Primary and Secondary offenses, the opportunity to make racially motivated detentions by police would be reduced.

Pretext Stops

In a pretext stop, an officer pulls over a motorist for a minor traffic or equipment violation and uses the stop as an opportunity to investigate a completely different and unrelated crime. The Supreme Court ruled in Whren v. United States that pretext stops were constitutional regardless of the police’s true motive to search for drugs or other crimes as long as there had existed any minor traffic violation.
Although police insist the stops are useful for investigating drugs and weapons possession, human trafficking, and drunken driving, among other crimes, it is clear that black motorists especially young men have been subject to stops far more frequently than their white counterparts for petty traffic or equipment violations — failure to signal, broken license plate light, tinted windows and the like.
As part of the movement to curb police brutality, there is renewed interest in reducing, or eliminating, pretext stops, which studies have shown to be racially biased. “One of the things the George Floyd killing and other instances have made clear is police intervention can be highly problematic, especially for minority populations. Our legislative aim is to reduce the opportunity for law enforcement of minor infractions,” (Virginia state Sen. Scott Surovell)

Designating Minor Traffic Violations as Secondary Offenses

Lawmakers argued police often use the violations as a pretext to stop and search people they suspect of other crimes, enabling racial profiling. Cell phone cameras and police body cameras have shown us the disparity in the nature, tenor, and duration of police interactions with white drivers and passengers vs police interactions with black drivers and passengers. In an effort to reduce the opportunity for discrimination and disparate treatment, Virginia and Oregon have designated primary and secondary traffic offenses. If a secondary offense such as a broken taillight is observed with nothing more, the officer could not initiate a traffic stop.

Beginning March 1, 2021, Virginia police would be prohibited from making a traffic stop when they see vehicles with non-functioning brake and taillights, a broken or loud exhaust system, tinted windows, objects dangling from a rearview mirror, someone smoking in a car with a minor present or a state inspection that is less than four months past its expiration date. The police could only issue citations if a driver is stopped for a more serious infraction, such as speeding or reckless driving. The legislation also reduced jaywalking to a secondary offense.

Claire Gastañaga, the executive director of the ACLU of Virginia, said a study has shown that black Virginians are 3.4 times more likely than whites to be arrested on marijuana possession charges. That’s the case, experts say, even though studies show the races use the drug at similar rates. “We want to get police out of the business of hectoring people” on low-level violations “to get them on something else.”…“Having the police decide that they think somebody’s suspicious, so they’re going to pull them over for, you know, a Puerto Rican flag dangling from their mirror, and then trying to use that to bootstrap into a broader investigation, that’s what we’re trying to stop,” she said. “We’re trying to limit the interactions of police with Black and brown communities in Virginia who have been subjected to over-policing on a routine basis,” she said.

A recent ruling by the Oregon Supreme Court has banned a controversial policing practice: No longer can officers use a broken taillight or a failure to signal as a justification for scouting a driver’s car for illegal guns or drugs.
The ruling instructs officers to stick to questions “reasonably related” to the reason the driver was pulled over, effectively ending law enforcement’s ability to turn a routine traffic stop into a fishing expedition for a more serious offense.

As articulated by the Governor’s Task Force for Racial Equity, North Carolina’s citizens deserve to be protected from over-policing and arbitrary enforcement of traffic laws. Ending pretext stops and developing a two-tiered system wherein minor traffic infractions are deemed secondary and cannot, in and of themselves, form the basis for a traffic stop will constitute a positive step towards a more just treatment of minority drivers.
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1. Doran, Will and Bridges, Virginia, https://www.newsobserver.com/news/politics-government/article247828785.html/eedition?fbclid=IwAR0eVuipF5E-N6gtRPY0_mZQN6mIo85RMXJCwQf_sr93zTbB7-nkK_NhOtc, https://www.nyu.edu/about/news-publications/news/2020/may/black-drivers-more-likely-to-be-stopped-by-police.html

2. “Police ‘Pretext’ Traffic Stops Need to End, Some Lawmakers Say, September 3, 2020, By Marsha Mercer
https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/09/03/police-pretext-traffic-stops-need-to-end-some-lawmakers-say

3.Https://www.virginiamercury.com/2020/10/02/virginia-lawmakers-pass-bill-banning-pretextual-traffic-stops-and-searches-based-on-the-smell-of-marijuana/

The Legal Basis Behind Face Mask Mandates

As of today, June 28, 2020, the total number of COVID-19 cases in the U.S. is 2,504,175 of which 44,703 are new cases compared to yesterday’s data. The total deaths in the U.S. are 125,484 of which 508 are new deaths compared to yesterday’s data. (www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fsummary.html)

Given the fact that COVID-19 is a global health crisis, does a person have a constitutional or legal right not to wear a mask if the wearing of a mask is mandated? The answer is “no.” State and local government has broad and primary authority to issue orders to protect the health and welfare of the people and control the spread of dangerous diseases within their jurisdictions. The 10th Amendment of the U.S. Constitution, which gives states all powers not specifically given to the federal government, is the source of the authority to take all public health emergency actions, such as setting quarantines, ordering the wearing of masks and business restrictions.
State and local governments are primarily responsible for maintaining public health and controlling the spread of diseases within state borders. The state public health emergency preparedness powers and laws authorizing quarantine and isolation through the state’s health authority vest the governor with the authority to mandate the wearing of masks.
Governor Cooper has issued a state wide mandate that requires most North Carolinians to wear masks in most public settings. This order is based upon the public health officials’ professional opinions that masks can prevent wearers, whether or not they are symptomatic, from spreading the virus to others. So unlike laws which focus the person who uses the protection such as seat belt laws or requiring helmets when riding a motorcycle, the mask requirement protects other persons from the mask wearer. The mask requirement is analogous to anti-smoking laws which are designed to protect those persons in the vicinity of the smoker from second-hand smoke as opposed to the smoker.
Governor Cooper’s statewide mandate supersedes any conflicting city or county from overruling the mask requirement because of the preemption doctrine. The preemption doctrine states that a higher authority of law will displace the law of a lower authority when the two authorities come into conflict. Consequently, cities and counties are not permitted to tell their residents to ignore the mask requirement.
Additionally, an employer can require the wearing of a face mask based on Occupational Safety and Health Administration statutes.1
Beyond the mask mandate, the state as well as the CDC can quarantine and isolate those who refuse test positive and refuse to wear masks and or self-quarantine. N.C. Gen. Stat. § 130A-145, Title 42 of the US Code, The Public Health and Welfare Service Act, Chapter 6A, sec. 264 in the regulations to control communicable diseases.2

So, in conclusion, claims that mask orders are violative of personal freedoms is misplaced. The interest of the state and local authorities as well as employers in maintaining the health and welfare of the residents and workers is paramount.

___________________________________Footnotes___________________________________________________________________
1 “Employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.”

2 Quarantine or isolation can be imposed for 30 days. The individual so restricted can challenge the order in superior court. The period of restriction can be increased a further 30 days if still necessary for protection of public health by petition to the superior court.( N.C. Gen. Stat. § 130A-41, 130A-45, -45.1, -45.2, -45.3, -45.4, -45.5, -45.6)

The Second Chance Law

On June 25, 2020, Governor Cooper signed into law the Second Chance bill which simplifies the procedure for getting an expunction. The law modifies the following expunction protocols: (1) when the petitioner is between 16-18 years of age, (2) cases where there was a dismissal or a finding of Not Guilty, and (3) cases involving a non-violent misdemeanor or felony conviction.

Expunction for persons between the ages of 16-18 (15A-145.8)
– any misdemeanor of Class H/I felony

– unless it is a DWI or any offense requiring sex registration

– The petition can be filed once probation has been completed and all fines/restitution paid.

– The defendant or the DA can file the petition. If the defendant files the petition, there is a $175 filing fee unless indigent and service to the DA.

-The petition is a specific form from the Administrative Office of Courts (AOC) website.

Expunction of Dismissed charges or findings of Not Guilty (15A-146)
-any misdemeanor, felony, or the purchase, possession, or consumption of alcohol by a 19 or 20-year old infraction.

-is applicable to multiple charges only some of which were dismissed; those dismissed charges can be expunged.

– the petition is an AOC form but there is no filing fee. There is no hearing before the court.

[After 12/1/21, these expunctions will occur automatically for dismissed/Not Guilty/Not Responsible charges]

Expunction of a nonviolent misdemeanor and felony convictions (15A-145.5)
-Can’t be an excluded offense:

a) Class A-G felony of A1 misdemeanor

b) No assault offenses

c) No charge requiring sex registration

d) No sex-related or stalking offense

e) No felony involving sales or intent to sell meth, heroin or cocaine

f) hate crimes

g) utilization of date-rape drugs

h) Breaking and Entering a dwelling house

i) A felony with the use of a commercial motor vehicle

j) An impaired driving offense

k) Any attempt of the above-listed offenses.

– When can the petition be filed?:

For a single misdemeanor, it is 5 years after probation has ended.

For multiple misdemeanors, it is seven years after the date of the petitioner’s last probationary period.

For a single felony, the petition can be filed ten years after probation has ended.

-Expunctions for convictions require that:

a) No expunctions were granted under this section prior to the date of the offense which is the subject of the petition,

b) The petitioner and two non-family members must submit affidavits that the petitioner is of good moral character,

c) The petitioner must affirm that there have been no additional convictions and all restitution orders have been paid and

d) A hearing is held and the victim and the probation officer may testify.

If you have a case to be expunged and the petitions are too intimidating, many counties (Durham: www.deardurham.org/, Orange: www.orangecountync.gov/2301/Restoration-Legal-Counsel and Wake: expungenc.com/) and Legal Aid ( www.lawhelpnc.org/organization/legal-aid-criminal-expungement-clinic?ref=ZCefb) have programs to provide assistance free of charge.

Holding Dealers Criminally Liable for Drug Deaths

According to the National Center for Health Statistics at the Center for Disease Control and Prevention, more than 70,200 Americans died from drug overdoses in 2017, which represented a two-fold increase in a decade. The sharpest increase occurred among deaths related to fentanyl and fentanyl analogs (other synthetic narcotics) with more than 28,400 overdose deaths.1

“Death by distribution” is the title of the new class C felony offense in North Carolina which holds sellers of illicit controlled substances criminally liable for any resulting deaths caused by the controlled substances. (G.S. 14-18.4(b))

“Malice” or the intent to do injury to another party is not required. So any illegal sale of a controlled substance which is the proximate cause of death can be prosecuted under this statute. This would include accidental overdoses as well as deaths resulting from toxic cutting agents.

The controlled substances include opiates, cocaine or methamphetamine and also “depressants.” The illegal sale of benzodiazepines such as Klonopin and Ativan, fall within the list of banned prescription controlled substances.

Class C felonies are punishable by a minimum of 44-182 months of incarceration. If the dealer has a prior narcotic conviction for sale, possession for sale or trafficking, then aggravated penalty of 94-393 months as a Class B-2 felony applies.

A person commits this offense if the following elements are satisfied:
• The person unlawfully sells at least one “certain controlled substance;”
• The ingestion of the certain controlled substance or substances causes the death of the user;
• The sale of the certain controlled substance is the proximate cause of the victim’s death; and
• The person did not act with malice.

A “certain controlled substance” is any of the following:
• Any opium, opiate, or opioid;
• Any synthetic or natural salt, compound, derivative, or preparation of opium, opiate, or opioid;
• Cocaine or any other substance described in G.S. 90-90(1)(d);
• Methamphetamine;
• A depressant described in G.S.90-92(a)(1); or
• A mixture of one or more of these substances. (G.S. 14-18.4(b))

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1. 47,600 deaths were due to opioids including prescription opioids (and methadone), heroin and other synthetic narcotics (mainly fentanyl).
17,029 deaths were due to prescription opioids in combination with synthetic narcotics (mainly fentanyl)
15,482 deaths involved heroin alone and in combination with other synthetic narcotics (mainly fentanyl) and without other synthetic narcotics.
10,333 deaths involved methamphetamine and other psychostimulants.
13,942 deaths involved cocaine and any opioid, cocaine without any opioid, and cocaine and other synthetic narcotics.
11,537 deaths were due to benzodiazepines and any opioid, benzodiazepines without any opioid, and benzodiazepines and other synthetic narcotics.

If You Pled Guilty to a Reduced Charge, the Conviction could be Illegal

Oftentimes in an effort to encourage a guilty plea, the prosecutor will reduce a criminal charge to a less serious offense. In the recent case of State of North Carolina v. Bryant COA 19-175 (Oct 2019), the court ruled that the District Court had no jurisdiction when the District Attorney amended a Larceny charge to the less serious offense of Shoplifting and the defendant entered a plea to the Shoplifting.

In Bryant, the District Attorney struck a line through the Larceny charge and wrote “Shoplifting,” initialed and dated this alteration. The court ruled that this amendment was improper because it changed the nature of the offense charged; Larceny and Shoplifting are separate statutory offenses requiring proof of different elements. Larceny, a Class 1 misdemeanor, requires the intent to steal at the time of the taking. Shoplifting, a Class 3 misdemeanor, has no intent requirement; it is the willful concealment without authority of the merchandise of the store.

The law states that the prosecutor may amend a citation, warrant or other charging document anytime unless the amendment changes the nature of the offense charged. If the charge is to be changed to a different offense, the prosecutor must file a Misdemeanor Statement of Charges.1 (NCGS 15A-922)

Here, since the Shoplifting amendment changed the nature of the offense, a Misdemeanor Statement of Charges was required and the lack of this charging document rendered the amendment improper and the court was without jurisdiction when it accepted the plea.

If you have a conviction for a charge which was the product of an amendment, ascertain if it was the same offense or a different one. Larceny reduced to Attempted Larceny is an example of the same offense but Larceny reduced to Shoplifting or Trespass would be a different offense. If the amendment was the product of an interlineation and no Misdemeanor Statement of Charges was filed, a Motion for Appropriate Relief based upon lack of jurisdiction is well-taken.

1. A Misdemeanor Statement of Charges is a criminal pleading charging a misdemeanor, signed by a prosecutor which supersedes all previous pleading. This form of amending the pleading permits the charging of offenses of the same or different class. G.S. 15A-922(d).

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)

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))