MikeNice
Member
I haven't had a chance to read this yet. I am copying and pasting first. This was sent out by the major at our department. This is regarding HB 650 that was signed in to law and becomes effective 12-1-11.
S.L. 2011-268 (H 650): Self-defense and guns. Effective for offenses committed on or after December 1, 2011, the act expands the circumstances in which a person may use defensive force and own, possess, and carry a firearm.
Self-defense and other uses of defensive force. North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language.
For example, the new defensive-force statutes recognize the right to use deadly force against a forcible, unlawful intrusion into a motor vehicle. The courts therefore will need to develop new jury instructions to reflect this right. If faced with such a threat, a person often would have the right to use deadly force under existing doctrines as well—namely, the right to defend oneself and any other vehicle occupants and also to prevent the commission of a dangerous felony. A person would have the right to raise these defenses and have the jury instructed on them, in addition to the new defense of motor vehicle right, in light of the general principle that a person may rely on multiple defenses that arise from the evidence and on the statement in new G.S. 14-51.2(g) that the statute “is not intended to repeal or limit any other defense that may exist under the common law.”
To take another example, the courts will have to incorporate into their procedures the new statutory presumption of lawfulness, applicable to the use of deadly force against a forcible intrusion into a home, motor vehicle, or workplace. The law has allowed a person to use deadly force against such intrusions, but the courts will have to consider the new presumption in evaluating whether the State has offered sufficient evidence to withstand a motion to dismiss by the defendant and, in cases that go to the jury, will have to give appropriate instructions explaining the presumption. The following summary highlights the key provisions of the new statutes; it does not attempt to address all of the issues the courts will need to consider, which will be covered in a later bulletin on the effect of the law.
New G.S. 14-51.2 modifies defense of habitation, called defense of home in the statute; explicitly recognizes a comparable defense for the workplace; and adopts a new defense involving motor vehicles. All involve defending against forcible intrusions into those areas under the circumstances described in the statute. Most important, the statute creates a presumption of lawfulness in the sense that if a lawful occupant of a home, motor vehicle, or workplace uses deadly force against an intruder and meets the other conditions in the statute, the occupant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself, herself, or another. The statute states that the new presumption is rebuttable and does not apply in five detailed instances, as when “the person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.” The act repeals G.S. 14-51.1, which modified the common law version of defense of home to allow deadly force to terminate as well as prevent entry by an intruder. Repealed G.S. 14-51.1 also stated that a person has no duty to retreat from an intruder into the home. New G.S. 14-51.2 restates these principles for defense of home, motor vehicle, and workplace cases.
New G.S. 14-51.3 addresses the right to use deadly and nondeadly force to defend oneself and others. The statute appears to track the courts’ approach to these rights in most respects, but it may introduce new principles or at least clarify existing ones. For example, the statute states that a person is justified in using deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, herself, or others. The statute does not limit this principle to cases involving a home, motor vehicle, or workplace. Under current law, a person has no duty to retreat in comparable circumstances (that is, when a person is faced with a felonious assault), but the statute’s express statement of the principle may require the court to instruct the jury about it in all cases.
New G.S. 14-51.4 describes the circumstances in which a person is not entitled to rely on the defenses in new G.S. 14-51.2 and G.S. 14-51.3—for example, when a person is the aggressor by initially provoking the use of force against himself or herself. Again, these circumstances are similar in many respects to those recognized under current law, but differences exist, requiring close comparison of the statute to existing doctrines.
Changes to gun statutes. In addition to the changes to the right to use defensive force, the act makes the following changes to gun rights:
· Amended G.S. 14-269(b) exempts additional personnel from the prohibition on carrying a concealed weapon. It adds exemptions for district attorneys, assistant district attorneys, and investigators with a district attorney’s office who have concealed carry permits (except for when they are in a courtroom or are drinking) and qualified retired law enforcement officers with concealed carry permits. It also allows detention and corrections officers to keep firearms locked in their vehicles at work. Amended G.S. 14-415.27 exempts district attorneys, assistant district attorneys, and investigators from the prohibitions on areas in which a person may not carry a concealed handgun.
· Amended G.S. 14-269.2(b) requires that a person “knowingly” possess or carry a firearm on school property to be charged with a Class I felony under that subsection.
· New G.S. 14-269.4(6) and G.S. 14-415.11(c)(2) allow a person with a concealed carry permit to have a firearm in a locked vehicle while on the state property specified in that statute, such as the grounds of the State Capitol Building.
· Amended G.S. 14-268.7(a) requires that a minor “willfully and intentionally” possess or carry a handgun to violate that subsection and increases the punishment from a Class 2 to Class 1 misdemeanor.
· Amended G.S. 14-269.8(a) and amended G.S. 50B-3.1(d) allow people who are subject to the firearms prohibition upon issuance of a domestic violence protective order to own a firearm. They still may not possess, purchase, or receive a firearm if subject to the firearms prohibition.
· Amended G.S. 14-288.8(b) and 14-409(b) exempt from the prohibition on weapons of mass destruction—for example, machine guns—people who lawfully may possess or own such weapons under federal law.
· New G.S. 14-408.1 makes it a Class F felony to solicit a licensed dealer or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances that the person knows would be illegal; or provide a licensed dealer or private seller with information the person knows to be materially false with the intent to deceive the dealer or seller about the legality of the transfer.
· Amended G.S. 14-415.1 provides that a person is not subject to the prohibition on possession of a firearm by a felon if, pursuant to the law of the jurisdiction in which the conviction occurred, the person has been pardoned or has had his or her firearms rights restored if the restoration could have been granted under North Carolina law.
· New G.S. 14-415.11(c1) allows a person with a concealed carry permit to carry a concealed handgun on the grounds or waters of a park within the State Parks System.
· Amended G.S. 14-415.15 reduces from 90 to 45 days the time for the sheriff to issue or deny an application for a concealed carry permit and likewise reduces from 90 to 45 days the maximum period for a temporary, emergency permit.
· Amended G.S. 14-415.23 allows local governments to adopt an ordinance prohibiting the carrying of concealed weapons in local government buildings, their appurtenant premises, and recreational facilities (was, local buildings, their appurtenant premises, and parks). The amended statute defines recreational facilities as including only playgrounds, athletic fields, swimming pools and athletic facilities. If a local government adopts an ordinance for recreational facilities, a permittee may secure the handgun in a locked vehicle in an enclosed area of the vehicle.
· Amended G.S. 14-415.24 provides that a valid concealed carry permit issued by another state is valid in North Carolina (was, if the other state grants the same right to North Carolina residents who have valid concealed carry permits).
· New G.S. 120-32.1(c1) prohibits the Legislative Services Commission from adopting rules prohibiting the transportation or storage of a firearm in a closed compartment or container within a locked vehicle on state legislative buildings or grounds. The new provision also allows a legislator or legislative employee to have a firearm in a locked vehicle in a state-owned parking space leased or assigned to that person.
S.L. 2011-268 (H 650): Self-defense and guns. Effective for offenses committed on or after December 1, 2011, the act expands the circumstances in which a person may use defensive force and own, possess, and carry a firearm.
Self-defense and other uses of defensive force. North Carolina law recognizes various circumstances in which a person may lawfully use force against the threat of harm. Through decades of decisions, the North Carolina appellate courts have recognized the right to defend oneself, other people, and one’s home and property, among other interests, and have developed rules on when those rights apply and amount to a defense to criminal charges. New G.S. 14-51.2, 14-51.3, and 14-51.4 address several of the circumstances in which a person may use defensive force. The statutes restate the law in some respects and broaden it in others. The courts will have to examine their procedures closely to give effect to the new statutory language.
For example, the new defensive-force statutes recognize the right to use deadly force against a forcible, unlawful intrusion into a motor vehicle. The courts therefore will need to develop new jury instructions to reflect this right. If faced with such a threat, a person often would have the right to use deadly force under existing doctrines as well—namely, the right to defend oneself and any other vehicle occupants and also to prevent the commission of a dangerous felony. A person would have the right to raise these defenses and have the jury instructed on them, in addition to the new defense of motor vehicle right, in light of the general principle that a person may rely on multiple defenses that arise from the evidence and on the statement in new G.S. 14-51.2(g) that the statute “is not intended to repeal or limit any other defense that may exist under the common law.”
To take another example, the courts will have to incorporate into their procedures the new statutory presumption of lawfulness, applicable to the use of deadly force against a forcible intrusion into a home, motor vehicle, or workplace. The law has allowed a person to use deadly force against such intrusions, but the courts will have to consider the new presumption in evaluating whether the State has offered sufficient evidence to withstand a motion to dismiss by the defendant and, in cases that go to the jury, will have to give appropriate instructions explaining the presumption. The following summary highlights the key provisions of the new statutes; it does not attempt to address all of the issues the courts will need to consider, which will be covered in a later bulletin on the effect of the law.
New G.S. 14-51.2 modifies defense of habitation, called defense of home in the statute; explicitly recognizes a comparable defense for the workplace; and adopts a new defense involving motor vehicles. All involve defending against forcible intrusions into those areas under the circumstances described in the statute. Most important, the statute creates a presumption of lawfulness in the sense that if a lawful occupant of a home, motor vehicle, or workplace uses deadly force against an intruder and meets the other conditions in the statute, the occupant is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself, herself, or another. The statute states that the new presumption is rebuttable and does not apply in five detailed instances, as when “the person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.” The act repeals G.S. 14-51.1, which modified the common law version of defense of home to allow deadly force to terminate as well as prevent entry by an intruder. Repealed G.S. 14-51.1 also stated that a person has no duty to retreat from an intruder into the home. New G.S. 14-51.2 restates these principles for defense of home, motor vehicle, and workplace cases.
New G.S. 14-51.3 addresses the right to use deadly and nondeadly force to defend oneself and others. The statute appears to track the courts’ approach to these rights in most respects, but it may introduce new principles or at least clarify existing ones. For example, the statute states that a person is justified in using deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, herself, or others. The statute does not limit this principle to cases involving a home, motor vehicle, or workplace. Under current law, a person has no duty to retreat in comparable circumstances (that is, when a person is faced with a felonious assault), but the statute’s express statement of the principle may require the court to instruct the jury about it in all cases.
New G.S. 14-51.4 describes the circumstances in which a person is not entitled to rely on the defenses in new G.S. 14-51.2 and G.S. 14-51.3—for example, when a person is the aggressor by initially provoking the use of force against himself or herself. Again, these circumstances are similar in many respects to those recognized under current law, but differences exist, requiring close comparison of the statute to existing doctrines.
Changes to gun statutes. In addition to the changes to the right to use defensive force, the act makes the following changes to gun rights:
· Amended G.S. 14-269(b) exempts additional personnel from the prohibition on carrying a concealed weapon. It adds exemptions for district attorneys, assistant district attorneys, and investigators with a district attorney’s office who have concealed carry permits (except for when they are in a courtroom or are drinking) and qualified retired law enforcement officers with concealed carry permits. It also allows detention and corrections officers to keep firearms locked in their vehicles at work. Amended G.S. 14-415.27 exempts district attorneys, assistant district attorneys, and investigators from the prohibitions on areas in which a person may not carry a concealed handgun.
· Amended G.S. 14-269.2(b) requires that a person “knowingly” possess or carry a firearm on school property to be charged with a Class I felony under that subsection.
· New G.S. 14-269.4(6) and G.S. 14-415.11(c)(2) allow a person with a concealed carry permit to have a firearm in a locked vehicle while on the state property specified in that statute, such as the grounds of the State Capitol Building.
· Amended G.S. 14-268.7(a) requires that a minor “willfully and intentionally” possess or carry a handgun to violate that subsection and increases the punishment from a Class 2 to Class 1 misdemeanor.
· Amended G.S. 14-269.8(a) and amended G.S. 50B-3.1(d) allow people who are subject to the firearms prohibition upon issuance of a domestic violence protective order to own a firearm. They still may not possess, purchase, or receive a firearm if subject to the firearms prohibition.
· Amended G.S. 14-288.8(b) and 14-409(b) exempt from the prohibition on weapons of mass destruction—for example, machine guns—people who lawfully may possess or own such weapons under federal law.
· New G.S. 14-408.1 makes it a Class F felony to solicit a licensed dealer or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances that the person knows would be illegal; or provide a licensed dealer or private seller with information the person knows to be materially false with the intent to deceive the dealer or seller about the legality of the transfer.
· Amended G.S. 14-415.1 provides that a person is not subject to the prohibition on possession of a firearm by a felon if, pursuant to the law of the jurisdiction in which the conviction occurred, the person has been pardoned or has had his or her firearms rights restored if the restoration could have been granted under North Carolina law.
· New G.S. 14-415.11(c1) allows a person with a concealed carry permit to carry a concealed handgun on the grounds or waters of a park within the State Parks System.
· Amended G.S. 14-415.15 reduces from 90 to 45 days the time for the sheriff to issue or deny an application for a concealed carry permit and likewise reduces from 90 to 45 days the maximum period for a temporary, emergency permit.
· Amended G.S. 14-415.23 allows local governments to adopt an ordinance prohibiting the carrying of concealed weapons in local government buildings, their appurtenant premises, and recreational facilities (was, local buildings, their appurtenant premises, and parks). The amended statute defines recreational facilities as including only playgrounds, athletic fields, swimming pools and athletic facilities. If a local government adopts an ordinance for recreational facilities, a permittee may secure the handgun in a locked vehicle in an enclosed area of the vehicle.
· Amended G.S. 14-415.24 provides that a valid concealed carry permit issued by another state is valid in North Carolina (was, if the other state grants the same right to North Carolina residents who have valid concealed carry permits).
· New G.S. 120-32.1(c1) prohibits the Legislative Services Commission from adopting rules prohibiting the transportation or storage of a firearm in a closed compartment or container within a locked vehicle on state legislative buildings or grounds. The new provision also allows a legislator or legislative employee to have a firearm in a locked vehicle in a state-owned parking space leased or assigned to that person.
