WALTER SUTTON BAYSDEN v. THE STATE OF NORTH CAROLINA
No. COA11-395
IN THE COURT OF APPEALS
Filed 15 November 2011
[217 N.C. App. 20 (2011)]
Constitutional Law—Second Amendment—Felony Firearms Act—unconstitutional as applied
The trial court erred by granting summary judgment for the State and denying plaintiff‘s “as applied” constitutional challenge to
Judge BEASLEY dissenting.
Appeal by plaintiff from order entered 11 February 2011 by Judge Lucy N. Inman in Wake County Superior Court. Heard in the Court of Appeals 28 September 2011.
Dan L. Hardway Law Office, by Dan L. Hardway, for Plaintiff-Appellant.
Attorney General Roy Cooper, by Special Deputy Attorney General John J. Aldridge, III, for the State.
ERVIN, Judge.
Plaintiff Walter Sutton Baysden appeals from an order rejecting his challenge to the constitutionality of the Felony Firearms Act,
A. Substantive Facts
On 8 November 1972, Plaintiff was convicted in Virginia Beach, Virginia, for the felonious possession of an unlawful weapon (a sawed-off shotgun). At that time, Plaintiff was 22 years old. Plaintiff had discovered the shotgun, which was “rusted up and inoperable,” under a house on the beach. Plaintiff never engaged in any violent conduct while in possession of the sawed-off shotgun.
On 26 April 1977, Plaintiff was convicted for the felonious sale of marijuana in Norfolk, Virginia. Although Plaintiff admitted having experimented with marijuana when he was young, he denied having ever sold marijuana or having used or possessed illegal drugs since 1977.
In 1982, the Governor of Virginia restored the firearms-related rights that Plaintiff had forfeited as a result of these two convictions. A year later, the Bureau of Alcohol, Tobacco, and Firearms of the United States Department of the Treasury granted Plaintiff‘s application for relief from federal firearms disabilities pursuant to
Plaintiff has resided in a house that he owns with his wife of 32 years in Onslow County since 1995. Since his conviction for selling marijuana in 1977, Plaintiff has not been charged with or convicted of any criminal offense other than minor traffic violations. In addition, Plaintiff has never been accused of engaging in acts of domestic violence or been the subject of either a protective order issued pursuant to Chapter 50B of the General Statutes or a no-contact order issued pursuant to Chapter 50C of the General Statutes.
Plaintiff was employed by the United States Department of Defense from 1981 until his retirement in 2007. During the course of his employment by the Department of Defense, Plaintiff maintained aircraft for the United States Navy. While employed by the Department of Defense, Plaintiff passed the background checks required for him to obtain necessary government security clearances and was decorated for exemplary service during a tour of duty in Iraq.
After the restoration of his right to use and possess firearms, Plaintiff owned firearms, which he used for self-defense purposes. In addition, Plaintiff collected guns and frequently participated in shooting matches. Plaintiff‘s possession and use of firearms after the restoration of his gun-related rights in 1983 never resulted in a complaint of any nature.
B. Procedural History
On 6 May 2010, Plaintiff filed a complaint seeking a declaration that the Felony Firearms Act is unconstitutional, both facially and as applied to him. On 1 June 2010, the State filed an answer denying the material allegations of Plaintiff‘s complaint. On 23 August 2010, after obtaining leave of court to do so, Plaintiff filed an amended complaint which reflected the 2010 amendments to the Felony Firearms Act enacted by the General Assembly and reiterated his request for a declaration that the Felony Firearms Act, as amended, violated his federal and state constitutional rights, both facially and as applied. On 13 September 2010, the State filed an amended answer denying the material allegations of Plaintiff‘s amended complaint.
On the same date, the State filed a motion seeking, alternatively, the dismissal of Plaintiff‘s complaint pursuant to
II. Legal Analysis
A. Standard of Review
A motion for summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.”
B. Substantive Legal Analysis
According to
A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power. Nothing herein shall justify the practice of carrying con-
cealed weapons or prevent the General Assembly from enacting penal statutes against that practice.
As a result of the fact that “North Carolina decisions have interpreted our Constitution as guaranteeing the right to bear arms to the people in [both] a collective sense . . . and also to individuals” and that “the right of individuals to bear arms is not absolute, but is subject to regulation,” State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 10 (1968) (citing Nunn v. State, 1 Ga. 243 (1846)), we are required to “determine whether, as applied to [P]laintiff, N.C. [Gen. Stat.] § 14-415.1 is a reasonable regulation.” Britt v. State, 363 N.C. 546, 549, 681 S.E.2d 320, 322 (2009).
The legal principles governing “as-applied” constitutional challenges to the Felony Firearms Act have been enunciated in recent decisions of the Supreme Court and this Court. “Based on the facts of plaintiff‘s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute‘s operation, as applied to plaintiff, the 2004 version of N.C. [Gen. Stat.] § 14-[415].1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety.” Britt, 363 N.C. at 550, 681 S.E.2d at 323. Put another way, “it is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety.” Id. In considering an “as-applied” challenge to the application of the Felony Firearms Act to a specific individual, our analysis must “focus[] on five factors . . . : (1) the type of felony convictions, particularly whether they ‘involved violence or the threat of violence,’ (2) the remoteness in time of the felony convictions[,] (3) the felon‘s history of ‘law-abiding conduct since [the] crime,’ (4) the felon‘s history of ‘responsible, lawful firearm possession’ during a time period when possession of firearms was not prohibited, and (5) the felon‘s ‘assiduous and proactive compliance with the 2004 amendment.’ ” State v. Whitaker, 201 N.C. App. 190, 205, 689 S.E.2d 395, 404 (2009) (quoting Britt, 363 N.C. at 550, 681 S.E.2d at 323), aff‘d on other grounds, 364 N.C. 404, 700 S.E.2d 215 (2010). As a result of the fact that the trial court entered a detailed order spelling out the information disclosed by the undisputed record evidence, we clearly have a sufficient evidentiary record upon which to evaluate the validity of Plaintiff‘s claim, State v. Buddington, N.C. App. ___, ___, 707 S.E.2d 655, 657 (2011) (stating that, “[i]n order for [a party] to prevail [based upon]
The analysis outlined in Britt and Whitaker is relatively straightforward. Nothing in either Britt or Whitaker indicates that any one of the five factors listed above is determinative. Instead, each of the five factors is a consideration that must be taken into account in making the required constitutional determination. As a result, the “five factor” analysis set out in Britt and Whitaker is not a hard and fast set of rules; instead, the five factors constitute a set of criteria that must be considered in determining the validity of a litigant‘s “as-applied” challenge to the constitutionality of the Felony Firearms Act.
After carefully examining the undisputed evidentiary materials in the record, we believe that Plaintiff is in essentially the same position as Mr. Britt. As the record clearly reflects, Plaintiff was convicted of two felony offenses, neither of which involved any sort of violent conduct, between three and four decades ago. Since that time, Plaintiff has been a law-abiding citizen. After having had his firearms-related rights restored, Plaintiff used such weapons in a safe and lawful manner from the date of restoration until he became subject to the prohibition worked by the 2004 amendment to the Felony Firearms Act on 1 December 2004. At that point, Plaintiff took action to ensure that he did not unlawfully possess any firearms and has “assiduously and proactively” complied with
The State, the trial court, and our dissenting colleague appear to conclude that Plaintiff‘s “as-applied” challenge should fail because (1) the 2010 amendments to the Felony Firearms Act expressly exclude Plaintiff from the class of individuals eligible to seek the restoration of their right to possess a firearm, (2) Plaintiff committed a “violent crime,” and (3) Plaintiff has two, rather than one, prior felony convictions. We do not find this logic persuasive.
Thus, for the reasons set forth above, we conclude that Plaintiff‘s “as-applied” challenge to
REVERSED AND REMANDED.
Judges STEPHENS concurs.
Judge BEASLEY dissents by separate opinion.
BEASLEY, Judge, dissenting.
After review of the record and the applicable law, I believe that the North Carolina Felony Firearms Act,
I.
I first address Plaintiff‘s contention that the North Carolina Felony Firearms Act (the Act) is unconstitutional as applied to him, as that is the sole issue decided by the majority.
Our Supreme Court has recognized that
[t]he right to bear arms, which is protected and safeguarded by the Federal and State constitutions, is subject to the authority of the General Assembly, in the exercise of the police power, to regulate, but the regulation must be reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety.
State v. Dawson, 272 N.C. 535, 547, 159 S.E.2d 1, 10 (1968)(citation omitted).
Because Plaintiff brings an as applied challenge to the Act, the question before this Court is whether the Act is a reasonable regulation when applied to him. In support of his argument that the Act is
[b]ased on the facts of plaintiff‘s crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute‘s operation, as applied to plaintiff, the 2004 version of
N.C.G.S. § 14-415.1 is an unreasonable regulation . . . .
Britt II, 363 N.C. at 550, 681 S.E.2d at 323.
Since Britt II was decided, the Act has been amended to allow for the restoration of firearms rights to felons who meet certain requirements. The General Assembly has ensured that the Act will no longer operate as a regulation towards those situated similarly to the plaintiff in Britt II. Plaintiff is expressly excluded from the class of felons who can apply to have their rights restored because one of his crimes was a Class F felony that includes possession of a firearm as an essential element of the offense, and because he has more than one conviction. See
It is well settled that “a statute enacted by the General Assembly is presumed to be constitutional.” Wayne County Citizens Assn. for Better Tax Control v. Wayne County Bd. of Commrs., 328 N.C. 24, 29, 399 S.E.2d 311, 314-15 (1991). “A statute will not be declared unconstitutional unless this conclusion is so clear that no reasonable doubt can arise, or the statute cannot be upheld on any reasonable ground.” Id. (citing Poor Richard‘s, Inc. v. Stone, 322 N.C. 61, 63, 366 S.E.2d 697, 698 (1988)).
Aside from the 2010 amendments to the Act, the fact that Plaintiff committed a violent crime makes this case distinguishable from Britt II. See
In concluding that Plaintiff has not committed any violent crimes, the majority focuses on Plaintiff‘s assertion that the sawed off shotgun in his possession was inoperable, and comments that the State failed to produce evidence that disputed this assertion. This argument is unavailing. It is not the State‘s duty to re-try the cases against Plaintiff. In the analogous context of sentencing an offender with convictions from other jurisdictions pursuant to the Structured Sentencing Act, if the State shows by a preponderance of the evidence that an offense classified as a felony in another jurisdiction is classified as a Class I felony or higher in North Carolina, the conviction from the other jurisdiction is treated as that class of felony for assigning prior record points.
II.
Plaintiff also argues that the Act is unconstitutional on its face, as it violates
At the outset, I note that although Plaintiff argues for a stronger standard of review for his constitutional challenges, “[t]he rational basis standard for review of regulations upon the right to keep and bear arms has been articulated by North Carolina courts since at least 1921.” State v. Whitaker (Whitaker I), 201 N.C. App. 190, 198, 689 S.E.2d 395, 399 (2009) (citations omitted). Further, this Court has already considered, and rejected, facial challenges to the Act prior to the 2010 amendments. See Britt v. State (Britt I), 185 N.C. App. 610, 649 S.E.2d 402 (2007), rev‘d on other grounds, 363 N.C. 546, 681 S.E.2d 320 (2009); Whitaker I, 201 N.C. App at 202-03, 689 S.E.2d at 403. The Act was amended subsequent to those decisions, but the 2010 amendments do not impose any additional restriction of felons’ rights to possess firearms. In fact, those amendments provide a process of restoration of rights for certain classes of felons. I decline to hold that this amendment makes an otherwise rational statute irrational, in the same way that our Supreme Court declined to find that the exception in the Act for antique firearms made the otherwise rational statute irrational. See State v. Whitaker (Whitaker II), 364 N.C. 404, 410, 700 S.E.2d 215, 219 (2010). Plaintiff does not meet his heavy burden of showing that the Act is facially unconstitutional.
III.
Plaintiff next asserts that the Act is an ex post facto law, a bill of attainder, or both. As a basis for this argument, Plaintiff contends that when the General Assembly amended the Act in 2004 and 2010, it effectively increased the punishment for his past crimes without the benefit of a judicial hearing, because he was stripped of the right to bear arms.
Ex post facto laws are expressly prohibited by the United States Constitution and the North Carolina State Constitution. See
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law
that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
State v. Wiley, 355 N.C. 592, 625, 565 S.E.2d 22, 45 (2002) (quoting Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39 (1990)) (citations omitted)). Article I, Section 10 of the U.S. Constitution also prohibits the passing of a bill of attainder, which “is a legislative act which inflicts punishment without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315, 90 L. Ed. 1252, 1259 (1946) (citation omitted).
The question of whether the Act is an impermissible ex post facto law or bill of attainder has already been considered by, and rejected by, our Supreme Court in Whitaker II. However, Plaintiff argues that his case is distinguishable from the plaintiff in Whitaker II because the plaintiff in Whitaker II had violated the Act whereas here, Plaintiff has complied with the Act at all times, and therefore should not be subjected to what he considers additional punishment. Plaintiff overlooks that this Court has already rejected the argument that the Act is an ex post facto law or a bill of attainder when applied to a plaintiff who had not violated the Act. In Britt I, we held:
[b]ecause the intent of the legislature was to create a non-punitive, regulatory scheme by amending
N.C.G.S. § 14-415.1 , and because the result of the amended statute is not so punitive in nature and effect as to override the legislative intent,N.C.G.S. § 14-415.1 is a non-punitive, regulatory scheme that does not violate the ex post facto clause under either the North Carolina Constitution or the United States Constitution.
185 N.C. App. at 616, 649 S.E.2d at 407. Because we found that the Act was not a form of punishment, we also found that it could not be an impermissible bill of attainder that imposes “punishment” without a judicial trial. See id. at 617, 649 S.E.2d at 407. Our decision in Britt I was overruled only in regard to our analysis of the as applied challenge. See Britt II, 363 N.C. at 550, 681 S.E.2d at 323 (“[W]e reverse the decision of the Court of Appeals to the extent that court determined
IV.
Plaintiff‘s final argument is that the Act violates the Equal Protection Clause of both the U.S. and North Carolina Constitutions, which guarantee equal protection of the law for all citizens. See Kresge Co. v. Davis, 277 N.C. 654, 660, 178 S.E.2d 382, 385 (1971) (stating that the Equal Protection Clause of the XIV amendment has been expressly incorporated into
Plaintiff insists that this issue should be reviewed under the standard of strict scrutiny, as he repeatedly refers to “a compelling state interest.” If this Court were to assume, arguendo, that Plaintiff is correct, his argument would be without merit. Although Plaintiff bases his argument on the 2004 amendments to the Act, his argument cannot be decided without considering the Act with the 2010 amendments included. The Act no longer prohibits all felons from owning firearms interminably; nonviolent felons can apply to have their rights to possess firearms restored. Thus, the distinction the General Assembly made was not only between felons and nonfelons, as Plaintiff asserts, but between felons with convictions of violent crimes and nonviolent felons. The trial court properly asserted that the distinction between felons whose crimes involved firearms and those whose crimes did not involve firearms is necessary to serve the compelling state interest in public safety.
Plaintiff also attempts to assert an Equal Protection claim on behalf of the family members of those felons who have lost their right to possess firearms. I would decline to address this issue, because Plaintiff does not have standing to assert this claim. These families, including Plaintiff‘s wife, are not parties to this proceeding, and there is no basis on which we find that Plaintiff has standing to assert a claim on behalf of these families’ right to bear arms when they do not assert that claim on their own behalf. See Tileston v. Ullman, State‘s Attorney, et al., 318 U.S. 44, 46, 87 L. Ed. 603, 604 (1943).