BARNEY BRITT, PLAINTIFF V. STATE OF NORTH CAROLINA, DEFENDANT
No. COA06-714
IN THE COURT OF APPEALS
4 September 2007
[185 N.C. App. 610 (2007)]
1. Firearms and Other Weapons— felony firearm statute—right to bear arms—rational relation—ex post facto—bill of attainder—due process—equal protection
The trial court did not err by granting defendant State‘s motion for summary judgment and by denying plaintiff‘s motion for summary judgment thus declaring constitutional
2. Firearms and Other Weapons— felony firearm statute—motion for summary judgment
A de novo review revealed that the trial court did not err by granting defendant‘s motion for summary judgment and by failing to interpret
Judge ELMORE dissenting.
Appeal by plaintiff from order entered 31 March 2006 by Judge Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals 24 January 2007.
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 and Assistant Attorney General Ashby T. Ray, for defendant-appellee.
BRYANT, Judge.
Barney Britt (plaintiff) appeals from an order entered 31 March 2006 granting the State of North Carolina‘s (defendant‘s) motion for summary judgment and denying plaintiff‘s motion for summary judgment, declaring constitutional
Plaintiff is a resident of Wake County, North Carolina. In 1979, plaintiff was convicted of felony possession with intent to sell and deliver a controlled substance, completed his sentence in 1982 and in 1987 his civil rights, including his right to possess a firearm, were restored by operation of law under that current version of
The trial court, based on affidavits submitted by both parties, determined there was sufficient evidence that plaintiff was advised he would be subject to a charge under the 2004 revisions to
Plaintiff appeals three issues: whether the trial court erred by (I) concluding the 1 December 2004 version of
Felony Firearms Act
In State v. Johnson, this Court thoroughly reviewed the history of the N.C. Felony Firearms Act.
In 1971, the General Assembly enacted the Felony Firearms Act,
In 1975, the General Assembly repealed
Johnson, 169 N.C. App. at 303, 610 S.E.2d at 741 (emphasis in original). Effective 23 August 2006, the legislature modified
I
[1] Plaintiff argues the trial court erred by concluding the 1 December 2004 version of
RATIONAL RELATION
A convicted felon is prohibited from possessing a firearm if the State shows a rational relation to a legitimate state interest, such as the safety and protection and preservation of the health and welfare of the citizens of this state. United States v. Farrow, 364 F.3d 551, 555 (4th Cir. N.C. 2004) (holding N.C. Felony Firearms law intended to protect the public, not further punish felons); Black v. Snow, 272 F. Supp. 2d 21 (D.D.C. 2003) (rational relationship exists between the federal statute and maintaining community peace under equal protection analysis); United States v. O‘Neal, 180 F.3d 115, 123-24 (4th Cir.), cert. denied, 528 U.S. 980, 145 L. Ed. 2d 339 (1999) (N.C. Felony Firearms Act was rationally related to the non-punitive intent of the statute); United States v. McLean, 904 F.2d 216, 219 (4th Cir.), cert. denied, 498 U.S. 875, 112 L. Ed. 2d 164 (1990) (prohibition applies even if citizenship is restored); State v. Jackson, 353 N.C. 495, 502, 546 S.E.2d 570, 573-74 (2001) (holding felons may not possess inoperative firearms for the purpose of preventing felons from making a show of force); Johnson, 169 N.C. App. at 309, 610 S.E.2d at 746 (holding
In this case, plaintiff argues that a more appropriate legislation would allow convicted felons the ability to apply for restoration of the right to possess firearms. Plaintiff also argues that long guns, such as rifles and shotguns should be lawful for certain types of convicted felons to possess. We disagree. The General Assembly has made a determination that individuals who have been convicted of a felony offense shall not be able to possess a firearm. This statutory scheme which treats all felons the same, serves to protect and preserve the health, safety and welfare of the citizens of this State. Here, the legislature intended to prevent convicted felons from possessing firearms in its 2004 amendments. The 2004 amendment to
EX POST FACTO
Plaintiff contends application of the challenged provision of the Felony Firearms Act would violate the ex post facto clauses of the U.S. and N.C. Constitutions arguing the 2004 amendment changed the law to retroactively deprive him of his formerly restored right and punish him for conduct that was previously not criminal. We disagree.
This Court previously addressed the ex post facto question and found it without merit with respect to the 1995 amendment to
We find Melvin v. United States, 78 F.3d 327 (7th Cir. Ill. 1996), cert. denied, 519 U.S. 963, 136 L. Ed. 2d 301 (1996) to be an instructive analysis of felony firearm statutes. In Melvin, the defendant was convicted of felony offenses in 1974 and 1975. He was released from prison on 27 May 1977 and his firearm rights were restored as of 27 May 1982, under Illinois law. In 1984, Illinois enacted a firearms statute making it illegal for felons to possess weapons regardless of their date of conviction. In other words, “[t]he Illinois felon in possession law clearly forbids all convicted felons from possessing guns, regardless of whether they were convicted before or after 1984.” Melvin, 78 F.3d at 330. The Seventh Circuit U.S. Court of Appeals held the defendant‘s prior convictions were predicate offenses under Illinois’ “felon in possession” law. The court reasoned that even though the defendant could have legally possessed firearms between 27 May 1982 (five years from prison release) and 1 July 1984 (the date of the enactment of the current Illinois statute), the Illinois law as modified did not permanently exclude his three Illinois convictions as predicate offenses. Id.
In the instant case, the General Assembly did not intend to punish plaintiff for actions that occurred prior to the 2004 amendment to
BILL OF ATTAINDER
Plaintiff also argues the 2004 amendment to
Article I, Section 10 of the United States Constitution prohibits states from enacting bills of attainder defined as bills of pains and penalties which are legislative acts inflicting punishment on a person
In deciding whether a statute inflicts forbidden punishment, we have recognized three necessary inquiries: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish.
Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 852, 82 L. Ed. 2d 632, 643 (1984) (quotation marks and citations omitted).
There is nothing in
DUE PROCESS & EQUAL PROTECTION
Plaintiff argues that application of the 2004 version of
A statute cannot be applied retrospectively if it “will interfere with rights that have ‘vested.‘” Gardner v. Gardner, 300 N.C. 715, 718-19, 268 S.E.2d 468, 471 (1980). “A vested right is a right ‘which is otherwise secured, established, and immune from further legal metamorphosis.’ ” Bowen v. Mabry, 154 N.C. App. 734, 736, 572 S.E.2d 809, 811 (2002) (quoting Gardner, 300 N.C. at 718-19, 268 S.E.2d at 471), disc. rev. improvidently allowed, 357 N.C. 574 (2003). Plaintiff‘s right to possess firearms was not a vested right. Our case law has “consistently pointed out 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, 9 (1968) (the basic requirement of the Felony Firearms Act was that the regulation must be reasonable and related to the achievement of public peace and safety); see State v. Fennell, 95 N.C. App. 140, 143, 382 S.E.2d 231, 232-33 (1989).
The General Assembly made a determination that individuals who have been convicted of a felony offense shall not be able to possess most firearms. This statutory scheme, which treats all felons the same, serves to protect and preserve the health, safety and welfare of the citizens of this State. See Johnson 169 N.C. App. at 311, 610 S.E.2d at 746; Farrow, 364 F.3d at 555. This assignment of error is overruled.
II & III
[2] Plaintiff argues the trial court erred by granting defendant‘s motion for summary judgment and by failing to interpret the statute to allow plaintiff the right to possess firearms. This Court reviews de novo a trial court‘s grant of summary judgment. Virginia Electric & Power Co. v. Tillett, 80 N.C. App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986) (“Under a de novo review, the court considers the matter anew and freely substitute[s] its own judgment for [that of] the trial court.“).
Summary judgment is proper “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 a judgment as a matter of law.”
Plaintiff asserts that in an October 2004 meeting with Wake County Sheriff, Donnie Harrison, Sheriff Harrison told plaintiff that if he saw plaintiff with a firearm on his own property, plaintiff would be charged under
Taking the evidence in the light most favorable to plaintiff, the trial court did not err in granting defendant‘s motion for summary judgment. There is no dispute between the parties as to the fact that plaintiff is a convicted felon. Moreover, pursuant to
Affirmed.
Judge MCGEE concurs.
Judge ELMORE dissents in a separate opinion.
ELMORE, Judge, dissenting.
Because I would hold that the 2004 amendment to
First, the court must determine whether it was the legislature‘s intent to impose a punishment or merely enact a civil or regulatory law. In reaching this determination, the court may consider the structure and design of the statute along with any declared legislative intent. Second, where it appears the legislature did not intend to impose a punishment, we must then consider whether the effect of the law is so punitive as to negate any intent to deem the scheme civil. Stated another way, the second prong of the test focuses upon whether the sanction or disability that the law imposes may rationally be connected to the legislature‘s non-punitive intent, or rather appears excessive in light of that intent.
Johnson, 169 N.C. App. at 307, 610 S.E.2d at 743-44 (quotations and citations omitted).
In Johnson, on which the majority bases much of its opinion, we held that the 1995 statute was constitutional. At that time, it was clear to this Court that the intent of legislature was to regulate the possession of dangerous weapons. Likewise, we held “that the law [was] not so punitive in effect that it should be considered punitive rather than regulatory.” Id. at 308, 610 S.E.2d at 744. In so holding, this Court relied on the following facts: “[The law] continue[d] to exempt the possession of firearms within one‘s home or lawful place of business. The prohibition remain[ed] limited to weapons that, because of their concealability, pose a unique risk to public safety.” Id. (quoting Farrow, 364 F.3d at 555) (citations, quotations, and alterations omitted).
Applying the same analysis to the statute as amended, I would reach a different result. The amended statute does not exempt the possession of firearms within one‘s home or business. Furthermore, rather than limiting the proscription “to weapons that, because of their concealability, pose a unique risk to public safety,” the legislature broadened the ban to essentially all weapons.2 Id. (citations and
I would also hold that the application of the statute to plaintiff violated plaintiff‘s due process rights. I recognize that “the right of individuals to bear arms is not absolute, but is subject to regulation.” Johnson, 169 N.C. App. at 311, 610 S.E.2d at 746 (quoting State v. Dawson, 272 N.C. 535, 546, 159 S.E.2d 1, 9 (1968)). Despite the majority‘s attempted reliance on Johnson for support of a rational relationship test, however, I believe that the proper standard, as articulated in Johnson, requires “that the regulation must be reasonable and be related to the achievement of preserving public peace and safety.” Id. (citing Dawson, 272 N.C. at 547, 159 S.E.2d at 10). Rather than simply requiring that the statute be rationally related to a legitimate government purpose, I therefore would require that the regulation also be reasonable.
The major differences between the 1995 and current versions of the statute lead me to conclude that the statute in its current form is no longer a reasonable regulation. Instead, I would hold that the current statute operates as an outright ban, completely divesting plaintiff of his right to bear arms without due process of law. Cf. id. (holding that the Johnson defendant was not “completely divested of his right to bear arms as [the then current]
In enacting the 2004 amendment, the legislature simply overreached. Thereafter, the statute operated as a punishment, rather than a regulation. Moreover, the statute as amended stripped plaintiff of his constitutional right to bear arms without the benefit of due process. I would therefore reverse the trial court‘s grant of summary judgment.