Surrender, Return, and Disposal of Firearms in Civil Domestic Violence Cases – North Carolina Criminal Law

North Carolina Normal Statute 50B-3.1 gives that, beneath sure circumstances, an individual who’s topic to a DVPO should be ordered to give up to the sheriff “all firearms, machine weapons, ammunition, permits to buy firearms, and permits to hold hid firearms which can be within the care, custody, possession, possession, or management of the defendant.”

That statute additionally permits the particular person to hunt return of the surrendered objects following the expiration of the protecting order and remaining disposition of any associated legal prices. If the particular person is ineligible for the return of the objects or fails to request return, then a court docket could order disposal of the objects in one in every of a number of methods set out within the statute. This submit particulars the process for give up, return, and disposal of firearms and associated objects in DVPO instances.

Give up

My colleague Cheryl Howell has beforehand blogged about circumstances beneath which a court docket can order give up of firearms. When a DVPO is issued, the court docket should order defendant to give up all weapons, ammunition, and permits to the sheriff if the court docket finds one of many following:

The use or threatened use of a weapon by defendant or a sample of conduct involving the use or threatened use of violence with a firearm.
Threats to noticeably injure or kill the celebration or minor baby by defendant.
Threats to commit suicide by defendant.
Severe accidents inflicted upon the celebration or minor baby by defendant.

This requirement applies to each an ex parte DVPO and an order entered following the 10-day listening to. Stancill v. Stancill, 241 N.C. App. 529 (2015). If the court docket doesn’t make one in every of these findings, then the court docket could not order an individual to give up weapons. Id. Making the findings contains checking a field beside one of many findings of reality on the DVPO type AOC-CR-306. Id.

A defendant is required to right away give up to the sheriff all weapons, ammunition and permits which can be within the care, custody, possession, possession, or management of the defendant. If the objects can’t be surrendered when the order is served, the defendant should give up the firearms to the sheriff inside 24 hours of service at a time and place specified by the sheriff. G.S. 50B-3.1(d). Enforcement could also be a problem the place the defendant refuses to voluntarily give up firearms. In State v. Elder, 368 N.C. 70 (2015), the North Carolina Supreme Courtroom discovered a Fourth Modification violation the place officers serving a DVPO searched the defendant’s residence pursuant to a provision within the DVPO ordering regulation enforcement to go looking the defendant’s particular person, automobile, and residence and to grab all firearms so as to guarantee compliance with the DVPO. The supreme court docket held that the plain language of G.S. 50B-3 doesn’t authorize trial courts to order regulation enforcement to go looking a defendant’s particular person, automobile, or residence as a part of a DVPO. Thus, the place police have possible trigger to imagine an individual is violating a DVPO by refusing to give up objects in accordance with the DVPO, a search warrant to grab the weapons could also be each justified and mandatory.

It’s illegal for a defendant to fail to give up all objects as ordered by the court docket. GS 50B-3.1(i)(1). If the court docket orders give up, the DVPO additionally should prohibit the defendant “from possessing, buying, or receiving or making an attempt to own, buy, or obtain a firearm for as long as the protecting order or any successive protecting order is in impact.” G.S. 50B-3.1(d)(1). A violation of this provision is a Class H felony. G.S. 50B-3.1(j); G.S. 14-269.8.

Return

Disqualification

As soon as firearms are surrendered pursuant to a DVPO, the sheriff can’t return these weapons till a court docket orders return. G.S. 50B-3.1(e),(f). The court docket can’t order return if the defendant is precluded by state or federal regulation from possessing firearms. The commonest preclusions (additionally known as “disqualifiers”) come up from statutes prohibiting possession by an individual who:

My colleague Phil Dixon wrote extra extensively about disqualifiers right here. If the defendant falls into any of those classes, the court docket should deny the return of weapons. G.S. 50B-3.1(f). Moreover, a request for return should be denied if “the defendant has any pending legal prices, in both state or federal court docket, dedicated towards the individual that is the topic of the present protecting order till the ultimate disposition of these prices.” Id.

Request by defendant

A defendant who needs to have his weapons returned should file a movement no later than 90 days after the expiration of the DVPO or remaining disposition of the legal prices. G.S. 50B-3.1(f). Upon receipt of the movement, the court docket should schedule a listening to and supply discover to plaintiff and to the sheriff in possession of the weapons. On the listening to, the court docket should decide whether or not the defendant is topic to any disqualifiers; in that case, the court docket should deny the return of weapons. G.S. 50B-3.1(f).

There’s typically a query about what occurs if the defendant recordsdata a late request for return of the weapons. The statute signifies that the request should be “not later than 90 days” after the expiration of the present order or remaining disposition of any associated legal prices. This outer restrict is underscored by subsection (h) of the statute, which permits a sheriff to file a movement for disposal if the defendant doesn’t file a movement requesting the return “throughout the time interval prescribed.” A strict studying of the statute helps an argument that the defendant loses the power to request return of the objects after 90 days, even when the sheriff doesn’t instantly file a movement for disposal.

Even so, it isn’t clear whether or not the statute was meant to robotically terminate the defendant’s possessory curiosity within the firearms after 90 days. Fairly, it could be that the intent of the legislature was to offer a time at which the sheriff’s workplace may search disposal of the objects to hedge the accrual of storage charges, whereas additionally giving the defendant an affordable time to make the request. The 90-day time interval is probably going not a restriction on the trial court docket’s authority to listen to a defendant’s late request, since nothing within the statute prohibits return of the firearm after 90 days. As long as the sheriff has not but filed a movement for disposal and nobody objects to the defendant’s movement for return, it could be permissible for a choose to think about a defendant’s late request.

Request by third‑celebration proprietor

A 3rd‑celebration proprietor of any firearms surrendered on account of the entry of a DVPO could file a movement requesting the return of these firearms no later than 30 days after the seizure of the objects by the sheriff. Upon receipt of the third celebration’s movement, the court docket should schedule a listening to and supply written discover to all events and the sheriff. The court docket should order return of the objects to the third celebration until the court docket determines that the third celebration is topic to any disqualifiers. If the court docket denies the return of stated objects to the third celebration, the objects shall be disposed of by the sheriff in accordance with G.S. 50B-3.1(h).

Storage charges

Beneath G.S. 50B-3.1(d)(2), the sheriff could cost the defendant or third-party proprietor an affordable payment for the storage of any firearms and ammunition taken pursuant to a protecting order. The defendant or third-party proprietor should remit all charges owed previous to the approved return of any firearms, ammunition, or permits. If the defendant or third‑celebration proprietor fails to remit all storage charges owed inside 30 days of the entry of the order granting the return of the firearms, then the sheriff should apply to the court docket for an order to get rid of the surrendered objects. G.S. 50B-3.1(h).

Disposal

If the defendant or third-party proprietor doesn’t file a well timed movement for return of the firearms, or if the court docket determines that the defendant or third-party proprietor shouldn’t be entitled to have the firearms returned, then the sheriff should apply to the court docket for an order to get rid of the surrendered objects. G.S. 50B-3.1(h). The sheriff is required to offer discover to the defendant and any third-party proprietor.

The choose, after a listening to, could order the disposition of the firearms in a number of of the next methods:

Order the firearm(s) to be destroyed if the firearm doesn’t have a legible, distinctive identification quantity or is unsafe to be used due to put on, injury, age, or modification.
Order the firearm(s) turned over to a regulation enforcement company within the county for both (i) the official use of the company or (ii) sale, commerce, or alternate by the company to a federally licensed firearm supplier in accordance with all relevant State and federal firearm legal guidelines.

The court docket could order this disposition solely upon the written request of the pinnacle or chief of the regulation enforcement company and provided that the firearm has a legible, distinctive identification quantity.

Order the firearm(s) turned over to the North Carolina State Crime Laboratory’s weapons reference library for official use by that company.
Order the firearm(s) turned over to the North Carolina Justice Academy for official use by that company.

G.S. 50B-3.1(h); G.S. 14-269.1. Whatever the methodology of disposition ordered by the court docket, the entity concerned should keep a document of the destruction or a document and stock of all firearms acquired.

If the sheriff sells the weapon pursuant to G.S. 14-269.1(4b), any proceeds from the sale after deducting any prices related to the sale should be supplied to the defendant, however solely (i) if requested by the defendant by movement made earlier than the listening to or on the listening to and (ii) if ordered by the choose. G.S. 50B-3.1(h). There’s in any other case no obligation to find the defendant to have the funds distributed. When the funds aren’t being given to the defendant, the proceeds of the sale needs to be remitted to the suitable county finance officer as supplied by G.S. 115C-452 for use to keep up free public faculties.