Local case pokes loophole in domestic violence gun prohibition
Posted December 17, 2017 6:00 a.m. EST
Updated December 18, 2017 5:12 p.m. EST
Raleigh, N.C. — North Carolina may be the only state in the nation where a misdemeanor domestic violence conviction doesn't trigger a lifetime federal ban on owning a gun.
The reason: A local case that went before the 4th U.S. Circuit Court of Appeals in 2015, brought by a man now sitting in prison for sex crimes. His attorneys convinced the court there was enough difference between North Carolina's definition of assault and the one in federal law to throw out a federal gun charge
It's unclear how many people have stepped through the loophole the ruling created, but spokespeople at a number of sheriff's offices said the loophole is a problem. So did Amber Lueken Barwick, who does domestic violence law training for state prosecutors through the North Carolina Conference of District Attorneys.
"I think fewer people are protected," Lueken Barwick said. "It's a big problem."
North Carolina Attorney General Josh Stein's office wouldn't say whether it considers the loophole a problem, only that it's aware of the issue and is "conducting a legal review." State legislators seem largely to be unaware, which quickly becomes complicated by a tapestry of state and federal gun laws.
"When I tell legislators," said Paul Gessner, a former Superior Court judge turned legal adviser for the Wake County Sheriff's Office, "they don't always understand or believe me."
The issue is obscure enough that at least one local sheriff's office said it was mistakenly denying permits until a training session this summer. At that session, a number of law enforcement officials showed surprise when the matter came up, Johnston County Sheriff's Office Capt. Jeff Caldwell said.
"It was like four times we asked him," said Caldwell, who heads the office's criminal investigations section.
Wendell case set precedent
In 2013, Wendell police went looking for Rodney M. Vinson, who had allegedly threatened to kill his wife and children.
A local elementary school was briefly put on lockdown, and when authorities searched the Vinson home, they found a gun.
Vinson had been convicted nine years earlier of assault on a female, a misdemeanor domestic violence offense for which he was sentenced to probation. Because of that, he was forbidden, for life, from possessing a gun under a federal law that targets people convicted of domestic violence misdemeanors. The logic behind the law is that they are likely to re-offend and to escalate attacks if armed.
Lueken Barwick said she rarely sees domestic violence offenders rehabilitated, and prosecutors sometimes refer these cases to the U.S. Attorney's Office if they feel they won't be able to get a long enough sentence charging state crimes alone.
Vinson was eventually convicted on felony charges of sexual assault against a minor, but the federal gun charged added to his case went, twice, to the 4th Circuit. A three-judge panel there decided that North Carolina's definition of assault was too broad to fit the federal definition on which the firearms ban is based.
North Carolina law says assault charges can be made even if there's no intent to cause harm beyond "culpable negligence," the court found.
"Accordingly, if North Carolina law permits an assault conviction based on negligent or reckless conduct, then none of the different assault formulations categorically qualify as (a federal misdemeanor crime of domestic violence)," the panel said in a unanimous decision.
Vinson's gun charge was dismissed, and new precedent was set. No longer could federal gun charges be brought in North Carolina solely on the basis of a previous misdemeanor domestic violence assault. A precedent was also set that year in state court when the North Carolina Court of Appeals examined similar circumstances in a case called Underwood v. Hudson.
Among other things, the precedent would affect federal background checks in North Carolina, as well as the way sheriffs handle pistol permit requests.
Just how much it affected things is unclear, partly because domestic cases are not always so simple as a single charge of assault of a female. This charge is the most common one filed in domestic violence cases, though, Lueken Barwick said.
Felons may not possess a firearm under state law. State law also bars people convicted of misdemeanor assault on a female from getting a concealed carry permit, a ban separate from the federal law and unchanged by the Vinson case.
State law allows sheriffs to deny pistol permits based on an applicant's moral character, according to John Aldridge, an attorney with the North Carolina Sheriffs’ Association. It was Alrdidge, considered a premier expert on gun laws in the state, who laid out the impact of U.S. v. Vinson for sheriff's departments during a training session earlier this year.
An assault on a female conviction can throw moral character into question, regardless of whether the federal courts consider it a domestic violence misdemeanor by letter of the law. But the moral character clause goes back only five years on pistol permits, Aldridge said, and it's not considered at all for rifle purchases.
People under a protection order, often issued in domestic violence cases, can also be denied firearms. But judges don't always make that a condition of a protection order, and women seeking restraining orders don't always know to ask for it, Lueken Barwick said. Protection orders are also temporary.
A half dozen sheriff's offices around the state were hard pressed to provide numbers on how many pistol permits they deny simply due to domestic assault on a female charges, or how many they haven't denied, but would have, but for the Vinson case. Guesses varied widely.
"I don't think it's a vast number, but there obviously are a few that come through," said Capt. Kelly Endo, of the Guilford County Sheriff's Office.
"There are a lot of people that fall into that category," said Caldwell, of the Johnston County Sheriff's Office
"We don't track it at all," said Lt. J.J. Brewer, of the New Hanover County Sheriff's Office.
"It's going to be a large number," said Jeff Welty, a law professor who's written about U.S. v. Vinson for the University of North Carolina's School of Government. "Those are very common convictions."
Lawmakers could close loophole
It's unclear whether North Carolina is the only state where this incongruity with federal law is an issue, but Everytown for Gun Safety, a national gun-control group, said it knows of no other state in a similar situation.
There's debate on the issue in a couple of other states, spokeswoman Phoebe Kilgour said, but no other clear precedents.
That's especially true after a case out of Maine, decided by the U.S. Supreme Court last year, determined "reckless" domestic assaults qualify under the federal definition. Some had hoped the high court would also deal with North Carolina's "culpable negligence" language as part of that case, but it did not.
Attorneys familiar with the issue said they believe there's an easy legislative fix, though they differed over just what that fix would look like. Simple fix or not, getting gun legislation through the General Assembly may prove difficult, according to Amily McCool, legal and policy director for the North Carolina Coalition Against Domestic Violence.
There are five standing General Assembly committees that focus on the judiciary, and between them, there are nine committee chairs or co-chairs. WRAL News reached out to all of their offices recently and heard back from only two. Neither had heard of U.S. v. Vinson until contacted, they said.
"If there's some kind of a loophole that exists, then we ought to take a look at it," said state Sen. Warren Daniel, R-Burke, co-chairman of the Senate Judiciary Committee.
McCool and Lueken Barwick both said they don't know of any group that has asked the General Assembly to address the issue. McCool said her organization has not yet pushed the issue because the fix would be broader than domestic violence, tweaking the state definition for all assaults. Because the General Assembly tends to focus in even years on budget changes and bills that are already well into the legislative process, the matter may not come before the legislature until the 2019 session.
The North Carolina Sheriff's Association supports a change, according to Eddie Caldwell, the group's executive vice president and general counsel. The association hasn't suggested actual language, though, and it's not a top priority.
"One wagon can't carry but so big a load," Caldwell said. "It's certainly important, but out of the 1,600 bills pending in this year's legislature, there's probably 300 or 400 of them that impact sheriffs."