The Newsletter of North Carolina Prisoner Legal Services, Inc.

NCPLS

Volume VIII, Issue 3, October 2008

ACCESS

The Facts Regarding a Convicted Felon’s Voting Rights
in North Carolina
By NCPLS Staff Attorney Michael G. Avery
There are many myths and mis- eral Statute §163-59 specifically Although a convicted felon does
understandings
surrounding
a provides that “any person adjudged lose his or her right to vote in North
convicted felon’s right to vote. guilty of a felony against this State Carolina, the loss is only temporary
Unfortunately, many believe that or the United States, or adjudged and is automatically restored upon
having a felony record
the completion of incarceration,
absolutely prohibits one
probation or parole.
Other
from participation in the
than registering to vote, a
electoral process. Considresponsibility which all citizens
ering the historic presidenmust do in order to vote, there is
tial race currently taking
no specific process to endure or
place, it is of the utmost
paperwork to complete to have
importance that those with
one’s voting rights restored.
a felony record understand
the differences between
fact and fiction.
guilty of a felony in another state In this Issue:
that also would be a felony if it had
The U.S. Constitution is silent with
been committed in this State, [shall The Facts Regarding a Convicted
Felon’s Voting Rights in North
regard to whether a person connot be allowed to vote] unless that
Carolina
1
victed of a felony loses the right
person shall be first restored to the
to vote. As a result, the decision is
rights of citizenship in the manner NCPLS Welcomes New Board of
left up to the individual States as to
Directors
2
prescribed by law.
whether and to what extent a felon’s
Safe and Humane Jails Project
right to vote is restricted. The dif- In order to have one’s citizenship The
Receives Grant and Completes
ferences can range from a lifetime rights restored, North Carolina
Mental Health Information Manual
3
prohibition to no restrictions what- General Statute §13-1 provides that
soever, including granting felons any person convicted of a crime, What North Carolina Bar v. Nifong Was
Not
4
the right to vote while incarcerated, whereby the rights of citizenship
all depending upon which State are forfeited, shall have such rights State Habeas Petition Challenging
Nonexistent Charge Wins Client’s
one resides. Source: Legal Action automatically restored upon the
Release
5
Center. “After Prison: Roadblocks . . . unconditional discharge of an
to Re-Entry—A Report on State inmate by the State Department of Proof of Citizenship Gains Release
for NCPLS Clients & Cancellation of
Legal Barriers Facing People with Correction or the North Carolina
Detainer
5
Criminal Records.” New York, Department of Correction, of a
NY: Legal Action Center, 2004 probationer by the State Department NCPLS Secures Compensation for
Injured Inmates
6
North Carolina is one of eighteen of Correction, or of a parolee by
states which prohibits people from the Department of Correction; or
Criminal Conviction and Gun Ownership 7
voting while they are incarcerated, of a defendant under a suspended
on parole, or serving probationary sentence by the court.
NCPLS Client Receives Major Sentence
Reduction
10
sentences. North Carolina Gen-

NCPLS ACCESS

Page 2
ACCESS is a publication of North
Carolina Prisoner Legal Services,
Inc. Established in 1978, NCPLS is a
non-profit, public service organization.
The program is governed by a Board
of Directors who are designated by
various organizations and institutions,
including the North Carolina Bar
Association, the Academy of Trial
Lawyers, the ACLU of North Carolina,
and the Office of Indigent Defense
Services.
NCPLS serves a population of more
than 38,600 prisoners and 14,000 pretrial
detainees (with about 250,000 annual
admissions), providing information,
advice, and representation in all State
and federal courts to ensure humane
conditions of confinement and to
challenge illegal convictions and
sentences.

Executive Director
J. Phillip Griffin
Editor
Ken Butler
Publisher
Mike Pearson

Please Note: ACCESS is published
four (4) times a year.

Articles, ideas
and suggestions are welcome.
Contact: ncpls@ncpls.org

Volume VIII, Issue 3, October 2008

NCPLS Welcomes New Board of
Directors
The Board of Directors for NCPLS
has recently been reconstituted,
following discussions between the
Office of Indigent Defense Services (IDS) and the managing staff
of NCPLS. NCPLS is pleased to
recognize the following individuals who have offered to give their
time and service to our program by
acting as Directors:
Ronald Steven Douglas, Assistant
Dean NCCU School of Law. Dean
Douglas is the current Chairman of
the Board of Directors.

Defender for Wake County. He is
a 1995 graduate of the University of
Miami School of Law. Mr. Klinkosum is an active participant in the
N.C. Advocates for Justice and is
the author of the North Carolina
Criminal Defense Motions Manual.
Carlos Mahoney – Mr. Mahoney
is an attorney in Durham with the
firm of Glenn, Mills, Fisher and
Mahoney. He is a 1999 graduate
of the UNC School of Law. He
most recently served as counsel for
Erick Daniels who was wrongfully
convicted in Durham for armed robbery. On September 20, 2008, after
hearing evidence presented by Mr.
Mahoney, Judge Orlando Hudson
threw out Mr. Daniels’ conviction and ordered his release from
prison.

Keith Faulkner - Mr. Faulker is
the
Executive Associate Dean
for Administrative and Academic
Affairs Norman Adrian Wiggins
School of Law at Campbell University. He was appointed by the
North Carolina Bar Association as
its representative to the Board.
Elaine M. Gordon – Ms. Gordon is
a staff attorney for the N.C. Center
Katherine Parker – Ms. Parker is the for Death Penalty Litigation. The
Executive Director of the ACLU of CDPL is a non-profit law firm
North Carolina. She is also the located in Durham, N.C., which
Chair of the Civil Rights Section provides both direct representaof the N.C. Advocates for Justice tion to inmates on North Carolina’s
(formerly the North Carolina Acad- death row, and consultation to attoremy of Trial Lawyers). She serves neys working in the field of capital
as the ACLU’s representative on the punishment litigation.
Board.
Darryl Hunt – Mr. Hunt was conBrad Bannon – Mr. Bannon is an victed for a 1984 rape/murder in
attorney in Raleigh with the firm of Winston-Salem, N.C. He spent
Cheshire, Parker, Schneider, Bryan nearly 20 years in prison before
& Vitale and a 1997 graduate of the finally being exonerated and freed.
Campbell Law School. He is per- Following his release, he founded
haps best known for his recent suc- the Darryl Hunt Project for Freecess as one of the defense attorneys dom and Justice. He speaks around
in the Duke Lacrosse case.
the country on issues related to
wrongful convictions and offender
Maitri “Mike” Klinkosum – Mr. (Continued on Page 6)
Klinkosum is an Assistant Public

Volume VIII, Issue 3, October 2008

NCPLS ACCESS

Page 3

The Safe and Humane Jails Project Receives Grant and
Completes Mental Health Information Manual
By NCPLS Staff Attorney Michele Luecking-Sunman
The Safe and Humane Jails Project is community services, and while what we hope will be a continucontinually searching for new ways states cut their budgets for mental ing conversation in identifying and
to ensure that North Carolina’s jails hospitals, they did not make com- treating those with mental illness in
are safer and more humane. In 2007 mensurate increases in their bud- jails. In October we will attend the
the Project applied for and received gets for community-based mental North Carolina Jail Administrator’s
a grant from the North Carolina Bar health services. The share of state Conference to discuss the manual
Foundation to write a manual to spending devoted to mental health with the attendees and continue the
instruct Jail Administrators and their actually dropped by 15 percent from dialogue. We hope the manual will
staff on the law and best practices in 1990 to 1997.2
assist officials in carrying out their
dealing with men and women who
duties and ultimately benefit men
have mental illnesses in jails. The Because of the problems plaguing and women housed in county jails
manual, Identifying and Treating community mental health systems who need access to mental health
People with Mental Illness in and the limitations on public fund- services.
North Carolina’s Jails: A Practi- ing for mental health services,3
cal Approach, was completed this many people who need publicly (Footnotes)
1
summer and was mailed to every financed mental health services Richard Lamb and Linda Weinberger,
“Persons With Severe Mental Illness
Jail Administrator in the state.
cannot obtain them until they are in Jails and Prisons: A Review,”
in an acute psychotic state and are Psychiatric Services, vol. 49, pp.
As we prepared to write the manual deemed to be a danger to them- 483-492, 1998. In Richard Lamb and
we traveled the state and spoke with selves or others.4 Persons with Leona Bachrach, “Some Perspectives
jail administrators, nurses, mental mental illness who have prior crimi- on Deinstitutionalization,” Psychiatric
health professionals and inmates. nal records or histories of violence Services, August 2001, vol. 52, no. 8, the
authors estimated the number of occupied
We reached out to organizations have exceptional difficulty getting state hospital beds had fallen as low as 21
both similar to and different from access to treatment, as many mental per 100,000.
our own and made countless phone health programs simply will not 2 Bazelon Center for Mental Health
Law. Under Court Order: What the
calls to people who might have an accept them.
Community Integration Mandate Means
idea about how to confront one of
the most daunting problems facing To confront these issues we endeav- for People with Mental Illnesses (1999).
See American Bar Association, Section of
jails today, how to identify and treat ored to make the manual as brief Criminal Justice, Report to the House of
people with mental illness who and as user friendly as possible. It Delegates, p.3.
come to be housed in a corrections is comprised of seven chapters and 3 For example, federal funding of
setting.
includes information about how community-based mental health services
jails have come to house those with is greatly diffused, spread across
The problems surrounding this issue mental illnesses, the legal require- numerous mandatory and discretionary
programs. Within Medicaid, communityare large. Beginning in the early ments jails must meet in treating based mental health services run through
1960s, states began to downsize mental illness, the law that is spe- more than six separate optional service
and close their public mental health cific to North Carolina, programs categories. Moreover, the complicated
hospitals in response to social and in North Carolina, model projects federal scheme relies on numerous state
legal reforms. Between 1955 and across the country, specific warning and local funding streams. The inevitable
1998, the rate of persons in mental signs for suicide, funding opportu- result is a complex, confusing patchwork
of programs, with fragmented services
hospitals declined from 339 to 29 nities and contact information for at the community level - a system that is
per one hundred thousand persons.1 local and national organizations that especially difficult for Medicaid recipients
Following this “deinstitutionaliza- deal with mental health issues.
with mental illness. See NAMI, Medicaid
tion,” the federal government did
(Continued on Page 4)
not provide ongoing funding for This manual is the beginning of

NCPLS ACCESS

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Volume VIII, Issue 3, October 2008

The Safe and Humane Jails Project Receives Grant and
Completes Mental Health Information Manual
(Continued)
(Continued from Page 3)
Funding of Mental Illness Treatment,
http://www.nami.org/Content/
ContentGroups/Policy/Issues_Spotlights/
Medicaid_Funding_of_Mental_illness_
Treatment1.htm, accessed on January 4,
2008.

4
Because of the restricted access to
community services, the phenomenon
of “mercy arrests” has arisen in which
police officers arrest manifestly psychotic
individuals because they know that it is
easier to channel them into treatment once
they enter the criminal justice system
than it is to find them hospital space, or

even counseling at a community service
institution.

What North Carolina Bar v. Nifong Was Not
By Katherine E. Jean
“withheld” evidence by not presenting the defendant’s alibi evidence or
the defendant’s side of the story to
the jury.

Since the trial of North Carolina
State Bar v. Nifong in June of 2007,
the Office of Counsel has received
scores of letters from convicted criminal defendants claiming they were
“Nifonged” and demanding that We also receive complaints from
the State Bar secure their immediate inmates saying they were “Nifonged”
release from prison.
because the prosecutor had an
improper motive to prosecute them.
One such complaint came from a
man who was arrested while commit- These are just a few of the ways in
ting a robbery which was captured which the Nifong case is invoked in
on videotape. He was prosecuted support of propositions for which
many years ago in far western North it does not stand. Nifong was not
Carolina by someone other than about whether there was sufficient
Mike Nifong. The prosecutor made evidence to justify prosecuting the
no statements to the media. DNA Duke lacrosse defendants. When we
did not play a role in his trial. There filed the complaint on December 28,
was no allegation of discovery abuses 2006, and the amended complaint
or lying to the court. So how was on January 24, 2007, we had no way
he “Nifonged?” Just like the Duke of knowing what the evidence at an
lacrosse defendants, he said, he is eventual criminal trial might be. The
innocent.
attorney general did not declare the
lacrosse defendants innocent until
We
also
receive
complaints April 11, 2007, two months before
from inmates who say they were the disciplinary trial began. We were
“Nifonged” because the prosecutor not, as so many erroneously believe,
“withheld evidence.” When we look asking the Disciplinary Hearing
behind this allegation, it often turns Commission to interpose its judgout the inmate is not complaining ment for that of a judge who might
that the prosecutor failed to turn allow the criminal case to go to a
over discoverable evidence. He is jury.
complaining that the prosecutor

Nor were we asking the DHC to substitute its judgment for that of a jury
that might have found guilt beyond
a reasonable doubt. Nifong was not
charged with failure to present both
sides of the case to a jury. There was
never an occasion in the criminal
case to present evidence to a finder
of fact. Furthermore, the Rules of
Professional Conduct do not require
a prosecutor to present a defendant’s
alibi evidence or other story to the
jury. The defendant can do that by
presenting his own witnesses or testifying in his own behalf.
The State Bar did not charge Nifong
with having an improper motive for
the prosecution. Certainly, the State
Bar presented substantial evidence
that Nifong’s motive for pursuing
charges against the Duke lacrosse
defendants was to bolster his prospects in a close election. However,
that evidence was not offered to
prove a separate rule violation; it
was offered to explain why Nifong
engaged in conduct that otherwise
seemed inexplicable.
After a five day trial, the DHC found
(Continued on Page 6)

Volume VIII, Issue 3, October 2008

NCPLS ACCESS

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State Habeas Petition Challenging Nonexistent Charge
Wins Client’s Release
On September 22, 2008, the N.C.
Court of Appeals allowed the petition for writ of habeas corpus filed
by NCPLS staff attorney Hoang
Lam on behalf of inmate Sammie
Love.
Moreover, the appellate
court ordered Mr. Love’s immediate
release from custody.
Mr. Love had been indicted on July
8, 1996 of several drug charges
based on allegations that a minor
had sold cocaine for him. On
October 24, 1996, he stood trial,
without counsel, and testified that
he was innocent. He was convicted
by a jury of a misdemeanor and the
following three felonies: (1) trafficking, (2) conspiracy to traffic,

and (3) employing a minor to traffick by possession. He received
three consecutive sentences: 35 to
42 months for trafficking, 35 to 42
months for the felony conspiracy
and the misdemeanor charge, and
90 to 117 months for the third
felony, employing a minor to traffick by possession. He was unsuccessful in attempting to obtain relief
through direct appeal, motions for
appropriate relief, petitions to the
state appellate courts, through federal habeas relief.

of 90 to 117 months. Upon review
of the case, NCPLS attorneys concluded that the applicable law did
not criminalize the act of employing a minor to traffick in cocaine
by possession, thus making his
last sentence unlawful. N.C. Gen.
Stat. § 90-95.4. The illegality of
his conviction and sentence had not
previously been raised in his prior
appeal, motions, and petitions.

Although the State filed a response
opposing the habeas petition by
NCPLS and Mr. Love, the State did
When he wrote to NCPLS this not appeal the court’s order allowyear asking for review of his case, ing the petition and mandating his
he had served more than 11 years release. As a result, Mr. Love was
and was serving his last sentence immediately released.

Proof of Citizenship Gains Release for NCPLS Clients &
Cancellation of Detainer
By NCPLS Staff Attorney Hoang Lam
Through NCPLS representation,
two North Carolina inmates were
recently able to prove their U.S.
citizenship, acquired through their
parents. In one case, an inmate
who completed his North Carolina
sentence had been placed in immigration detention in Georgia for
two months, and was scheduled
for deportation to Germany where
he had been born out-of-wedlock.
Unbeknownst to the immigration
authorities, the inmate’s father is
a U.S. citizen and legitimated the
inmate through a subsequent marriage to the inmate’s mother. Upon
receiving that inmate’s request for
assistance, we collected documents
from his parents, drafted affidavits,

and presented the case to Immigration and Customs Enforcement
(ICE). Within one day of our communication with ICE, the client was
released and his pending deportation
proceedings were later terminated.
In the second case, the inmate was
born in Canada to a U.S. citizen
mother. However, ICE placed an
immigration detainer on the inmate.
Although the inmate was eligible
for parole and had entered a MAPP
contract, the N.C. Department of
Correction revoked the contract
because of the immigration detainer.
We again presented the case to ICE
with supporting documents, and the
detainer was cancelled. As a result,

the client now has the chance to
work out another MAPP contract,
under which he might eventually
secure his release.

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Volume VIII, Issue 3, October 2008

NCPLS Secures Compensation for Injured Inmates
NCPLS staff attorneys recently succeeded in obtaining financial compensation for two clients. In July
we were able to settle a case alleging the use of excessive force case
against an inmate. Our client suffered a broken leg after force was
used against him by prison guards.
The case had previously gone to

trial in the Eastern District Federal
Court and resulted in a mistrial
with one juror holding out for our
client. We were able to mediate the
case after the mistrial and our client
settled his case for $12,000.

Full Commission of the North Carolina Industrial Commission. Our
client suffered stab wounds after
two unauthorized inmates were let
into his cell and assaulted him. The
client was awarded $5,000 by the
Industrial Commission.

In August we received word that we
were successful in an appeal to the

NCPLS Welcomes New Board of Directors
(Continued)
(Continued from Page 2)

re-entry. His case was the subject of
an award winning film “The Trials
of Darryl Hunt.”
Christine Mumma – Ms. Mumma
is the Executive Director of the
North Carolina Center on Actual

Innocence. She represented former News & Observer’s 2007 Tar Heel
DOC inmate Dwayne Dail in of the Year.
obtaining exoneration and release
from a rape conviction for which he
had spent 18 years in prison. She
has been a leading force in seeking
to reduce wrongful convictions in
North Carolina and was named the

What North Carolina Bar v. Nifong Was Not
(Continued)
(Continued from Page 4)

and concluded that Nifong violated
multiple Rules of Professional Conduct by making improper statements
to the media, failing to comply with
obligations imposed on him by
statute and court order to provide

discovery, and lying to the court.
For this misconduct, Nifong was disbarred. That is what North Carolina
State Bar v. Nifong was about.
Katherine Jean is counsel and assistant
executive director of the North Carolina State Bar. This article originally

appeared in the Fall 2008 issue of the
North Carolina State Bar Journal. It
is reprinted here with the permission of
the author and the State Bar.

Volume VIII, Issue 3, October 2008

NCPLS ACCESS

Page 7

Criminal Conviction and Gun Ownership
NCPLS receives many letters from
inmates who are concerned about
the legal disabilities that they face
after release from confinement.
One such area concerns restrictions
on the ownership or possession of
firearms. The ability of a person
convicted of criminal offenses to
purchase, own, or possess firearms
is subject to limitation by both
state and federal law. In the past,
there were significant differences
between the two types of restriction.
However, during the past 20 years,
North Carolina has been increasingly limiting the rights of offenders
to possess firearms to more closely
mirror federal restrictions.
Federal Restrictions
The Omnibus Crime Control and
Safe Streets Act of 1968, Pub. L.
90-351, 82 Stat. 197 and the Gun
Control Act of 1968, Pub. L. No.
90-618, 82 Stat. 1213 (GCA68)
established broad federal regulation
of the interstate trade in firearms,
particularly handguns. The Gun
Control Act established a list of
“prohibited persons” for firearm
ownership/ possession purposes,
stating that:
It shall be unlawful for any person
(1) who has been convicted in
any court of a crime punishable
by imprisonment for a
term
exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of
or addicted to any controlled
substance (as defined in section 102
of the Controlled Substances Act

By NCPLS Staff Attorney Ken Butler
(21 U.S.C. 802));
(4) who has been adjudicated as a
mental defective or who has been
committed to a mental institution;

intimate partner or child
that would reasonably be
expected to cause bodily
injury,

to ship or transport in interstate or
(5) who, being an alien, is illegally foreign commerce, or possess in or
or unlawfully in the United States;
affecting commerce, any firearm
(6) who has been discharged or ammunition; or to receive any
from the Armed Forces under firearm or ammunition which has
been shipped or transported in
dishonorable conditions;
interstate or foreign commerce.
(7) who, having been a citizen of 18 U.S.C. §922(g). In addition
the United States, has renounced his to these restrictions, 18 U.S.C. §
citizenship; or
922(n) provides makes it unlawful for any person currently under
(8) who is subject to a court order
indictment for a crime punishable
that -by imprisonment greater than one
(A) was issued after a year to ship, transport, or receive
hearing of which such any firearm or ammunition in interperson received actual state or foreign commerce.
notice, and at which such
person had an opportunity
to participate;
(B) restrains such person
from harassing, stalking,
or threatening an intimate
partner of such person
or child of such intimate
partner or person, or
engaging in other conduct
that would place an intimate
partner in reasonable fear of
bodily injury to the partner
or child; and
(C) (i) includes a finding
that such person represents
a credible threat to the
physical safety of such
intimate partner or child;
or (ii) by its terms explicitly
prohibits the use, attempted
use, or threatened use of
physical force against such

State Restrictions
North Carolina’s Felony Firearms
Act, (NCFFA) became effective
on October 1, 1971. The original
statute, codified at N.C.G.S. §14415.2, prohibited possession of a
firearm by any person previously
convicted of a crime punishable
by imprisonment of more than two
years, but contained an exception
for those felons whose civil rights
had been restored. Britt v. State
185 N.C.App. 610, 612, 649 S.E.2d
402, 404 (2007). This initial version was repealed in 1975, and the
NCFFA was amended and recodified at § 14-415.1, where it remains
today.
This second version of the law also
did not completely ban firearm ownership by persons previously con(Continued on Page 8)

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NCPLS ACCESS

Volume VIII, Issue 3, October 2008

Criminal Conviction and Gun Ownership
(Continued)
(Continued from Page 7)
victed of criminal offenses. First,
not all crimes resulted in deprivation of the right of gun ownership.
The NCFFA specified that the ban
applied to those felonies which fell
under certain enumerated
section of the General
Statutes; common law
robbery and maiming; and
violations of the laws of
other states or the federal
government which were
substantially similar to the
North Carolina laws previously listed and which
were punishable by more
than two years imprisonment.
Even for persons who fell
within the target statutes, the prohibition only banned the purchase,
ownership or possession of any
“handgun or other firearm with a
barrel length of less than 18 inches
or an overall length of less than 26
inches, or any weapon of mass death
and destruction as defined in G.S.
14-288.8(c), within five years from
the date of such conviction, or the
unconditional discharge from a correctional institution, or termination
of a suspended sentence, probation,
or parole upon such conviction,
whichever is later. N.C.G.S. § 14415.1(a) (1986). Furthermore, the
NCFFA stated that “[n]othing in this
subsection would prohibit the right
of any person to have possession
of a firearm within his own home
or on his lawful place of business.”
Id. Violation of this statute was initially a Class I felony. However, by
the effective date of the Structured
Sentencing Act, October 1, 1994, it

had been raised to a Class H felony.
N.C.G.S. § 14-415.1 (1994).

ness.

In 2004, the NCFFA was further
One year later, the penalty had amended and its restriction of fireagain been raised, now to a Class arm ownership / possession was
Under this version,
G felony. Furthermore, instead of expanded.
which took effect December
1, 2004,

setting out specific sections of the
criminal law which would work
a disentitlement, the amended act
extended its effect to “[f]elony
convictions in North Carolina that
occur before, on, or after December
1, 1995,” and comparable convictions from other states or the federal
government that were punishable
by a prison term exceeding one
year. N.C. G.S. § 14-415.1 (1995).
The 1995 law still focused on possession or ownership of handguns,
and other firearms with a barrel
less than eighteen inches, or an
overall length of less than twentysix inches. Significantly this version of the NCFFA did not allow
for a restoration of gun ownership
rights within a five year period
after unconditional discharge from
imprisonment, parole, or probation.
It did, however, retain the right of
an individual to keep a gun in his
or her home or lawful place of busi-

It shall be unlawful
for any person who
has been convicted
of a felony to purchase, own, possess,
or have in his custody, care, or control
any firearm or any
weapon of mass
death and destruction as defined in
G.S. 14-288.8(c).
For the purposes
of this section, a
firearm is (i) any
weapon, including
a starter gun, which
will or is designed
to or may readily be
converted to expel
a projectile by the
action of an explosive, or its frame or
receiver, or (ii) any
firearm muffler or
firearm silencer.
N.C.G.S. § 14-415.1(a) (2004).
This version eliminated the provision allowing for firearm possession in a home or place of business.
In 2006, the General Assembly further amended the NCFFA to create
an exception for the ownership /
possession of “antique firearms.”
(Continued on Page 9)

Volume VIII, Issue 3, October 2008

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Criminal Conviction and Gun Ownership
(Continued)
(Continued from Page 8)
nally related to a legitimate state
Under the relevant statutes:
a) The term “antique firearm”
means any of the following:
(1) Any firearm (including any
firearm with a matchlock, flintlock,
percussion cap, or similar type of
ignition system) manufactured on
or before 1898.
(2) Any replica of any firearm
described in subdivision (1) of
this subsection if the replica is not
designed or redesigned for using
rimfire or conventional centerfire
fixed ammunition.
(3) Any muzzle loading rifle, muzzle
loading shotgun, or muzzle loading
pistol, which is designed to use
black powder substitute, and which
cannot use fixed ammunition.
(b) For purposes of this section,
the term “antique firearm” shall not
include any weapon which:
(1) Incorporates a firearm frame or
receiver.
(2) Is converted into a muzzle loading weapon.
(3) Is a muzzle loading weapon
that can be readily converted to fire
fixed ammunition by replacing the
barrel, bolt, breechblock, or any
combination thereof.

vidual or group of persons without
a trial.) To date, all such challenges
have been unsuccessful. See State
v. Tanner, 39 N.C. App. 668, 251
S.E.2d 705, appeal dismissed review
denied, 297 N.C. 303, 254 S.E.2d
924 (1979) (no equal protection
violation where there is a reasonable basis for classification); State
v. Johnson, 169 N.C. App. 301,
610 S.E.2d 739, appeal dismissed
review denied, 359 N.C. 855, 619
S.E.2d 855 (2005)(challenge to
1995 version of NCFFA. Held that
the statute does not violate due process or the prohibitions against ex
post facto and bills of attainder).

interest, namely the protection of
the health, safety and welfare of citizens. Britt, 185 N.C. App. at 614,
649 S.E. 2d at 406. The majority
rejected the plaintiff’s contention
that the 2004 version of the NCFFA
swept too broadly by imposing
a permanent and total ban on the
possession of any type of firearms,
other than antiques. It upheld the
statute against plaintiff’s claims of
due process, equal protection, ex
post facto and bill of attainder.
Significantly, Judge Elmore dissented and stated that he would find
the 2004 amendments to be unconstitutional. Judge Elmore noted that
in earlier cases, interpreting prior
versions of the NCFFA, the Court
of Appeals had held that the statute
was a reasonable regulatory measure, as evidenced by the fact that
the law focused only on the types of
weapons that were easily concealable and therefore posed greater
risk to the public. Furthermore,
the earlier statutes contained exceptions for the possession of firearms
at one’s home or business. In Judge
Elmore’s mind, the newer amendments’ total ban crossed the line
from permissible regulation into
unconstitutional punishment, which
would violate ex post facto and
constitute a bill of attainder. Judge
Elmore also found that the new statute’s total ban deprived plaintiff of
his constitutional right to bear arms
without due process where it was
not a “reasonable” regulation. Id.
185 N.C. App. at 621, 649 S.E. 2d
at 410. Because of Judge Elmore’s
dissent, the plaintiff had a right to

The most recent such challenge has
been Britt v. State of North Carolina, 185 N.C. App. 610, 649 S.E.2d
402 (2007). Rather than being
a criminal prosecution, the Britt
case was an action for declaratory
judgment. The plaintiff had been
convicted of possession with intent
to sell and deliver a controlled substance in 1979. He had completed
his sentence in 1982 and, under the
then applicable version of N.C.G.S.
§ 14-415.1, had his right to possess
firearms restored by operation of
law. However, the 2004 version of
the statute had completely removed
this previously restored right. The
plaintiff sought to have this version
N.C.G.S. § 14-409.11
of the statute declared unconstitutional on a variety of grounds,
The NCFFA has been periodically including due process, equal protecchallenged on a variety of consti- tion, ex post facto and as a bill of
tutional grounds. These include attainder.
claims that the act violates equal
protection, due process, the protec- The case was heard before a threetion against ex post facto laws, or judge panel of the N.C. Court of
that it constitutes an impermissible Appeals. The panel majority conbill of attainder (a legislative act cluded that § 14-415.1 was ratio- (Continued on Page 10)
which punishes a particular indi-

NCPLS ACCESS

Page 10

Volume VIII, Issue 3, October 2008

Criminal Conviction and Gun Ownership
(Continued)
(Continued from Page 9)

appeal the decision to the North
Carolina Supreme Court. The case
was appealed, and has been the subject of oral argument. A decision,
however, has not yet been handed
down by the state Supreme Court.

Conclusion
As can be seen from the preceding
discussion, state and federal laws
now impose a complete ban on the
private ownership or possession of
firearms. The 2004 amendments
to the NCFFA even encompasses
those types of sporting weapons,
rifles and shotguns, previously
permitted under earlier versions.

Unless the North Carolina Supreme
Court uses the Britt case to limit
the scope of N.C.G.S. § 14-415.1,
ex-felons should make it a priority
to get rid of any firearms that might
be considered in their possession.
Of course, the Britt decision would
apply only to North Carolina’s state
firearms laws and would not affect
any liability under federal law.

NCPLS Client Receives Major Sentence Reduction
By NCPLS Staff Attorney Nicholas C. Woomer-Deters
A motion for appropriate relief even a minor felony. A habitual or more times within the last ten
(MAR) filed by NCPLS in June felon indictment needs to list at years (eight years under older ver2008, has resulted in a major sen- least three consecutive prior felony sions of the law). In this case, the
tence reduction for one of our cli- convictions of the defendant. Typi- client successfully challenged one
ents. The client was serving two cally, the state will indict a defen- of the three prior DWI convictions
consecutive sentences totaling 207 dant as a habitual felon using only used to establish him as an Habitual
to 258 months for Felony Speeding three prior felony convictions — Impaired Driver by arguing that his
to Elude Arrest, Habitual Impaired this allows the state to use any other conviction had been obtained withDriving, and for having attained prior felony convictions to enhance out his have had access to an attorHabitual Felon status. However, prior record level. However, in this ney. With one of the three necessary
after the MAR was granted in case, the state used six prior felony prior DWI convictions vacated, the
September his total sentence was convictions to indict the client as an MAR argued that the client’s conreduced to 144 to 177 months. habitual felon; then the state used viction for Habitual DWI also had
Additionally, one of the client’s some of these same prior felony to be vacated and that he had to be
convictions was reduced to a level convictions to enhance his prior resentenced for misdemeanor DWI.
one Driving While Impaired (DWI) record level all the way up to level
charge, which makes him eligible VI (the highest level). In reality, the Against all expectations, the client’s
for parole.
client should have been sentenced MAR was unopposed by the Disat a prior record level of IV.
trict Attorney’s office in Guilford
The MAR filed by NCPLS raised
County and he was resentenced
two issues. First, the client’s prior The second issue that was raised accordingly. Prior to resentencing,
record level was incorrectly calcu- was the fact that the client was the client had a 2017 release date;
lated because offenses used in his actually innocent of one of the it is now likely he will be released
habitual felon indictment were also Habitual Impaired Driving counts well before 2010.
used to enhance his prior record as a matter of law. To be convicted
level, which is illegal under North of Habitual Impaired Driving, a
Carolina law. When a defendant defendant needs to have committed
is indicted as a habitual felon, Driving While Impaired while also
he can receive a major sentence having been previously convicted
enhancement if he it convicted of of Driving While Impaired three

Volume VIII, Issue 3, October 2008

NCPLS ACCESS

FREE LEGAL
INFORMATION
CLINIC
Sponsored by North Carolina Prisoner Legal Services, Inc.,

SATURDAY OCTOBER 18, 2008
10:00 AM –12:00 PM
North Carolina Prisoner Legal Services
1110 Wake Forest Road
Raleigh, NC
919-856-2200
(Route 1 and 3 CAT Bus Lines)

Free legal consultations about civil legal matters governed by N.C. law will be offered at
this clinic for people who have been formerly incarcerated or, for organizations that serve
the formerly incarcerated community. Volunteers will be available to provide general
information about legal issues or refer you to an agency or organization that can provide
the information you need. The volunteers cannot offer to represent you but, if you are
eligible, you may be referred to one of the legal or social service agencies in the Raleigh
area to seek additional assistance and/or representation.
Please bring all of the documents concerning your legal problem to the Clinic
For additional information and assistance, please visit www.lawhelp.org/nc.

Page 11

THE NEWSLETTER OF NORTH CAROLINA
PRISONER LEGAL SERVICES, INC.

1110 Wake Forest Road
P.O. Box 25397
Raleigh, NC 27611
Phone: (919) 856-2200
Fax: (919) 856-2223
Email: ncpls@ncpls.org

Visit our website at:
http://www.ncpls.org