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UNFAIR LAWS: STATUTORY INTERPRETATION IN STATE COURT

Note: As many statutes are discussed throughout this article, it may be helpful to have the following North Carolina statutes readily available: 14-269, 14-269.2, 14-269.3, 14269.4, 14-277.2, and 14-415.11.

Bennett D. Rainey

Wake Forest University Externship Program June 30, 1011

UNFAIR LAWS: STATUTORY INTERPRETATION IN STATE COURT

Bennett D. Rainey

INTRODUCTION Statutory interpretation is the process of deciding what an ambiguous statute means. When confronted with an ambiguous statute in state court, judges have the power to decide what the law actually says. In interpreting ambiguous statutes, judges base their decisions on the many different legal theories and doctrines of the legality principle. Expressed as no crime without law, nor punishment without law, the legality principle as a concept demands that criminal liability and punishmentbe based only upon a prior legislative enactment of a prohibition that is expressed with adequate precision and clarity.1 Presuming that all laws should be clear and precise, determinations of ambiguity are the linchpin of statutory interpretation.2 Although statutes are interpreted every day, it is rare for a state court judge to be presented with a statute so ambiguous and novel that his interpretation contradicts the widely held assumption as to what the law actually meant. The rarity of these situations is in direct proportion to a number of factors including, but not limited to, the importance of the statute to the defendant and society, the defendants persistence and determination in challenging what he

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See Paul H. Robinson, Criminal Law: Case Studies and Controversies 58-59 (2d ed. 2008). See Farnsworth, Ward, Guzior, Dustin F. and Malani, Anup, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation (October 22, 2009). The Journal of Legal Analysis, Forthcoming; U of Chicago, Public Law Working Paper No. 280; Boston Univ. School of Law Working Paper No. 09-50. Available at SSRN: http://ssrn.com/abstract=1492907.

believes to be an incorrect interpretation, the length of the court docket, and the interest and patience the judge has about the statute on that day. In examining statutory interpretation in state court, this article will discuss various doctrines used in, and philosophies behind, the interpretation of a widely regarded unambiguous statute. The first of this articles two main goals is to discuss and correct the interpretation of N.C.G.S. 14-269.3, a current North Carolina law that has been improperly assumed by most to mean that a concealed handgun permit does not authorize a person to carry a handgun into assemblies where a fee has been charged for admission and establishments where alcoholic beverages are sold and consumed. This articles second goal is to outline the process of how a state statute can go from one commonly held understanding to a totally different interpretation decided by a judge. To achieve both goals, this article will use 14-269.3 to assist in outlining the interpretation process. I. THE ASSUMPTION Throughout North Carolina, books, articles, and pamphlets have been written with the intention of informing gun owners and concealed handgun permit holders about the rights and restrictions associated with firearms. To educate those who want to know the law but do not have the time or resources to read and interpret the individual statutes as written in the North Carolina General Statutes (N.C.G.S), numerous publications have been produced by individual attorneys,3 the North Carolina Sheriffs Association,4 the North Carolina Department of Justice,5 and many

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See generally Thomas Faulk, Jr., Firearms Law of North Carolina (2d ed. 2008). See generally North Carolina Sheriffs Association, Concealed Handgun Permits and The Use of Deadly Force (July 1,2007), http://www.ncsheriffs.org/images/Conceled%20Handgun%20Permits%20and%20The%20Use%20of%20D eadly%2 0Force.pdf. 5 See generally North Carolina Department of Justice Law Enforcement Liaison Section, North Carolina Firearms Laws (Jan. 2010), http://www.ncdoj.com/getdoc/32344299-a2a7-4ae5-99fd-9018262f64ac/2007-NC-Firearmsgun-Laws.aspx.

others.6 In every publication consulted that broke down the individual statutes so as to make the law easier to understand, the authors incorrectly assumed that 14-269.3 prohibits concealed handgun permit holders (permit holders) from carrying a concealed handgun into assemblies where a fee has been charged for admission and establishments where alcoholic beverages are sold and consumed. Not only does everyone have the same assumption, but nobody has attempted to explain why 14-269.3 means what they say it does. As this article will show, regardless of what it prohibits or allows, 14-269.3 is a very complicated issue that deserves an explanation. Although these publications are incorrect in their interpretation of 14-269.3, the misinterpretation is understandable because the laws concerning whether a permit holder can carry a handgun into assemblies where admission is charged and establishments where alcohol is sold and consumed are contradictory, ambiguous, and misleading.7 To make the interpretation process even more confusing, 14-415.11, the scope of permit statute, seems to contradict the law as it is written in 14-269.3. The process of interpreting the law surrounding 14-269.3 is complicated; when one point seems to be figured out, another point previously unnoticed shows itself to be even more ambiguous. Once the statutory interpretation process of 14-269.3 begins, a labyrinth of ambiguous statutes and provisions entangles the mind. II. INTERPRETING THE STATUTE

The first and most important step in interpreting 14-269.3 is to understand the exception created in subsection (b)(1). 14-269.3 reads:

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See generally Gunlaws.com, http://www.gunlaws.com/links/linksnc.htm. See Paul Valone, Gun and The Law: How Many Gun Laws Have You Broken Today?, examiner.com (2009) (Charlotte Gun Rights Examiner and GRNC President, Paul Valone writes about how North Carolina gun laws are so confusing that citizens unknowingly violate the law every day and, quite often, cops dont understand gun laws either.).

(a) It shall be unlawful for any person to carry any gun, rifle, or pistol into any assembly where a fee has been charged for admission thereto, or into any establishment in which alcoholic beverages are sold and consumed. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor. (b) This section shall not apply to the following: (1) A person exempted from the provisions of G.S. 14-269; (2) The owner or lessee of the premises or business establishment; (3) A person participating in the event, if he is carrying a gun, rifle, or pistol with the permission of the owner, lessee, or person or organization sponsoring the event; and (4) A person registered or hired as a security guard by the owner, lessee, or person or organization sponsoring the event.8 Although 14-269.3 does make it a crime to carry a firearm into assemblies where admission is charged and establishments where alcohol is sold and consumed, subsection (b)(1) creates an exception for those exempted from the provisions of G.S. 14-269.9 Within 14-269, the general statute that makes it a crime to willfully and intentionally carry concealed weapons, subsection (a1) states that:

It shall be unlawful for any person willfully and intentionally to carry concealed about his person any pistol or gun except in the following circumstances: (1) The person is on the person's own premises. (2) The deadly weapon is a handgun, and the person has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24. (3) The deadly weapon is a handgun and the person is a military permittee as defined under G.S. 14-415.10(2a) who provides to the law enforcement officer proof of deployment as required under G.S. 14-415.11(a).10 Although subsection (a1)(2) creates an exception for those who are carrying a handgun with a proper permit, a problem comes when subsection (a1)(2) is applied to 14-269.3 because 14269.3(b)(1) uses the phrase, exempted from the provisions of G.S. 14-269.11 Clearly, the exception created in subsection (a1)(2) only applies to 14-269(a1), the subsection pertaining to pistols or guns, and not subsection (a), the provision that addresses other

See N.C. Gen. Stat. Ann. 14-269.3 (West 1994). http://www.examiner.com/gun-rights-in-charlotte/guns-andthe-law-how-many-gun-laws-have-you-broken-today. 9 Id. 10 See N.C. Gen. Stat. Ann. 14-269 (West 2009). 11 See N.C. Gen. Stat. Ann. 14-269.3 (West 1994).

concealed weapons such as knives, brass knuckles, stun guns, etc.12 If 14-269.3(b)(1) is interpreted as only applying to those who have been exempted from all of the provisions of 14269, then a permit holder would be restricted from carrying a handgun into the places outlined in 14-269.3. However, 14-269.3 does not require that someone be exempted from all of the provisions of 14-269. While the absence of all does not solve anything, the ambiguity created allows us to focus on the purpose of 14-269.3.

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For reference, N.C.G.S. 14-269 has been provided in its entirety. N.C.G.S. 14-269. Carrying concealed weapons. (a) It shall be unlawful for any person willfully and intentionally to carry concealed about his person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shurikin, stun gun, or other deadly weapon of like kind, except when the person is on the person's own premises. (a1) It shall be unlawful for any person willfully and intentionally to carry concealed about his person any pistol or gun except in the following circumstances: (1) The person is on the person's own premises. (2) The deadly weapon is a handgun, and the person has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24. (3) The deadly weapon is a handgun and the person is a military permittee as defined under G.S. 14-415.10(2a) who provides to the law enforcement officer proof of deployment as required under G.S. 14-415.11(a). (b) This prohibition shall not apply to the following persons: (1) Officers and enlisted personnel of the armed forces of the United States when in discharge of their official duties as such and acting under orders requiring them to carry arms and weapons; (2) Civil and law enforcement officers of the United States; (3) Officers and soldiers of the militia and the National Guard when called into actual service; (4) Officers of the State, or of any county, city, town, or company police agency charged with the execution of the laws of the State, when acting in the discharge of their official duties; (5) Sworn law-enforcement officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer's body. (b1) It is a defense to a prosecution under this section that: (1) The weapon was not a firearm; (2) The defendant was engaged in, or on the way to or from, an activity in which he legitimately used the weapon; (3) The defendant possessed the weapon for that legitimate use; and (4) The defendant did not use or attempt to use the weapon for an illegal purpose. The burden of proving this defense is on the defendant. (b2) It is a defense to a prosecution under this section that: (1) The deadly weapon is a handgun; (2) The defendant is a military permittee as defined under G.S. 14-415.10(2a); and (3) The defendant provides to the court proof of deployment as defined under G.S. 14-415.10(3a). (c) Any person violating the provisions of subsection (a) of this section shall be guilty of a Class 2 misdemeanor. Any person violating the provisions of subsection (a1) of this section shall be guilty of a Class 2 misdemeanor for the first offense. A second or subsequent offense is punishable as a Class I felony. (d) This section does not apply to an ordinary pocket knife carried in a closed position. As used in this section, "ordinary pocket knife" means a small knife, designed for carrying in a pocket or purse, that has its cutting edge and point entirely enclosed by its handle, and that may not be opened by a throwing, explosive, or spring action.

A. Section 14-269.3 Only Applies To Firearms The only purpose of 14-269.3 is to restrict someone from carrying a firearm into any assembly where a fee has been charged for admission thereto, or into any establishment in which alcoholic beverages are sold and consumed.13 That is, the only weapons addressed in 14-269.3 are firearms. Thus, whereas 14-269.2, 14-269.4, 14-277.2, and 14-288.7 place restrictions on dangerous weapons,14 deadly weapons,15 and weapons ranging from daggers and bowie knives to grenades and firearms,16 14-269.3 distinguishes itself among the statutes restricting where certain weapons can be carried because it is the only one that deals exclusively with firearms. Why does this matter? Because of 14-269.3(b)(1). Since 14-269.3 only pertains to firearms, it would be unnecessary and illogical to require someone to be exempted from all of 14-269s provisions when the only subsection within 14-269 that is relevant to 14-269.3 is (a1), the provision that covers firearms and exempts those individuals who carry a handgun with a proper permit. Section 14-269(a) is irrelevant because 14-269.3 does not place any restrictions on the weapons listed in 14269(a). For example, although 14-269(a1) does not allow a permit holder to carry a rifle into the places addressed in 14-269.3, 14-269.3 does allow the same person to carry any of the weapons listed in 14-269(a) into the same areas as long as those weapons are not concealed. It simply does not make sense to say that 14-269(a1)(2) does not apply to 14-269.3 when the only provision within 14-269 that matters to 14-269.3 is subsection (a1). To strengthen this point, 14-269.3 should again be compared with the other statutes that limit the use of weapons in certain places. Of the statutes already addressed, 14-269.2 prohibits
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See N.C. Gen. Stat. Ann. 14-269.3 (West 1994). See N.C. Gen. Stat. 14-277.2 (1997). 15 See N.C. Gen. Stat. 14-269.4 (2009). 16 See N.C. Gen. Stat. Ann. 14-269.2 (West 2007).

most weapons from being possessed or carried onto educational property; 14-269.4 prohibits deadly weapons from being possessed or carried onto State property and in courthouses; 14277.2 makes it unlawful for someone to willfully or intentionally possess or have immediate access to any dangerous weapon at parades, funerals, picket lines, or demonstration upon any health care facility or public place owned or under control of the State or its political subdivisions; and 14-288.7 makes it unlawful to transport or possess off his own premises any dangerous weapon or substance in any area under a state of emergency or within the immediate vicinity of which a riot is occurring.17 Similar in some ways and different in others, these statutes show how important it is to be meticulous when interpreting statutes. For example, a simple glance will show that only one of the five statutes requires the accused to willfully or intentionally possess the weapon,18 while the other four only require the accused to be strictly liable. In addition to the ones that are easy to notice, the more important differences arise because of the exceptions. The differences in the exceptions is what gives more credence to this articles argument that someone carrying a handgun with a permit is included in the exception created by 14-269.3(b)(1). B. The Importance of 14-269(b) Looking at the exceptions included in the five statutes, three of them state that they do not apply to those exempted by the provisions of G.S. 14-269(b), while the other two state that they do not apply to those exempted from the provisions of G.S. 14-269.19 The differences between 14-269(b) and 14-269 are tremendous because 14-269(b), without a doubt, excludes permit holders from being able to carry handguns into the areas mentioned in that
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See generally N.C. Gen. Stat. 14-269.2 (2007); N.C. Gen. Stat. 14-269.4 (2009); N.C. Gen. Stat. 14-277.2 (1997); N.C. Gen. Stat. 14-288.7 (1994). 18 See N.C. Gen. Stat. 14-277.2 (1997). 19 See generally N.C. Gen. Stat. 14-269.2 (2007); N.C. Gen. Stat. 14-269.3 (1994).N.C. Gen. Stat. 14-269.4 (2009); N.C. Gen. Stat. 14-277.2 (1997); N.C. Gen. Stat. 14-288.7 (1994).

statute. When a statute uses 14-269(b) as an exception, it is allowing the following persons to be exempted by the statute: (1) Officers and enlisted personnel of the armed forces of the United States when in discharge of their official duties as such and acting under orders requiring them to carry arms and weapons; (2) Civil and law enforcement officers of the United States; (3) Officers and soldiers of the militia and the National Guard when called into actual service; (4) Officers of the State, or of any county, city, town, or company police agency charged with the execution of the laws of the State, when acting in the discharge of their official duties; (5) Sworn law-enforcement officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer's body. Despite the minimal legislative history on these statutes, there should be no doubt that subsection (b) was included in 14-269.2, 14-269.4, and 14-277.2 because the Legislature wanted to do as much as they could to ensure that the places in these statutes would be safe and secure.20 The areas covered in these statutes are schools, courthouses, parades, funerals, picket lines and political demonstrations.21 The two statutes that do not include subsection (b) are 14269.3 and 14-288.7, both of which do not apply to persons exempted from the provisions of 14-269. Although the disparity between 14-269 and 14-269(b) appear to be minor, the differences between the statutes shows that when subsection (b) was used, it was included for a specific reason. When the three statutes that use 14-269(b) are compared to the two that do not, the most noticeable differences are the type of weapons restricted. Not only are the statutes that use subsection (b) much longer in length than 14-269.3 and 14-288.7, but much more effort was

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Although it is much easier to get legislative history for federal statutes, North Carolina legislative history does exist and can be utilized in establishing legislative intent. See North Carolina Supreme Court librarian Tom Davis on legislative history, http://www.llrx.com/features/nclegis.htm. 21 See generally N.C. Gen. Stat. 14-269.2 (2007);.N.C. Gen. Stat. 14-269.4 (2009); N.C. Gen. Stat. 14-277.2 (1997).

put into them to describe which weapons are restricted.22 It seems completely logical that subsection (b) was included in the statutes that are more intricate because those statutes are the ones where the Legislature wanted to ensure the most safety. If one assumes that those who carry handguns with permits are not included in 14269.3(b)(1), then what does the difference between 14-269(b) and 14-269 even mean? If exempted from the provisions of G.S. 14-26923 means the same thing as exempted by the provisions of G.S. 14-269(b),24 then why was the distinction made to begin with? These types of questions do not have definite answers and trying to answer them based on personal assumptions only confuses the issue. C. Scope Of Permit Problem Despite everything discussed that pertains to 14-269.3, a more legitimate problem arises because of 14-415.11, the scope of permit statute within Article 54B. Article 54B is the significant firearms statute that addresses concealed handgun permits.25 There are nineteen individual statutes within Article 54B that all pertain to the laws associated with concealed handgun permits. Of these statutes, one vague sentence in 14-415.11(c) creates enough ambiguity to leave the reader completely confused as to what the law actually means. Even if the provision wasnt as confusing as it is, another question arises as to how 14415.11 interacts with 14-269.3 altogether. Is the scope of permit statute simply there to summarize the entire body of concealed handgun laws? Or is the statute making a law in itself?
22

The weapons in 14-269.2 include: gun, rifle, pistol, or other firearm of any kind, dynamite cartridge, bomb, grenade, mine, or powerful explosive as defined in G.S. 14-284.1, BB gun, stun gun, air rifle, air pistol, bowie knife, dirk, dagger, slungshot, leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), firework, or any sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and tools used solely for preparation of food, instruction, and maintenance, on educational property. 23 See generally N.C. Gen. Stat. 14-269.3 (1994); N.C. Gen. Stat. 14-288.7 (1994). 24 See generally N.C. Gen. Stat. 14-269.2 (2007). 25 See Faulk, Jr., supra note 3, at 202.

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Like many of the discrepancies associated with North Carolina gun laws, problems such as these are extremely difficult to resolve. The dilemma with 14-415.11 comes because of the vagueness in subpart (c): A permit does not authorize a person to carry a concealed handgun in the areas prohibited by G.S. 14269.2, 14-269.3, 14-269.4, and 14-277.226 Taking the language at face value without comparing the two laws as we did above, this statute seems to place a restriction on someone with a permit by not allowing them to carry a handgun into assemblies where admission is charged and establishments where alcohol is sold and consumed. However, it doesnt; it only creates ambiguity and confusion. The problem with 14-415.11 continues as the provisions mentioned in subpart (c) are read with more precision. The first question that arises in 14-415.11(c) is what in the areas prohibited by means.27 Saying that a permit does not authorize a person to carry a concealed handgun in the areas mentioned in a statute is entirely different than saying a permit does not authorize a person to carry a concealed handgun in the areas that are prohibited by a statute. Because 14-415.11(c) uses the phrase prohibited by and not mentioned in, a permit holder should not be restricted from carrying a concealed handgun into the places mentioned in 14269.3 because 14-269.3 does not apply to someone exempted from compliance with 14269.28 There are two main counterarguments to this articles interpretation of 14-415.11(c). The first is that the exception noted does not negate the fact that 14-269.3 does prohibit some from carrying a firearm into assemblies where admission is charged and establishments where alcohol is sold and consumed. The second is that even if the two statutes do conflict, 14-415.11
26 27

See N.C. Gen. Stat. Ann. 14-415.11 (West 2005). Id. 28 See N.C. Gen. Stat. Ann. 14-269.3 (West 1994).

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should take precedence because it was enacted in 1995 whereas 14-269.3 was enacted in 1977 and last updated in 1994. Because the rules of construction give priority to the later enactment over the earlier,29 14-415.11 is the law. Although these points could be argued more thoroughly, the reality is that these arguments are based on extremely ambiguous technicalities that could change the meaning of a law most people, including the legislature, already assumed existed. It is very likely that the North Carolina Legislature incorrectly assumed in 1995, when 14-415.11 was enacted, that the restrictions in 14-269.3 applied to permit holders. If this is true, then the North Carolina Legislature did not intend on changing the law; rather, they intended on creating a statute that summarized the law as it already existed. Although one can argue that the Legislatures incorrect assumption created a new law because that was their intention, someone arguing such a point based on such an assumption would be making the same mistake the Legislature did when they made their assumption. D. The Ambiguity Continues Whether or not one has made a decision as to what they believe the law to be, it should be clear that the law at issue is ambiguous, complicated, and uninformative. Although the reader may be confused or apathetic, it is important to remember that ambiguities like the one in question exist because the energy needed to prevent, notice, or correct such discrepancies is sometimes more than lawmakers, attorneys, and the general public have to give. In situations like this, it is often easier for the State to drop the charge, for the defendant to take a plea agreement, or for the judge to dismiss the case to avoid ruling on such a complicated and time consuming issue. Regardless of how they are prevented from being properly interpreted, statutory ambiguities that are continuously avoided will forever remain the law. Although it may seem
29

See Robinson, supra note 1, at 69.

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trivial, allowing such laws to go unchanged goes against everything that law and justice represent. The remainder of this article focuses on the process of how a state statute can go from one commonly-held understanding to a totally different interpretation decided by a judge. Through this process, the reader will hopefully gain a better understanding about the methodology involved in statutory interpretation, as well as a greater appreciation for the unimportant, technical, and seemingly inconsequential areas of law. III. THE STATUTORY INTERPRETATION PROCESS A. Getting Charged: The First Interpretation The process of statutory interpretation begins when someone is charged with a crime by a police department. With a statute like 14-269.3, it is highly unlikely that it would be the only law someone is charged with breaking. More than likely, something else would cause the issue to arise. For example, in Edwards v. Department of Crime Control & Pub. Safety, an off-duty police officer was charged with violating 14-269.3, but only because he was being investigated for being involved in a shooting that happened inside of the bar where he was drinking.30 Although it was the only case where someone was actually charged with violating 14-269.3, the decision did not state why the defendant was charged with the crime. However, it is clear the off-duty police officer was only charged with violating the statute because of a prior incident; he was not arrested for violating the statute. Because of this, it is doubtful that this specific statute would ever be the sole charge against someone. Before a police officer charges someone with a crime, especially if it is a statute the officer has never encountered before or has encountered very few times, the officer will make

30

See Edwards v. Department of Crime Control and Pub. Safety, The Office of Administrative Hearings, 03 OSP 1554.

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sure the defendant has met all the elements of the crime and does not qualify under any exceptions. As in the Edwards case, before charging the defendant with violating 14-269.3, the person filing the charges would have checked to see if the defendant qualified under any exception. Because the defendant in Edwards was an off-duty police officer, there would not have been much ambiguity because he would have qualified under 14-269(b). The problem with the defendant in Edwards was that he violated 14-269(b)(5) because he had been drinking at the bar. In violating 14-269(b)(5), the defendant no longer fit into any exception and could be charged with violating the statute.31 B. The Defenses Interpretation Once someone has been charged with violating 14-269.3, or any statute like it, the statutory interpretation process continues as the defendant hires an attorney. Depending on the defendants financial situation, he may or may not hire an attorney himself. If the defendant hires an attorney who has a busy schedule and many clients, it is very unlikely that the attorney will catch an issue such as this because of the assumption that the statute is what everyone thinks it is. Because most people who get charged with crimes do not investigative the statutes themselves, if the lawyer does not catch something, neither will the defendant. In addition to the complexities of the issue, anyone violating 14-269.3 would be guilty of Class 1 misdemeanor.32 Although being found guilty of any crime is serious, a Class 1 misdemeanor is not likely something that would cause an attorney to work extra hours trying to exonerate his client. With the number of cases that go through district court every day, misdemeanor crimes are not ones that receive a lot of attention by anyone. This is the first problem with an ambiguous statute like 14-269.3.

31 32

Id. See N.C. Gen. Stat. Ann. 14-269.3 (West 1994).

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1. How ambiguous statutes deprive citizens of justice As a rising second year law student, many hours have been spent reading and rereading the statutes that pertain to whether or not 14-269(a1)(2) applies to 14-269.3(b)(1). While opinions have been formed, it would not be advisable for someone to carry their concealed handgun into a movie theatre or bar and grill. Every person consulted about this issue (two different district court judges, one criminal law professor, and an attorney for the police department) has agreed that this is an extremely ambiguous and complicated issue.33 Although the issue seems simple at first, it is anything but clear-cut. The problem with ambiguous statutes similar to 14-269.3 is that they are not doing what they are supposed to do for the public. As the average person is bound by the law, the law should be clear enough so that the average person can read the statute and know what the law is.34 Although there are many publications that break down the law in easy to read bullet points, the average person should not be expected to go anywhere other than their States official statute to understand the law. In fact, a real risk is created when individuals end up getting their information from non-official sources because the interpretations and opinions of others may be incorrect. In a civilized society, rules should be clear so that law-abiding citizens understand what is expected of them. Ambiguous statutes also produce improper over-deterrence.35 Improper over-deterrence occurs when citizens refrain from engaging in lawful conduct that they mistakenly assume is

33

I spoke in depth about this issue with The Honorable Lisa V. Menefee and The Honorable Chester C. Davis of Forsyth County District Court, Professor Ron Wright of WFU School of Law, and attorney for the Forsyth County Police Department, Lori Sykes. Although they have not looked into the issue as much as I have, they all agreed that this is a complicated matter regardless of what the law actually is. 34 See Robinson, supra note 1, at 69. 35 See Robinson, supra note 1, at 61.

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included within the prohibition.36 As is argued in this article, the ambiguousness of 14-269.3 has led to an incorrect statewide assumption as to what the law means. If correct, many North Carolina permit holders are not engaging in lawful conduct because they believe it is a crime to take their concealed handgun into assemblies where admission is charged and establishments where alcohol is sold and consumed. On the website Grass Roots North Carolina,37 an article making a case for North Carolina House Bill 111 gives an idea as to how prevalent the assumption is about 14-269.3. The article, Handgun Permit Valid in Parks & Restaurants, illustrates how many people are trying to get a law passed that would change what most assume 14-269.3 currently prohibits.38 The changes would allow those with permits to carry handguns into restaurants. Included in this article is a letter from a woman whose husband was shot to death in a restaurant by a man who had been stalking her. The woman held a right to carry permit but had left her weapon in the car due to her understanding that it would be illegal to take it into the restaurant. Because the ambiguous statute produces over-deterrence, law-abiding citizens are put at a disadvantage. As the woman stated: I am positive my stalker knew he could carry out a killing with no resistance because he knew nobody in the restaurant could stop him. We were sitting ducks. I would like to point out that the man who killed Ben did NOT have a handgun carry permit and was carrying his gun illegally. The Law did nothing to stop him from carrying his illegal gun into that restaurant. The law did stop me, by drawing an invisible line for me at that front doorstep. The penalties for a lawabiding citizen are much greater than for a criminal. The law does not even cause a bad guy to blink. Laws are made for the law abiding. As the law stood, it kept law-abiding citizens from having the ability to defend themselves and their loved ones in a nightmare scenario which my husband and I found ourselves in.39

36 37

Id. See generally Grass Roots North Carolina, http://grnc.org/restaurantcarry.htm. 38 Id. 39 Id.

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While it is easy to look at the law at issue and make the argument that people should not bring guns into places where alcohol is sold and consumed, it is not right for us to let a law go uncorrected simply because we do not agree with it. Although this article happens to be about 14-269.3, the same situation could arise under any statute. When we choose to disregard problems like this because they are complicated and already assumed to mean one thing, we jeopardize the integrity of the legal system. Citizens should not be afraid they will be arrested for a crime that they had no idea existed, especially after more than a reasonable effort has been put forth to learn the law. 2. Where do you go to find the answers? When citizens are afraid, where do they go for help? In researching this topic, although I was able to speak with various people, I did not hear back from many that I contacted. Were it not for my position as a law student at Wake Forest University School of Law and as an extern at Forsyth County District Court, I doubt I would have received any of the feedback and information I did. Of those I contacted who I had no personal connection with, I received no feedback. Neither of the two pro-gun North Carolina State Representatives I emailed responded; the North Carolina gun law author I contacted did not email me back; a local news reporter who knows many pro-gun advocates never responded to my email; and one author from the UNC School of Government never returned my phone call after she told me to call her on a certain date. Whether they were busy or because my emails were sent to their spam boxes, this does show how difficult it would be for the average citizen with no legal training and limited time to research the law to become properly informed about a complicated and ambiguous law. One resource for individuals seeking information about the law is the internet. A simple Google search will produce an abundance of gun-related websites with discussion threads

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addressing the laws pertaining to concealed carry in North Carolina restaurants. When ordinary citizens cannot understand the law or become confused due to conflicts and ambiguity in the law, they often seek advice from other citizens. A common complaint in these discussions surrounds the confusion in understanding and interpreting the law. As a result, experts who may not have any more knowledge or better of an understanding about the law than those receiving the information give advice on complicated legal issues. In addition to discussion forums, the internet provides citizens with access to a plethora of websites, books, blogs, and other resources sharing their interpretation of various North Carolina laws. While many of these resources are credible and carefully researched, others are questionable at best. So how does a layperson determine which is which? It requires significant effort to evaluate the information available as to its accuracy, and most people will not have a ready means of sorting the accurate information from the rest. When conflicting opinions exist, the general public has no reliable way to determine the correct interpretation of the law. Statutory ambiguity only puts law abiding citizens at risk of becoming confused and in danger of breaking the law. However, even if a citizen does not break any law, he could still be disadvantaged if he is not doing lawful activities because a bad source wrongly informed him. 3. The defenses decision Once the attorney has met with the defendant and has reviewed the statutes the defendant allegedly violated, the attorney must decide his best course of action. Typically, this type of case would not go to trial unless there were other more important issues involved. Thus, unless the attorney felt confident that this statute was so ambiguous that it would be dismissed by a judge, it is highly likely that the attorney would encourage the defendant to take the plea agreement.

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Unfortunately, a plea bargain would allow this type of statute to go unchecked by a judge and remain law. Based on the time it has taken to compare 14-269.3 with the other applicable statutes, the only way that this specific statute would continue to trial would be if a very stubborn, determined, and wealthy defendant strongly believed he was innocent. In the event of such a plea bargain, if the result is only a misdemeanor on the defendants record, is that an acceptable way to enforce our laws? The defendant who made his decision based on a flawed interpretation due to confusion among law enforcement and the judicial system would still have a misdemeanor on his record because of a clearly ambiguous statute. Such a misdemeanor would negatively impact his life in areas such as obtaining employment and gaining security clearances. Though minor, this is a heavy price to pay for a well-intentioned and otherwise law-abiding citizen who was confused about the law. Even more concerning is if the violation happens to be the persons second concealed carry offence, in which case the penalty is a felony. In such case, any vagueness or ambiguity in the law clearly has significant implications for the individual. C. The district attorneys decision Once the defendant has made the decision to go forward and not accept the plea agreement, it is up to the district attorney to decide whether they are going to drop the charges or go to trial against a very determined individual. If the charges are dropped then the same potential problem with a plea agreement could arise. By dropping the charges because the case is confusing and intricate, the district attorney is allowing the statute to go unchanged. Without being ruled on by a judge, statutes like 14-269.3 will never be corrected and the problems associated with ambiguous statutes will persist.

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In a scenario like this, the fact that someone was charged with a crime may be enough to ruin that persons future plans and/or career. Even if dropped or dismissed, being charged for illegally carrying a concealed firearm is a punishment in itself. Not counting the time, money, or energy one may have already put into the case, the social stigma and embarrassment attached to such a case, or one similar, could have unforeseen consequences. If a small business owner is charged with violating a comparable statute, it might not matter if he did all that he could to figure out the law because the charge might be enough to ruin that mans entire business. If the defendant chooses to go to trial because he realizes everything that this article has already addressed, the district attorney may conclude that it would be a waste of time and resources to prepare for a case prosecuting someone for violating this statute. However, assuming the district attorney does not see the problems the defendant does with 14-269.3, the district attorney might go forward. D. Statutory Interpretation In Trial If the defendants case finally gets a court date, the final steps of statutory interpretation in state court come into play. However, much needs to happen before a judge rules on a case if the defendant wants a legitimate chance of winning. After all, the stubborn, determined, and wealthy defendant does not want to have his case dismissed, he wants the judge to rule in his favor so the statute can begin the process of becoming what it was intended to mean. 1. Preparing the judge40 The first step a defendants attorney should make towards getting the judge to see the statute as he does is to prepare the judge for the complicated issue that will arise at trial. When an issue like 14-269.3 comes up at trial, especially one that requires many statutes to be repeatedly

40

Many of the thoughts, ideas and suggestions in this section come from my meeting with The Honorable Chester C. Davis of Forsyth County District Court.

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compared to each other, it is in a lawyers best interest if he writes up a summary of the issue and gives or presents it to the judge the day or week before trial. By doing this, an attorney not only prepares the judge with all of the proper statutes and exceptions highlighted and underlined, but the attorney avoids potentially embarrassing the judge in court if the statute at issue is extremely complicated and ambiguous like 14-269.3. Depending on the judge, it might not matter who is right or how well you are prepared because their opinion is what matters; two judges can issue two completely different rulings on the exact same case. This particularly comes into play depending on the issue. Although judges are supposed to rule on the law and not on the times, judges are humans too and it would only be natural for a judge who is adamantly opposed to guns to have a bias against a defendant who is trying to make a drastic change in a gun law. 2. The judges decision The heart of the statutory interpretation process comes when the judge makes his decision based on various canons of construction used to help determine the particular meaning of an ambiguous statute.41 The starting point for a judge interpreting the statute is to look at the language of the statute itself.42 As we saw with the issues surrounding 14-269.3, one difference in a subsection can change the entire meaning of the statute. One of the main determinations that influence a judges decision when interpreting a statute is based on whether he uses the Rule of Lenity or the Rule of Fair Import. For the defendant advocating this articles stance on 14269.3, a judge would almost certainly rule in favor of the defendant because the Rule of Lenity.

41

See Yule Kim, Statutory Interpretation: General Principles and Recent Trends, CRS Report for Congress 97-589, summary (2008). 42 Id. at 2.

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Under the Rule of Lenity, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.43 Because the issues surrounding 14-269.3 are clearly ambiguous, the Rule of Lenity would allow anyone charged with a crime like 14-269.3 to be found not guilty. If the Rule of Lenity is applied literally, it would require no exercise of discretion and if an interpretation more favorable to the defendant is offered, it must be adopted.44 However, it is rare for a court to follow this rule without thinking about the consequences of the decision.45 The Rule of Lenity furthers the idea of fair notice because a citizen should not be guilty of a crime if one interpretation the statute permitted the defendants conduct. 46 Regardless of what the law surrounding 14-269.3 actually is, the fact is that there could be two completely opposing interpretations of the statute.47 Moving away from the Rule of Lenity, most current codes adopt the Rule of Fair Import. The Rule of Fair Import allows the judge to think more about the intention of the legislature so that the legislative purpose is not frustrated by minor technicalities. 48 Although the Rule of Fair Import is not nearly as strict as the Rule of Lenity, it is likely that a judge using the Rule of Fair Import would still rule in favor of this articles interpretation of 14-269.3 because the major difference is that a statute is not to be construed so strictly as to defeat the obvious intention of the legislature.49 In our case, not much is clear about the law surrounding whether someone with a concealed carry permit can carry a handgun into those places addressed in 14-269.3. Consequently, a judge would not be off base ruling in this articles favor.
43 44

See Robinson, supra note 1, at 70 quoting Bell v. United States, 349 U.S. 81, 83 (1955). See Robinson, supra note 1, at 71. 45 Id. 46 See Robinson, supra note 1, at 70. 47 See Robinson, supra note 1, at 71 (The Rule of *Lenity+ only applies if there is an ambiguity, and it is for the court to decide whether an ambiguity exists.) (Although there is certainly an ambiguity this articles issue, it should be noted that in the end, it is always up to a judge and depending on the judge, they might very well find that this issue is not ambiguous). 48 See Robinson, supra note 1, at 71. 49 Id.

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When deciding how to rule on this issue, the judge would obviously try and figure out what the intent of the legislature was. In our case, the intention of the legislature is almost entirely unknown. Besides finding someone who remembers why they worded things how they did back in 1977 when 14-269.3 was enacted, it is unlikely we will ever know what the true intention was. However, in putting together the different pieces like we have, one is able to get a better idea as to what the true intention could have been. Either way, this type of statute will not be resolved until it is addressed by a judge and corrected or rewritten by the Legislature.

E. The End Result When you break down the statutory interpretation process into what actually happens and how the lawyers, police officers, and judges come to their conclusions, it really is just an intricate method of comparing and contrasting statutes. However, the better you are at this method, the better of a lawyer you will be. This whole process demonstrates how complex the law can be, and how noticing specific technicalities and minute details could possibly get your client out of jail, or into jail if you are the prosecutor. But the ability to find discrepancies within the law and use them to further your clients interest also goes far beyond criminal law. Lawyers in every field would benefit from learning about the statutes discussed in this article because it proves that these types of ambiguities exist and go unnoticed and unchallenged. IV. WHY THIS MATTERS The statutory interpretation of 14-269.3 is a very difficult process. There is much more involved in interpreting the statute than one would assume based on an initial reading. Because this issue is so difficult to deal with, it would not be surprising if someone reading the statute became so frustrated that they just gave up and ceded to the oppositions argument. However,

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while giving up would be understandable, the difficulty of considering the issues discussed in this article should not keep someone from fighting to correct such a mistake. Whether or not this articles interpretation of 14-269.3 is correct, accepting the law without questioning why it means what everyone thinks it does is a serious problem. It seems like the entire State of North Carolina assumes that 14-269.3 prevents those who have valid permits under 14-269(a1)(2) from carrying handguns into assemblies where admission is charged and establishments where alcohol is sold and consumed. Even if that is what 14-269.3 means, it is still a shame that nobody has challenged the law up until this point. By not challenging laws that could be challenged, we allow our rights to be trampled and implicitly show the government that those rights granted to us in the Constitution are no longer as important to us as they once were. Another problem with the assumption about 14-269.3 is that nobody can explain why or how this law means what everyone thinks it does. Not one source or publication confronted explained why 14-269.3 prohibits concealed permit holders from carrying handguns into assemblies where admission is charged and establishments where alcohol is sold and consumed. In a democracy where the law is meant to protect its citizens, it is a travesty that an entire state simply accepts a law to be true without questioning it. A grave injustice is committed when anyone allows a statute such as 14-269.3 to continue to remain law when nobody can explain why that statute makes a certain act a crime. To quote Martin Luther King Jr., Injustice anywhere is a threat to justice everywhere. By no means is this article claiming that 14-269.3 is by itself an important statute that must be immediately addressed. Rather, this article is claiming that the integrity of the legal system as a whole slowly withers away when the unimportant and insignificant laws are ignored.

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Although it takes effort and energy to correct such issues, by doing so, the law continues to serve its purpose of protecting its citizens.

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