News: CJ Exclusives

Court Upholds NC Gun Ban for Felons

Federal appeals court finds that the law can be applied retroactively

A U.S. appeals court has upheld a 1995 change in North Carolina law limiting the right of felons to own handguns. Significantly, in doing so, the Richmond-based U.S. Court of Appeals for the Fourth Circuit held that the law can be applied even against those convicted of felonies before the 1995 amendment.

In February 1990, Michael Anthony Farrow pleaded guilty to four felony counts of selling cocaine. He was released from prison later that year and completed his required probation in early 1992. At that time, he received a Certificate of Unconditional Discharge, which provided that all rights of citizenship forfeited upon his conviction were restored by automatic operation of North Carolina law. There was an exception to this, however: The N.C. Felony Firearms Act prohibited felons from possessing handguns for five years after the later of their date of conviction, unconditional discharge from prison, or the termination of a suspended sentence, probation, or parole.

In November 2001, nearly a decade after his probation had ended, police officers stopped Farrow and the vehicle he was driving. In a subsequent search, the officers found two handguns and a shotgun, which Farrow admitted to owning. Farrow was charged in federal court with being a felon in possession of a firearm.

Farrow’s legal strategy centered upon getting the indictment thrown out. Though he was a felon, the federal law against felons in possession of a firearm does not apply to those who have had their civil rights restored unless such a restoration expressly provides that the person may not ship, transport, possess, or receive firearms.

Farrow would have been in the clear — except that in 1995 the N.C. General Assembly had changed the Felony Firearms Act. Instead of the previous five-year ban on felons possessing handguns, the prohibition was changed to a lifelong ban.

Specifically, N.C. General Statue § 14-415.1 provides that it is unlawful “for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any handgun or other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches.” The prohibition is not absolute; it does not apply to a felon’s own home or lawful place of business.

In an attempt to avoid prosecution, Farrow argued before the federal district court and, upon appeal, the Fourth Circuit that the 1995 was an unconstitutional ex post facto law. The Ex Post Facto Clause of the constitution prohibits laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.”

Case law in analyzing potential ex post facto issues centers in large part on determining the nature of the law at issue. While enacting retrospective punishment is unconstitutional, creating retrospective civil or regulatory laws is not. Previous N.C. Supreme Court and N.C. Court of Appeals rulings have made clear that N.C. General Statue § 14-415.1 is a civil statue design to protect the public. The Fourth Circuit itself had previously held that the earlier version of the act was so harsh as to be considered punitive.

Based upon these precedents, the three judges of the federal appeals court had no trouble in upholding the 1995 amendments and their applicability to Farrow.

“The law remains rationally connected to the state’s legitimate interest in protecting the public,” wrote Judge Allyson Duncan for the court. “It continues to exempt the possession of firearms within one’s home or lawful place of business. The prohibition remains limited to weapons that, because of their conceivability, pose a unique risk to public safety. Finally, the law affects only those persons who have been convicted of a felony and are thus ‘unfit[ ] to be entrusted with such dangerous instrumentalities.’”

The case is US v. Farrow (No. 03-4193p).

Lowrey is a Charlotte-based associate editor at Carolina Journal.