Using “The Castle Doctrine” to Obtain Immunity from Criminal Prosecution: Part 2

In Part One of this blog series, we summarized the provisions of G.S. § 14.51.2 that provide for the use of defensive force in your home, motor vehicle and workplace. In this article, we examine the provisions of immunity set out in G.S. § 14-51.2 and the procedural mechanisms to properly assert immunity on behalf of a person entitled to its benefits.

IMMUNE FROM CIVIL OR CRIMINAL LIABILITY

G.S. § 14-51.2(e) grants immunity to a person who uses defensive force in his home, motor vehicle or workplace as permitted by this section unless the person against whom defensive force is used is a person as described and acting in G.S. § 14-51.2(c)(4). Specifically, G.S. § 14-51.2(e) states:

A person who uses force as permitted by this section is justified in
using such force and is immune from civil or criminal liability for the
use of such force…

The practical question is what did the General Assembly intend when it enacted this provision for immunity. The General Assembly intended this language to provide a remedy. This position is supported by the use of the word “immune” in a subsection separate and apart from the subsections that create the presumptions in G.S. § 14-51.2. The legislative history for The Castle Doctrine reflects that the immunity language was changed from “immune from prosecution” to “immune from civil or criminal liability” to be consistent with similar immunity language for relief from criminal or civil liability in G.S. § 7B-309, G.S. § 7B-500, G.S. § 7B-3403, G.S. § 15A-405, and G.S. § 130A-142. See, Bill Analysis Memorandum prepared by Hal Pell dated 21 February 2011.  This is further evidence that the General Assembly intended to provide a procedural remedy.

In Dobson v. Harris, 352 N.C. 77, 530 S.E.2d 829 (2000), the Supreme Court had the opportunity to determine the meaning of “is immune from any civil or criminal liability” language contained in G.S. § 7B-309.  This language is identical to the immunity language in The Castle Doctrine statutes.  The Supreme Court agreed with the defendant and held that the plaintiff’s claim against her was per se barred by the immunity provisions.  “Immune” was clearly intended to be used in its technical sense as a term of art that bars criminal prosecution for the subject conduct.  This conclusion is supported by the fact that G.S. § 15A-954(a)(9) directs that the court must dismiss the charges in a criminal pleading if it determines that the defendant has been granted immunity.

The Castle Doctrine statutes were enacted under Chapter 14 as substantive Criminal Law, specifically Article 14, Burglary and Other Housebreakings, and not under Chapter 15A, Criminal Procedure Act, specifically Article 52 Motions Practice.  G.S. § 14-51.2 does not provide the procedural mechanisms to assert the immunity granted by the statute.  Historically, when a substantive criminal law is enacted the General Assembly is presumed to have acted with knowledge of existing criminal law procedures.  Application of well-established rules of statutory construction and the statutes that govern motions practice in criminal cases clearly provide the framework to assert and establish the immunity provided for in G.S. § 15-51.2(e) and obtain a dismissal of the criminal charges issued from the use of defensive force.

PROCEDURAL FRAMEWORK TO ASSERT & ESTABLISH IMMUNITY

G.S. § 15A-954 is entitled: “Motion to dismiss—Grounds applicable to all criminal pleadings; dismissal of proceedings upon death of defendant”.  G.S. § 15A-965(a)(9) states:

(a) The court upon motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:

(9) The defendant has been granted immunity by law from prosecution.

G.S. § 15A-954(b) indicates that a motion to dismiss may be made at anytime.  Our appellate courts have yet to interpret the specific provisions of G.S. § 15A-954(a)(9).  However, there are numerous appellate cases that have set out the procedures a defendant must follow when making a motion to dismiss, pursuant to G.S. § 15A-954.

First, the motion must be in writing and supported by a detailed affidavit, similar in fashion to the affidavit required in a motion to suppress. Second, the motion should set forth the legal basis as applicable [e.g. G.S. § 14-51.2(b)(1)-(2)] and the affidavit should detail the factual allegations that support the legal basis.  The affidavit should quote from the discovery as much as possible and reference the location of the quote. The factual allegations, if taken as true, should entitle defendant to the legal protections of immunity as described in G.S. § 14-51.2 and dismissal of the charges.  The failure to set out a sufficient legal and factual basis could be grounds for the court to deny an evidentiary hearing and summarily deny the motion to dismiss. State v. Spicer, 299 N.C. 309, 261 S.E.2d 893 (1980).  Third, the prayer for relief should request: an evidentiary hearing well in advance of the trial setting; a reasonable period of time before the hearing date to subpoena witnesses; the opportunity to present witnesses and exhibits during the evidentiary hearing; the opportunity to make legal arguments and submit a memorandum of law; and that the court make written findings of fact and conclusions of law to support its grant or denial of the motion to dismiss.

Fourth, at the hearing, the defendant has the burden of proof.  State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412 (2009). Fifth, the burden of proof is by the preponderance of evidence.

In conclusion, the General Assembly clearly intended to materially expand the right of self-defense and defense of others in a home, motor vehicle and workplace when it enacted G.S. § 14-51.2.  Likewise, the General Assembly clearly intended to provide the right to a pretrial hearing to establish this expanded right of self defense and avoid further civil or criminal prosecution through the grant of immunity.

For additional information on this topic, please see:  John Rubin, Self-Defense Provides Immunity from Criminal Liability, UNC School of Government, North Carolina Criminal Law (4 October 2016);  John Rubin, Issues in Self-Defense Law in North Carolina, UNC School of Government, North Carolina Criminal Law (October 2017); and Benjamin M. Boylston, Immune Disorder: Uncertainty Regarding the Application of “Stand Your Ground” Laws, 20 Barry Law Review (Fall 2014).

Les Robinson of The Robinson Law Firm, P.A. was the first in the North Carolina to obtain a pretrial hearing on the issue of immunity in a criminal case and likewise the first to obtain a dismissal of criminal charges against his client based on this immunity.  If you have any questions about immunity under North Carolina law, or a case that you feel is governed by immunity, please contact us today for a free initial consultation.

Categories: Blog, Criminal Defense