Britt v. State, 488A07.

CourtUnited States State Supreme Court of North Carolina
Citation363 N.C. 546,681 S.E.2d 320
Docket NumberNo. 488A07.,488A07.
PartiesBarney BRITT v. STATE of North Carolina.
Decision Date28 August 2009
681 S.E.2d 320
363 N.C. 546
Barney BRITT
STATE of North Carolina.
No. 488A07.
Supreme Court of North Carolina.
August 28, 2009.

[681 S.E.2d 321]

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 185 N.C.App. 610, 649 S.E.2d 402 (2007), affirming an order granting summary judgment for defendant and denying summary judgment for plaintiff entered 31 March 2006 by Judge Michael R. Morgan in Superior Court, Wake County. Heard in the Supreme Court 5 May 2008.

Dan L. Hardway Law Office, by Dan L. Hardway, for plaintiff-appellant.

Roy Cooper, Attorney General, by John J. Aldridge, III, Special Deputy Attorney General, for defendant-appellee.

BRADY, Justice.

This case presents an as-applied challenge to the constitutionality of the 2004 amendment to N.C.G.S. § 14-415.1 that makes it "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." We determine that N.C.G.S. § 14-415.1 is unconstitutional as applied to plaintiff and reverse the decision of the Court of Appeals.


In 1979 plaintiff Barney Britt pleaded guilty to felony possession with intent to sell and deliver the controlled substance methaqualone. Plaintiff's crime was nonviolent and did not involve the use of a firearm. Plaintiff was sentenced to two years in the North Carolina Department of Correction, with four months active imprisonment and the remainder suspended for two years, during which plaintiff was on supervised probation. He completed his probation in 1982, and in 1987 his civil rights were fully restored by operation of law, including his right to possess a firearm. At that time, N.C.G.S. § 14-415.1 only prohibited the 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" by persons convicted of certain felonies, mostly of a violent or rebellious nature, "within five years from the date of such conviction, or unconditional discharge from a correctional institution, or termination of a suspended sentence, probation, or parole upon such conviction, whichever is later." Act of June 26, 1975, ch. 870, sec. 1, 1975 N.C. Sess. Laws 1273.

Subsequently, in 1995 the General Assembly amended N.C.G.S. § 14-415.1 to prohibit the possession of such firearms by all persons convicted of any felony, without regard to the date of conviction or the completion of the defendant's sentence. Act of July 26, 1995, ch. 487, sec. 3, 1995 N.C. Sess. Laws 1414, 1417. The 1995 amendment did not change the previous provision in N.C.G.S. § 14-415.1 stating that "nothing [therein] would prohibit the right of any person to have possession of a firearm within his own house or on his lawful place of business." However, in 2004 the General Assembly amended N.C.G.S. § 14-415.1 to extend the prohibition on possession to all firearms by any person convicted of any felony, even within the convicted felon's own home and place of business. Act of July 15, 2004, ch. 186, sec. 14.1, 2004 N.C. Sess. Laws 716, 737.1

681 S.E.2d 322

Following passage of this amendment, plaintiff had a discussion with the Sheriff of Wake County, who concluded that possession of a firearm by plaintiff would violate the statute as amended in 2004. Plaintiff thereafter divested himself of all firearms, including his sporting rifles and shotguns that he used for game hunting on his own land. In the thirty years since plaintiff's conviction of a nonviolent crime he has not been charged with any other crime nor is there any evidence that he has misused a firearm in any way. Furthermore, no determination has been made by any agency or court that plaintiff is violent, potentially dangerous, or is more likely than the general public to commit a crime involving a firearm.

On 20 September 2005, plaintiff initiated a civil action against the State of North Carolina, alleging that N.C.G.S. § 14-415.1 as amended violates multiple rights he holds under the United States and North Carolina Constitutions. On 31 March 2006, the trial court granted the State's motion for summary judgment, holding that the amended statute is rationally related to a legitimate government interest and is not an unconstitutional ex post facto law or bill of attainder. Plaintiff appealed to the Court of Appeals, and a majority of that court agreed with the trial court that plaintiff's rights had not been violated. The dissent at the Court of Appeals would have held that the 2004 amendment amounted to an ex post facto law and violated plaintiff's rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 19 of the North Carolina Constitution. On 24 March 2009, this Court retained plaintiff's notice of appeal based upon a substantial constitutional question as to the following issue only: "Whether the application of the 2004 amendment to N.C.G.S. § 14-415.1 to plaintiff violates his rights under N.C. Const. art. I, § 30." Because we agree with plaintiff that the application of N.C.G.S. § 14-415.1 to him violates Article I, Section 30 of the North Carolina Constitution, it is unnecessary for us to address any of plaintiff's remaining arguments, and we express no opinion on their merit.


Article I, Section 30 of the North Carolina Constitution provides, in pertinent part: "A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." This Court has held that regulation of the right to bear arms is a proper exercise of the General Assembly's police power, but that any regulation must be at least "reasonable and not prohibitive, and must bear a fair relation to the preservation of the public peace and safety." State v. Dawson, 272 N.C. 535, 547, 159 S.E.2d 1, 10 (1968) (quoting with approval State v. Kerner, 181 N.C. 574, 579, 107 S.E. 222, 226 (1921) (Allen, J., concurring)). Accordingly, this Court must determine whether, as applied to plaintiff, N.C.G.S. § 14-415.1 is a reasonable regulation.2

Plaintiff pleaded guilty to one felony count of possession with intent to sell and deliver a controlled substance in 1979. The State does not argue that any aspect of plaintiff's crime involved violence or the threat of violence. Plaintiff completed his sentence without incident in 1982. Plaintiff's right to possess firearms was restored in 1987. No evidence has been presented which would indicate that

681 S.E.2d 323

plaintiff is dangerous or has ever misused firearms, either before his crime or in the seventeen years between restoration of his rights and adoption of N.C.G.S. § 14-415.1's complete ban on any possession of a firearm by him. Plaintiff sought out advice from his local Sheriff following the amendment of N.C.G.S. § 14-415.1 and willingly gave up his weapons when informed that possession would presumably violate the statute. Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety. Moreover, the nature of the 2004 amendment is relevant. The statute functioned as a total and permanent prohibition on possession of any type of firearm in any location. See N.C.G.S. § 14-415.1 (2004).

Based on the facts of plaintiff's crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute's operation, as applied to plaintiff, the...

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