http://bluenc.com/ethical-problems-nc-supreme-court


Ethical Problems on NC's Supreme Court
Submitted by scharrison on Thu, 09/17/2009 - 8:30pm
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A few weeks ago, Connie posted some information here at BlueNC that sent me off on a digging expedition, and I subsequently posted my meager findings on an NC Policy Watch diary that dealt with the same subject matter. Being that I'm not a lawyer and don't even play one on TV, I decided to wait and see if anyone smarter than me (big crowd) would take the ball and run with it. But since I haven't seen any movement yet, plus the fact that I have the patience of a toddler, I decided to blog about what I see as a major issue with our State's highest court.

Many reading this are aware of the NC Supreme Court's recent ruling allowing a convicted felon to legally possess a firearm:

Quote :

" The ruling authored by Justice Edward Thomas Brady held that Britt should be able to own guns and that the state unfairly took away his right to own a firearm with a 2004 law that barred felons from owning firearms. Britt was convicted in 1979 of selling Quaalude pills, but he didn't have any further tangles with the law. Though the opinion focused just on Britt's case, both sides of the gun control issue saw the ruling as significant because the state's highest court found that Britt had a right to bear arms that trumped the state's ability to restrict him from owning any weapons. Brady wrote that the law was too broad in including nonviolent felons like Britt, who had otherwise been law-abiding and had owned guns for 17 years after he successfully petitioned in 1987 to have his civil rights restored, including owning a gun. "He is not among the class of citizens who pose a threat to public peace and safety," Brady wrote."

Before I continue, I know there are many reading this who feel strongly about this issue, and I'm not going to try to dissuade you from speaking your mind in the comments. But before you do, please take the time to read the entire opinion(pdf), including the dissent:

Quote :

" In a dissenting opinion, Justice Patricia Timmons-Goodson said she was alarmed that her fellow justices ignored state law by giving Britt an exemption. She said the ruling made North Carolina the first jurisdiction to uphold a convicted felon's right to own firearms over a state's power to regulate gun ownership. "Today's decision opens the floodgates wide before an inevitable wave of individual challenges to not only the Felony Firearms Act, but our statutory provisions prohibiting firearm possession by incompetents and the mentally insane," Timmons-Goodson wrote."

Now let's talk about the ethics I mentioned in the title of this diary. Whenever an officer of the court finds him or her self in a situation where they have even a potential conflict of interest with a case, sound ethics demand they remove (recuse) themselves from the proceedings. But don't take my word for it, here's a few snippets from the NC Code of Judicial Conduct:

Quote :

" canon 2.A. "A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 3.C. (Disqualification)(1)(a) "He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding""

I bring those rules up because, until today, I had suspected that Justice Brady, who wrote the Majority Opinion that not only granted a convicted felon the right to own a gun, but also eroded our elected officials' authority to protect the general public from harm, is also a gun dealer:

From the Brady Law Firm's website:

Quote :

" Phone (910) 323-5600 FAX (910) 323-5696 B. Dianne Brady Mailing Address The Brady Law Firm 325 Green Street Fayetteville, NC 28301"

And from a Fayetteville business directory:

Quote :

" Guns & Gunsmiths North Carolina Arsenal 325 Green Street Fayetteville, NC 28301-5027 Phone: 910-485-8000 Fax: 910-323-5696 View Map - North Carolina Arsenal"

I used the word "suspected" above because info on the Internet about the North Carolina Arsenal is real thin. It shared the same street address as the Brady Law Firm, and even the same fax machine, but I thought it might be some multi-office location, or maybe the gun dealership was an old business that Justice Brady used to run. So I decided to drive down to my old stomping grounds in Fayette-Nam to check it out.

After walking around the Brady Law Firm building to make sure there was no other entrance, I entered the front door and encountered a receptionist at her desk. I told her I was looking for the North Carolina Arsenal, and she sort of rolled her eyes and replied, as best I can recall:

Quote :

" "That's a side-business operated by a judge, whose wife owns and operates this law firm. It's not a place you can just walk into like a store, you have to call on the phone.""

Just to clarify, I said, "So I have to call the judge?", and she said, "Yes."

I probably could have gotten a little bit more info from her, but my main questions had been answered: a) The North Carolina Arsenal did exist and was still being "operated", b) Justice Brady was the one who personally operated it, and c) the folks who worked in the law office were aware of it.

Since he is apparently still an active gun dealer, Justice Brady should have recused himself from this case. Instead, he not only took part, he assumed a leadership role and spoke for not only his Supreme Court colleagues, but the entire State's judicial system as well.

In life, there are consequences. If you commit a felony, you lose some of your rights. If you are a judge who puts personal gain and ideology above ethics and rules, there should be consequences for you, too.

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Before this turns into a who should be allowed to own guns, and what type of guns they should be allowed to own, I'd ask that people first express whether or not they feel this judge should have recused himself? Is this judicial activism overruling a state's right to make its own law?

And just to get my opinions out of the way. It sounds like maybe he should have recused himself, I think law abiding citizens should be allowed to own guns, for non-law abiding citizens it should depend on the nature & severity of their crimes, & as for types of guns I believe people should have access to weapons to defend themselves, but not to guns that boarder on military weaponry (full disclosure I haven't fired many guns in my life & am probably not able to pinpoint where that distinction falls but luckily gun rights isn't the main point of the thread, it is just an incidental fact).

9/21/2009 3:57:56 PM

No bill of attainder or ex post facto Law shall be passed

9/21/2009 4:02:35 PM

Too much bolding. You're supposed to bold around half the post and underline the important parts.

9/21/2009 4:03:58 PM

I need rolly eyes too.

9/21/2009 4:04:52 PM

Quote :

"Before this turns into a who should be allowed to own guns, and what type of guns they should be allowed to own, I'd ask that people first express whether or not they feel this judge should have recused himself?"

Maybe. However, it seems like it's a bit of a stretch to argue that he had a direct financial interest in this particular case; should this judge be required to recuse himself from all gun-law related cases? At best his financial interest is indirect.

Second, what is our criteria to demand recusal here? If he simply owned a gun, would that be okay? What if he served on the board of directors for a pro-gun group? What if a judge served in a similar position of an anti-gun group? What should be our criteria for a judge to recuse themselves?

Quote :

" Is this judicial activism overruling a state's right to make its own law?"

No more than holding that any other law is in conflict with the guarantees provided under the state or national constitution, assuming that this is the basis of a decision, and the constitutionality is under review.

9/21/2009 4:12:37 PM

^ Great post, Dr. Steve.

9/21/2009 4:34:46 PM

so when can teh gays get married?

9/21/2009 5:41:54 PM

That is a lot of bold. As far as the legal side; the court ruled that if you have a non violent felony conviction and its been like 30 years, the law shouldn't apply to you. You can still be charged, its just not going to hold water. Also, this does not apply to federal charges.

9/21/2009 6:44:53 PM

Quote :

"Brady wrote that the law was too broad in including nonviolent felons like Britt, who had otherwise been law-abiding and had owned guns for 17 years after he successfully petitioned in 1987 to have his civil rights restored, including owning a gun."

Sounds like a fair interpretation of the law in light of the ex post facto clause.


It is likely that Judge Brady incorporated the North Carolina Arsenal for FFL or Class III purposes, an act which isn't at all uncommon or shady. This probably isn't something that provides him with a substantial revenue flow.


The OP gets points for being investigative and involved, I just don't think there is anything to this.

9/21/2009 10:00:43 PM

Quote :

"No bill of attainder or ex post facto Law shall be passed"

This is something that I've been mulling over for a while now, and, as much as it surprises me to say so, I'm gonna give a shout out to smackr on this. Laws that deprive a convicted criminal of his civil rights after his release seem to be unConstitutional on the surface based on this clause.

9/22/2009 4:55:21 AM

I'm curious as to how you think the judge being an FFL qualifies as a conflict of interest in determining whether or not a citizen has the right to own a gun. This isn't a case about whether dealers should be allowed to do X, just a case about whether a citizen can do X. I don't think it's anymore a conflict of interest than it would be if the judge owned a dealership and was presiding over a case in which someone's drivers license was suspended for a violation he committed 20 years ago.

As to whether he made the right decision, there is already the constitutional argument, so I won't rehash that. But also the question becomes why do we continue to restrict people's rights after they have been released from prison? Why is it that we don't allow someone convicted of a felony to vote or own a gun after they have finished serving their sentence? The obvious answer is that we don't trust them to not go a commit another crime, but then the question becomes if we don't trust them to be members of society with all the rights that comes with, then why have we let them out of prison in the first place?

9/22/2009 7:43:34 AM

I consent that a non-violent felon should not lose his right to bear arms.

Unless of course you think just b.c Stoner John caught with his 1.5 oz of marijuana (his personnal stash) deserves to lose his rights b.c *gasp* he's a felon!! ZOMG

9/22/2009 8:04:27 AM

Yeah I do not see why non-violent felons can not have guns. I would be different if the guy had been convicted of rape or robber but c'mon he was selling some 'ludes.

9/22/2009 8:46:59 AM

i don't think this is a conflict

9/22/2009 9:23:29 AM

I don't think that it is even an issue over him being a non-violent felon. The issue to me is about him having his civil rights restored to him in 1987 and the State coming around in 2004 and passing an ex post facto law to strip him of his civil rights he had restored.

9/22/2009 9:53:45 AM

he's a felon...he should have to deal with the fucking consequences. plain and simple. if we start making exceptions for every little thing, our legal process is going to get bogged down in countless requests. if you're a felon, you've already proved that you can't follow laws made to up hold a civil society...you no longer get to pretend you belong with those that can follow the rules.

9/22/2009 11:53:21 AM

He went through the process to have his civil rights restored to him back in 1987. The State decided in 2004 to reverse its actions in 1987 when it restored his civil rights, by removing them 17 years later. This is by definition ex post facto.

9/22/2009 12:11:05 PM

I agree that in this particular case it's a question of ex post facto. I disagree, however, with aaronburro's statement:

Quote :

"Laws that deprive a convicted criminal of his civil rights after his release seem to be unConstitutional on the surface based on this clause."

Firstly, because it seems to demonstrate a lack of understanding about what an "ex post facto law" is. But moving on from that...

As long as the restriction was in place at the time he was convicted, then it's just a part of his sentence. Nothing in the Constitution says that your punishment is limited to the confines of a jail.

9/22/2009 2:27:17 PM

Quote :

"he's a felon...he should have to deal with the fucking consequences. plain and simple. if we start making exceptions for every little thing, our legal process is going to get bogged down in countless requests. if you're a felon, you've already proved that you can't follow laws made to up hold a civil society...you no longer get to pretend you belong with those that can follow the rules."

I think felons should lose all of their civil and legal rights as well. I think that Mr. Felon knew what he was doing and should pay permanent lifelong penalties no matter what his crime was. In fact I should be able to rob, rape, and murder felons without any consequences because that's what they deserve since they're no longer real people anyway.

9/22/2009 2:37:13 PM

Quote :

"if we start making exceptions for every little thing, our legal process is going to get bogged down in countless requests."

you mean like it is now....bogged down with tickets for minuscule shit

The only good out of it now is if you get a bastard ass lawyer you can get any stupid ticket thrown out because the DA has bigger fish to fry and a good attorney will take up a lot of their time with a trial.

9/22/2009 2:48:04 PM

Quote :

"Firstly, because it seems to demonstrate a lack of understanding about what an "ex post facto law" is. But moving on from that..."

And you clearly show a lack of understanding of what a "bill of attainder" is.

Quote :

"I think felons should lose all of their civil and legal rights as well."

exactly. They shouldn't be able to marry, have free speech, have freedom of association, or a right to a trial by jury. Fuck em.

9/22/2009 7:17:33 PM

^,^^^ LOLOLOLOLOLOL YOUR HYPERBOLE HAS TOTALLY CHANGED MY MIND!!!

[Edited on September 26, 2009 at 12:42 AM. Reason : .]

9/26/2009 12:38:52 AM

PEOPLE ON LUDES SHOULD NOT DRIVE! BWAH HAHAH!

srsly, the dude cant be any worse than spicoli. let him have a gun already.

9/26/2009 1:04:38 AM

Quote :

"he's a felon...he should have to deal with the fucking consequences. plain and simple. if we start making exceptions for every little thing, our legal process is going to get bogged down in countless requests. if you're a felon, you've already proved that you can't follow laws made to up hold a civil society...you no longer get to pretend you belong with those that can follow the rules."

Without going further as to make it seem like I don't think criminals deserve rights, I'll just say that I appreciate this.

What I am more concerned about still are the abilities of guns to be trafficked on the black market into the hands of deranged individuals, like the VT shooter who was a known psycho and yet there was still space for him to get guns w/o any background check.

9/26/2009 1:13:28 PM

If only people at VT had their Constitutional right to bear arms preserved, then that psycho would have been taken down with in 5 seconds of his first shot. But let's ignore that for the sake of not challenging our dogma

9/26/2009 5:15:38 PM

^^ He did get a background check, a federal check. It came back clear because the law states that self imposed visitation to a psychologist is private medical information and only court ordered or involuntary committing would show on a background check, you know right to privacy and all that.

Human rights and liberty > pretending we can stop all the bad people from doing bad things.

9/27/2009 10:07:46 AM