ABSTRACT What issues are associated with the charge of “Possession of a Firearm by a Felon”, and why should residents of Durham, North Carolina be concerned about convicted felons who have firearms in their possession? Prepared for The Gang Reduction Strategy Steering Committee of Durham, North Carolina FELONS WITH FIREARMS IN DURHAM, NC August 2019 Jim Stuit Gang Reduction Strategy Manager Durham County Criminal Justice Resource Center Contents Index of Tables ............................................................................................................................... 2 Index of Figures .............................................................................................................................. 2 Key Words ...................................................................................................................................... 2 Acknowledgements, thanks to: ....................................................................................................... 3 Executive Summary ........................................................................................................................ 4 Introduction ..................................................................................................................................... 5 How many shooting incidents occur each year in Durham?........................................................... 5 What are weapon offenses? ............................................................................................................ 6 What type of offenses occur with firearms? ................................................................................... 6 Why focus on the “Possession of a firearm by a felon” charge? .................................................... 7 What is the NC Statute regarding felons in possession of firearms? .............................................. 9 How many arrests for “Possession of a firearm by a felon” occur in Durham? ............................. 9 Are gang members frequently arrested for this charge? ............................................................... 10 What are “on-view” and “warrant” arrests?.................................................................................. 10 Where did these arrests occur? ..................................................................................................... 11 What were the age/race characteristics of arrestees? .................................................................... 12 Can a felon be charged without physically handling the gun (constructive possession)? ............ 13 What is the outcome of cases once arrests are made? .................................................................. 14 Are violent offenders less likely to be in possession of a firearm when arrested again? ............. 17 What is the Armed Career Criminal Act (ACCA)? ...................................................................... 18 How effective are sentence enhancements? .................................................................................. 18 Are defendants eligible for pretrial release in Durham? ............................................................... 19 Detention Center Interviews ......................................................................................................... 20 Recommendations ......................................................................................................................... 23 Appendix: Gang Reduction Strategy Steering Committee Membership ...................................... 26 Appendix: Conceal/Carry Permitting in North Carolina .............................................................. 27 Appendix: Durham NC Police Districts Map ............................................................................... 28 Appendix: Beat 114 ...................................................................................................................... 29 Appendix: Beat 223 ...................................................................................................................... 30 Appendix: Beat 411 ...................................................................................................................... 31 Appendix – Sample Files for Social Media Campaign ................................................................. 32 Page 1 of 32 Index of Tables Table 1 – Shooting Incidents .......................................................................................................... 5 Table 2 – Weapons Offenses .......................................................................................................... 6 Table 3 – Firearms Offenses ........................................................................................................... 6 Table 4 - Part 1 Violent Crimes and Firearms ................................................................................ 7 Table 5 – US District Caseloads for Section 922 (g) offenses ....................................................... 8 Table 6 – Arrests of validated gang members .............................................................................. 10 Table 7 – Variance in race, city vs. unincorporated ..................................................................... 12 Table 8 - NIBRS crime categories ................................................................................................ 15 Table 9 - Judge and jury verdicts .................................................................................................. 16 Table 10 - Prison entries for possession of a firearm by a felon charge ....................................... 17 Table 11 - Prison Entries: Possession of a firearm by a felon as most serious charge ................. 17 Table 12 – Data on subjects interviewed at the Durham Detention Center .................................. 20 Index of Figures Figure 1 – Durham Arrests for “Possession of a firearm by a felon” ............................................. 9 Figure 2 – Types of Arrests, On View vs Warrant ....................................................................... 11 Figure 3 – Arrests by DPD District............................................................................................... 11 Figure 4 – Age Distribution for “possession of a firearm by a felon” arrests .............................. 12 Figure 5 - Dispositions 2016 - 2018 ............................................................................................. 16 Key Words Felon, firearm, gang member, gang reduction, gun crime, homicide, gun, arrest, Project Safe Neighborhoods, Armed Career Criminal Act, conceal-carry, felony, conviction, constructive possession, Cease Fire, community health, prevention Page 2 of 32 Acknowledgements, thanks to: o Members of the Durham County Gang Reduction Strategy Steering Committee for their support of this research1 o Jason Schiess (Durham Police Department) for providing data o Paula Gullie (Durham County Sheriff’s Department) for providing data o Rob Lang (US Attorney’s Office – USANCM) for perspective from the US Attorney’s Office, North Carolina Middle District o Gudrun Parmer (Director - Criminal Justice Resource Center) for review of draft document o Jim Alexander (Durham citizen) for review of draft document o Rev. Jerome J. Washington (Mt. Vernon Baptist Church) for review of draft document o Captain Marie Spencer (Durham County Sheriff’s Department) for arranging interviews at the Durham County Detention Center o The 10 detainees at the Durham County Detention Center for agreeing to be interviewed o Beth Steenberg and Alex Lombardi (Criminal Justice Resource Center) for analysis of Administrative Office of the Courts data o Tracey Chipps (Instagram @beautyandbull) for cover photo (used with permission) 1 A list of Steering Committee members can be found in the Appendix Page 3 of 32 Executive Summary This report provides a summary of data surrounding the criminal charge of “Possession of a Firearm by a Felon” in Durham, North Carolina from the years 2016 to 2018. The citizens and community leaders of Durham want to lower the rate of violent crime. Of concern are violent crimes that involve the use of a firearm. This report notes that many violent crimes where a firearm was used are committed by convicted felons, who by statute are forbidden from having a firearm in their possession. Goals for this report include presenting extensive data and analysis on possession of firearms by felons and then offering recommendations to reduce these occurrences. Report sections of interest include: • • • • • • • • Shooting incidents and persons shot in Durham US District Caseloads Arrests by the Durham Police Department and the Durham County Sheriff’s Office Arrests involving validated gang members Location of arrests Age distribution of arrestees Method of disposition for arrestees Interviews of inmates being detained on the charge Recommendations offered by the report are: 1. 2. 3. 4. Establish a robust Project Safe Neighborhoods program in Durham Conduct interventions with impact players and groups Utilize public resources and initiatives that are already in place Significantly increase the number and frequency of warrantless probation searches of repeat weapons offenders 5. Monitor the outcome of gun cases in local court 6. Initiate an extensive social media campaign that emphasizes negative consequences of possessing a firearm as a felon Page 4 of 32 Introduction A devastating explosion occurred in downtown Durham, North Carolina on April 10, 2019. Two people were killed, and two dozen more injured in the incident which captured the attention of local and national media. Lost in the news cycle was the death of another Durham citizen that same evening in a city park two miles from the explosion. The victim in the second incident fit the profile of many Durham homicides – a young man (age 22) of color with a criminal history that included weapons charges. He spent time in prison with the qualifying offense of “possession of a firearm by a felon”. At the time of his murder, parole had just ended for that charge. The suspect (age 28) in this homicide, a convicted felon, is currently being held in the Durham County Detention Center. 662 people were shot in Durham between January 1, 2016 and December 31, 2018 This case exemplifies the unfortunate reality that not only are felons in possession of firearms more likely to be suspects in violent crime in Durham, they are also frequently victims of violent crime. How many shooting incidents occur each year in Durham? Understanding of community safety can be enhanced with accurate and reliable crime statistics. Of concern and interest to the public are data related to shooting incidents, persons shot and homicides. The table below provides information for the most recent three years in Durham2. Year 2016 2017 2018 Shooting Incidents 703 729 619 Persons Shot Homicides3 214 244 204 42 21 32 Table 1 – Shooting Incidents The table indicates that the number of shooting incidents and persons shot decreased between 2017 and 2018, while homicides in 2018 were just above the three-year average. Based on information provided at Gang Suppression Team meetings and Mayor’s Violent Crime Reduction Roundtable meetings, many of these shootings cannot simply be attributed to conflict between gangs or disputes over drug territory. Rather, much of the violence is spurred by everyday disputes, social media interaction or jealousy in relationships by individuals, many of whom are gang members. 2 3 Source DPD 2018 4th Quarter Report presented on March 4, 2019 Not all homicides involved use of a firearm Page 5 of 32 What are weapon offenses? Statutes and regulations are in place that control deadly weapons such as firearms (and their ammunition), silencers and explosives. Restrictions are placed on manufacture, possession, carrying, use and sales of Restrictions are placed on manufacture, deadly weapons. possession, carrying, use and sales of deadly weapons Many of these laws are specific to firearms. Violating one of these statutes [Cite your source here.] or regulations constitutes a weapons offense. In Durham, approximately 3% of Part 2 crimes (less serious crimes) are weapons violations4. Year 2016 2017 2018 Part 2 Crimes 8,180 7,697 6,615 Weapons Crimes % Part 2 Crimes that are Weapons Offenses 257 3.1% 255 3.3% 187 2.8% Table 2 – Weapons Offenses The table indicates a downward trend (2018) in Part 2 offenses, weapons offenses and the percentage of Part 2 offenses classified as weapons offenses. Being a felon in possession of a firearm is considered a Part 2 crime. Information on Part 1 crimes involving firearms is presented in the next section. What type of offenses occur with firearms? The FBI recognizes seven different types of offenses that occur with firearms5. Of all US agencies that provide data to the FBI’s National Incident-Based Reporting System (NIBRS), the following data was gathered for 2017.6 Offense Category Assault Offenses Robbery Offenses Homicide Offenses Kidnapping/Abduction Offenses Sex Offenses Extortion/Blackmail Offenses Human Trafficking Offenses Number of These Offenses Percentage of Total where where a Firearm was Used a Firearm was used 155,232 67% 62,946 27% 7,662 3% 5,134 2% 1,626 1% 122 <1% 26 <1% Table 3 – Firearms Offenses 4 Durham Police Department 2018 4th Quarter Report (published): This report provided summary data on Part 2 crimes and Weapons crimes 5 This does not include the general category of “weapon law violations” 6 Data retrieved from https://ucr.fbi.gov/nibrs/2017/tables/data-tables on March 20, 2019 Page 6 of 32 Below is the percentage of Part 1 Violent Crime incidents (Durham Police Department) over the past three years where a firearm was used.7 Year Total Number of % of Robberies % of Violent Crimes where a Firearm Aggravated was used Assaults where a Firearm was used 2016 2017 2018 2,257 2,264 1,961 70.1% 71.6% 55.9% 59.4% 64.3% 55.9% % of all Part 1 Violent Crime Incidents where a Firearm was used 55.2% 56.7% 50.7% Table 4 - Part 1 Violent Crimes and Firearms The table above indicates an encouraging drop from 2017 to 2018 in total number of violent crimes and in percentage of these crimes where a firearm was used. Why focus on the “Possession of a firearm by a felon” charge? “The practice of keeping guns out of the hands of people who are at the greatest risk for violence— based on a history of violence—appears to be the most closely associated with decreased rates of firearm homicide.”8 So says Michael Siegal, a Boston University School of Public Health professor of community health sciences, who recently published The Impact of State Firearm Laws on Homicide and Suicide Deaths in the USA, 1991–2016: a Panel Study in the Journal of Internal Medicine9. That study analyzed 10 different state firearms laws over a 26-year period. Analysis indicated that states can have the most success in reducing gun homicides by enforcing restrictions on who can have access to a gun and also by utilizing univeral background checks to determine whether a buyer is bound by those restrictions. A report10 published on Durham’s Gang Reduction Strategy website provided information on the overall issue of gun crime in Durham. That report included the number of gun arrests, the distribution of gun charge types and information on seized guns and conceal/carry permits in Durham. The report indicated that a significant percentage of gun crimes in Durham involved suspects who had previously been convicted of a felony, and that this percentage increased during the time span examined in the report (2010 – 2015). 7 Percentages provided by Jason Schiess on July 23, 2019; violent crime totals accessed from Durham Police Department 2018 4th Quarter Report (published) 8 http://www.bu.edu/articles/2019/state-gun-laws-that-reduce-gun-deaths/ retrieved August 5, 2019 9 https://link.springer.com/article/10.1007/s11606-019-04922-x 10 “Gun Crime and Gun Arrests in Durham (2010-2015) available at https://www.dconc.gov/home/showdocument?id=16377 Page 7 of 32 34 lives were taken by violence in Durham in 2018, and 28 of them (80%) were the result of gunshot wounds. Some of the suspects in these homicides are convicted felons. The federal statute regarding possession of a firearm by a felon is 18 U.S.C. § 922(g)(1). It stipulates that anyone "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" is barred from possessing a gun. A previous report indicates that a significant percentage of gun crimes in Durham involved suspects who had previously been convicted of a felony The United States Sentencing Commission reports that the following districts had the highest proportion of their overall caseload comprising Section 922(g) offenses in 2012:11 US District Middle District – North Carolina Northern District - Alabama Western District - Tennessee Western District - Missouri Southern District - Georgia Percentage of Overall Caseload of Section 922 (g) Offenses 27.4% 25.7% 25.5% 24.8% 23.3% Table 5 – US District Caseloads for Section 922 (g) offenses Of interest in the table above is that the Middle District of North Carolina (MDNC) had the highest overall caseload percentage of 922 (g) offenses (federal offenses) in the United States in 2012. Robert A.J. Lang The Middle District of North Carolina had (Assistant United States Attorney, the highest overall caseload percentage Middle District of North Carolina) of 922 (g) offenses in the United States believes that high MDNC numbers can in 2012 partially be attributed to the 11 very active Project Safe Neighborhoods (PSN) sites that were operating during that time frame. He also states “the fact that we are in the south and we havehere.] a lot of guns and of lot of legal [Cite your source AND ILLEGAL gun owners and possessors” is a reason for the high percentage of 922 (g) cases.12 11 United States Sentencing Commission Quick Facts – Possession of a firearm by a felon (July 2018) Email correspondence with Robert A.J. Lang (Assistant United States Attorney – Middle District of North Carolina) on May 7, 2019 12 Page 8 of 32 What is the NC Statute regarding felons in possession of firearms? Acording to North Carolina General Statute 14-415.1 “it shall be 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”. When a person is Conviction for possessing a firearm as a charged under this section, records of felon in North Carolina comes with a prior convictions of any offense, whether sentencing range of 12 to 26 months in in the courts of this State, or in the courts prison. Aggravating factors and criminal of any other state or of the United States, record can increase this sentence to 39 shall be admissible in evidence for months. proving a violation of this section. According to state law, “every person violating the provisions of this section shall be punished as a Class G felon”. How many arrests for “Possession of a firearm by a felon” occur in Durham? In the past three years (2016 – 2018) there were 363 arrests for this charge by the Durham Police Department and the Durham County Sheriff’s Office, an average of 121 per year. The chart below illustrates arrests per year and indicates that 86% of these arrests were made by the Durham Police Department. Durham Arrests for "Possession of a firearm by a felon" 160 140 120 100 80 60 40 20 0 14 19 17 92 94 2017 2018 127 2016 DPD DCSO Figure 1 – Durham Arrests for “Possession of a firearm by a felon” Page 9 of 32 Are gang members frequently arrested for this charge? The gang member validation process for the Durham Police Department begins with a “reasonable suspicion that a member is involved in criminal activity” and 46% of those arrested for this charge by then moves on to identifying and DPD between 2016 and 2018 were documenting a minimum of 2 of validated gang members the 12 validation criteria in compliance with the 2015 North Carolina Department of Public Safety (NCDPS) GangNET 13 Policy. As of June 6, 2019, there were 2,051 validated gang members in the Durham Police Department’s OSSI Records Management System. For the past three years (2016 – 2018) validated gang members have accounted for 46% of Durham Police Department arrests for possession of a firearm by a felon charges.14 Year # DPD Arrests 2016 2017 2018 TOTAL 127 92 94 313 # Arrests who were validated gang members 62 40 42 144 % Arrests who were validated gang members 49% 43% 45% 46% Table 6 – Arrests of validated gang members What are “on-view” and “warrant” arrests? There are two circumstances under which an arrest is made – “on-view” or “warrant” and these are defined as follows:15 “On-View” is apprehension by a law enforcement officer without a warrant or previous incident report. In these arrests, the defendant is taken before a Magistrate for determination of probable cause and bond. For misdemeanors, the offense must occur in the presence of an officer for a custodial arrest to occur, with some statutory exceptions. “On-View” is apprehension by a law “Warrant” arrests involve a criminal enforcement officer without a warrant or process taken out by an officer with the previous incident report defendant not being present at the time, as 13 New legislation in North Carolina (HB 138) has more stringent guidelines for confirming gang membership, requiring meeting 3 of 9 criteria instead of meeting 2 of 12 criteria. According to Sgt. Rob Swartz, Durham Police Department is using these more stringent guidelines since HB 138 became law December 1, 2017 14 Data was not available on validated gang members arrested by the Durham County Sheriff’s Office for this charge 15 Definitions provided by Jason Schiess (City of Durham Police Department Analytical Services Manager) on April 11, 2019 Page 10 of 32 a result of figuring out who to charge for an offense that previously occurred and is used to make an arrest when the defendant is located. The following chart indicates that between 2016 and 2018, the percentage of on-view arrests increased, while the percentage of warrant arrests declined. Type of Arrest by Percentage for "Possession of a firearm by a felon" charge 100% 50% 54% 59% 70% 46% 41% 30% 0% 2016 2017 2018 On View Warrant Figure 2 – Types of Arrests, On View vs Warrant More research is required to determine if the widening variance is due to fewer warrants being issued, a higher level of vigilance on the part of patrol officers, a combination of the two factors, or some other reason. Where did these arrests occur? The chart below illustrates the number of 14-415.1 arrests across the five Durham Police Department districts16, and which type of arrest (on-view or warrant) occurred. Arrests for "Possession of a firearm by a felon" (2016 - 2018) by DPD District 80 60 18 12 17 40 58 58 61 50 20 20 12 0 Dist 1 Dist 2 6 Dist 3 On View Dist 4 Dist 5 Warrant Figure 3 – Arrests by DPD District 16 A map of Durham Police Department districts can be found in the appendix Page 11 of 32 District 3 (west/southwest part of the city) had the fewest arrests, while District 1 (central and eastern part of the city) had the most. District 5 (downtown area) has an inverted ratio of on-view and warrant District 3 (west/southwest part of the city) arrests. The probable reason for this is had the fewest arrests, while District 1 that the warrant service at the (central and eastern part of the city) had magistrate/jail is in District 5. the most Of interest is the location where on-view arrests occur. Within the five police districts in the city, there are 35 subdistricts, or “beats”. Data indicates that 28% of arrests for possession of a firearm by a felon occur in three beats, 223, 114 and 411. The location of these beats is shown in the Appendix. What were the age/race characteristics of arrestees? The chart below illustrates the age distribution for 922 (g) arrests. The largest group of defendants were between the ages of 21 and 25. Age Distribution "Possession of a firearm by a felon" arrests (2016 - 2018) 140 116 120 100 87 80 60 40 34 39 34 27 11 20 8 7 4 2 0 16- 20 21-25 26-30 31-35 36-40 41-45 46-50 51-55 56-60 61-65 65+ Figure 4 – Age Distribution for “possession of a firearm by a felon” arrests There is some variance in race between arrests that occurred within the city limits of Durham and those that occurred in unincorporated areas as illustrated in the table below. Location City Unincorporated Black 315 22 % Black 95% 69% Table 7 – Variance in race, city vs. unincorporated Page 12 of 32 White 14 10 % White 4% 31% Asian 1 0 % Asian <1% 0% Can a felon be charged without physically handling the gun (constructive possession)? Some courts have found suspects guilty of being a possession of a firearm by a felon even when they did not physically handle the gun. A partnership between the Johnson City, Tennessee police department, Project Safe Neighborhoods (PSN – a comprehensive national strategy that creates local partnerships with law enforcement agencies to enforce existing gun laws) and the FBI resulted in the conviction of Marvin Maurice Buckles on January 13, 2016. Buckles, who had previous convictions for drug, gun and violent offenses, uploaded photographs of three handguns on a toilet seat, and took selfies with an automatic pistol. Key to the case was a search warrant for Buckle’s Facebook account, and detailed courtroom testimony as to the distinguishing characteristics of the firearms in the Facebook photos. After a two-day trial, Buckles was convicted of being in possession of a firearm by a felon and sentenced to 188 months in federal prison. There is no parole in the federal system. On November 30, 2016, the United States Court of Appeals (11th Circuit) found Robert Green guilty of being in possession of a firearm by a felon after he was arrested hiding in a closet.17 The firearm in question was on a nightstand next to his girlfriend’s bed. To prove that he had violated § 922(g)(1), the Government had to show (1) that Green knowingly possessed a firearm, and (2) that Green was a convicted felon. Green, who had been convicted of aggravated assault and felony battery in the past, contested only the first element – his knowing possession of the firearm. The Court of Appeals ruled against Green, saying it only needed to show “constructive possession through direct or circumstantial evidence”. A defendant constructively possesses a firearm if: 1. Defendant is aware of, or knows of the firearm’s presence 2. Defendant has the ability and intent to exercise control over that firearm Given all the circumstances surrounding the Green case, the Court of Appeals upheld the guilty verdict and the prison sentence previously issued. Convictions in constructive possession types of cases appears to be much more difficult in North Carolina. Defendant Michael Alston was in a car driven by his wife when it was stopped by Asheboro PD for a seatbelt violation. As the Asheboro police officer was reviewing the The North Carolina Court of Appeals was license/registration, one of the children in not persuaded that there was sufficient the car said, “Daddy’s got a gun.” The other incriminating evidence linking the officer walked to the passenger side Defendant to the handgun where Alston was seated and observed a .22 caliber pistol on the console. Both Alston and his wife had equal access to 17 United States of America v. Robert William Green, United States Court of Appeals, Eleventh Circuit, No. 1412830 Page 13 of 32 the firearm, which had been purchased and was owned by the wife. The officer placed Alston under arrest for Possession of a Firearm by a Felon. A jury returned a guilty verdict and Alston was sentenced to four months in prison. The North Carolina Court of Appeals however, was not persuaded that there was sufficient other incriminating evidence linking the Defendant to the handgun and ruled that the trial court erred in denying the Defendant’s motion to dismiss charges.18 In a more recent North Carolina case (May 2014), the Court of Appeals of North Carolina ruled in favor of Shawn Bailey of Roxboro, NC. Roxboro PD was responding to a report of rapid-fired gunshots coming from an apartment complex when they observed a four-door sedan leaving the scene. Bailey was a passenger and his girlfriend was driving the vehicle, which was registered to Bailey. A warm, and recently-fired AK-47 assault rifle was found on the floor in the back of the car. Bailey then filed an appeal contending Bailey was indicted then convicted by a that the State failed to present sufficient trial court for possession of a firearm by a incriminating evidence that he felon, but charges of going armed to the constructively possessed the firearm terror of the people and discharging a firearm within the city limits were dropped. Bailey was sentenced to a minimum term of twelve months in prison. Bailey then filed an appeal contending that the State failed to present sufficient incriminating evidence that he constructively possessed the firearm. The Court of Appeals ruled in Bailey’s favor, saying that “it is undisputed that the Defendant did not actually possess the rifle nor was he the only occupant in the car where it was found. Therefore, he did not have ‘exclusive possession’ of the car and the mere fact that the Defendant was in the car where the firearm was found does not, by itself, establish constructive possession”.19 The North Carolina cases discussed above are an indication of the difficulty jurisdictions have in convicting for General Statute 14-415.1 violations when the Defendant was not in physical contact with the firearm. What is the outcome of cases once arrests are made? It is important to note that there may be multiple charges associated with one arrest. For example, a defendant may be charged with the following crimes associated with one incident – breaking and entering, simple assault, possession of controlled substance and possession of firearm by a felon. These charges are then ordered from most serious to least serious. The National Incident-Based Reporting System (NIBRS) identifies the following three categories: 18 19 State v. Alston, North Carolina Court of Appeals, 131 N.C. App.514, December 1, 1998 State v. Bailey, North Carolina Court of Appeals, No. COA13-1326, May 6, 2014 Page 14 of 32 Category Crimes Persons Crimes Property Crimes Society Description Against Victims are always individuals Against Obtaining money, property or some other benefit Against Victimless crime in which property is not the object Examples Murder, rape, assault, negligent manslaughter Robbery, bribery, burglary, shoplifting, extortion/blackmail Weapon law violations, prostitution, drug/narcotic violations, pornography, gambling offenses Table 8 - NIBRS crime categories Possession of firearm by a felon is considered a crime against society (a victimless crime), and therefore is often not considered the most serious violation in an incident. Defendants frequently agree to plead 53% of the cases between 2016 and guilty to one charge in exchange for other 2018 were voluntarily dismissed charges to be dropped. Dispositions (a court’s final determination of a case) for this charge fall into several categories. In Durham, the most common dispositions (2016 – 2018) were: 1. Voluntary Dismissal - VD (53%) A voluntary dismissal occurs when the State dismisses its own case against the defendant. The dismissal can be “with prejudice” (case cannot be refiled) or “without prejudice” (case can be refiled) based on the facts and circumstances surrounding the case. 2. Superseding Indictment - SI (22%) Occasionally an indictment is amended when new evidence is obtained, or new charges need to be added. In these cases, a superseding indictment replaces the original indictment. 3. Disposed by a Judge - JU (15%) This occurs when a judgement or disposition is reached by a judge in a case that is not dismissed and in which no trial has been held. 4. Waiver of Probable Cause - WP (9%) Probable cause hearings are part of the pre-trial stages of a criminal case where it is determined whether it’s more likely or not that the defendant committed the alleged crime. A waiver allows the case to proceed to trial. Of interest is the high percentage of possession of a firearm by a felon charges that were voluntarily dismissed between 2016 and 2018. With more than half of the cases disposed by voluntary dismissal the question becomes how many of these cases were permanently dropped and why.20 20 This information was not available from the AOC data provided Page 15 of 32 Dispositions - Possession of a Firearm by a Felon Charge (2016 - 2018) 70% 50% 58% 56% 60% 46% 40% 30% 25% 20% 19% 20% 15% 5% 3% 10% 20% 10% 1% 14% 6% 1% 0% 2016 2017 VD SI JU WP 2018 Other Figure 5 - Dispositions 2016 - 2018 Administrative Office of the Courts (AOC) data indicate that only 15% (141 of 910) of these cases have a verdict rendered by a jury or a judge21. The table below provides information on these cases. Year 2016 2017 2018 Number Cases 343 320 247 Disposed by Judge 70 48 16 Disposed by Jury 5 1 1 Guilty 73 48 17 Not Guilty 2 0 0 Guilty to lesser charge 0 1 0 Table 9 - Judge and jury verdicts An average of 25 individuals per year are convicted in Durham County and sent to state prison with the possession of a firearm by a felon charge being their most serious offense. The chart below illustrates entries into the NC prison system of individuals convicted in Durham County with the charge as their most serious offense.22 21 22 Verdict by judge can be a trial by judge or guilty plea before a judge at district or superior court level Data retrieved from https://www.ncdps.gov/dps-services/crime-data/offender-search on July 9, 2019 Page 16 of 32 Prison Entries from Durham County "Possession of a firearm by a felon" as Most Serious Charge 40 35 30 24 16 20 10 0 2016 2017 2018 Table 10 - Prison entries for possession of a firearm by a felon charge The chart above indicates that prison entries from Durham County declined significantly each year during the study period. To determine if this was a state-wide trend, prison entries for all NC counties were examined.23 State-wide and Durham County comparisons are shown in the table below. Durham County North Carolina 2016 35 1,058 2017 24 1,253 2018 16 1,181 Percent Change During Study Period 54% decrease 11% increase Table 11 - Prison Entries: Possession of a firearm by a felon as most serious charge Data indicate that imprisonments for this offense are trending steeply downward in Durham County, while they are slightly increasing statewide. Based on the information available, it is difficult to determine the cause of that dissimilarity. Are violent offenders less likely to be in possession of a firearm when arrested again? A survey24 of inmates in State and Federal correctional facilities found that prior convictions for a violent crime did not equate to the subject being less likely to be carrying a firearm This data indicates that violent recidivists at subsequent arrests. In fact, “violent were just as likely to have carried a gun offenders who had served a prior (at the time of their next arrest) as firstsentence and first-time offenders were time violent offenders about equally likely to be carrying a firearm when committing their current 23 ibid Bureau of Justice Statistics Special Report “Survey of Inmates in State and Federal Correctional Facilities – Firearm Use by Offenders” (US Department of Justice, November 2001) 24 Page 17 of 32 offense – about 30% of violent offenders in State prisons carried a firearm during their current offense”.25 This data indicates that violent recidivists were just as likely to have carried a gun at a subsequent arrest as first-time violent offenders. What is the Armed Career Criminal Act (ACCA)? Certain offenders can receive an enhanced sentence as an “Armed Career Criminal”. The Armed Career Criminal Act of 1984 (ACCA) was passed to address the threat posed by violent criminals or drug traffickers who There is a minimum fifteen-year possess a gun. ACCA provides sentence sentence for felons charged with enhancements for felons who unlawfully unlawfully possessing a firearm under possess a firearm and who also have three the ACCA or more previous convictions for violent felonies. ACCA cases are handled in federal court and look to past crimes as part of the deliberation. Federal crimes follow the Federal Sentencing Guidelines, which are significantly harsher than the North Carolina Felony Sentencing Guidelines. There is a minimum fifteen-year sentence for felons charged with unlawfully possessing a firearm under the ACCA. Depending on circumstances surrounding the underlying charges, the sentence can include life in prison. There is no parole for federal sentences. Under the Sentencing Reform Act of 1984, Congress eliminated parole for federal defendants convicted of crimes committed after November 1, 1987. How effective are sentence enhancements? Conviction for possessing a firearm as a felon in North Carolina comes with a sentencing range of 12 to 26 months in prison if it is a second offense (the underlying felony counts as the first offense). Aggravating factors and criminal record can increase this sentence to 39 months. As noted previously, federal law (under the “Federal Firearms Act” and the ACCA, or “Armed Career Criminal Act”) imposes a minimum 15 years imprisonment when the subject has three underlying convictions for violent felonies or certain types of drug offenses. Actual incarceration is effective almost There are a couple ways sentence every time, as felons do not have access enhancements deter felons from to firearms while in prison possessing firearms. Actual incarceration is effective almost every time, as felons do not have access to firearms while in prison. The threat of incarceration is much more difficult to gauge. What percentage of felons 25 Ibid p.6 Page 18 of 32 with three underlying violent felonies will avoid carrying a firearm because of the 15-year minimum sentence mandated by the ACCA? David S. Abrams (University of Pennsylvania) conducted a detailed study on the deterrent effect of incarceration, that is representative of the country as a whole, and controls for decreases due to incapacitation (subject being in prison). That study documented a 5% decrease in gun robberies within the first three years of an enhancement law passage.26 Tracing the impact of this effect can be done using Durham crime statistics. In the past three years (2016, 2017, 2018), there were 2,435 robberies. In theory, if a firearm sentence enhancement had been put in place at the beginning of 2016, the number of robberies would have been 2,313, a decline of 122 (5%). That drop would be attributed to the deterrent effect, and a further decline in the number of robberies would be attributed to the incapacitation effect (in jail/prison due to sentence enhancement). Are defendants eligible for pretrial release in Durham? Pretrial Services in Durham County does not recommend release onto supervision for weapons charges.27 The defendants can receive an interview, have a risk assessment prepared and go through the normal verification process, but the release decision is at the discretion of the presiding judge. Guidance is provided by statute NC G.S. 15A-533. Subsection (f) of that ordinance states: “There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official28 finds there is reasonable cause to believe that the person committed a felony of Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm; and the judicial official also finds any of the following: 1) The offense was committed while the person was on pretrial release for another felony or Class A1 misdemeanor offense involving the illegal use, possession or discharge of a firearm. 2) The person has previously been convicted of a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm and not more than five years have elapsed since the date of conviction or the person’s release for the offense, whichever is later. 26 Abrams, David S, Estimating the Deterrent Effect of Incarceration using Sentencing Enhancements, University of Pennsylvania (December 2011) 27 Information provided by Christie Long (Pretrial Program Supervisor) on April 16, 2019 28 “judicial official” can be defined as a magistrate, clerk, judge or justice of the General Court of Justice Page 19 of 32 The Fourteenth Judicial District of North Carolina (Durham County) recently revised its policies relating to bail and pretrial release to align them more closely with Chapter 15A of the General Statute of North Carolina.29 The new policy notes that the primary purposes of a condition for pretrial release are reasonably to assure that: The Fourteenth Judicial District of North 1) The defendant will appear as Carolina (Durham County) recently required revised its policies relating to bail and 2) The safety of the community pretrial release The February 28, 2019 policy goes on to confirm that a rebuttable presumption exists that no condition of pretrial release will reasonable assure either when use of firearm charges (described above) exist. However, a district or superior court judge may order the defendant’s release “upon finding that there is a reasonable assurance that the person will appear, and release does not pose an unreasonable risk of harm to the community”.30 There is no stipulation that dictates or limits the type of release. If pretrial release is granted, it will be one of these standard types: 1) 2) 3) 4) 5) Written promise to appear Unsecured bond Release to supervised custody Secured bond Electronic monitoring Detention Center Interviews Interviews were conducted at the Durham County Detention Center with inmates listed as having the “possession of a firearm by a felon” charge. The day the interviews occurred (May 21, 2019), the population of the detention center was 360, with 28 (7.7%) listed as having “possession of a firearm by a felon” charges. 10 of these inmates were interviewed individually. Additional information about the interviewees is shown below: Age Range Race 22 – 46, with average age of 33 9 Black, 1 White (non-Hispanic) Gender Range of days in jail at time of interview Months spent in state prison prior to arrest 9 males, 1 female 6 days – 340 days, with average of 155 days Three inmates had spent no time in state prison, the others ranged from 21 months to 110 months Table 12 – Data on subjects interviewed at the Durham Detention Center Pretrial Release Policy of the Fourteenth Judicial District – February 28, 2019; signed by the Honorable Orlando F. Hudson, Jr. Senior Resident Superior Court Judge (Fourteenth Judicial District) and the Honorable Pat Evans, Chief District Judge (Fourteenth Judicial District) 30 N.C. General Statute 15A-533(a), (b) 29 Page 20 of 32 Interviews were conducted individually in the visitation area of pods on the 3rd, 4th and 5th floor of the detention center. The interviewer introduced himself and stated that he was preparing a report on felons in possession of a firearm, and that, to make that report more balanced, he wished to interview people who had The day interviews occurred (May 21, the General Statute 14-415.1 charge 2019), the population of the detention pending. center was 360, with 28 (7.7%) listed as having “possession of a firearm by a Individuals were assured that the felon” charges interviews were confidential, and that no names or identifying characteristics would be included in interview summaries. At this point they were told that they were free to leave or that they could stay and answer any questions they felt comfortable answering. The individuals were asked a brief list of questions, beginning with the question “Do you believe that gun violence is a significant issue in Durham?”. All 10 answered in the affirmative. The next question asked if they had any ideas as to the underlying cause of gun violence in Durham. At this point, detainee number 5 (D5) indicated he no longer wished to participate and left the visitation room. “Getting a gun is as easy as buying a The other interviewees provided the pair of shoes” (Subject D1) following answers: • • • • Gangs were mentioned as a root cause by D2, D8, D9 and D10 D1 stated that “youth these days think guns are cool – they grow up with guns around and eventually use one to rob somebody or defend themselves” Revenge and drug use were mentioned by D3 D6 mentioned poverty and D7 stated that “poor people are being pushed out of their neighborhood, changing the structure. Then there is unbalance and that causes violence” When asked if they had any ideas for reducing gun violence, the following responses were recorded: • • • • D1 stated that increasing penalties might help, but what might do the most good is to “have a public forum (like concerts) where big homies and OG’s can settle things and talk to the kids” D2 mentioned drug treatment and “getting rid of the gangs” Others mentioned providing more opportunities (boxing, Boy’s and Girls clubs), and raising the minimum wage enough so people can pay rent Two responded that they did not have any ideas for reducing gun violence Page 21 of 32 At this point in the interview, most subjects were more at ease, so more direct questions were asked. The first of these questions was “In your opinion, how difficult is it to obtain a firearm in Durham (other than through legal channels)? • • • • • • • • At this point, D6 indicated he wanted to end the interview, and left the visitation room D1 said “it’s as easy as buying a pair of shoes” D2 indicated his belief was that “most guns come from breaking into rich people’s houses and cars” and “if you want one, you can trade drugs for one” D3 said “easy, just get someone to buy you one from a gun show” D4 indicated guns are cheaper out of town D7 said “the upper class has guns, just get it from them” D8 said it’s easy if you “know somebody” D9 did not know and D10 said “kind of” The next question was “can you talk about why you continued to carry a firearm as a felon?” • • • • • • D1 and D2 provided answers of “no” and “not really” D3 indicated that he had once been shot, and always needed to carry one for protection D4 said “just out of habit” D7 stated that he “needed the extra protection on the way to “A felon has many more risks than work” and that it was risky everybody else, so it should be legal for carrying one, but that was a them to carry a gun for protection” “balancing act”. He went on to (Subject D7) say that “a felon has many more risks than everybody else, so it should be legal for them to carry a gun for protection”. D9 said “for protection” D8 and D10 declined to provide an answer The final question posed was “were you aware of the consequences of being a possession of a firearm by a felon at the time of your arrest?” • • • • • • • • D1 answered in the affirmative D2 indicated that his belief was that “there’s automatic time, maybe one year” D3 stated that “I know it’s a worse crime than if you just get caught with a concealed weapon and don’t have any other record”. D4 stated that “they can get you for being a habitual”. D7 answered in the affirmative D8 stated that “I was told that you could get 5 years” D9 answered in the affirmative D10 stated that “you could get 3 more years”. At the end of these questions, subjects were asked if they wanted to say anything else. Page 22 of 32 • • • • • • • D1 “An event that is focused on keeping kids away from guns would be good” “We need to look at the real reasons why D2, D3 had nothing more to people have a gun on them” (Subject D4) add D4 “We need to look at the real reasons why people have a gun on them before arresting them” D7 “Some people get a better deal in court because they have a better public defender” D8 had nothing more to add D9 “They should make some people go to funerals to see how much it hurts the parents” D10 “It should be fair for everybody – some people just need to carry a gun” Recommendations 1) Establish a robust Project Safe Neighborhoods (PSN) program in Durham The Middle District of North Carolina currently has eight active PSN sites, with two on deck (Alamance County and Randolph County). The PSN approach emphasizes coordination between state and federal prosecutors and all levels of law enforcement to address gun crime, especially felons illegally possessing firearms, and violent and drug crimes that involve the use of firearms. According to Robert A.J. Lang (Assistant United States Attorney – Middle District of North Carolina) “PSN is the process where we collect and use data, collaborate with partners, reach consensus about priorities, Establishing PSN in Durham would begin make the best decisions possible and then with defining the parameters of the coordinate actions across systems to program and then hiring a reduce violence. The point of PSN is to be coordinator/facilitator surgical and focused, to fish with a spear instead of a net. PSN concentrates prevention, intervention, notification, supervision, reentry, resource delivery, investigation and prosecution efforts on impact players and groups that are driving the violence.” Establishing PSN in Durham would begin with defining the parameters of the program and then hiring a coordinator/facilitator. 2) Conduct interventions with impact players and groups Research shows that most violent crime is committed by a small number of multiple convicted and/or multiple arrested felons with handguns. These individuals should be identified, and all the relevant information surrounding them closely analyzed. Once this is done, interventions should be planned. One model (Ceasefire, or Group Violence Reduction Strategy) has been found to Page 23 of 32 particularly effective based on a recent report by Northwestern University.31 In this model, a mix of criminal justice agencies, social service agencies, local organizations partner with local, state and federal law enforcement to present those identified for intervention with options. This model has been successfully implemented in many jurisdictions by Project Safe Neighborhoods. 3) Utilize public resources and initiatives that are already in place The interventions noted above should have an orientation towards behavior change through community mobilization and social service actions rather than defaulting to law enforcement sanctions. Durham has many nongovernment organizations devoted to Durham has many non-government reentry, employment and housing, as well organizations devoted to reentry, as government agencies such as the employment and housing, as well as Criminal Justice Resource Center and government agencies such as the Social Services that are well equipped to Criminal Justice Resource Center and assist individuals in selecting a different Social Services that are well equipped to path. assist individuals in selecting a different Should community mobilization and social path. service actions fail, there are intervention groups such as Cure Violence in place as the next step. If offenders continue to commit crimes, especially crimes involving a firearm, local law enforcement is prepared to work with Federal partners to protect the community by putting these offenders away for the maximum amount of time possible. 4) Significantly increase the number and frequency of warrantless probation searches of repeat weapons offenders. Based on number of felons in Durham who have firearms in their possession, it is apparent that chances of not being caught far outweigh the chances of being caught with a firearm and facing prosecution for that offense. Since 2009, all supervised probationers are subject to two warrantless search conditions, on for regular searches by a probation officer and one for searches by law enforcement officers.32 G.S.15A-1343(b)(13) allows warrantless searches of the probationer’s person, premises or vehicle by a probation officer. The search must be directly related to the probation supervision and generated by reasonable suspicion. G.S.15A-1343(b)(14) allows for searches of a probationer’s 31 Oakland Ceasefire Impact Evaluation: Key Findings; August 10, 2018, Northwestern University North Carolina’s Warrantless Search Conditions: UNC School of Government Blog: Jamie Markham (March 2, 2017) 32 Page 24 of 32 person and vehicle by a law enforcement officer. In these cases, there must be a reasonable suspicion of criminal activity or illegal possession of a firearm. 5) Monitor the outcome of gun cases in local court. Research for this report indicates substantial uncertainty as to how “possession of a firearm by a felon” cases are adjudicated. Outcomes should be monitored for fairness and consistency over time. If a substantial number of cases are dismissed due to lack of evidence or inadequate evidence, then training should be provided to law enforcement to reduce the impact of this issue. 6) Initiate an extensive social media campaign that emphasizes negative consequences of possessing a firearm as a felon. Negative consequences include incarceration and an increased chance of being a victim of violent crime. Based on interviews conducted for this report, many felons do not have a clear idea of firearm possession consequences, or, they know the consequences but carry a firearm anyway believing that have little chance of being arrested or prosecuted. Facebook, Instagram and Twitter are widely-viewed social media platforms that the City, the County, Durham Police Department and the Durham County Sheriff’s Office could utilize with this campaign. Sample files can be found in the Appendix. An effective social media campaign will also impact public perception, especially around the issue of tolerating illegal gun possession. Friends, neighbors and relatives who are strongly opposed to illegal gun possession have a far greater impact on potential offenders than an ordinance. Page 25 of 32 Appendix: Gang Reduction Strategy Steering Committee Membership Durham's Gang Reduction Steering Committee Membership ?;1?;2o1s NAME Tom Bonfield Wendell Dayis Steye Schewel Wendy Jacobs Matthew Martin Rob Lang Cerelyn Dayis Clarence Birkhead Gayle Harris Anthony Scott Celeste Kelly Satana DeBerry Robert Brown Barker French Stelphanie Williams Pascal Mubenga Jerome J. Washington Ann Oshel Pilar Rocha-Goldberg Gudrun Parmer Jim Stuit Page 26 of 32 ASSOCIATION City Manager (co-chair) County Manager (co-chair) Mayor Chair of Durham County Board of County Commissioners US Attorney - NC Middle District US Attorney's Office - NC Middle District Durham Police Chief Durham County Sheriff Public Health Department Executiye Director Durham Housing Authority Probationy?Parole Manager for District 14 Durham County District Attorney Chair - NCCU Department of Criminal Justice Community Representatiye Duke Uniyersity Of?ce of Regional Affairs Superintendent - Durham Public Schools Mt. Vernon Baptist Church Alliance Healthcare El Centro CJRC Director (Ex-Of?cio) Gang Reduction Strategy Manager (Es-Of?cio) Appendix: Conceal/Carry Permitting in North Carolina Any person who has a concealed handgun permit my carry a concealed handgun unless otherwise specifically prohibited by law. These permits are issued by the sheriff and are valid throughout the State for a period of five years from the date of issuance. The permit does not authorize a person to carry a concealed handgun in areas (State offices, for example) specifically prohibited by ordinance. Criteria to qualify for issuance of the permit include: 1. The applicant is a citizen of the United States 2. The applicant is 21 years of age or older 3. The applicant does not suffer from a physical or mental infirmity that prevents the safe handling of a handgun 4. The applicant has successfully completed an approved firearms safety and training course The following shall be provided to the sheriff by the applicant: 1. An application completed under oath 2. A nonrefundable permit fee 3. A full set of fingerprints 4. Certificate of completion of an approved firearms safety and training course 5. A release that authorizes and requires disclosure of records concerning mental health or capacity The sheriff shall deny a permit to an applicant who: 1. Is ineligible under provisions of State or federal law 2. Is under indictment for a felony 3. Had been adjudicated guilty in any court of a felony 4. Is a fugitive from justice 5. Is an unlawful user of, or addicted to alcohol or any other controlled substance 6. Has been discharged from the armed services under conditions other than honorable 7. Is free on bond for a crime that would disqualify a permit 8. Has been convicted of an impaired driving offense within three years prior to the application date Application Fee information Type of fee Fee amount Application Fee Renewal Fee Page 27 of 32 $80 Portion of fee remitted to NCDOJ for costs of criminal record checks $45 Portion of fee remitted to sheriff for costs related to permitting process $35 $75 $40 $35 Appendix: Durham NC Police Districts Map . puistrictz <1 .1 Durham PD Districts 3700 14m: numb? i . 20151 24 ESAI Major Roads INTERSTATE Highway World Shaded Relief Copyright? 2013' E?ri Page 28 of 32 Appendix: Beat 114 Bwr-ra kh'n (a St The [?950an WMunay I Ave On 9% [78/9 9 3 $9 anal/?0?9 3 93/1121a.- 0% .r?AedaI/iq? sum" 9 I I &6 02;} gFaithDr 33 112 PErvis ~212? 4" 9; Rd ?35mm?! or 4 ve Amps-1n ance $9 407% 512ockLn Kg 4 ~21? 1 Weed: 3 1135? 1 . g: eaSt =g 513?39~lr East A90KernpRa a? Quiche.4.-.. 412 Bucks May a ?60? 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Kemi Tade em09] FOE 1?11 '4 Page 31 of 32 DISTRICT D4 UV NOINFFRENCE 0R A510 HEP DOIS N01 NAP STANDARDS AND mu SMOL .0 ~07 5r usn: [Humming x-uxrosrs 20181219 Mils 0.9 1.35 1.8 0 0.23 0.45 Appendix Sample Files for Social Media Campaign Are you a Are you a felon with a 'rearm In Durham felon with a 'rearm In Durham OLIC These are potential outcomes that you should be aware of We look forward to meeting you RealSoon You're carry a gun in Durham? Now that's just crazy! A Page 32 of 32