Criminal Justice Reform in North Carolina: Important Changes for Local Law Enforcement Agencies
Governor Roy Cooper recently signed Senate Bill 300—a criminal justice reform bill—into law. The bill, reflecting the impact of the national conversation surrounding reform in law enforcement and attempts to address the calls for transparency from those who wear the badge, is expected to have major impacts on law enforcement and local governments in North Carolina.
The bill includes staggered effective dates for certain provisions from October 2021 through January 2023.
Effective October 1, 2021, the following provisions become law:
- Database of Restricted Certifications: Requires the North Carolina Criminal Justice Education and Training Standards Commission to create a database of law enforcement officers who have had their law enforcement certification suspended or revoked. This database would be accessible by the public. N.C.Gen.Stat. §17C-14.
- “Critical Incident” Database: Requires the Criminal Justice Standards Division of the Department of Justice to develop and maintain a statewide public database for agencies to track “all critical incident data of law enforcement officers.” N.C.Gen.Stat. §17C-15(a). “Critical incident” is defined as “An incident involving any use of force by a law enforcement officer that results in death or serious bodily injury to a person.” N.C.Gen.Stat. §17C-2(3a). If an officer disputes being “involved” in a critical incident, the officer has a right to request a hearing in superior court prior to being placed in the database to determine whether the officer’s “involvement” was sufficient to be placed in the database. N.C.Gen.Stat. 17C-15(d).
- Giglio Order Notice: Requires an existing officer or person who has received a conditional offer of employment as an officer to notify via writing the Criminal Justice Standards Division within 30 days of receiving notice that they may not be called to testify at trial based on bias, interest, or lack of credibility—otherwise known as a Giglio Order. N.C.Gen.Stat. 17C-16(a). The officer shall also provide written notice to the head of his/her agency of the Order. N.C.Gen.Stat. §17C-16(b).
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- If the officer moves to another agency, the Criminal Justice Standards Division of the Department of Justice shall provide written notification of this restriction to the head of the new agency as well as the elected district attorney where the new agency is located. N.C.Gen.Stat. §17C-16(d). Should the new agency be a state agency, then the Criminal Justice Standards Division of the Department of Justice shall notify the elected district attorney in each prosecutorial district. N.C.Gen.Stat. 17C-16(d).
- This database shall not be public record. N.C.Gen.Stat. §17C-16(g).
- An officer has the right to a apply for a hearing in the superior court to determine whether or not the person received notification of the restriction, but not the right under this statute to appeal the Giglio Order itself. N.C.Gen.Stat. §17C-16(g).
- This law goes into effect on October 1, 2021, and applies to notifications received prior to, on, or after the date by persons required to report pursuant to this law.
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- National Decertification Index: The revised statute requires the North Carolina Criminal Justice Education and Training Standards Commission to search the National Decertification Index for each applicant for certification or applicant for lateral transfer and “utilize any record of conviction of a criminal offense received as a result of the search during the application and lateral transfer process to determine if the applicant has any record that would disqualify the applicant from certification.” N.C.Gen.Stat. §17C-6(a)(21).
Effective December 1, 2021, the following provisions become law:
- Early Warning System: Requires every agency to develop and implement an early warning system to document and track actions and behaviors of officers for the purpose of intervening and improving performance. N.C.Gen.Stat. §17A-10(a).
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- The statute includes information which, at minimum, must be tracked:
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- Instances of the discharge of a firearm
- Instances of use of force
- Vehicle collisions
- Citizen complaints
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- This information shall be confidential.
- This law goes into effect on December 1, 2021, and applies to actions and behaviors on or after this date.
- The statute includes information which, at minimum, must be tracked:
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- Duty to Intervene Report Excessive Use of Force: The Bill imposes a duty to intervene on a law enforcement officer while in the line of duty who observes another law enforcement officer use force that the observing officer reasonably believes exceeds the amount of force authorized under North Carolina General Statute 15A-401(d). The observing officer must possess a reasonable opportunity to intervene if it is safe to do so.
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- Further, the observing officer shall report what the officer reasonably believes to be an unauthorized use of force to a superior law enforcement officer within the agency, even if the observing officer did not have a reasonable opportunity to intervene. This reporting must be done within a reasonable time, not exceeding 72 hours after the event.
- If the head of the law enforcement agency is the officer who potentially used excessive force, then the reporting officer must make the report to highest ranking law enforcement officer of the agency who was not involved nor present during the use of force.
- N.C.Gen.Stat. §15A-401(d1).
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- Harsher Penalty for Resisting Arrest: North Carolina General Statute §14-223—the statute making resisting arrest a crime—has been amended to increase the penalty to a Class I felony if the willful and unlawful resist, delay, or obstruction is the proximate cause of the officer’s serious injury. If the action is the proximate cause of the officer’s serious bodily injury, then the penalty is a Class F felony.
- Immediate Disclosure of Body-Worn Camera Recordings Related to Death or Serious Bodily Injury: North Carolina General Statute §132-1.4A—the section of the North Carolina Public Records Act which discusses disclosure of law enforcement recordings—is amended in SB300. These amendments permit the immediate disclosure of body-worn camera, dashboard camera, or any other video or audio recording operated by or on behalf of a law enforcement agency to an individual or their personal representative in a private setting but may not be recorded. N.C.Gen.Stat. §132-1.4A(b1).
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- For such disclosure, the individual or their personal representative must submit a signed and notarized form provided by the law enforcement agency. This form is to be a standard form developed by the North Carolina Administrative Office of the Courts. N.C.Gen.Stat. §132-1.4A(b2).
- Once the form is submitted to the law enforcement agency, the agency must file a petition in the superior court for a determination of whether to disclose the recording. N.C.Gen.Stat. §132-1.4A(b3). The court will then determine whether the disclose the recording and whether to redact any portion of it using several factors listed in the statute. N.C.Gen.Stat. §132-1.4A(b3).
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Note: This new statute modified the existing statute by removing the agency’s ability to determine whether to disclose the recording or not. The new statute requires the court to make this determination, thereby involving a neutral third party and improve the Due Process rights of the individual.
- Enforcement of Ordinances: The Bill decriminalizes certain ordinances of local governments. Ordinances which intend to impose a misdemeanor or infraction for violations of same under North Carolina General Statute §14-4 must state so within the ordinance. N.C.Gen.Stat. §153A-123(b); N.C.Gen.Stat. §160A-175(b).
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- However, North Carolina General Statute §14-4 now includes a provision that protects individuals from being found responsible or guilty of a local ordinance violation if:
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- They have not violated the local ordinance within 30 days of the initial alleged violation, or
- The person provides evidence of a good-faith effort to seek assistance to address any underlying factors related to unemployment, homelessness, mental health, or substance abuse which may relate to their ability to comply with the local ordinance.
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- The following types of ordinances may not impose a criminal penalty:
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- Any ordinance adopted under Article 18 of North Carolina General Statute §153A for Planning and Regulation of Development or, its successor, Chapter 160D of the General Statutes other than ordinances related to unsafe buildings.
- Any ordinance adopted pursuant to North Carolina General Statute 153A-134 regulating and licensing businesses, trades, etc.
- Any ordinance adopted pursuant to North Carolina General Statute 153A-138, which regulates mobile homes, house trailers, etc.
- Any ordinance adopted pursuant to North Carolina General Statute 153A-140.1 regarding stream-clearing programs.
- Any ordinance adopted pursuant to North Carolina General Statute 153A-143 regulating outdoor advertising or, its successor, North Carolina General Statute 160D-912.
- Any ordinance adopted pursuant to North Carolina General Statute 153A-144, which places limitations on regulating solar collectors or, its successor, North Carolina General Statute 160D-914.
- Any ordinance adopted pursuant to North Carolina General Statute 153A-145, which places limitations on regulating cisterns and rain barrels.
- Any ordinance regulating trees.
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- However, North Carolina General Statute §14-4 now includes a provision that protects individuals from being found responsible or guilty of a local ordinance violation if:
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Effective January 1, 2022, the following provisions become law:
- Additional In-Service Trainings: Requires officers undergo mandatory annual in-service training to include ethics, mental health for officers, community policing, minority sensitivity, use of force, and the duty to intervene and report. N.C.Gen.Stat. §17C-6(a)(14).
Effective January 1, 2023, the following provisions become law:
- Additional Background Checks: Requires all agencies to submit applicant information and fingerprints to the State Bureau of Investigation to compare with the state’s criminal history record file. N.C.Gen.Stat. §143B-972.1. It further requires this information be submitted to the Federal Bureau of Investigation for a national criminal history check which includes the Next Generation Identification System and the Criminal Justice Record of Arrest and Prosecution Background service. N.C.Gen.Stat. §143B-972.1.
In all, the bill attempts to increase the transparency of law enforcement agencies as well as the accountability for the actions of officers. This trend of transparency in law enforcement and local government is likely to continue and effective implementation by all agencies will take coordination.
Ensure that your department is prepared to implement these changes as the national conversation of criminal justice reform continues. Reach out to members of our Local Government team for your law enforcement administrative needs.