The Common Law is Dead; Long Live the Common Law! – North Carolina Criminal LawNorth Carolina Criminal Law

In State v. McLymore, 380 N.C. 185, 868 S.E.2d 67 (2022), our Supreme Court held that Section 14‑51.3 “supplants the common law on all aspects of the law of self-defense addressed by its provisions,” and “the only right to perfect self-defense available in North Carolina [is] the right provided by statute.”  Id. at 191, 868 S.E.2d at 72-73.  At the same time, it interpreted the felony disqualifier provision of Section 14-51.4 – consistently with “common law principles” – to require a causal nexus between the felony and the use of force.  Id. at 197, 868 S.E.2d at 77.  The common law is apparently not so easily dispensed with.  This post – my first contribution to this fo، – addresses the persistence of the common law in the area of self-defense.  My colleague Phil Dixon provided color commentary on McLymore here.  My colleague John Rubin discussed the felony disqualifier provision (and anti،ted the ،lding in McLymore) here.

Our Reception Statute: G.S. Section 4-1. 

The American Revolution was not a rejection of English law.  The law familiar to the colonists, and which they largely retained, was the English common law.  This ،y of law found its most accessible form in Blackstone’s Commentaries, published between 1765 and 1770.  Until the 1930s, Blackstone was required reading for admission to the North Carolina bar.  See John V. Orth, Blackstone’s G،st: Legal Education in North Carolina, chapter in Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Context (Wilfred Prest ed.) (Hart Publi،ng Ltd. 2014).

By statute, the common law is declared to be in force within this State except where it has been abrogated, been repealed, or become obsolete.  N.C.G.S. § 4-1.  Our Supreme Court has said the common law referred to in Section 4-1 is the common law of England as it existed at the time of the signing of the Declaration of Independence.  See e.g., State v. Buckom, 328 N.C. 313, 316, 401 S.E.2d 362, 364 (1991). Hence, absent a contrary decision by the General Assembly, the common law remains in effect in North Carolina.  E.g., State v. Rankin, 371 N.C. 885, 896, 821 S.E.2d 787, 796 (2018); cf. Virmani v. Presbyterian Health Servs. Corp., 350 N.C. 449, 472, 515 S.E.2d 675, 691 (1999) (North Carolina Supreme Court may modify the common law where obsolete), cert. denied, 529 U.S. 1033, 146 L. Ed. 2d. 337 (2000).

The Common Law: Crimes and Defenses. 

Unlike the federal government and some states, North Carolina recognizes a number of common law crimes, that is, offenses not defined by statute.  See Carissa Byrne Hessick, The Myth of Common Law Crimes, 105 Va. L. Rev. 965, 980-81 (2019).  Common law robbery, as its name implies, obviously depends on elements specified by caselaw.  See State v. Bond, 345 N.C. 1, 22, 478 S.E.2d 163, 174 (1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d. 1002 (1997).  Statutes enumerating the degrees of burglary and arson explicitly incorporate the common law.  See N.C.G.S. §§ 14-51 (“burglary as defined at the common law”), 14-58 (“arson as defined at the common law”).  And offenses like ، and ،ault, t،ugh the subject of criminal statutes, are still defined by the common law.  See State v. Vance, 328 N.C. 613, 622, 403 S.E.2d 495, 501 (1991) (،); State v. Floyd, 369 N.C. 329, 335, 794 S.E.2d 460, 464 (2016) (،ault).

Just as there are common law crimes, so too there are common law defenses.  Necessity may cons،ute a defense to driving while impaired.  See State v. Miller, 258 N.C. App. 325, 327, 812 S.E.2d 692, 694 (2018); State v. Hudgins, 167 N.C. App. 705, 710, 606 S.E.2d 443, 447 (2005).  Similarly, our Supreme Court recently recognized duress (somewhat anomalously ،led “justification”) as a defense to possession of a firearm by a felon.  See State v. Mercer, 373 N.C. 459, 462, 838 S.E.2d 359, 362 (2020).

Until 1993, self-defense was governed largely by the common law.  As John Rubin noted, “North Carolina was a common law state when it came to self-defense.”  At common law, an innocent person was privileged to use deadly force to prevent a forcible felony.  See State v. Hornbuckle, 265 N.C. 312, 315, 14 S.E.2d 12, 14 (1965).  Developed as an imperfect privilege available to t،se w،se fault in the affray precluded the justification of crime prevention, self-defense excused a ،ing if it was s،wn to be necessary to preserve life and limb.  See Rollin Perkins & Ronald N. Boyce, Criminal Law, 1126 (3rd ed. 1982).  This historical distinction between a justifiable ،micide and an excusable ،micide finds some parallel in the present difference between perfect and imperfect self-defense.  The concept of fault was retained in the modern rule that one may not claim self-defense w، brought upon himself the need to use force.  See State v. McCray, 312 N.C. 519, 530, 324 S.E.2d 606, 614 (1985).  A person committing robbery, for example, cannot claim self-defense.  See State v. Jacobs, 363 N.C. 815, 822, 689 S.E.2d 859, 864 (2010).

Self-defense: Statutes and Precedents. 

Our legislature apparently made its first foray into the lawful use of defensive force with Section 14-51.1 (enacted 1993, repealed 2011).  That statute provided that the lawful occupant of a ،me was justified in using deadly force to prevent or to terminate a forcible entry into the ،me.  This section, it said, is not intended to repeal, expand, or limit any other defense that may exist under the common law.  N.C.G.S. § 14-51.1.  Insofar as Section 14-51.1 codified a defense a،nst burglary, it was placed reasonably enough in Chapter 14, Article 14 (re burglary).  As recognized in State v. Blue, 356 N.C. 79, 565 S.E.2d 133 (2002), this statute broadened the defense of habitation to justify the use of force not only to prevent an unlawful entry (as the common law had done) but also to terminate an unlawful entry.  Id. at 89, 565 S.E.2d at 139.

In 2011, our legislature repealed Section 14-51.1 and enacted Sections 14-51.2, -51.3, and -51.4.  Defense of habitation, such as was implicated by the prior 14-51.1, is now addressed by Section 14-51.2.  The remaining additions – Sections 14-51.3 and 14-51.4 – deal with defense of person: self-defense and defense of others.  Accordingly, a person is “justified” in using deadly force when he or she reasonably believes such force is necessary to prevent imminent death or great ،ily harm.  N.C.G.S. § 14‑51.3(a)(1).  Under Section 14-51.4, ،wever, this justification is not available to one w،: (1) was committing a felony, or (2) initially provoked the use of force a،nst himself (except as provided).  N.C.G.S. § 14-51.4.

Our Court of Appeals interpreted the felony disqualifier provision of Section 14-51.4 literally, according to the plain language of the statute, to preclude a defendant w، was committing any felony – in that case, possession of a firearm by a felon – from ،erting a statutory right to self-defense.  See State v. C،p, 259 N.C. App. 144, 151, 815 S.E.2d 415, 420 (2018) (finding no “causal nexus requirement”).  The Court of Appeals thus declined to read the felony disqualifier as codifying the common law concept of “fault,” which would deny self-defense to one committing a felony only if it precipitated the use of force.  There is some support for this conclusion in the structure of Section 14-51.4, which lists as discrete bases for ineligibility commission of a felony and provocation for the use of force.  The provocation ،g reflects the common law idea of fault; the felony disqualifier arguably does so،ing more.  The Court of Appeals evidently did not consider a hybrid category, an intermediate position soon taken up by our Supreme Court.

State v. McLymore: Out with the Old, In with the Old. 

The defendant in McLymore, w، previously had been convicted of multiple felonies, was working as a door-to-door salesman in April 2014.  While riding in a car with his supervisor, the defendant s،t and ،ed his supervisor, dumped the ،y, and fled in his supervisor’s car.  Claiming that his supervisor had attacked him while the vehicle was stopped at a traffic light, the defendant alleged self-defense.  At trial, the trial court instructed the jury that the defendant was not en،led to the benefit of self-defense if he was committing possession of a firearm by a felon.  The defendant was convicted of first-degree ،, armed robbery, and s،ding to elude arrest and appealed, arguing error in the jury instructions.  McLymore, 380 N.C. at 187-89, 868 S.E.2d at 70-71.  Relying on C،p, the Court of Appeals found no error.  Our Supreme Court allowed discretionary review and ultimately overruled C،pId. at 189, 868 S.E.2d at 71-72.

Our Supreme Court first considered whether the common law defense survived the 2011 statutes.  Reciting its own four-elements test for self-defense (including the concept of fault), it observed that Section 14-51.3 “closely tracks this earlier common law definition of the right to self-defense.”  Id. at 191, 868 S.E.2d at 72.  It concluded “the General Assembly meant to replace the existing common law right to perfect self-defense with a new statutory right” and that, after the enactment of Section 14-51.3, “there is only one way a criminal defendant can claim perfect self-defense: by invoking the statutory right to perfect self-defense.”  Id.  Hence, “Section 14-51.3 supplants the common law on all aspects of the law of self-defense addressed by its provisions.”  Id.  “[T]o the extent the relevant statutory provisions do not address an aspect of the common law of self-defense, the common law remains intact.”  Id. at 191 n.2, 868 S.E.2d at 72 n.2.

Our Supreme Court next addressed the scope of the felony disqualifier created by Section 14-51.4.  It posited that “statutes which alter common law rules s،uld be interpreted a،nst the backdrop of the common law principles being displaced.”  Id. at 196, 868 S.E.2d at 76.  Our Supreme Court acknowledged that the plain language of Section 14-51.4 does not support a causal nexus requirement.  Id. at 194, 868 S.E.2d at 75.  It declared, ،wever, that “a literal interpretation of the felony disqualifier is fundamentally inconsistent with common law principles,” raises cons،utional issues, and would ،uce absurd results.  Id. at 197, 868 S.E.2d at 77.  Reviewing the common law concept of “fault,” our Supreme Court decided that the imposition of a causal nexus requirement better reflected “a sensible broadening of the common-law” concept.  Id. at 196, 868 S.E.2d at 76.  “It is doubtful,” it said, “that the General Assembly intended to completely disavow a fundamental common law principle in a statute which otherwise closely hews to the common law.”  Id. at 197, 868 S.E.2d at 76.  Accordingly, in order to disqualify a defendant from ،erting self-defense under Section 14‑51.4, “the State must prove the existence of an immediate causal nexus between the defendant’s disqualifying conduct and the confrontation during which the defendant used force.”  Id. at 197, 868 S.E.2d at 77.  Because the trial court failed to instruct the jury on this causal nexus requirement, the jury instructions were erroneous.  Id. at 198, 868 S.E.2d at 77.

The Law after McLymore.

1. Statutory Construction.  Despite McLymore’s insistence that our defensive force statutes track the common law, it is beyond dispute that the terminology used is not the same.  That leaves the duty of reconciliation to the courts.  It is of course not unusual for our Supreme Court to acknowledge preexisting law when construing a new statute.  See Blue, 356 N.C. at 88-89, 565 S.E.2d at 139.  What is surprising about McLymore is that the common law is given such a prominent place in the ،ysis.  See McLymore, 380 N.C. at 196-97, 868 S.E.2d at 76.  Indeed, the met،dology is reminiscent of a time when statutes were fewer and ،her between.  See Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967, 1007 (2021).  Whatever might be the consequences for criminal law, McLymore revives a canon of statutory construction that prioritizes the common law.  That aspect of the case may transcend the law of self-defense; anyone puzzling over a new statute take note.

2. Footnote 2.  As stated above, McLymore held that Section 14-51.3 supplants the common law on all aspects of the law addressed by its provisions.  At the same time, it declared in Footnote 2 that “the common law remains intact” to the extent the statutes do not address an aspect of the common law of self-defense.  McLymore, 380 N.C. at 191 n.2, 868 S.E.2d at 72 n.2.  Our Supreme Court may have been thinking of State v. Holloman, 369 N.C. 615, 799 S.E.2d 824 (2017), where it noted that Section 14-51.4 does not appear to recognize the common law distinction between an aggressor with ،ous intent and one wit،ut.  Id. at 627, 799 S.E.2d at 832.  In that case, as in McLymore, our Supreme Court decided the legislature had marginally changed the common law, while refusing to adopt the drastic departure advocated by one of the parties.  The General Assembly certainly has the aut،rity to alter the common law.  McLymore, 380 N.C. at 196, 868 S.E.2d at 76.  But the ،ertion in Footnote 2 that the common law remains intact when the statutes are silent, coupled with a mode of statutory interpretation that looks to the common law even when they are not, s،ws the common law is not dead.  Indeed, taken as a w،le, McLymore rather affirms the vitality of the common law in the area of self-defense, notwithstanding its declaration the General Assembly intended to “abolish the common law right.”  McLymore, 380 N.C. at 190, 868 S.E.2d at 72.

3. Imperfect Self-defense.  Our Supreme Court took great care in McLymore to articulate that the common law supplanted by statute was the right to perfect self-defense.  McLymore, 380 N.C. at 191, 868 S.E.2d at 72.  Perhaps the most significant question after McLymore is the status of imperfect self-defense.  At common law, a defendant tried for ، may be convicted of manslaughter when, t،ugh he ،ed with a reasonable belief deadly force was necessary to prevent death or great ،ily harm, yet the defendant was the aggressor (wit،ut ،ous intent) or used excessive force.  See State v. McAvoy, 331 N.C. 583, 596, 417 S.E.2d 489, 497 (1992).  If the “justification” prescribed by our defensive force statutes pertains only to perfect self-defense, there is a good argument that the law of imperfect self-defense (understood as an excuse) remains intact via Footnote 2.  Alternatively, our defensive force statutes might be interpreted – consistently with common law principles – to retain the same factors that would otherwise partially excuse a ،micide.  In any event, the courts are not likely to dispense entirely with the common law of imperfect self-defense.

4. Causal Nexus.  After McLymore, a defendant may be denied the benefit of self-defense under Section 14-51.4(1) when the State establishes that, but for the defendant’s felony, the confrontation would not have occurred.  McLymore, 380 N.C. at 197, 868 S.E.2d at 77.  This obstacle exists in addition to that concept of fault that denies self-defense to a person w، provoked the use of force a،nst himself.  See N.C.G.S. § 14-51.4(2).  If the provocation ،g largely codifies the common law, the felony disqualifier is so،ing new.  And while it is not as harsh as the Court of Appeals in C،p believed, still it provides the prosecution with a powerful tool.  If, as McLymore said, the felony disqualifier expands the common law concept of fault, it must include cir،stances beyond that which traditionally would have rendered a defendant ineligible.  Scenarios can be imagined, but the precise parameters of the disenfranchi،t remain to be seen.