This post was written by Brittany Bromell. She can be contacted at bwilliams@sog.unc.edu.

North Carolina General Statute 50B-3.1 provides that, under certain circumstances, a person who is subject to a DVPO must be ordered to surrender to the sheriff “all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant.”

That statute also permits the person to seek return of the surrendered items following the expiration of the protective order and final disposition of any related criminal charges. If the person is ineligible for the return of the items or fails to request return, then a court may order disposal of the items in one of several ways set out in the statute. This post details the procedure for surrender, return, and disposal of firearms and related items in DVPO cases.

Surrender

My colleague Cheryl Howell has previously blogged about circumstances under which a court can order surrender of firearms. When a DVPO is issued, the court must order defendant to surrender all weapons, ammunition, and permits to the sheriff if the court finds one of the following:

• The use or threatened use of a weapon by defendant or a pattern of conduct involving the use or threatened use of violence with a firearm.
• Threats to seriously injure or kill the party or minor child by defendant.
• Threats to commit suicide by defendant.
• Serious injuries inflicted upon the party or minor child by defendant.

This requirement applies to both an ex parte DVPO and an order entered following the 10-day hearing. Stancill v. Stancill, 241 N.C. App. 529 (2015). If the court does not make one of these findings, then the court may not order a person to surrender weapons. Id. Making the findings includes checking a box beside one of the findings of fact on the DVPO form AOC-CR-306. Id.

A defendant is required to immediately surrender to the sheriff all weapons, ammunition and permits that are in the care, custody, possession, ownership, or control of the defendant. If the items cannot be surrendered when the order is served, the defendant must surrender the firearms to the sheriff within 24 hours of service at a time and place specified by the sheriff. G.S. 50B-3.1(d). Enforcement may be an issue where the defendant refuses to voluntarily surrender firearms. In State v. Elder, 368 N.C. 70 (2015), the North Carolina Supreme Court found a Fourth Amendment violation where officers serving a DVPO searched the defendant’s residence pursuant to a provision in the DVPO ordering law enforcement to search the defendant’s person, vehicle, and residence and to seize all firearms in order to ensure compliance with the DVPO. The supreme court held that the plain language of G.S. 50B-3 does not authorize trial courts to order law enforcement to search a defendant’s person, vehicle, or residence as part of a DVPO. Thus, where police have probable cause to believe a person is violating a DVPO by refusing to surrender items in accordance with the DVPO, a search warrant to seize the weapons may be both justified and necessary.

It is unlawful for a defendant to fail to surrender all items as ordered by the court. GS 50B-3.1(i)(1). If the court orders surrender, the DVPO also must prohibit the defendant “from possessing, purchasing, or receiving or attempting to possess, purchase, or receive a firearm for so long as the protective order or any successive protective order is in effect.” G.S. 50B-3.1(d)(1). A violation of this provision is a Class H felony. G.S. 50B-3.1(j); G.S. 14-269.8.

Return

Disqualification

Once firearms are surrendered pursuant to a DVPO, the sheriff cannot return those weapons until a court orders return. G.S. 50B-3.1(e),(f). The court cannot order return if the defendant is precluded by state or federal law from possessing firearms. The most common preclusions (also called “disqualifiers”) arise from statutes prohibiting possession by a person who:

• has been convicted of a felony, 18 U.S.C. 922(g)(1); S. 14-415.1(a);
• is subject to a qualifying civil protection order, 18 U.S.C. 922(g)(8); S. 14-269.8;
• has been adjudicated “mentally defective” or committed to a mental institution, 18 U.S.C. 922(g)(4); or
• has been convicted of a “misdemeanor crime of domestic violence,” 18 U.S.C. 922(g)(9).

My colleague Phil Dixon wrote more extensively about disqualifiers here. If the defendant falls into any of these categories, the court must deny the return of weapons. G.S. 50B-3.1(f). Additionally, a request for return must be denied if “the defendant has any pending criminal charges, in either state or federal court, committed against the person that is the subject of the current protective order until the final disposition of those charges.” Id.

Request by defendant

A defendant who wishes to have his weapons returned must file a motion no later than 90 days after the expiration of the DVPO or final disposition of the criminal charges. G.S. 50B-3.1(f). Upon receipt of the motion, the court must schedule a hearing and provide notice to plaintiff and to the sheriff in possession of the weapons. At the hearing, the court must determine whether the defendant is subject to any disqualifiers; if so, the court must deny the return of weapons. G.S. 50B-3.1(f).

There is often a question about what happens if the defendant files a late request for return of the weapons. The statute indicates that the request must be “not later than 90 days” after the expiration of the current order or final disposition of any related criminal charges. This outer limit is underscored by subsection (h) of the statute, which allows a sheriff to file a motion for disposal if the defendant does not file a motion requesting the return “within the time period prescribed.” A strict reading of the statute supports an argument that the defendant loses the ability to request return of the items after 90 days, even if the sheriff does not immediately file a motion for disposal.

Even so, it is not clear whether the statute was intended to automatically terminate the defendant’s possessory interest in the firearms after 90 days. Rather, it may be that the intent of the legislature was to provide a time at which the sheriff’s office could seek disposal of the items to hedge the accrual of storage fees, while also giving the defendant a reasonable time to make the request. The 90-day time period is likely not a restriction on the trial court’s authority to hear a defendant’s late request, since nothing in the statute prohibits return of the firearm after 90 days. So long as the sheriff has not yet filed a motion for disposal and no one objects to the defendant’s motion for return, it may be permissible for a judge to consider a defendant’s late request.

Request by third‑party owner

A third‑party owner of any firearms surrendered as a result of the entry of a DVPO may file a motion requesting the return of those firearms no later than 30 days after the seizure of the items by the sheriff. Upon receipt of the third party’s motion, the court must schedule a hearing and provide written notice to all parties and the sheriff. The court must order return of the items to the third party unless the court determines that the third party is subject to any disqualifiers. If the court denies the return of said items to the third party, the items shall be disposed of by the sheriff in accordance with G.S. 50B-3.1(h).

Storage fees

Under G.S. 50B-3.1(d)(2), the sheriff may charge the defendant or third-party owner a reasonable fee for the storage of any firearms and ammunition taken pursuant to a protective order. The defendant or third-party owner must remit all fees owed prior to the authorized return of any firearms, ammunition, or permits. If the defendant or third‑party owner fails to remit all storage fees owed within 30 days of the entry of the order granting the return of the firearms, then the sheriff must apply to the court for an order to dispose of the surrendered items. G.S. 50B-3.1(h).

Disposal

If the defendant or third-party owner does not file a timely motion for return of the firearms, or if the court determines that the defendant or third-party owner is not entitled to have the firearms returned, then the sheriff must apply to the court for an order to dispose of the surrendered items. G.S. 50B-3.1(h). The sheriff is required to give notice to the defendant and any third-party owner.

The judge, after a hearing, may order the disposition of the firearms in one or more of the following ways:

• Order the firearm(s) to be destroyed if the firearm does not have a legible, unique identification number or is unsafe for use because of wear, damage, age, or modification.
• Order the firearm(s) turned over to a law enforcement agency in the county for either (i) the official use of the agency or (ii) sale, trade, or exchange by the agency to a federally licensed firearm dealer in accordance with all applicable State and federal firearm laws.
  • The court may order this disposition only upon the written request of the head or chief of the law enforcement agency and only if the firearm has a legible, unique identification number.
• Order the firearm(s) turned over to the North Carolina State Crime Laboratory’s weapons reference library for official use by that agency.
• Order the firearm(s) turned over to the North Carolina Justice Academy for official use by that agency.

G.S. 50B-3.1(h); G.S. 14-269.1. Regardless of the method of disposition ordered by the court, the entity involved must maintain a record of the destruction or a record and inventory of all firearms received.

If the sheriff sells the weapon pursuant to G.S. 14-269.1(4b), any proceeds from the sale after deducting any costs associated with the sale must be provided to the defendant, but only (i) if requested by the defendant by motion made before the hearing or at the hearing and (ii) if ordered by the judge. G.S. 50B-3.1(h). There is otherwise no obligation to locate the defendant to have the funds distributed. When the funds are not being given to the defendant, the proceeds of the sale should be remitted to the appropriate county finance officer as provided by G.S. 115C-452 to be used to maintain free public schools.