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  "name": "STATE OF NORTH CAROLINA v. TRACY ALLEN POOLE, Dependant",
  "name_abbreviation": "State v. Poole",
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    "judges": [
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      "STATE OF NORTH CAROLINA v. TRACY ALLEN POOLE, Dependant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nThe State appeals from an order entered 5 June 2012 dismissing an indictment charging Tracy Allen Poole (\u201cdefendant\u201d) with violating an ex parte domestic violence protective order (DVPO) that required him to surrender his firearms. We conclude that the Supreme Court case relied upon by the trial court is not controlling on the issue presented here because of subsequent statutory amendments and that prosecution of defendant for violation of an ex parte order does not violate his procedural due process rights. Therefore, we reverse the trial court\u2019s order and remand for further proceedings.\nI. Background\nOn 14 October 2011, defendant\u2019s wife, Tammy Lynn Poole, filed a complaint and motion for a domestic violence protective order, alleging that defendant had showed up at her house after making repeated phone calls and banged on her door. She further alleged that defendant possessed \u201cseveral rifles and a handgun and lots of ammo\u201d and that she felt \u201cunsafe\u201d and \u201cfrightened.\u201d\nThat same day, the trial court entered an ex parte DVPO. The trial court found that defendant had placed Tammy in fear of imminent bodily harm and continued harassment \u201cto such a level as to inflict substantial emotional distress.\u201d The trial court also found that defendant had threatened to commit suicide. The trial court accordingly concluded that defendant had committed acts of domestic violence, that there \u201cis a clear danger\u201d of acts of domestic violence against Tammy, and that \u201c[t]he defendant\u2019s conduct requires that he[] surrender all firearms, ammunition, and gun permits.\u201d The ex parte DVPO prohibited defendant from contacting Tammy and ordered defendant to surrender all \u201cfirearms, ammunition, and gun permits\u201d to the sheriff who served him with the DVPO. The DVPO was in effect until 20 October 2011.\nOn 17 October 2011 a sheriff served defendant with the DVPO. The next day, 18 October. 2011, sheriffs returned to defendant\u2019s home and discovered a shotgun. Defendant was then arrested for violating the DVPO and indicted for \u201cowning, possessing, purchasing, or receiving a firearm\u201d in violation of a domestic violence protective order pursuant to N.C. Gen. Stat. \u00a7 14-269.8 (2011).\nDefendant\u2019s case came on for trial on 21 May 2012. Prior to trial, defendant filed a motion to dismiss the charge, arguing that \u201c [a]n ex parte hearing does not satisfy the hearing requirements for a valid protective order\u201d and that \u201c[a] valid protective order is required under N.C.G.S. \u00a7\u00a7 50B-3.1Q) and 14-269.8to convict a defendant of the offense [charged.]\u201d At the hearing on defendant\u2019s motion to dismiss the trial court announced that it would grant the motion. On 5 June 2012, the trial court entered an order granting defendant\u2019s motion and dismissing all charges because (1) the DVPO \u201cwas not a protective order entered within the meaning of N.C.G.S. \u00a7 50B-1(c) and N.C.G.S. \u00a7 14-269.8\u201d and (2) \u201cprosecution of the defendant... under these facts and circumstances would be a violation of the defendant\u2019s constitutional right to due process.\u201d The State filed timely written notice of appeal to this Court.\nII. Protective order\nThe trial court relied primarily upon State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009), in concluding that an ex parte order entered under N.C. Gen. Stat. \u00a7\u00a7 50B-2(c) and 50B-3.1(b) (2011) is not a \u201cprotective order\u201d for purposes of N.C. Gen. Stat. \u00a7 14-269.8 (2011). In Byrd, the Supreme Court considered whether a Temporary Restraining Order (TRO) entered under N.C. Gen. Stat. \u00a7 1A-1, Rule 65, was a \u201cvalid domestic violence protective order under Chapter 50B\u201d for purposes of a sentencing enhancement under N.C. Gen. Stat. \u00a7 50B-4.1(d). Byrd, 363 N.C. at 219, 675 S.E.2d at 325. The Supreme Court held that the TRO was not entered \u201cpursuant to Chapter 50B\u201d and then went on to note that even if it had been entered pursuant to Chapter 50B that it was not a \u201cvalid protective order\u201d because it had been entered ex parte. Id. at 220-21, 675 S.E.2d at 327.\nHere, the trial court concluded that the 2009 amendments to N.C. Gen. Stat. \u00a7 50B-4 and 50B-4.1 (2011), which appear to have been passed directly in response to Byrd, were inapplicable and that there is a distinction in Chapter 50B between a \u201cprotective order\u201d and a \u201cvalid protective order.\u201d We disagree.\nThe amendments enacted by 2009 N.C. Sess. Laws 342 do change the application of these statutes and have corrected the situation created by Byrd, which left victims of domestic violence with limited penalties for violation of ex parte domestic violence orders. The 2009 amendments make it clear that an ex parte domestic violence order entered under Chapter 50B is a \u201cvalid protective order\u201d and thus defendant would have been in violation of a \u201cvalid protective order\u201d by his alleged possession of guns from 17 October 2011 to about 19 October 2011. Reading N.C. Gen. Stat. \u00a7 14-269.8 in light of the plain language of its companion 50B statute, N.C. Gen. Stat. \u00a7 50B-3.1, also supports this conclusion.\nFirst, the portions of Byrd which the trial court relied on in making a distinction between a \u201cprotective order\u201d and a \u201cvalid protective order\u201d were dicta, as they were not necessary to the court\u2019s decision. See Romulus v. Romulus,_N.C. App._,_, 715 S.E.2d 308, 321 (2011) (\u201c[I]f the statement in the opinion was . . . superfluous and not needed for the full determination of the case, it is not entitled to be accounted a precedent, for the reason that it was, so to speak, rendered without jurisdiction or at least extra-judicial.\u201d (quoting Hayes v. Wilmington, 243 N.C. 525, 536-37, 91 S.E.2d 673, 682 (1956))).\nThe Supreme Court in Byrd held that a Rule 65 TRO was not sufficient to form the basis of a sentencing enhancement based on violation of a DVPO, since the TRO was not a DVPO entered under Chapter 50B. Byrd, 363 N.C. at 218-22, 675 S.E.2d at 325-27. The Court highlighted the significant procedural differences between a TRO under Rule 65 and a DVPO under Chapter 50B.\nIn addition to those procedural differences which were most relevant in the context of the Byrd case \u2014 discussed further below \u2014 Chapter 50B provides different enforcement mechanisms for DVPOs than are available for Rule 65 TROs. For example, N.C. Gen. Stat. \u00a7 50B-3(d) requires that\nThe sheriff of the county where a domestic violence order is entered shall provide for prompt entry of the order into the National Crime Information Center registry and shall provide for access of such orders to magistrates on a 24-hour-a-day basis. Modifications, terminations, renewals, and dismissals of the order shall also be promptly entered.\nN.C. Gen. Stat. \u00a7 50B-3(d) (2011).\nNot only must copies of the DVPO be served on the parties, but they also must be provided to \u201cthe police department of the city of the victim\u2019s residence\u201d or \u201cthe sheriff, and the county police department, if any, of the county in which the victim resides\u201d and the principal of child\u2019s school if the order requires the defendant to stay away from the child as well. N.C. Gen. Stat. \u00a7 50B-3(c). The obvious purpose of providing copies of the DVPO to law enforcement agencies, the school, and entry of the domestic violence order information into the National Crime Information Center database is to permit prompt and effective enforcement of the order by law enforcement agencies.\nAfter holding that a TRO entered under Rule 65 was not a valid protective order entered under Chapter 50B, which was sufficient to dispose of the issues presented by Byrd, the Supreme Court went on to note that the TRO was entered ex parte and thus was not entered \u201cupon hearing by the court or consent of the parties\u201d \u2014 another requirement under N.C. Gen. Stat. \u00a7 50B-1(c) not included under Rule 65 because no adversarial hearing at which the defendant had a right to be present was held prior to issuance of the TRO. Id. at 223-24, 675 S.E.2d at 328.\nThe issue of whether an ex parte order entered under \u00a7 50B-2(c) was a valid protective order and enforceable by N. C. Gen. Stat. \u00a7 50B-4.1 was not actually presented to the Supreme Court in Byrd. See Byrd, 363 N.C. at 221, 675 S.E.2d at 327 (\u201c[E]ven if the TRO had been entered under Chapter 50B, which we have held it was not...(emphasis added)). It is unclear whether the portion of the Supreme Court\u2019s opinion addressing the ex parte nature of the proceedings could constitute an independent ground for its holding or not. See Romulus,_N.C. App. at_, 715 S.E.2d at 321 (\u201c[W]here a case actually presents two or more points, any one of which is sufficient to support decision, but the reviewing Court decides all the points, the decision becomes a precedent in respect to every point decided.\u201d (quoting Hayes, 243 N.C. at 536-37, 91 S.E.2d at 682)).\nGiven the fact that the case did not actually present the issue of an ex parte order entered pursuant to the detailed procedures in Chapter 50B and the lack of a due process analysis, we believe that the Supreme Court did not intend the ex parte and due process discussion as an independent ground for its holding. See Central Virginia Community College v. Katz, 546 U.S. 356, 363, 163 L.Ed. 2d 945, 954 (2006) (\u201c[W]e are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.\u201d).\nIt is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.\nCohens v. State of Virginia, 19 U.S. 264, 399-400, 5 L.Ed. 257, 290 (1821) (emphasis added). Therefore, we consider that discussion obiter dicta.\nSecond, if it is an independent ground and not dicta, that portion is nevertheless distinguishable from the present case because the 2009 amendments show that the Legislature disagreed with the Supreme Court\u2019s implication that an ex parte order is not a \u201cvalid protective order.\u201d Moreover, that discussion in Byrd only addressed N.C. Gen. Stat. \u00a7 50B-4.1, not \u00a7 3.1, which is at issue here.\nWe note that the Supreme Court emphasized the distinctive nature of the procedure and remedies provided under Chapter 50B:\nMoreover, even if the TRO had been entered under Chapter 50B, which we have held it was not, it fails to meet the second prong of the definition of a valid domestic violence protective order in that it was not entered \u201cupon hearing by the court or consent of the parties.\u201d N.C.G.S. \u00a7 50B-1(c). The State contends, and the Court of Appeals\u2019 majority agreed, that because an ex parte proceeding was held before the TRO was issued, the hearing requirement under N.C.G.S. \u00a7 50B-1(c) was satisfied. Again we disagree.\nThe provisions of Chapter 50B demonstrate that in the domestic violence context, the Legislature contemplated two separate proceedings whereby two types of orders could be entered, a valid protective order and an ex parte order. N.C.G.S. \u00a7\u00a7 50B-1(c), -2(c), -3(b) (2003). If exigent circumstances require immediate issuance, without notice to the other party, of an order to protect a party, the General Assembly has provided for an ex parte order. Under Chapter 50B when \u201c[p]rior to the hearing, if it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party ... the court may enter such orders as it deems necessary to protect the aggrieved party ... from such acts.\u201d N.C.G.S. \u00a7 50B-2(c). Atrial court entering an ex parte order under this subsection is also required to hold a \u201chearing ... within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later.\u201d Id. By definition a valid protective order must be upon hearing or by consent of the parties. N.C.G.S. \u00a7 50B-1(c). That the definition of a \u201cprotective order\u201d permits entry of the order by consent also suggests that the enjoined party must have had notice with the opportunity to be heard. The record before this Court reveals that no such hearing was held by the trial court before it entered the TRO on 11 March 2004. A hearing was scheduled for 15 March 2004, but was continued, along with the TRO, until 24 March 2004. The order granting the TRO states that the \u201capplicant\u2019s request for temporary restraining order comes on without notice to the Defendant.\u201d The circumstances surrounding its entry, as well as the language of the order itself, make clear that no hearing of the type contemplated by N. C. G.S. \u00a7 50B-1 (c) was held in this case. Only a valid protective order entered under Chapter 50B can be used to enhance a defendant\u2019s sentence under N.C.G.S. \u00a7 50B-4.1(d).\nId. at 221-22, 675 S.E.2d at 327 (emphasis added).\nDefendant relies upon Byrd in arguing that a \u201chearing\u201d must be adversarial and that an ex parte hearing cannot be a \u201chearing\u201d for purposes of N.C. Gen. Stat. \u00a7 50B-1(c). The Supreme Court noted that an ex parte hearing may be a type of hearing:\nWe acknowledge that the term \u201chearing\u201d is often used generically to refer to any proceeding before a court. See Black\u2019s Law Dictionary 737 (8th ed. 2004) (defining a hearing as \u201c[a] judicial session... held for the purpose of deciding issues of fact or of law, sometimes with witnesses testifying\u201d). We cannot, however, agree that this generic definition comports with the statutory scheme in Chapter 50B, which, in our view, requires that a defendant be given notice and the opportunity to be heard before entry of a protective order.\nId. at 222, 675 S.E.2d at 327-28.\nByrd is correct to the extent that it is read as stating that a defendant must be given notice and the opportunity to be heard before entry of a protective order for one year under N.C. Gen. Stat. \u00a7 50B-3, but to read it as eviscerating the ex parte protective provisions of Chapter 50B goes too far. The 2009 amendment to N.C. Gen. Stat. \u00a7 50B-4.1 added subsection (h): \u201cFor the purposes of this section, the term \u2018valid protective order\u2019 shall include an emergency or ex parte order entered under this Chapter.\u201d 2009 N.C. Sess. Laws 342, \u00a7 5. This enactment was clearly in response to the dicta in Byrd indicating that an ex parte order may not be a \u201cvalid protective order\u201d under \u00a7 50B-4.1. The legislature responded by providing that a \u201cvalid protective order\u201d is not a special kind of order; it is simply an order which is valid under the particular statutory scheme. In other words, the statute as amended clarifies that a \u201cvalid protective order\u201d is an order valid under whichever statute it falls, whether an ex parte order (N.C. Gen. Stat. \u00a7 50B-2(c)), an emergency order (N.C. Gen. Stat. \u00a7 50B-2(b)), or an order effective for one year (N.C. Gen. Stat. \u00a7 50B-3). To read it otherwise is to assume that the 2009 amendments were intended to draw an illogical distinction between a \u201cprotective order\u201d and a \u201cvalid protective order.\u201d\nSection 50B-1(c) provides that \u201cAs used in this Chapter [50B], the term \u2018protective order\u2019 includes any order entered pursuant to this Chapter upon hearing by the court or consent of the parties.\u201d N.C. Gen. Stat. \u00a7 50B-1(c). The \u201chearing\u201d at which the ex parte domestic violence protective order was entered in this case was exactly a \u201chearing of the type contemplated by N.C. Gen. Stat. \u00a7 50B-1(c).\u201d Byrd, 363 N.C. at 222, 675 S.E.2d at 327 (emphasis added). Any reading of Chapter 50B otherwise entirely ignores the most relevant statutory provisions for purposes of this case.\nThis ex parte order was entered under N.C. Gen. Stat. \u00a7 50B-3.1, which provides as follows:\n(a) Required Surrender of Firearms. - Upon issuance of an emergency or ex parte order pursuant to this Chapter, the court shall order the defendant 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 if the court finds any of the following factors:\n(1) The use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons.\n(2) Threats to seriously injure or kill the aggrieved party or minor child by the defendant.\n(3) Threats to commit suicide by the defendant.\n(4) Serious injuries inflicted upon the aggrieved party or minor child by the defendant.\n(b) Ex Parte or Emergency Hearing. \u2014 The court shall inquire of the plaintiff, at the ex parte or emergency hearing, the presence of, ownership of, or otherwise access to firearms by the defendant, as well as ammunition, permits to purchase firearms, and permits to carry concealed firearms, and include, whenever possible, identifying information regarding the description, number, and location of firearms, ammunition, and permits in the order.\n(c) Ten-Day Hearing. - The court, at the 10-day hearing, shall inquire of the defendant the presence of, ownership of, or otherwise access to firearms by the defendant, as well as ammunition, permits to purchase firearms, and permits to carry concealed firearms, and include, whenever possible, identifying information regarding the description, number, and location of firearms, ammunition, and permits in the order.\nN.C. Gen. Stat. \u00a7 50B-3.1 (emphasis added).\nThis statute sets forth a specific procedure for entry of ex parte domestic violence orders which require surrender of firearms and directs what the court shall do at the ex parte hearing as well as at the ten-day hearing. This is the type of hearing contemplated under the statute because it is actually the procedure set forth by the statute and the statute refers to it as a \u201chearing.\u201d First, subsection (a) of the statute notes that surrender of firearms may be required in certain circumstances \u201cupon issuance of an emergency or ex parte order pursuant to this Chapter.\u201d Id. Subsection (b) then goes on to direct the trial court to make certain inquiries at either the emergency or ex parte hearing. Id.\nDefendant is correct that the ex parte hearing is not an adversarial hearing at which both parties are present, but that does not mean that it is not a \u201chearing\u201d for purposes of N.C. Gen. Stat. \u00a7 50B-1(c), because N.C. Gen. Stat. \u00a7 50B-3.1(b) says that the ex parte hearing is such a hearing. Indeed, this Court has previously recognized that a \u201chearing\u201d must be held prior to issuance of an ex parte protective order:\nA court may only issue an ex parte DVPO if \u201cit clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party[.]\u201d N.C. Gen. Stat. \u00a7 50B-2(c) (emphasis added). N.C. Gen. Stat. \u00a7 50B-2(c) does not provide that the trial court may issue an ex parte DVPO based solely upon the allegations^ of the complaint. N.C. Gen. Stat. \u00a7 50B-2(c) instead provides that\n[i]f an aggrieved party acting pro se requests ex parte relief, the clerk of superior court shall schedule an ex parte hearing with the district court division of the General Court of Justice within 72 horus of the filing for said relief, or by the end of the next day on which the district court is in session in the county in which the action was filed, whichever shall first occur.\nId. (emphasis added).\nTherefore, N.C. Gen. Stat. \u00a7 50B-2 requires that a \u201chearing\u201d be held prior to issuance of the ex parte DVPO. See id. If the ex parte DVPO could be issued based only upon the verified complaint, without having the aggrieved party appear for a hearing before a judge or magistrate, there would be no need to schedule a hearing; the judge or magistrate could simply read the verified complaint and decide whether to issue the ex parte DVPO. See id. (footnote omitted)\nHensey v. Hennessy, 201 N.C. App. 56, 59-60, 685 S.E.2d 541, 544-45 (2009).\nThe trial court noted the statutory amendment to N.C. Gen. Stat. \u00a7 50B-4.1 following Byrd but concluded that it was inapplicable. The trial court further observed that although a \u201cvalid protective order\u201d under N.C. Gen. Stat. \u00a7 50B-4.1 now explicitly includes ex parte orders, \u00a7 50B-3.1 does not because it uses the phrase \u201cprotective order\u201d \u2014 omitting the word \u201cvalid\u201d. The trial court concluded that there is, therefore, a difference between a \u201cprotective order\u201d and a \u201cvalid protective order.\u201d This interpretation ignores the plain words of N.C. Gen. Stat. \u00a7 14-269.8, which defines the crime of \u201cPurchase or possession of firearms by person subject to domestic violence order,\u201d and \u00a7 50B-3.1.\nIn accordance with G.S. 50B-3.1, it is unlawful for any person to possess, purchase, or receive or attempt to possess, purchase, or receive a firearm, as defined in G.S. 14-409.39(2), machine gun, ammunition, or permits to purchase or carry concealed firearms if ordered by the court for so long as that protective order or any successive protective order entered against that person pursuant to Chapter 50B of the General Statutes is in effect.\nN.C. Gen. Stat. \u00a7 14-269.8 (emphasis added).\nAs indicated by the phrases emphasized above, N.C. Gen. Stat. \u00a7 14-269.8 refers to the provisions of Chapter 50B and relies upon any form of protective order entered under Chapter 50B, in particular \u00a7 50B-3.1. The limitation of \u201cfor purposes of this section\u201d in N.C. Gen. Stat. \u00a7 50B-4.1 (h) clarifies the law following Byrd regarding what is a \u201cvalid protective order,\u201d to the extent that it may be read, incorrectly in our opinion, as holding that an ex parte DVPO is essentially unenforceable except by contempt of court because it is entered prior to an adversarial hearing.\nFinally, the plain language of N.C. Gen. Stat. \u00a7 50B-3.1 makes clear that an emergency or ex parte order is a \u201cprotective order\u201d for purposes of N.C. Gen. Stat. \u00a7\u00a7 14-269.8 and 50B-3.1. Section 50B-3.1 addresses not only orders entered after the \u201cten-day hearing,\u201d but also emergency or ex parte orders. See N.C. Gen. Stat. \u00a7 50B-3.1(a) (\u201cUpon issuance of an emergency or ex parte order . . . .\u201d). In various subsections, the statute refers to the relevant order either as \u201cthe emergency or ex parte order,\u201d e.g., N.C. Gen. Stat. \u00a7 50B-3.1(a), \u201cthe order,\u201d e.g., N.C; Gen. Stat. \u00a7 50B-3.1(d) (\u201cUpon service of the order____\u201d), or \u201cthe protective order,\u201d e.g., N.C. Gen. Stat. \u00a7 50B-3.1(d)(1) (\u201cIf the court orders the defendant to surrender firearms, ammunition, and permits, the court shall inform the plaintiff and the defendant of the terms of the protective order.\u201d (emphasis added)). Defendant would have us read these terms to mean different things.\nThe use of the term \u201cprotective order\u201d in \u00a7 50B-3.1(d)(1) is particularly informative. N.C. Gen. Stat. \u00a7 50B-3.1(d) requires a defendant to surrender his firearms upon service of \u201cthe order\u201d to that effect. N.C. Gen. Stat. \u00a7 50B-3.1(d) (\u201cUpon service of the order...\u201d). If the defendant does not have to surrender his firearms until service-of \u201cthe order\u201d and \u201cthe order\u201d refers only to a \u201cprotective order\u201d entered after a full hearing, there would be no point in requiring the court to order the surrender of firearms in an emergency or ex parte order when it finds one of the statutory factors. Therefore, the term \u201corder\u201d must include an ex parte order.\nIf we read \u201corder\u201d to include \u201cemergency or ex parte order,\u201d then \u201cprotective order\u201d must include those orders as well. Under subsection (d)(1) the court must inform the defendant of the terms of the \u201cprotective order\u201d upon service of \u201cthe order.\u201d N.C. Gen. Stat. \u00a7 50B-3.1(d)(1). There is no reason to read the \u201corder\u201d referred to in subsection (d) as different from that in subsection (d)(1). At the point an ex parte order is served on the defendant there has not been a full adversarial hearing. Therefore, if \u201cprotective order\u201d means only an order entered after a full adversarial hearing, there would be no terms to inform the defendant of. This interpretation would render the statute illogical.\nThe most logical way to interpret the various provisions of \u00a7 50B-3.1 is to read \u201corder\u201d and \u201cprotective order\u201d as including \u201cemergency or ex parte order.\u201d N.C. Gen. Stat. \u00a7 50B-3.1Q) makes it a Class H felony to violate a court order directing the defendant to surrender his firearms \u201cfor so long as that protective order ... is in effect.\u201d N.C. Gen. Stat. \u00a7 50B-3.1(j). That subsection cross-references N.C. Gen. Stat. \u00a7 14-269.8, which largely copies the language in \u00a7 50B-3.1Q) and criminalizes the violation of a protective order \u201centered against that person pursuant to Chapter 50B\u201d requiring the surrender of firearms, \u201c[i]n accordance with G.S. 50B-3.1.\u201d N.C. Gen. Stat. \u00a7 14-269.8(a). This particular statute refers specifically to \u00a7 50B-3.1, in which the proceeding before entry of an ex parte order is called a hearing and the term protective order includes ex parte orders.\nIn light of the 2009 amendments to Chapter 50B clarifying that a \u201cvalid protective order\u201d includes ex parte orders and reading N.C. Gen. Stat. \u00a7 14-269.8(a) in conjunction with \u00a7 50B-3.1, we conclude that a \u201cprotective order\u201d includes an ex parte or emergency order for purposes of N.C. Gen. Stat. \u00a7\u00a7 14-269.8 and 50B-3.1.\nIII. Procedural due process\nThe trial court concluded and defendant argues that prosecution of defendant for violation of the ex parte order would infringe his right to due process of law under the state and federal constitutions. We hold that these provisions fully comply with procedural due process requirements as applied to defendant.\nThe Fourteenth Amendment to the United States Constitution forbids states from \u201cdepriv[ing] any person of fife, liberty, or property, without due process of law.\u201d U.S. Const. amend. XIV, \u00a7 1. \u201c[T]he Law of the Land Clause of the North Carolina Constitution, N.C. Const. art. I, \u00a7 19, is synonymous with due process of law as found in the Fourteenth Amendment to the Federal Constitution.\u201d State v. Bryant, 359 N.C. 554, 563, 614 S.E.2d 479, 485 (2005) (citation and quotation marks omitted).\n\u201cThe fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.\u201d Mathews v. Eldridge, 424 U.S. 319, 333, 47 L.Ed. 2d 18, 32 (1976) (citation and quotation marks omitted). Generally, due process requires notice and a hearing before the government may deprive an individual of liberty or property. United States v. James Daniel Good Real Property, 510 U.S. 43, 53, 126 L.Ed. 2d 490, 503 (1993).\nThe right to prior notice and a hearing is central to the Constitution\u2019s command of due process. . . . We tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but only in extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.\nId. (citations and quotation marks omitted). In Mathews, the United States Supreme Court announced a balancing test for deciding questions of procedural due process that it has since described as follows:\n[T]he process due in any given instance is determined by weighing the private interest that will be affected by the official action against the Government\u2019s asserted interest, including the function involved and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute procedural safeguards.\nHamdi v. Rumsfeld, 542 U.S. 507, 529, 159 L.Ed. 2d 578, 509 (2004) (citations and quotation marks omitted).\nIn applying the Law of the Land Clause to the deprivation of a property or liberty interest prior to notice and a hearing, our Supreme Court has articulated a slightly different test under the North Carolina Constitution:\nWhen the furtherance of a legitimate state interest requires the state to engage in prompt remedial action adverse to an individual interest protected by law and the action proposed by the state is reasonably related to furthering the state interest, the law of the land ordinarily requires no more than that before such action is undertaken, a judicial officer determine there is probable cause to believe that the conditions which would justify the action exist.\nHenry v. Edmisten, 315 N.C. 474, 494, 340 S.E.2d 720, 733 (1986).\nHere, defendant asserts two distinct liberty interests, though he does not distinguish them: first, his right to keep and bear arms, which he alleges is infringed by enforcement of the order requiring surrender of his firearms; second, his physical liberty, which he implies is infringed by his prosecution for violation of an ex parte order, as opposed to merely being subject to contempt sanctions.\nThe dicta in Byrd that the trial court relied on did not mention the balancing test for procedural due process under the Fourteenth Amendment, identify the interests at stake, or purport to balance those interests. Byrd, 363 N.C. at 223-24, 675 S.E.2d at 328. The Supreme Court\u2019s failure to address these issues is an additional indication that its statements on this issue were dicta, and as noted above, we conclude this dicta is not controlling.\nThe right to keep and bear arms is a fundamental right protected by the Second Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment. McDonald v. City of Chicago, Ill,_U.S._,_, 177 L.Ed. 2d 894, 921 (2010). The State has not asserted that defendant is a convicted felon or otherwise in a class of people who do not have a liberty interest in possessing firearms. See generally Johnston v. State,_N.C. App._, 735 S.E.2d 859 (2012), writ of supersedeas granted,_N.C._, 738 S.E.2d 360 (2013). We assume for the purpose of the procedural due process analysis, without deciding, that an ex parte order that forbids a defendant from possessing firearms and subjects him to criminal prosecution or contempt sanctions for violation of that order deprives him of his right to keep and bear arms. Thus, we will proceed to consider the constitutional adequacy of the procedures at issue.\n\u201c[T]he degree of potential deprivation that may be created by a particular decision is afactor to be considered____\u201d Mathews, 424 U.S. at 341, 47 L.Ed. 2d at 37. In particular, \u201cthe possible length of wrongful deprivation ... is an important factor in assessing the impact of official action on the private interests.\u201d Id. (citation and quotation marks omitted).\nThe degree of deprivation of that interest in this case is fairly minor because it is temporary and the period of deprivation prior to the full hearing is extremely short. After the entry of an ex parte DVPO, the trial court must hold a hearing at which a defendant may appear within ten days of the issuance of the order or within seven days of service on the defendant, though it may be held sooner. N.C. Gen. Stat. \u00a7 50B-2(c). Here, the hearing was scheduled for six days after the ex parte order was issued and three days after the order was served on defendant.\nAdditionally, there is not a substantial risk of erroneous deprivation. To enter an ex parte order, the trial court must find that \u201cit clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party or a minor child.\u201d N.C. Gen. Stat. \u00a7 50B-2(c). For a trial court to order a defendant to surrender his firearms upon an emergency or ex parte order, it must find one of the following factors:\n1) The use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons.\n2) Threats to seriously injure or kill the aggrieved party or minor child by the defendant.\n3) Threats to commit suicide by the defendant.\n4) Serious injuries inflicted upon the aggrieved party or minor child by the defendant.\nN.C. Gen. Stat. \u00a7 50B-3.1(a). These findings may be made at an ex parte hearing, but are not simply based on the aggrieved party\u2019s written statement in the complaint. See Hensey, 201 N.C. App. at 60, 685 S.E.2d at 545.\nAt the ten-day hearing, someone accused of domestic violence would have the opportunity to present evidence and confront the evidence against him. If the court does not enter another protective order when the ex parte or emerg\u00e9ncy order expires, a defendant can retrieve his firearms unless he is otherwise precluded by law from owning them. N.C. Gen. Stat. \u00a7 50B-3.1(e). Additionally, after final disposition of pending criminal charges, the accused would be again able to possess firearms and he may move for the return of his firearms. N.C. Gen. Stat. \u00a7 50B-3.1(f). When served with the ex parte order, a defendant is informed of both the potential penalties for violations of the order and instructed how he may request the return of his firearms. N.C. Gen. Stat. \u00a7 50B-3.1(d)(1).\n[W]hen prompt postdeprivation review is available for correction of administrative error, [the Supreme Court has] generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be.\nMackey v. Montrym, 443 U.S. 1, 13, 61 L.Ed. 2d 321, 331 (1979). The DVPO statutes as outlined above provide such a reasonably reliable basis for temporarily depriving a defendant of his firearms. Thus, the risk of any erroneous deprivation of a defendant\u2019s Second Amendment rights would be minimal.\nThe government\u2019s interest in this case is clear \u2014 the protection of domestic violence victims and preventing domestic violence from escalating to murder. Defendant concedes that this is a \u201csignificant interest,\u201d but argues that that particular interest is not advanced by the prosecution of someone for the violation of the firearms provision of a DVPO. This argument is unconvincing.\nAn ex parte order would be of limited use if the violation of a provision forbidding the possession of a firearm could not be prosecuted. The Legislature has decided that potential violations of an ex parte order\u2019s firearm provisions are sufficiently serious to warrant criminal prosecution and not simply the threat of contempt sanctions. We cannot say that this choice is unreasonable or unjustified given the extraordinary potential for violence in the period between entry of an ex parte order and a full hearing, especially when firearms are present. It is reasonable for the Legislature to find that the threat of criminal penalty may be more effective deterrence than the threat of contempt sanctions.\nIf a defendant believes that the ex parte order itself is unjustified, he can fully contest the issue less than two weeks after he is deprived of his firearms. The State\u2019s interest is not simply in protecting victims of domestic violence generally, but effectively protecting them at the point that the prosecuting witness first confronts her abuser, through legal means. This interest is undeniably valid and important. Additional procedural safeguards, such as requiring a fully contested hearing before forbidding someone subject to an ex parte order from possessing firearms, would prevent the State from protecting victims of domestic violence at a time that those protections are most required. There is no way to protect victims of domestic violence that would provide a predeprivation hearing during the crucial period between service of the ex parte order and the ten-day hearing.\nWe hold that this situation is one of those \u201cextraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after\u201d the deprivation, James Daniel Good Real Property, 510 U.S. at 53, 126 L.Ed. 2d at 503 (citation and quotation marks omitted), and conclude that the provisions of N.C. Gen. Stat. \u00a7\u00a7 50B-2(c) and 50B-3.1 are constitutional as applied to defendant under the Fourteenth Amendment.\nFor these same reasons, furtherance of the legitimate state interest in immediately and effectively protecting victims of domestic violence requires \u201cthe state to engage in prompt remedial action adverse to an individual interest protected by law and the action proposed by the state is reasonably related to furthering the state interest.\u201d Henry, 315 N.C. at 494, 340 S.E.2d at 733. An ex parte order may only be granted \u201cif it clearly appears to the court from specific facts shown, that there is a danger of acts of domestic violence against the aggrieved party or a minor child . ...\u201d N.C. Gen. Stat. \u00a7 50B-2. Additionally, to order a defendant to surrender his firearms, the court must find one of the statutory factors justifying that action. N.C. Gen. Stat. \u00a7 50B-3.1(a). Therefore, we hold that an order requiring the surrender of firearms after an ex parte hearing under Chapter 50B is also constitutional under the Law of the Land Clause of the North Carolina Constitution. See Henry, 315 N.C. at 494, 340 S.E.2d at 733; Mackey, 443 U.S. at 13, 61 L.Ed. 2d at 331.\nDefendant implies that using criminal punishment rather than contempt sanctions to enforce an ex parte order infringes on his fundamental right to physical liberty without due process. Neither defendant nor the dicta in Byrd he relies on gives any reason that the enforcement of such an order by criminal punishment would violate his right to due process while punishment by contempt sanctions would not.\nWhere a court punishes a party for violation of a past order, a contempt sanction is normally considered criminal contempt, rather than civil, which is usually used to force compliance with an order. O\u2019Briant v. O\u2019Briant, 313 N.C. 432, 434, 329 S.E.2d 370, 372 (1985); see Hodges v. Hodges, 156 N.C. App. 404, 406, 577 S.E.2d 121, 123 (2003) (considering use of criminal contempt to punish violation of a DVPO). Both criminal sanctions under N.C. Gen. Stat. \u00a7 14-269.8 and criminal contempt under N.C. Gen. Stat. \u00a7 5A-11(a)(3) (2011) (willful disobedience of a court order) carry the possibility of confinement. See N.C. Gen. Stat. \u00a7 5A-12(a) (2011) (providing for imprisonment of up to thirty days for criminal contempt). We see no reason why imprisoning a defendant for failing to comply with the order under \u00a7 14-269.8 would violate his right to due process more than jailing him under the criminal contempt statute. See O\u2019Briant, 313 N.C. at 435, 329 S.E.2d at 373 (noting that \u201ccriminal contempts are crimes, and accordingly, the accused is entitled to the benefits of all constitutional safeguards.\u201d).\nThe provisions of N.C. Gen. Stat. \u00a7 50B-3.1 only apply once the defendant is served with the order by the sheriff. See N.C. Gen. Stat. \u00a7 50B-3.1(d). Thus, a defendant charged under \u00a7 14-269.8 is not unaware of the order. A defendant is given notice that he must surrender his fire-aims and is informed of the potential penalties for failing to do so. N.C. Gen. Stat. \u00a7 50B-3.1(d)(1). If charged with violating the order under N.C. Gen. Stat. \u00a7 14-269.8, he is given the same procedural protections as any other criminal defendant, and indeed, the same procedural protections as he would if he faced a criminal contempt sanction. See O\u2019Briant, 313 N.C. at 435, 329 S.E.2d at 373. Therefore, defendant\u2019s interest in physical liberty is adequately protected by N.C. Gen. Stat. \u00a7 14-269.8 and prosecution for violation of the ex parte order gives him all the process he is due.\nThus, there is no reason that defendant\u2019s prosecution for violation of the ex parte order might infringe his procedural due process rights other than the fact that it was entered prior to notice and an opportunity to be heard. As discussed above, the exigencies of the domestic violence context justify the use of a postdeprivation hearing as to that order. Thus, we hold that criminal prosecution for violation of an ex parte order requiring the surrender of defendant\u2019s firearms does not violate his due process rights. __\nIV. Conclusion\nFor the foregoing reasons, we conclude that an ex parte order is a \u201cprotective order\u201d for purposes of N.C. Gen. Stat. \u00a7\u00a7 14-269.8 and 50B-3.1. Additionally, we hold that the prosecution of defendant for violation of the ex parte order does not violate his procedural due process rights. Therefore, we reverse the trial court\u2019s order dismissing the indictment and remand for further proceedings.\nREVERSED and REMANDED.\nJudges ELMORE and STEELMAN concur.\n. The record before the court does not include any order entered in the domestic violence action after the ex parte order, but the parties indicated at the 21 May 2012 hearing on defendant\u2019s motion to dismiss that there was still a valid protective order in effect at the time of the hearing.\n. Although this is the portion of the opinion we consider dicta, it does clarify the Supreme Court\u2019s view of the statutory procedure and importance of the definition of the various types of orders and is thus useful to our analysis. In addition, the due process analysis also depends upon the definition of \u201cvalid protective order\u201d which was corrected by the 2009 statutory amendments.\n. Indeed, the Supreme Court in Byrd used these two terms interchangeably. See Byrd, 363 N.C. at 222, 675 S.E.2d at 327.\n. Although the trial court did not specify how it believed enforcement of an ex parte order would violate defendant\u2019s due process rights, the parties only briefed the issue of procedural, not substantive, due process. Therefore, we only address procedural due process.\n. This is not surprising, as neither party addressed due process issues in their briefs before the Supreme Court in Byrd. '\n. The trial court that entered the ex parte order here found that defendant had threatened to commit suicide. Although defendant claims that the trial court did not have a sufficient basis for this finding, he did not appeal from the ex parte order and we have no jurisdiction to rule upon that order.\n. N.C. Gen. Stat. \u00a7 114-2.7 (2011) requires the Attorney General to file annual reports on domestic violence homicides with the Joint Legislative Committee on Domestic Violence. The Attorney General\u2019s most recent report indicates that there were 122 domestic violence related homicides in North Carolina last year. N.C. Dep\u2019t of Justice, Report on Domestic Violence Related Homicides Occurring in 2012 2 (2013), available at http://www. ncdoj.gov/Help-for-Victims/Domestic-Violence-Victims/Domestic-Violence-Statistics.aspx.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper III, by Assistant Attorney General LaToya B. Powell, for the State.",
      "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TRACY ALLEN POOLE, Dependant\nNo. COA12-1150\nFiled 2 July 2013\n1. Domestic violence \u2014 ex parte order \u2014 protective order \u2014 owning, possessing, purchasing, or receiving a firearm\nThe trial court erred by granting defendant\u2019s motion to dismiss the charge of owning, possessing, purchasing, or receiving a firearm in violation of a domestic violence protective order pursuant to N.C.G.S. \u00a7 14-269.8 (2011). The trial court erred in relying on State v. Byrd, 363 N.C. 214, 675 S.E.2d 323 (2009), because a protective order includes an ex parte or emergency order for purposes of N.C.G.S. \u00a7\u00a7 14-269.8 and 50B-3.1.\n2. Constitutional Law \u2014 due process \u2014 prosecution for violation of ex parte order\nThe trial court erred by granting defendant\u2019s motion to dismiss the charge of owning, possessing, purchasing, or receiving a firearm in violation of a domestic violence protective order pursuant to N.C.G.S. \u00a7 14-269.8 (2011). Prosecution of defendant for violation of an ex parte domestic violence protective order would not infringe his right to due process of law under the state and federal constitutions as these provisions fully comply with procedural due process requirements as applied to defendant.\nAppeal by the State from Order entered 5 June 2012 by Judge Gary M. Gavenus in Superior Court, Buncombe County. Heard in the Court of Appeals 28 March 2013.\nAttorney General Roy A. Cooper III, by Assistant Attorney General LaToya B. Powell, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellee."
  },
  "file_name": "0248-01",
  "first_page_order": 258,
  "last_page_order": 276
}
