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Why does North Carolina allow self-initiated arrest warrants by citizens?

Brian Freskos

The controversy centers on where that probable cause comes from.

The law that allows self-initiated arrest warrants in North Carolina is a topic of contentious debate.

The N.C. General Statute that makes such arrest warrants possible is 15A-304, which says that judicial officials, which in most cases is the magistrate, may issue an arrest warrant if they are provided “with sufficient information, based on oath or affirmation, to make an independent judgment that there is probable cause to believe that a crime has been committed and that the person to be arrested committed it.”

The controversy centers on where that probable cause comes from. North Carolina law says any person can take out a warrant against anyone by going to the magistrate, meaning a person can basically accuse anyone of anything and it will go through the judicial process. But in most other states, law requires an official investigation conducted by a law enforcement agency before an arrest warrant can be issued.

“I haven’t surveyed all 50 states, but if we’re not unique, we’re pretty close,” Jeff Welty, an assistant professor at the UNC School of Government, said about self-initiated warrants. “It is a distinctive feature of North Carolina law.”

Welty couldn’t comment on why the N.C. General Assembly wrote the law like it did. He did say that the statute itself dated back to at least 1868, though it has been amended several times over the years.

Welty said magistrates recognize that North Carolina’s law is susceptible to abuse, so they adopted a few guiding principles to prevent the issuance of arrest warrants based on meritless complaints.

For one, magistrates will generally not issue arrest warrants for felonies unless law enforcement is involved in the investigation, presumably because of the potential seriousness of the complaint, Welty said.

Also, magistrates in most cases refuse to issue warrants against public officials, law enforcement officers or teachers based solely on a citizen complaint because those groups are viewed as populations that are more likely to be the subject of vexatious allegations.

Even though magistrates have tried to shield citizens from being arrested over frivolous accusations, critics say North Carolina’s law can be easily misused.

Jon David, the district attorney for Brunswick, Columbus and Bladen counties, said that if an arrest warrant is issued against a person, that arrest stays on their record even if the charges are ultimately dismissed. The record can be expunged, but that is an expensive and time-consuming process.

David said the law allows a private individual to invoke the power of the government to make an arrest without any modicum of an investigation. “That presents an opportunity for abuse and it is misused in the system,” he said.

The issue came up two years ago when former Carolina Beach police officer Darrell Collins dropped charges of stalking, communicating threats and assault that he’d taken out against Dan Wilcox, a town councilman and mayor pro tem.

Though the charges were dismissed, David said they will appear on Wilcox’s record.

“It inconveniences people who are wrongly accused,” David said about self-initiated warrants. “I believe the legislature should seriously examine whether we should have self-initiated warrants in North Carolina.”

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12 Responses to “ Why does North Carolina allow self-initiated arrest warrants by citizens?”

  1. On January 5, 2012 at 7:35 am anne russell wrote:

    This is an awful law which should be abolished. It is greatly abused. It amounts to the first person at the magistrate’s office being able to have power over the second person. It requires innocent people to expend time and money defending themselves against false accusations, in the meantime living under a cloud of suspicion. And once this false accusation is transformed into an arrest warrant, forever more the innocent person has a formal record of criminal conduct which never occurred. No one ever takes the trouble to view the dismissal of the false charge.

  2. On January 13, 2012 at 7:15 pm k-dawg wrote:

    Anytime a “frivolous” arrest warrant has been issued and goes to court, the judge should (if they don’t already), have to authority to expunge the record immediately, and have the citizen “accuser” arrested on “filing a false complaint”.

    Other than that, Gomer Pyle sure liked “citizen’s arrest” when he was a deputy in Mayberry! ; >

  3. On February 9, 2012 at 9:04 am Randall Rusch Magistrate/Attorney wrote:

    When a citizen comes before us with a complaint about another citizen a Magistrate usually has no knowledge of either of the parties. The first investigative procedure I use is to check the criminal records of both individuals, the person making the complaint and the potential defendant.This will give me some inclination as to the character of both. It is my strong opinion that I could not make an adequate and informed decision as to whether there exisits probable cause to bring criminal charges without doing so. From the information available in the criminal records of each person I can tell if the parties have an ongoing feud with a history of bringing charges against one another, if the potential defendant has current charges pending against the person now in front of me, if false charges have been made in the past and the genaral character of both based upon the crimes they each have been charged with in the past and the outcome of the past criminal charges. Then after listening to what the citizen has to tell me about the potential defendant and asking them questions I follow a three stage procedure to determine if I will issue either an arrest warrant or a criminal summons, refer them to law enforcement, tell them they have a civil case not a criminal case or politely tell them I have not found probable cause to bring criminal charges. First, I will determine if a crime may have been committed or if this is a civil matter. Next, if a crime may have been committed is it a misdemeanor or a felony. If a felony I cannot bring charges and I will refer them to Law Enforcement. Finally I will determine the truthfullness of the accusations based upon the review of their criminal record, what they have told me and any contridictions therein, their answers to my questions, if they have witnesses present and if they have a motive for bring false charges against the potential defendant. I will then issue an arrest warrant or a criminal summons or tell them I will not take any action in the matter. If I do take a criminal charge it is almost always a criminal summons. I will issue arrest warrants in under certain circumstances and I am very consistant as to the circumstances under which I will have a defendant arrested. I have to conduct a mini trial with the disadvantage of hearing only one side of the situation that being the person in front of me telling what has happened in the light most favorable to thier cause. Not all Magistrates are lawyers. I have over twenty years of criminal trial experiance to draw upon. Even so, it is very time consuming to follow through on the procedure as described above. The most stress free approach a Magistrate can take is to say yes to every one who comes before them and give that person what they want, be it a civilian and an arrest warrant, a law enforcement officer with an arrest warrant or a search warrant or a mental committment. By saying yes, the person before you is satisfied and the Magistrate will probably never come into contact with the person being arrested or house searched. When you say no is when you get the arguments and complaints. If a citizen lies to a Magistrate, even swearing their false statements are true, and the Magistrate issues a criminal action, rarely if ever, is there a negative consequence for such false charges. If a Magistrate does what they are supposed to do and even more importantly has the time to meet thier responsibilites, many false and frivolous cases will be diverted from clogging up an already overburdened court system. What I believe needs to be addressed is the many situations where totally innocent people are arrested or sent to court based upon false charges made by others. The person making the false charges usually does not show up to court to testify and the charges are dropped. This is small comfort for the falsely accused defendant who has most likely already made at least two court appearances and now has a criminal record. Magistrates are the gateway to the judicial system. To perform thier duties efficiently they need the knowledge and time necessary to do so.

  4. On March 23, 2012 at 4:23 pm RA wrote:

    Heres the thing first off as a citizen of NC for ALL of my life, we are happy to have this law, because the law here isnt always as concerned as they should be. My sister was beaten bad, and he was in the parking lot watching her every move at work and had been. They had him in the back of the car told us because he had hit her the day before and not THAT day she called the cops they were taking him off grounds and releasing him. Now he has several warrants for his arrest the one my sister took out and the HABITUAL ASSAULT the police put out on him; seeing how he had 3 previous assaults on a female and a simple assault he had JUS been bonded out on. Now they cant find him but hes blowing her phone up leaving nutty messages and calling her work phone. Thanks to the fine officers of RPD that didnt do their job the morning we called them and they had him in the back of the car my sister cant go any where alone. We go with her to work to make sure he doesnt try to attack her again because he has such a VIOLENT history. She is absolutely terrified. Had it not been for taking the warrant out on him he would have gotten away with it again. so anyone who doesnt like the NC law stay out of NC.

  5. On June 22, 2013 at 12:04 am Marty wrote:

    When I told my husband of nearly 50 years I wanted a divorce because of his behavior toward our daughter and granddaughter as well toward me, he started threatening me, screaming, and cursing me. He was so close his spittle was in my face. He was jabbing at me with his fingers and wouldn’t stop when I begged him to. He stuck his finger in my mouth and I bit him. He called 911 even though the bite didn’t break the skin. You could hardly see it. While I was gone to take his dog to the vet, he went down and took out a warrant against me for domestic violence. It was his way of getting me out of our home. The DA threw out the charge after I was finger printed and mug shot but I was only allowed back in my house for about ten minutes to grab a change of clothes and now this man who has physically and verbally abused me for our entire marriage has total control over our home and I’m not allowed back in as he can have me arrested for trespassing. I have no home and am moving about staying a few days with family and friends and basically living out of my car. The police, family and friends, and my attorney warn me not to let him know where I am as he is a very unbalanced and violent man. I who did nothing wrong am on the run. The police said that nothing can be done to him for taking out a false warrant and there’s nothing to keep him from doing it again. Please explain how the laws in NC are fair or right.

  6. On November 5, 2013 at 12:12 pm meli wrote:

    I from R NC. I have been having some issues as well. My daughter is 16 she is an 11th grader she is a good girl and a good student at her school. To begin it started with discrimination in our county schools. we have had several incidents since my daughter has started going to school there. I feel that she is treated differently because she is biracial. I have had meetings with the school i have even went over their heads. Last year she had a teacher that would always make black joke with other students around her and others. it offended her. she went to report it they brushed it off he gave her a really good grade after that and she made the cheer team! her grades were not high enough at the time to be in any sports at all. well it continued we went over their heads again her grade went down to below 70! she had a little nose ring but she was the only one that the teacher picked on her about it and kept making her take it out. but there were other students in her class with large holes in their ears and lots of piercings he never said anything to those students. I went to her school once again i told them her doctor said for her not to touch it and keep her hands clean or it would get infected they did not listen and kept making her take it out and would not let her even go wash her hands first! it got infected! she missed a couple of days of school for that. this year so far we have been through a lot she has had a boy at school say he was going to kill her they brushed that off and once again i understand the drama teens go through but for someone to say they are going to blank you up or they will get someone to do it that is a threat! my daughter has all this in messages that we saved and made copies of. i was scared for my daughter but she loves school and wanted to go back they finally suspended they boy he was 18 and didnt even know her. well in a meeting at the school again the two principals and the sheriff the sheriff walks out! no explanation or anything just storms out! well it was really strange to me because that was after my daughter said she was going to take a warrant out on this 18 year old guy! well we go to our sheriffs department we were just sitting there i heard the magistrate in a really good mood being nice to the people in front of us. When they are done he looks out his glass windows really mad and starts being loud and rude to my daughter yelling at her telling her to call the facebook police! this happend at her school he didnt want to even look at her messages! i hated she had to go through that. I cried for days for her its sad that our town is this way. i have been writing everyone! i think that our small town hides lots of things just so they wont look bad .I have called our court house several times and our sheriff dept.Knowone can ever tell us anything its always the run around! This town is scared! scared to stand up for whats right! everyone should be treated equal! This is 2014!i have called lawyers to try and fight this! By what you said in your artical everyone in NC can take warrants out on someone else. Especially since my daughter had the proof in her hands! i think something was up with that and i also think he already knew we were coming! they way that kids are going crazy these days and shooting at schools,buses, and killing other children these things should be taking seriously! They have made us look like fools and like we are nothing! i have contacted the NAACP thinking they might could help us they do not return our calls! i have written to the news stations they wont helps up .a lawyer will not help us knowone wants to stir up anything in this town but justice should be served for my daughter!

  7. On November 22, 2013 at 9:02 am Gary wrote:

    Magistrate’s should be outlawed in North Carolina.
    In most States when a person goes to small claims court you appear in front of a Judge.

    But in North Carolina you go in front of a Magistrate.
    I haven’t found a Magistrate in North Carolina as of yet that went to Law School.

    Small Claims is considered a Legal matter and should be decided by a Judge. and not so called Magistrate Judge. If a Consumer acts in this manner for someone other than that person it would be considered practicing Law without a Law degree which is a crime.

    Magistrate’s practice Law without a Law degree.
    North Carolina needs to do away with Magistrates.

  8. On April 22, 2015 at 9:52 pm Jessica wrote:

    I hate this law. Yes its good for some people but for people like me its horrible. This law has gotten me locked up 8 times within a ten month to a year. They were all false cause my ex was obsessive and couldn’t deal with me leaving him. There has to be some modifications done to this law. I know it benefits some but for people like me its an ongoing nightmare. Luckily a judge felt pity on me and seen what was going on and he ordered that he couldn’t have me arrested anymore and now I have my life back. Some people use this law tobcontroll and hurt people…but this law is needed for some….good luck everyone

  9. On July 26, 2016 at 4:51 pm Juelz Martana wrote:

    Jessica where are you from? My mother is going through the same exact thing! She works 3rd Shift, and during the day she sleeps. She was in a very abusive relationship and no he’s mad she won’t talk to him so he is taking warrant’s out on her for stuff she didn’t do! This is the second time I a week he’s done this!

  10. On February 9, 2017 at 2:00 pm GFelty wrote:

    Randall Rusch -I would be honored if you would speak with me. I don’t know how to reach you.


  11. On February 9, 2017 at 2:51 pm Debbie Obarr wrote:

    Why is it when someone falsely accuses someone that results in arrest , the innocent person has to go through trying to get the record expunged from their record? It adds insult to injury that should never have happened in the first place. Why isn’t the person making the false accusation charged with a crime? How can this record be erased without having to through the courts when there were no charges ?

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