NC domestic violence order doesn’t allow police to search accused for guns
05/06/2014 3:12 PM
05/06/2014 3:14 PM
Sheriff’s investigators say an enraged Nathan Holden drove to his in-laws’ Wendell home last month and shot them both dead. He also shot his wife in the face and pistol whipped her in front of their three children.
Holden, 30, was under a domestic violence protective order when investigators charged him with two counts of murder. Under the order, he wasn’t supposed to have a gun.
The court that issued the order assumed Nathan Holden’s wife, Latonya Holden, was telling the truth on Jan. 2 when she wrote in the application that her husband had a “pistol” and that he had threatened to kill her and their children and himself.
But the next day, a Wake County sheriff’s deputy who served Holden with the protective order assumed he was telling the truth when he said that he did not have a firearm. The state’s protective order law does not require law officers to confirm that a person who says he doesn’t have a gun is telling the truth.
“We have to believe what you say,” said Wake County Sheriff Donnie Harrison. “You look at me and say, ‘I don’t have a weapon,’ and we have to take your word for it.”
Nathan Holden had a Hi-Point .380 handgun when he was arrested. If the gun is the same one described by his wife, he was able to hide that information from the Sheriff’s Office despite the order.
Latonya Holden, her 15-year-old son and two daughters, ages 9 and 8, moved out of the Wendell home they shared with Nathan Holden and into her parents’ home at Lake Glad Road in Wendell late last year.
Then she sought protection from her husband.
“I have moved out of the home (separated) and he continues to call me and parents threatening to take my children,” Latonya Holden, 32, wrote in black ink on the protective order. “He attempted to come to my parents’ home and my father called the police. He told my brother he was going to kill the kids and himself. He threatened to punch me. He beat my son with a broom.”
The day after Latonya Holden received the order, a Wake County sheriff’s deputy handed Nathan Holden a copy of it. The affidavit does not indicate where the meeting between the deputy and Nathan Holden took place.
A chance to give up the gun
Harrison said one of two scenarios took place. If the deputy arrived at Nathan Holden’s home, he had an opportunity to surrender any firearms he may have had over to the deputy. Or, if Nathan Holden was served with the papers at work, the deputy would have informed him that he had 24 hours to turn any weapons he had into the sheriff’s office in downtown Raleigh.
Other than Latonya Holden’s claim in the protective order application, the Sheriff’s Office would not have had any way to know that Nathan Holden owned a gun, Harrison said. Nathan Holden obtained gun permits from the Wake County Sheriff’s Office for one firearm in 2004 and two weapons in 2007, but it’s not known whether he actually bought the weapons, Harrison said.
“We don’t keep records of gun purchases,” he said.
Holden’s second chance
Nathan Holden had a second opportunity to tell the the courts and law officers he had access to a firearm. State law requires defendants to attend a hearing within 10 days of being served with a protective order. At a Jan. 9 hearing at Wake County District Court, the law also requires the presiding judge to again ask Holden if he was in possession of firearms.
The judge on that day ordered Nathan Holden to not commit any further acts of violence or threats against his wife.
Attack on the in-laws
Nathan Holden violated the protective order on April 9, just before 10 p.m., sheriff’s investigators say, when he walked into the home of Latonya Holden’s parents, Sylvester and Anglia Taylor, in Wendell where she and the children were staying.
The couple’s three children were unharmed. After the shootings, Nathan Holden handed a cellphone to his son and told him to call 911 before he fled in a Chevrolet pickup truck. When sheriff’s deputies entered the house, they found Anglia Taylor, 57, dead. She had been shot in the chest. Latonya Holden had been shot in the face, but was alive. Outside, in the backyard, they found Sylvester Taylor, 66, shot to death.
Latonya Holden’s brother, Sylvester Taylor Jr. 34, of Columbia, S.C., said this week that his sister has been released from WakeMed and she’s “doing great, doing great.”
“We are just wiping our foreheads,” Taylor said. “We lost Mom and Dad, but she’s still here with us.”
Sylvester Taylor said even though his family has endured “an emotional roller coaster” since late last year, he was nonetheless surprised to learn that his brother in-law had a gun. “Who wouldn’t be?” he said.
It’s not clear whether law officers who are serving protective orders have the authority to search for a firearm, said Wake County Clerk of Court Lorrin Freeman. She agreed with Harrison that defendants are essentially assumed to be telling the truth when they say they don’t have a weapon.
And even if they are, Freeman added, defendants can still gain access to a weapon, as long as it’s not in their home.
“If the defendant is not forthcoming about relinquishing a firearm, sometimes, in cases I’m familiar with, the defendant still may have access to a firearm,” Freeman said. “It may be somewhere that’s not covered in the order. So there’s no authority for law enforcement to search somebody else’s property to retrieve that weapon.”
Freeman also wondered whether a person who has been served with a protective order has a right to be heard before they or their home is subjected to a search.
“Would it be considered a constitutionally valid use of police power when the defendant has not been given due process?” she asked. “It would be something the courts would have to decide. Could a [new] law be written? Of course.”
News researcher Peggy Neal contributed to this report.
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