STATE AND FEDERAL FIREARM DISQUALIFICATION AND RESTORATION

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1 STATE AND FEDERAL FIREARM DISQUALIFICATION AND RESTORATION Kelly J. Keegan Brandt Criminal Defense Greg T. Kryzer Assistant Wright County Attorney August 27, 2013

2 OVERVIEW 1. State Disqualifications 2. State Restoration Process 3. Federal Disqualifications 4. Federal Restoration Process 5. Permits to Carry

3 State Firearm Disqualifiers Minn. Stat Persons not eligible to possess a pistol or semi-automatic militarystyle assault rifle, or any other weapon. 1. Anyone under the age of 18, with exceptions. 2. Adjudicated or found delinquent of a crime of violence. 3. Been committed for being mentally ill or unable to stand for trial due to mental illness.

4 State Firearm Disqualifiers 4. Three years if convicted of a misdemeanor or gross misdemeanor under Chap. 152 or been committed for treatment due to habitual use of controlled substances or marijuana. 5. Been committed for being chemically dependant. 6. Peace officer who is informally admitted to a treatment center, but can get a certificate allowing possession.

5 State Firearm Disqualifiers 7. Persons (including juveniles) charged with a crime of violence and who are participating in a pre-trial diversion program. 8. Three years for conviction of Domestic Violence. Minn. Stat , Subd. 3(d). 9. If convicted of assaulting a family member, and you used a firearm, term is per the court s discretion at sentencing.

6 State Firearm Disqualifiers 10.Partial Federal Incorporation: A. Convicted of a Felony B. Fugitive from Justice C. Unlawful User of Controlled Substances D. Judicial Commitment for Mental Illness E. In the United States Illegally F. Discharged under dishonorable conditions G. Renounced citizenship

7 State Firearm Disqualifiers 11. Three Year Disqualification for some Gross Misdemeanor violations: A. Crimes for the benefit of a gang B. Assaults motivated by bias C. False Imprisonment D. Child Endangerment or Neglect E. Burglary in the Fourth Degree F. Setting a Spring Gun G. Riot H. Stalking 12. Persons presently charged with a felony

8 Felony Crimes of Violence Lifetime ban for conviction of a felony crime of violence. Minn. Stat , Subd. 5. Includes felony convictions for murder, aiding suicide, assault 1-4, crimes for benefit of a gang, robbery, kidnapping, false imprisonment, soliciting prostitution, criminal sexual conduct 1-4, malicious punishment, child endangerment or neglect, arson 1-2, burglary 1-3, drive by shooting, riot, terroristic threats, and stalking. Also includes all felony drug offenses and theft of a motor vehicle or theft of a firearm.

9 Felony Crimes of Violence A felony sentenced as a stay of imposition becomes a misdemeanor at the end of the sentence, however, for purposes of firearm restriction the nature of the offense is controlling not the sentence. A person who receives a stay of imposition is prohibited from possessing a firearm State v. Anderson, 733 N.W.2d 128 (Minn. 2007); State v. Moon, 463 N.W.2d 517 (Minn. 1990). Stays of adjudication are not convictions and are not subject to the restriction.

10 Felony Crimes of Violence , Subd 1a. The discharge order for any person convicted of a felony crime of violence must state they are not entitled to possess a firearm for the remainder of the person s lifetime. Persons discharged from sentence before August 1, 1993 are subject to a 10-year restriction. Not subject to this restriction if firearm rights are restored under Subd. 1d or 18 USC 925.

11 Penalties for Violations Felony for under age 18 and possesses a pistol or semiautomatic military-style assault weapon. Felony for persons convicted or adjudicated delinquent of a crime of violence (five-year mandatory minimum sentence). All others, a gross misdemeanor offense.

12 Restoration of Firearm Rights Subd 1d Judicial restoration of ability to possess firearm by felon convicted of a crime of violence. A person prohibited under Minnesota state law from possessing a firearm due to a conviction or delinquency adjudication for a crime of violence may petition a court to have their firearm rights restored.

13 Restoration of Firearm Rights Must be released from physical confinement. Must show Good Cause. reason for taking an action that, in legal terms, is legally sufficient, and, in ordinary terms, is justified in the context of surrounding circumstances. Averbeck v. State, 791 N.W.2d 559 (Minn. App. 2010) If good cause is shown then the court may grant the petition not mandatory. Reviewed on abuse of discretion standard. If the petition is denied you must wait three years before submitting a new petition.

14 Restoration of Firearm Rights What can demonstrate good cause? Hunting - State v. Hauan (Minn. App. 2012). Employment related (security guards, military). In proximity (family members own firearms, activities related to firearms, living on a military base). Personal security. Family heirloom firearms for inheritance.

15 Restoration of Firearm Rights Petitions can be filed in any county, but recommended in the county of original offense. Multiple offenses can be put on one petition, but problematic. Factors a judge typically considers include the circumstances of original offense and rehabilitation efforts. Expungement will not restore rights 609A.03, Subd. 5 (expungement order for a crime of violence must provide the person is not entitled to transport, possess or receive firearms).

16 Restoration of Firearms Rights Subd. 4 Persons who are prohibited due to commitments for mental illness or chemical dependency can petition the court to restore rights. Court must determine the person is not likely to act in a manner dangerous to public safety, and Not contrary to public interest. Court may consider medical opinion person is no longer suffering from disease or condition, or has been successfully treated for three years.

17 Federal Firearm Disqualifiers Contained under 18 USC 922 section G and N (g)(1) convicted of a crime punishable by more than 1 year (g)(2) fugitive from justice (g)(3) unlawful user of or addicted to a controlled substance (g)(4) adjudicated as a mental defective or committed to a mental institution (g)(5) aliens illegally in the United States (g)(6) discharged from the armed services under dishonorable conditions (g)(7) renounced United States citizenship (g)(8) subject to a court order restraining from committing domestic violence (Orders For Protection) (g)(9) convicted of a misdemeanor crime of domestic violence (n) under indictment/information for a crime punishable by more than one year

18 Federal Firearm Disqualifiers Section 922 (g)(1) Convicted of a Crime Punishable by more than one year. Must have a finding or plea of guilty. Restriction is generally for life. If convicted of a State Felony State law determines when gun rights are restored. 18 USC 921 (20) and U.S. v. Carol 524 U.S. 308 In Minnesota, non-violent felon s civil rights are restored upon discharge. Violent Felonies may be subject to lifetime ban (discharged after Aug 1, 1993)

19 Federal Firearm Disqualifiers Section 922 (g)(9) Misdemeanor Crime of Domestic Violence Includes and State, Federal or Tribal misdemeanor 1. Crime must have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. 2. Committed by a current or former spouse, parent, or guardian of the victim, or 3. Have a child in common, or 4. Person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim

20 Federal Firearm Disqualifiers Qualifying MN Offenses: Domestic Violence Intent to cause fear does not qualify U.S. v. Larson (8 th Cir. 2001) The crime must include an element of force or attempted force or threatened use of a deadly weapon. Disorderly Conduct Subd. 1 (1) Fighting or Brawling U.S. v. Fischer, 641 F.3d 1006 (8 th Cir. 2011) Interference with a 911-call Violation of an Order For Protection Fifth Degree Assault

21 Federal Firearm Restoration 18 U.S.C. 925 (c) allows a person to petition the Attorney General (ATF) for relief from a firearm disability. ATF is barred from using government funds to process 925(c) applications. Will return your application unprocessed.

22 Federal Firearm Restoration Must exhaust federal administrative remedies prior to petitioning the Court. The Court do not have jurisdiction until an application is Denied. Inaction by the ATF does not count as being Denied. U.S. v. Bean, 537 U.S. 71 (2002).

23 Federal Firearm Restoration Expungement U.S.C. Title 18, Part I, Chapter 44, 921 (a)(33)(b)(ii). A person is not considered convicted for purposes of firearms restrictions if the conviction has been expunged, set aside, pardoned or the person has had civil rights restored, unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not transport, possess, or receive firearms. Minn. Stat , Subd. 1d petitions are not applicable to federal firearms restrictions. The state has not taken away rights and cannot restore them.

24 FBI Voluntary Appeal Process Federal National Instant Criminal Background Check System will still flag the person as disqualified. With any restoration process, the FBI should be notified rights have been restored. Person can open a VAF Voluntary Appeal File with the FBI. Submit a copy of court order restoring rights, a set of fingerprints, and an application. About a six-month processing time. Letter from FBI should then indicate clearance.

25 Basics of the Minn. Personal Minn. Stat Protection Act Allows a person to carry a firearm in public Does not have to be concealed. Also known as the Shall Issue Law no longer discretionary. Must make an application to the sheriff of the County you reside in. Out of state residents can file with any sheriff.

26 Basics of the Minn. Personal Protection Act The permit must be issued within 30 days if: Complete training on safe use of a pistol. Are at least 21 years of age. Complete an application. Not prohibited from possessing a firearm under state or federal law. Not in the gang database. Not a danger to self or others (subjective determination based on arrests, police calls, etc.).

27 Basics of the Minn. Personal Protection Act Permit to carry is good for five years. An application can be suspended if a charge is pending that if convicted of will prohibit the applicant from possessing a firearm. Permits must be surrendered within 5 days if a permit holder becomes prohibited. Gross misdemeanor penalties for carrying without a permit, or failing to surrender permit, or falsifying permit application.

28 Basics of the Minn. Personal Protection Act The law does not allow a person to possess a firearm in a courthouse. Exception for persons with a permit to carry. Must give notice to the Sheriff if carrying a firearm in the Courthouse. Still subject to Court Order s banning firearm.

29 Basics of the Minn. Personal Protection Act Cannot carry into establishments which have a conspicuously posted sign or when informed that guns are prohibited and asked to leave. Lettering must be at least 1.5 inches in height In black Arial typeface against a bright colored background At least 187 sq. inches in area Within 4 feet of an entrance and sign posted between 4-6 feet above the ground 1 st violation is a petty misdemeanor- $25 fine.

30 Basics of the Minn. Personal Protection Act Cannot carry under the influence Minn. Stat (controlled substances or blood alcohol content over.04). There is an Implied Consent Procedure very similar to DWI. First Offense Misdemeanor Second Offense Gross Misdemeanor Refusal may result in a $500 civil penalty. Suspensions do apply if convicted or refuse testing.

31 Basics of the Minn. Personal If denied a permit: Protection Act 20 days to appeal to the sheriff with new information. Sheriff must then respond within 15 days. If still denied, applicant has the option to appeal De Novo to District Court.

32 Basics of the Minn. Personal Protection Act Denied applicant can appeal for a Writ of Mandamus from a district court judge. Writ of Mandamus commands a sheriff to issue a permit. Hearings are confidential. Burden is on the sheriff to show justification for denial. Attorney fees and costs such as filing fees must be awarded if the decision is reversed.

33 Contact Information Kelly J. Keegan Brandt Criminal Defense Greg T. Kryzer Wright County Attorney s Office greg.kryzer@co.wright.mn.us