Monthly Archives: November 2018

Felony doesn’t always impair Minnesota gun rights

A Minnesota felony doesn’t always impair gun rights.  But many still believe that “a Minnesota felony conviction will mean a lifetime loss of gun rights.”  That’s wrong.

Upon completion of probation, gun rights lost after a felony conviction are automatically restored along with other civil rights, under the general rule of Minnesota law.  Exceptions to that general rule are discussed below.

The Right to Firearms

The right to self-defense and firearms is a natural, human right.  It belongs to you because you were born a human being.  The United States was born in revolution and violent struggle to force government to respect our natural rights.  The United States Constitution makes this respect clear.

Fighting for Natural Rights to Firearms, 1781

Fighting for Natural Rights to Firearms, 1781

As the U.S. Supreme Court recently ruled: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”  District of Columbia v. Heller, 554 US 570 (2008).

The law, however, does limit our rights under some circumstances.  Even so, strict scrutiny must be given to any legal limitations upon our fundamental rights. We are skeptical of legal limitations of our rights.

Certain pending criminal charges or convictions historically have limited our civil rights to firearms.   As criminal defense attorneys, part of our job representing our clients is to understand how to protect their civil rights.

Will any felony conviction cause a lifetime loss of civil rights to firearms?

A common misconception holds that “any felony conviction will cause you to lose your civil rights to firearms forever.”  But a Minnesota felony doesn’t always impair gun rights.

We have heard that wrong statement of the law (that a felony conviction always means a lifetime loss of gun rights) from people who should know better.  Is there any possible explanation for such a widespread misconception about the law?  The two main reasons for this common misunderstanding of the laws are:

  1. Gun laws are complex – short of in-depth study.
  2. The laws have changed – many have failed to update their knowledge.

Solution:  This article will walk you through the law and explain why “a felony conviction” doesn’t always impair Minnesota gun rights indefinitely.  Two common exceptions to that general rule are:  1) “felony crimes of violence” and 2) “misdemeanor crimes of domestic violence.”  If lost, these rights may either be automatically be restored by operation of law; or, their restoration may be possible through a court order or pardon.

Loss of gun rights upon certain pending criminal charges and convictions

Civil rights to firearms can be temporarily suspended while certain criminal charges are pending before the Minnesota court.  They can be also be temporarily or indefinitely lost upon conviction of certain crimes under Minnesota law.  For example, Minnesota Statutes §624.713, subd. 1 (10) (i), says:

Subdivision 1.  Ineligible persons. The following persons shall not be entitled to possess ammunition or a pistol or semiautomatic military-style assault weapon or, except for clause (1), any other firearm:
(10) a person who:
(i) has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;

For someone who has not fully studied the web of Minnesota gun laws, the above excerpt, in isolation, could be misleading.  It seems to say that a felony conviction will result in an indefinite loss of civil rights to forearms in Minnesota.  But below we discuss the other, specific Minnesota statutes to the contrary. 

Every person convicted of a Minnesota felony will lose their civil rights to firearms from the moment of adjudication or conviction until the moment the person is discharged from probation or sentence. Minnesota Statutes §624.713, subd. 1 (10) (i).  Unless their conviction was for a “felony” “crime of violence” or other exception; their rights are automatically restored upon completion of sentence (e.g., probation).

Why a Minnesota felony conviction doesn’t trigger loss of gun rights

The general rule:  Following a Minnesota conviction, civil rights to firearms are restored by operation of statute at the completion of, or discharge from sentence “the same as if such conviction had not taken place.”  Minnesota Statutes §609.165:

“RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION, Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”

Note that it doesn’t matter what level the conviction was – felony or misdemeanor.  Gun rights are restored under this general rule statute upon discharge from sentence.  Clearly, a Minnesota felony doesn’t always impair gun rights.

But a Minnesota “felony crime of violence” conviction now causes a default lifetime ban

One of the two major exceptions to the general rule stated above is Minnesota’s statute stripping away civil rights to firearms for life after a conviction for “felony crime of violence.”  Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION:

“Subd. 1a. Certain convicted felons ineligible to possess firearms or ammunition. The order of discharge must provide that a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to ship, transport, possess, or receive a firearm or ammunition for the remainder of the person’s lifetime. Any person who has received such a discharge … whose ability to possess firearms and ammunition has been restored under subdivision 1d, shall not be subject to the restrictions of this subdivision.“

The specific list of crimes defined as “felony crimes of violence” is in Minnesota Statutes §624.712, subdivision 5.  A listed crime triggers a lifetime loss of civil rights.  Otherwise, discharge from felony probation or sentence will generally restore gun rights by law.  It’s important to check the list, since despite the label, many convictions on the list are factually non-violent and listed as a technicality, notably marijuana crimes.

Exception to the exception: restoration of gun rights after a Minnesota “felony crime of violence” indefinite ban

What if “felony crime of violence” conviction impairs civil rights to firearms?   A court order or a pardon can restore them.  For more on that see our page: Restoration of Civil Rights to Firearms in Minnesota

What about a federal statute saying a felony conviction triggers a loss of gun rights?

Federal laws are in need of some housecleaning, to convey clear meaning. Bottom line – federal law says that when it comes to taking away and restoring civil rights to guns, the state laws control, not federal.

The Untied States Supreme Court explains

This United States Supreme Court case offers the most succinct explanation:

A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated version of the statute is as follows:

“It shall be unlawful for any person—

“(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; …

“to … possess in or affecting commerce, any firearm or ammunition …” 18 U.S.C. § 922(g). …

Until 1986, federal law alone determined whether a state conviction counted, regardless of whether the State had expunged the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119—122 (1983). Congress modified this aspect of Dickerson by adopting the following language:

“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, …” §921(a)(20).

The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994). …

We note these preliminary points. First, Massachusetts restored petitioner’s civil rights by operation of law rather than by pardon or the like. This fact makes no difference. Nothing in the text of §921(a)(20) requires a case-by-case decision to restore civil rights to this particular offender. While the term “pardon” connotes a case-by-case determination, “restoration of civil rights” does not.

Caron v. United States, 524 U.S. 308 (1998)

Minnesota law controls

Minnesota law controls

Minnesota law controls

Therefore, Minnesota law, not federal law determines whether a Minnesota felony conviction makes a person ineligible to possess a firearm in Minnesota.  See, also 18 U.S. Code § 921, (a) (20) The term “crime punishable by imprisonment for a term exceeding one year;” and, 27 CFR 478.11.

This is Black Letter Law.  The law is clear and unambiguous.  Minnesota law, not federal law, determines whether a person loses their civil rights to firearms for a felony conviction, and how those rights can be restored.

If you hear anyone repeating the old misinformation about this, refer them to this article for a simple, succinct explanation of the law.  At minimum, know that a Minnesota felony conviction doesn’t always impair gun rights.

“What if I had a felony conviction reduced to a gross misdemeanor after successful completion of a Stay of Imposition?

Short answer: When it comes to gun rights, it doesn’t matter.  Why?

Rights are automatically restored upon discharge from probation or sentence if the Minnesota felony conviction was for a crime not listed in the section 624.712, subdivision 5, list of “felony crimes of violence.”

If the conviction level was later reduced to a non-felony under Minnesota Statutes § 609.13, Subdivision 1; if the conviction was for a “felony” listed as a “crime of violence,” the person convicted is banned from possessing firearms under Minnesota Statutes §724.713, Subd. 1 (10), because the charge was “punishable by imprisonment for a term exceeding one year.” 

What about juvenile adjudications for felony crimes?

For purposes of gun rights a Minnesota juvenile adjudication will trigger the same civil rights disabilities for firearms as a conviction will for an adult.  A juvenile “adjudication” is the functional equivalent to an adult “conviction.”   See, Minnesota Statutes §242.31, RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS.  For juveniles, a Minnesota felony adjudication doesn’t always impair gun rights.

What about civil rights to firearms after a Minnesota “misdemeanor crime of domestic violence” conviction?

See our recent article for a thorough discussion of: Civil Rights to Firearms after a Minnesota “misdemeanor crime of domestic violence” conviction.

Significant events along a criminal law & gun rights timeline

Let’s consider a hypothetical timeline in a person’s life taking into account the effect of criminal law events on their civil rights to firearms.  The person is born in the U.S.A. with their natural rights to firearms subject to mild regulation for age, etc.

Then a felony or selected misdemeanor charge may temporarily suspend the person’s gun rights pending the outcome of those charges in court.  Dismissal, a not-guilty verdict, or a conviction could result. 

If convicted of a felony and selected misdemeanor crimes, the person loses their civil rights to firearms.  After that, the general rule Minnesota statute restores their civil rights to firearms upon completion of sentence (including completion of probation), with exceptions.  For some felony and selected misdemeanor crimes, the Minnesota law exceptions trigger an indefinite or lifetime ban.  Gun rights can later be restored, for example by court order or pardon for people so affected.

The key event periods along the timeline are:

  1. Pending criminal charge
  2. Pending sentence (after conviction, before completion of probation, sentence)
  3. After discharge from sentence, before restoration of civil rights to firearms
The legal grey area between the black letter law

Gun laws are more complex than they need to be.  And we have both Minnesota and federal laws to review – statutes and case-law.  Grey areas of ambiguity exist between the clear, unambiguous areas of gun laws on either side.  Looking forward, no one wants to be on the wrong side of the law or even in a legal grey area.  Once already charged with a crime, however, no one can change the past.  In criminal defense, the legal grey area usually means “not guilty.”

Retrospective view:

When defending against a criminal charge like “Ineligible Person in Possession of Firearm,” that grey area in between is something that we term “reasonable doubt.”  (A person with a pending criminal charge should be sure their defense lawyer is knowledgeable and capable of protecting their civil rights to firearms as part of the defense objective.)

Some prosecutors and some defense attorneys fail to understand gun laws.  This can result in a wrongful conviction for felony “ineligible person in possession of a firearm” of an innocent person, based on a non-listed past Minnesota felony conviction.  Be sure to to retain a criminal defense attorney who knows not only criminal law, but gun law.  One basic test: does the attorney know that a Minnesota felony doesn’t always impair gun rights?  Be sure your defense attorney knows the law.

Prospective view:

But a person with a past conviction, does not want to take any unnecessary chances of being on the wrong side of the law as interpreted by some random law enforcement officer or prosecutor.  Their civil rights may have been fully restored by law, but they may have trouble with a gun purchase permit denial by someone who fails to understand that a Minnesota felony doesn’t always impair gun rights.  To avoid grey-area trouble, that person may wish legal help to ensure recognition of their full civil rights as a citizen.

If someone says that a felony conviction always means a loss of civil rights to firearms, remember that a Minnesota felony conviction doesn’t always impair gun rights.  And recommend that they read this article for the map of the law.

Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

About the Author:

Thomas C. Gallagher is a Minnesota Defense Attorney who handles criminal cases involving self-defense, and gun crimes cases.  A Second Amendment and Bill of Rights supporter, Gallagher has taught and written extensively on firearms law and the law of self-defense.

How to Restore Civil Rights to Firearms After a Misdemeanor Domestic Crime Conviction in Minnesota

“Can my rights to firearms be restored after a conviction for a misdemeanor crime of domestic violence?”

Yes, but it’s complicated.  There was a time, not so long ago, when the law stripped all of a person’s civil rights upon conviction for a felony, but not for a misdemeanor.  A nice bright line.  Well, not any more.

What happened?  Politics, legislation, new laws.

On the bright side, problems caused by new laws can be solved by even newer laws.  The Minnesota legislature could solve this problem; and so could the United States Senate and Congress.  Here the focus will be practical, on the law as it now stands.

Felony vs Misdemeanor

Gun safety practice

Gun safety practice

Though loss of civil rights, including Second Amendment rights, triggered by a felony conviction is not new, their loss from selected misdemeanors only goes back to around 1996.  (Go here for a summary of restoration of civil rights to firearms after a felony conviction.)

The federal so-called Violence Against Women Act, a/k/a the Lautenberg Amendment, created a definition of a “misdemeanor crime of domestic violence,” which stripped persons convicted of their civil rights to guns.

Does the Minnesota Conviction fit within the Federal Definition?

The federal definition of “misdemeanor crime of domestic violence:”

“(A) Except as provided in subparagraph (C) [Note: No subparagraph (C) has been enacted], the term ‘misdemeanor crime of domestic violence’ means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal  [3] law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a 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.

(B)

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

18 U.S.C. § 921(33) (a).

This definition is narrower than Minnesota’s definition in at least three ways.  First, it requires an element of physical force (or a deadly weapon) which is lacking in most Minnesota cases.  Second, the federal relationship element is narrower than Minnesota’s broad relationship definition (which includes for example, college roommates).  Third, the due process protection qualifiers exclude cases where the right to counsel was not vindicated, or a factual basis was lacking.

circle within a circleAs a result, Minnesota domestic crime convictions which might appear at first glance to qualify as federal “misdemeanor crime of domestic violence” may actually not qualify.  If the Minnesota case does not qualify under the federal law definition, then the convicted person’s gun rights were not impaired by the federal law.

Even if the federal ban does not apply to a person with a Minnesota misdemeanor conviction, there are Minnesota statutes which now strip civil rights to guns from a person convicted of a Minnesota domestic assault.  Let’s take a look at the Minnesota three-year ban now, before we get back to the federal laws.

Minnesota’s three-year ban and automatic restoration

The general rule is an automatic three-year prohibition on possession for a Minnesota domestic assault conviction, Minn. Stat. § 609.2242, subd. 3:

“(e) … a person is not entitled to possess a pistol if the person has been convicted after August 1, 1992, or a firearm if a person has been convicted on or after August 1, 2014, of domestic assault under this section or assault in the fifth degree under section 609.224 and the assault victim was a family or household member as defined in section 518B.01, subdivision 2, unless three years have elapsed from the date of conviction and, during that time, the person has not been convicted of any other violation of this section or section 609.224. Property rights may not be abated but access may be restricted by the courts. A person who possesses a firearm in violation of this paragraph is guilty of a gross misdemeanor.”

Minnesota Statutes Section 624.713, subd. 1 (8), says the same – broad ban on firearm possession for three years after date of conviction.

At the end of the Minnesota automatic three-year ban, are one’s gun rights automatically restored or is it necessary to petition the court?

Gun rights are automatically restored three years after the date of conviction (the date the judge accepted the guilty plea or verdict, usually the sentencing date), assuming the other statutory requirements are (i.e., no other convictions). However, it may be necessary to petition to the Minnesota court to restore rights in a way that will satisfy the requirements of the federal ban, if the conviction that qualifies under the narrower federal definition.  For convictions that are outside the federal “misdemeanor crime of domestic violence” definition, no further court action should be necessary.

The Federal Law Puts the States in Charge

The courts have summarized the legal history and current situation that the states decide who has their civil rights to firearms restored, as stated by this court:

“The Second Circuit Court of Appeals has concisely stated Congress’s purpose in enacting § 921(a) (20). ’The exemption at issue was passed in 1986 in response to a 1983 Supreme Court decision which held that the definition of a predicate offense under the Gun Control Act of 1968 was a matter of federal, not state law.’ McGrath v. United States, 60 F.3d 1005, 1009 (2d Cir.1995); see Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111-12, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), superseded by statute, Firearms Owners’ Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (1986).  ‘Section 921(a)(20) was expressly crafted to overrule Dickerson’s federalization of a felon’s status by allowing state law to define which crimes constitute a predicate offense under the statute, and thereby to determine which convicted persons should be subject to or exempt from federal prosecution for firearms possession.” McGrath, 60 F.3d at 1009. ‘Calling its new legislation the `Firearms Owners’ Protection Act [FOPA],’ Congress sought to accommodate a state’s judgment that a particular person or class of persons is, despite a prior conviction, sufficiently trustworthy to possess firearms.’ Id. Thus, the determination of “whether a person has had civil rights restored [for purposes of § 921(a) (20)] . . . is governed by the law of the convicting jurisdiction.Beecham v. United States, 511 U.S. 368, 371, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994).”

Minnesota police carDuPont v. Nashua Police Department, 113 A. 3d 239 (New Hampshire Supreme Court 2015).

Another court emphasizes this, including for those with misdemeanor convictions:

“It is clear from the federal law that the majority of domestic violence offenders will not regain their firearms possession right. However, there are procedures for the restoration of the right … It is up to state legislatures to constrict or expand the ease with which convicted misdemeanants may apply for a receive relief under these measures.” U.S. v Smith, 742 F.Supp.2d 862 (S.D.W.Va. 2010), cited in, Enos v. Holder, 855 F. Supp. 2d 1088, 1099 (Dist. Court, ED California 2012).

Conclusion?  Yes – Minnesota courts can restore civil rights to firearms after a “misdemeanor crime of domestic violence.”  The federal court and federal law acknowledge this.

But how?

We’ve already discussed how the Minnesota three-year ban is automatically triggered at the moment of conviction (or adjudication) and automatically expires three years later assuming no further convictions.  What remains is the question of what it will take to get relief from a Minnesota court that will end the federal ban for those whose convictions do fit within the narrow federal “misdemeanor crime of domestic violence” definition.

The federal law’s three pathways to full civil rights

Let’s begin with a look at the applicable federal statute, 18 U.S. Code § 921 (a) (33):

(B)  (ii) A person shall not be considered to have been convicted of such an offense [“misdemeanor crime of domestic violence”] for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

pathThis federal statute, as interpreted by the courts, currently contains three potential pathways to regaining full civil rights, including Second Amendment rights, after a “misdemeanor crime of domestic violence.”  We’ll explain, but first the 18 U.S. Code § 921 (a) (33) (B) (ii) list:

  1. “the conviction has been expunged or set aside;”
  2. “the person has been pardoned;” or
  3. “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”

And then there is the “unless clause.”  Of course, in order to accomplish full civil rights restoration, any of the three remedies listed should not “expressly provides that the person may not ship, transport, possess, or receive firearms.”

1. Pardon

In Minnesota, a convicted person can apply to the Minnesota Pardons Board for a pardon.  If a full pardon is granted, civil rights to firearms would be restored to the satisfaction of the federal law requirement just cited.  A person can apply for a pardon without a lawyer, or can retain a lawyer to help with it.

2. “Conviction has been Expunged or Set Aside”

A plain reading of the phrase “expunged or set aside” would communicate that either of two separate ideas have been mentioned.  Yet rarely, in English usage we use the conjunctive “or” to really mean “and.”  This redundancy is unusual in our written language; more common in speech, used for emphasis, or to unwind our thoughts into words.

In the legal context, “to expunge” has a specific meaning different from the specific meaning of “to set aside.”  In Minnesota at least, expungement means to retroactively erase criminal history records, including records or arrest, charge, conviction, and so on.  It’s a legal remedy with a range of possibilities but all are intended to give the person benefitted the opportunity for a fresh start.

The meaning of “to set aside” in the legal context is different, connoting setting aside a conviction. Other similar words used in Minnesota include “vacate and dismiss,” The essence of “to set aside” is to undo the problematic conviction.  When this is done, the conviction could be undone completely by court Order.  Or, the prosecuting attorney and the defense attorney could make an agreement acceptable to the Court to vacate the problematic conviction and replace it with another that will not trigger the federal disability.

A federal court decision has rendered a Minnesota Expungement Order a potentially ineffective way to restore gun rights.

“While this interpretation only addresses the term “expunge,” given our determination that Congress intended the two terms to have equivalent meanings, we find that this interpretation offers persuasive support in favor of our conclusion that § 921(a)(33)(B)(ii) requires the complete removal of all effects of a prior conviction to constitute either an expungement or a set aside.”

Wyoming Ex Rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008) (holding “expunge” and “set aside” interpreted to have equivalent meanings under 18 U.S. Code § 921 (a) (33) (B) (ii))

While it remains to be seen whether other courts, especially those with jurisdiction over Minnesota, will agree with this Tenth Circuit case, prudence dictate navigating around its dangers prospectively.

Response?  Remedy?

The lawyer for the person seeking full civil rights after a “misdemeanor crime of domestic violence” conviction, can seek an Order Setting Aside Conviction, which overcomes the problems presented by the 10th Circuit’s Wyoming v. US.

3. “Person has had Civil Rights Restored”

The third pathway mentioned in the federal statute is “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”  On the surface, the plain language reading is good for the person seeking to solve this problem.  But here again, courts have interpreted this language is a restrictive way, essentially rendered this path uncertain for people with Minnesota misdemeanor convictions.

bike finish lineUnlike the bad “expungement” case, the 10th Circuit’s Wyoming v. US, here there are numerous court cases repeating the unhelpful interpretation – though a few take an opposing view.  An issue here is that though there are several published court opinions on these issues, few are Minnesota specific.

For criminal defense lawyers like Gallagher, defending an ineligible person in possession charge, this may be a fruitful area for inquiry.  But for a person seeking full civil rights restoration, it’s easier to navigate around via a safer path.

Take for example, US v. Keeney, 241 F. 3d 1040 (Court of Appeals, 8th Circuit 2001), holding that defendant’s civil rights to firearms could not be restored within the federal statute’s meaning because as a misdemeanor no other civil rights had been taken away in the first place (voting, jury duty, hold public office.)  Other cases have held that where a defendant served even one day of executed jail time, they lost all of their civil rights while locked up, which then qualifies them for restoration of civil rights, after all.

This restrictive interpretation of the statutory language may be subject to challenge where defending a new, criminal charge based on a prior.  But again, prospectively a person seeking a clear and unequivocal full rights restoration would be better served by taking another path.

If we can look specifically at Minnesota’s law, we can observe that Minnesota Statutes automatically take away civil rights to firearms for a three-year period for a misdemeanor domestic assault conviction, and these civil rights are automatically restored after that period assuming no other convictions.  In addition, Minnesota has a Statute that automatically restores civil rights lost due to any conviction, including to firearms, upon discharge from sentence (most commonly, discharge from probation or supervised release).  That statute, Section 609.165, titled “RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION,” lays out the general rule of rights restoration, with an exception for “felony crimes of violence.”

Minnesota Statutes §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION.
“Subdivision 1. Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.”

This supports the proposition that a person convicted of a “misdemeanor crime of domestic violence” (as defined) who has completed three-years after date of conviction without a new criminal conviction, has had their civil rights to firearms restored by operation of these two Minnesota statutes.  Since federal law leaves it to the states to restore civil rights to firearms, either by statute or court order (or pardon), it would appear that a person in that situation has had their gun rights restored under both state and federal law.

Though this legal analysis seems plain enough, a person with a “misdemeanor crime of domestic violence” may wish something that unambiguously will be accepted as evidence of restoration.

Bottom line on a Petition to “Restore Civil Rights to Firearms” after a “misdemeanor crime of domestic violence” conviction? It’s not the best solution because several cases hold that the other core civil rights are not lost for a misdemeanor, and cannot then be restored (though some cases take an opposing view). (Note exception for defendants who served any executed time in jail.)

What is the best remedy, then? How should the remedy be characterized?

  1. Seek a full pardon from the Minnesota Pardons Board.
  2. Don’t call the remedy a “restoration of civil rights,” at least not just that. Instead use the other remedy pathway labels.  Avoid the term “expungement.”  Instead use the term “set aside.”

That was a lot of law, boiled down to an outline. There is more law on this topic, but these are the main related points for now.  Need an even briefer recap?

Summary

Minnesota and federal laws affect the rights to firearms of people convicted of certain a misdemeanor domestic crimes.

The Minnesota gun rights disability general rule is an automatic three-year ban beginning on the date of conviction.

The federal statutes provide for a lifetime ban for persons convicted of a narrowly defined federal “misdemeanor crime of domestic violence.”  Unlike the Minnesota state statute, the federal definition requires “physical force” or a “deadly weapon,” and due process protections such as right to counsel and a valid factual basis for the conviction.

For persons with Minnesota convictions that fall within the federal definition, the federal law provides that the States, Minnesota, can decide when civil rights to guns will be restored – either by operation of statute, court Order, or both.

The best remedies to prospectively ensure recognition of the full restoration of civil rights to firearms after a “misdemeanor crime of domestic violence” conviction are (1) a full Pardon; or (2) a court Order fully Setting Aside Conviction.  Such a court Order could be the result of either litigation with the State, or of an agreement or stipulation with the prosecutor to amend the record to a conviction for a crime that does not fit under the federal definition.  The latter can be a way to clean up problems caused by a court record that fails to detail the specific statutory subdivision of conviction, where one subdivision falls within the federal definition and the other does not – for example domestic assault cause fear vs. bodily harm; or disorderly conduct speech vs fighting or brawling.

The problems presented here could be fixed with new legislation, either Minnesota or federal.  Unless they are, in the meantime there can be no doubt that is it far easier to prevent the loss of civil rights than to regain them once lost.  A good criminal defense lawyer like Gallagher can help you do that.

But if it’s too late for prevention, this article has laid out the pathways to redemption.  No one can guarantee efforts to restore civil rights will be successful, but knowing the paths will help.

About the Author:

Thomas C. Gallagher is a Minnesota Defense Lawyer who handles criminal cases involving domestic crimes, self-defense cases, and gun crime cases.  Gallagher is a Second Amendment and Bill of Rights supporter, who has written extensively on firearms law and the law of self-defense.  Here is more information on restoration of civil rights in felony cases in Minnesota.

Comments are welcome below.