“Can my rights to firearms be restored after a conviction for a misdemeanor crime of domestic violence?”
Yes, you can restore gun rights after a misdemeanor domestic. But it’s complicated. There was a time when the law stripped a person’s civil rights for a felony conviction , 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. But here the focus will be practical, on the law as it now stands.
Felony vs Misdemeanor
A felony conviction triggering loss of civil rights, including Second Amendment rights, is not new. But their loss from selected misdemeanors only goes back to around 1996. (Go here for a summary of restoration of gun rights after a felony conviction.)
The federal Violence Against Women Act, a/k/a the Lautenberg Amendment, created a definition of a “misdemeanor crime of domestic violence.” That definition stripped persons convicted of their civil rights to guns. The federal law affects your gun rights after misdemeanor domestic conviction.
Does the Minnesota Conviction fit within the Federal Definition?
The federal definition of “misdemeanor crime of domestic violence:”
“(A) the term ‘misdemeanor crime of domestic violence’ means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal 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 ... .
(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 … , 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).
Federal definition is narrower than the Minnesota’s
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 with a right to counsel violation, or missing factual basis.
As a result, convictions which might appear to qualify as federal “misdemeanor crimes of domestic violence” may actually not qualify. If the Minnesota case does not fit the federal definition, then the federal law does not impair gun rights.
Even if the federal ban doesn’t apply, there are Minnesota statutes which strip gun rights after a domestic assault conviction. 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
Three-year loss of gun rights after a misdemeanor domestic assault: The general rule is an automatic three-year ban 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. … 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.
What happens after the Minnesota automatic three-year ban?
Does the statute automatically restore gun rights? Or is it necessary to petition the court?
Minnesota law automatically restores gun rights three years after the date of conviction. The date the judge accepted the guilty plea or verdict, usually the sentencing date is the date of conviction. However, you may need to petition the Minnesota court to restore rights to satisfy the requirements of the federal ban; if the conviction fits within 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 states can restore gun rights after a domestic conviction: The courts have summarized the legal history and current situation that the states decide who has their civil rights to firearms restored, as this court held:
“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).”
DuPont v. Nashua Police Department, 113 A. 3d 239 (New Hampshire Supreme Court 2015).
States can restore gun rights for misdemeanors
Another court emphasizes this, including gun rights after 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 gun rights after a “misdemeanor crime of domestic violence.” The federal courts and federal law acknowledge it.
If your case fits within the narrower federal definition, Minnesota can still restore rights
We’ve already discussed how the moment of conviction automatically triggers the Minnesota three-year ban. And it automatically expires three years later assuming no further convictions.
What remains is this question. What will it take to get relief from a Minnesota court to end the federal ban for those convictions 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.”
The three pathways to restore your rights
This federal statute, as interpreted by the courts, currently contains three potential pathways. The pathways lead to full civil rights after a “misdemeanor crime of domestic violence.” We’ll explain, but first the list from 18 U.S. Code § 921 (a) (33) (B) (ii):
- “the conviction has been expunged or set aside;”
- “the person has been pardoned;” or
- “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).”
In Minnesota, a convicted person can apply to the Minnesota Pardons Board for a pardon. If it grants a pardon, this restores civil rights to firearms to the satisfaction of the federal law’s requirement. A person can apply for a pardon without a lawyer, or can retain a lawyer to help with it. A pardon is one way to restore your gun rights after a misdemeanor domestic conviction.
2. “Conviction has been Expunged or Set Aside”
Can an expungement restore gun rights after a misdemeanor domestic conviction? Or, should we get an Order Setting Aside?
A plain reading of the phrase “expunged or set aside” communicates either of two separate ideas. 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, to unwind our thoughts into words.
In the legal context, “to expunge” has a meaning different from the 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 give the person the benefit of a fresh start.
To set aside
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 agree to vacate the conviction. The agreement could 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))
Time will tell whether other courts, especially those with jurisdiction over Minnesota, will agree with this Tenth Circuit case. But prudence dictates navigating around its dangers prospectively.
The lawyer seeking restoration of civil rights after a misdemeanor domestic conviction can seek an Order Setting Aside Conviction. This should overcome the problems presented by the 10th Circuit’s Wyoming v. US.
3. “Person has had Civil Rights Restored”
Now, the third pathway mentioned in the federal statute to get back gun rights after a misdemeanor domestic conviction.
The law’s third way 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, courts have interpreted this language in a restrictive way, rendering this path uncertain for people with Minnesota misdemeanor convictions.
Unlike 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. Though there are several published court opinions on these issues, few are Minnesota specific.
For criminal defense lawyers like Thomas 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.
A legalistic approach
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 in that state, no other civil rights had been taken away in the first place (voting, jury duty, hold public office.) Other cases held that where a defendant served even one day of executed jail time, they lost all of their civil rights while locked up. Therefore they qualify for restoration of civil rights.
A lawyer defending a person on a new, criminal charge based on a prior may want to challenge this restrictive interpretation of the statutory language. But, prospectively a person seeking a clear and unequivocal full rights restoration would be better served by taking another path.
Minnesota is better than that
If we can look specifically at Minnesota’s law, we can observe that Minnesota Statutes automatically take away gun rights after a misdemeanor domestic assault conviction, for a three-year period. And the law automatically restores these civil rights 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 ... .”
Therefore, these two Minnesota statutes restore gun rights of a person with a “misdemeanor crime of domestic violence” conviction, after three-years without a new conviction.
Federal law leaves it to the states to restore gun rights. So a person in that situation has their gun rights restored under both state and federal law.
The nitty gritty
This legal analysis seems plain enough. Still, a person may wish something that others will be accept as clear 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. Why? Because several cases hold that since the other core civil rights are not lost for a misdemeanor, gun rights cannot be restored. Though some cases take an opposing view. Note the cases saying any defendant who served any executed time in jail lost all civil rights during that time.
The best remedy
What is the best remedy, then? How should the remedy be characterized?
- Seek a full pardon from the Minnesota Pardons Board.
- 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?
Minnesota and federal laws affect the gun rights after a misdemeanor domestic conviction.
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 convictions for a narrowly defined federal “misdemeanor crime of domestic violence.” Unlike the Minnesota statute, the federal definition requires “physical force” or a “deadly weapon,” and due process protections.
For Minnesota convictions that fit within the federal definition, the States decide when to restore gun rights. State law restores gun rights either by operation of statute, court Order, or both.
What are the best remedies to ensure recognition of gun rights restoration after a “misdemeanor crime of domestic violence” conviction? They are (1) a full Pardon; or (2) a court Order fully Setting Aside Conviction. Such a court Order could result from either litigation, or from an agreement with the prosecutor.
Either way, we amend the record to a conviction that does not fit the federal definition. That can be a way to clean up problems caused by an unclear court record. If the court record fails to detail the specific statutory subdivision of conviction, one subdivision may fall within the federal definition and another may not. For example, domestic assault cause fear vs. bodily harm; or disorderly conduct speech vs fighting or brawling.
New legislation, either Minnesota or federal, could fix the problems presented here. Until they are, it’s easier to prevent the loss of gun rights after a domestic than to regain them once lost. A good criminal defense lawyer like Thomas Gallagher can help you do that.
But if it’s already too late for prevention, this article lays out the pathways to redemption. No one can guarantee efforts to restore civil rights will be successful, but knowing the paths will help.
What about gun rights after a Minnesota felony conviction?
See our article for an in-depth discussion of gun rights after a Minnesota felony conviction.
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.