Category Archives: Constitutional Rights

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.  We discuss exceptions to that general rule 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 destroy 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 always means a lifetime loss of gun rights) from people who should know better.

Is there any 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 it explains 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 firearms.  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 civil rights to firearms for life for a “felony crime of violence” conviction.   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 state laws take away and restore civil rights to guns.

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.  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 Minnesota law determines how those rights can be restored.

If you hear anyone repeating the old misinformation, send them this article for a simple 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?

The law automatically restores rights 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 triggers the same gun rights disabilities as a conviction 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 timeline in a person’s life with the effect of criminal law events on their civil rights.  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, 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 risk being on the wrong side of the law.  Especially as some random law enforcement officer or prosecutor may interpret it.  The law may have fully restored their civil rights.  But they may still 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.

You might be interested in our article on Restoring Gun Rights after a Minnesota Misdemeanor Domestic Conviction.

Restoring Gun Rights After a Domestic Misdemeanor in Minnesota

“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

Gun safety practice

Gun safety practice

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 ... .

(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 … , 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.

Gun rights after a misdemeanor domestic: the Minnesota ban is shorter but broader than the federal ban

Gun rights after a misdemeanor domestic: the Minnesota ban is shorter but broader than the federal ban

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

Minnesota police car

States can restore gun rights after a domestic conviction

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.

But how?

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
Three paths to restoring gun rights after a misdemeanor domestic

Three paths to restoring gun rights after a misdemeanor domestic

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):

  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).”

1. Pardon

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.

Response?  Remedy?

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.

bike finish line

The finish line

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?

  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 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.

Best solutions

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, Minneapolis Criminal Lawyer, explains gun rights after a misdemeanor domestic

Thomas C. Gallagher, Minneapolis Criminal Lawyer, explains gun rights after a misdemeanor domestic

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.

Get Out of Jail After Arrest – Tips for Getting Your Loved One Out

liberty-torch2-ps-cr-smOut of the blue – someone you love has been arrested and is in jail.  What should you do?  What do you need to know?  Here is a handy guide with ten tips on how to get your loved one out of jail and other essential information.

He or she is in jail.  That means their ability to act on their own behalf is severely limited – at least until they get out.

Keep these ten tips in mind:

1.  Regain emotional balance

Being arrested and jailed is just about always a huge shock, and an unwelcome one at that.  This may be even more true for loved ones, who may feel a flood of conflicting emotions from anger to sadness to a sense of powerlessness.

But there are things you can do to help.  Gaining knowledge and asserting some control will help you (and your loved one) regain your emotional balance; and your ability to begin problem-solving.

2.  Phone calls from jail

It is vital to understand that phone calls from jail are recorded and generally provided to police investigators and prosecutors.  The last thing a criminal defense lawyer like Thomas Gallagher wants to see is one or more sets of discs labeled “jail calls” provided by the prosecutor as pretrial discovery in one of his cases.

As a result, learn and apply this rule:  “Avoid talking about the incident or alleged offense that led to arrest or criminal charges over the phone when one party is in jail.”

Of course you’re curious.  Of course they may want to tell.  But don’t ask about it until they are out.  And don’t let them tell you or talk about it on the phone!

Patience is even more important when the person is actually innocent, since words can be and often are twisted to help convict the innocent.

3.  Big picture vs. immediate problem

The most important thing in the long run will be how the criminal case turns out in the end, the outcome.  Nothing should be done to jeopardize that in any way (for example, jail phone calls).

In the short run, however, it’s important to get the accused person out of jail quickly if at all possible.  Why?  Having a job not only provides needed income, it also helps reassure that the accused is less likely to break the law in the future.

But most importantly, when people are held in jail waiting trial they generally become demoralized and are more likely to plead guilty – even when they are innocent.

4.  Minnesota criminal defense lawyer

Consulting a criminal defense lawyer is a good idea.  We can help with everything discussed here, and then some.  When someone has been recently arrested we (criminal defense lawyers) should help educate loved ones supporting the accused and the accused about the big picture solutions as well as solving the immediate problem of getting out on a pre-trial basis.

Start with a phone call.  A jail visit may follow.

5.  Bail bond company

When someone has recently been arrested and may have a pretrial release hearing coming up, a good bail bond company can provide helpful services, well beyond simply posting a bail bond with the court.  The criminal defense lawyer should be able to recommend one.

6.  Arrest without an arrest warrant

Many people in jail were arrested without an arrest warrant.  (An arrest warrant would include a preliminary finding of “arrest probable cause” by a judge.)  In Minnesota we have the so-called 36 hour and 48 hour rules limiting how long a person can be detained (in jail) without a judicial finding of arrest probable cause.  Due to rules about which days count towards those limits, you may not need to know right now the specifics of how those rules are applied.

What you really want to know is “how long can they hold my loved one without filing a criminal charge with the court; and without a pre-trial release (bail) hearing before a judge?”

The easiest way to find out is to ask the jail: “what is the deadline for releasing him or her if charges haven’t been filed?”  The Deputy at the jail will normally tell you, “noon,” of such-and-such day of the week.  To go beyond that call Thomas Gallagher or another Minnesota criminal defense lawyer.

7.  Arrest with an arrest warrant

Minnesota Rules of Criminal Procedure, Rule 3.02, Subd. 2. “Directions of Warrant. The warrant must direct that the defendant be brought promptly before the court that issued the warrant if the court is in session.  If the court specified is not in session, the warrant must direct that the defendant be brought before the court without unnecessary delay, and not later than 36 hours after the arrest, exclusive of the day of arrest, or as soon as a judge is available.” See also, Rule 4.01.

8.  Right to Pretrial Release

The Minnesota Constitution includes two clauses guaranteeing the right to bail.  The first says “excessive bail shall not be required.” Minn. Const. Article 1, § 5, similar to the United States Constitutional protection against excessive bail.

The Minnesota Constitution, however, also provides: “All persons before conviction shall be bailable by sufficient sureties, except for capital offenses.” Minn. Const. Article l, § 7. Under Section 7, all persons are entitled to bail except those charged with capital offenses.

Because Minnesota no longer has the death penalty, all defendants have the right to have bail set, to pretrial release.

9.  Pretrial release hearing

A judge determines the conditions of release.

Conditions, including bail, are meant to assure a person’s appearance at future court proceedings. Court rules tell judges to release individuals without conditions unless a judge determines that such a release “will endanger the public safety or will not reasonably assure the defendant’s appearance.”

Though there is no maximum bail for felonies, the maximum bail for non-felonies is four times the maximum fine ($12,000 for a Gross Misdemeanor; $3,000 for a Misdemeanor).  The defendant has the right to unconditional bail.

Most judges will set two bail amounts, one with and one without conditions (sometimes zero with conditions).  If a judge does not set an unconditional bail amount, the defense attorney should immediately request that the judge do so.

The defendant will need to choose one of the two options, and will not be able to change his or her mind later unless a judge allows that.  It is possible for a person in jail presented to a judge to request that the court postpone consideration of pretrial release issues.  Sometimes this is a good idea, but we can leave this as a point for discussion with the defense attorney beforehand.

10.  Remedies

What if these rights are violated by the jail, the police, the prosecution, or the court?  What remedies are available?

One type of remedy is designed to force a hearing or immediate release if an immediate hearing is denied.  A Petition for a Writ of Habeas Corpus, a type of equitable remedy, asks a judge to Order immediate release of a person being illegally detained.

Another approach is for the defense attorney to contact court officials to request and demand that a prompt hearing be scheduled.

If the police get a confession from an illegally detained person, the defense lawyer can ask the Judge to suppress the confession as illegal, coerced and unreliable.

In cases where bail has been set but the amount is beyond the reach of the defendant, Thomas Gallagher has made multiple motions for a speedy trial, or immediate release pending trial in the alternative, with some success.

For more information about pretrial release and bail 

Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

Do you have more questions about how to get your loved one out of jail?

Or do you need to find a good criminal defense lawyer for him or her?

You can call Minneapolis Criminal Lawyer Thomas Gallagher to discuss.  He can help you.

How to Avoid a Marijuana Arrest in a Car in Minnesota: Top Nine Tips

The other day I was talking to a prosecutor.  I let him know that my objective was to keep my client’s public record clean of words like “marijuana,” “drug paraphernalia,” and “criminal conviction.”  He responded mischievously with “You know how he could avoid all that don’t you?  Don’t get caught.”  He was joking, but like many jokes there was some truth in it.

“I’m late, for a very important date.”

“Officer, am I being detained? I’m late, for a very important date.”

As of this writing, ten states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older.  And, most of the U.S. population now lives in a state with legal medical marijuana.  We should all know by now that marijuana is safer than alcohol.  There is no lethal overdose possible with marijuana, unlike alcohol, aspirin, and many prescription drugs.

But in Minnesota in 2019 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.  We should re-legalize in Minnesota.  And here is What Marijuana Legalization Should Look like in Minnesota.  In the meantime, watch your six!

What can you do to reduce the chance of getting caught? Here are nine tips:

 1. Situational awareness

Guess where the vast majority of police contacts with people happen?  Correct – in or near a motor vehicle.  As a result, the most effective way to avoid a marijuana criminal charge is to avoid having marijuana in your vehicle.

Complacency can set in.  If it hasn’t happened yet, it never will.  Right?

The smart attitude is that if a scenario is unlikely, with repetition (miles traveled in the car), it will inevitably happen.

There will be a traffic stop.  When it does happen; marijuana should not be in the car.

Minnesota:  If the prudent marijuana smoker does carry marijuana in the car only when absolutely necessary, he or she keeps it under the “small amount” 42.5 grams if plant form (not concentrates), but always in the trunk of the car (to avoid a “marijuana in a motor vehicle” charge).

Beware: a “small amount” of marijuana concentrates such as THC oil, dabs, marijuana wax, is always a crime under a loophole in Minnesota’s decrim law.  And over 1/4 gram of the resinous form of marijuana is a felony in Minnesota under that technicality.

2.  Odor

The most common excuse used by police officers as probable cause to search a car after a traffic stop is “odor of marijuana” – either fresh or burned.  This is prone to abuse by police officers since it’s impossible to verify.

Even so, to prevent getting caught with marijuana in your car avoid having the odor of marijuana either on your person or in your car.

And, if you do have the odor of marijuana on your person or in your car, be sure not to have any actual marijuana in your car.

Have you or anyone you know experienced “nose blindness?”  A person who has smoked a cigarette may not be able to smell the odor of past cigarette use on another person.  The same for a person who has been drinking an alcoholic beverage – can’t smell the odor of alcohol on another person.  But non-users can smell it.

It’s best to assume that if you’ve been smoking it that day, there may be odor.  If it’s been smoked in the car, the odor is probably lingering in the car for a day or more.  (Tip: don’t ever smoke in the car.)

3.  Consent? 

“No, officer, I do not consent to a search.” Like Paul Simon’s song “50 ways to leave your lover,” there are at least fifty ways to tell a police officer that you do not consent to any searches.

Make an excuse if you like: “I’m late, for a very important date.”  But no excuse is necessary.  You should not offer any justification for refusing a search.

Be confident and politely insistent. It’s your legal right to be secure from searches and seizures by police unless they have a search warrant or an exception to the warrant requirement.

The rape metaphor:  One of those exceptions is a consent search.  Police often ask people “do you mind if I search”?  The correct answer is, “I do not want to be searched.”

If you do consent to a search, you’ve waived your right to object later to the otherwise unlawful nature of the search.  Also, if police know they have no legal basis to search without “consent,” then they may leave without searching.

4.  You can do both

Don’t lie and don’t admit. How?

Remain silent.  Or if words do come out of your mouth make sure that they are not lies, and do not relate to illegality.

More than half the people stopped by police in traffic, when questioned about “marijuana in the car?” after the police officer claims “odor” will either lie or admit having marijuana in the car, often then telling the police where it is.  Wrong answer!

Instead, remain silent – meaning words are not produced by you.  Tightening your lips may help your resolve.  If you do say something, change the subject and avoid talking about whether there is marijuana in the car or not.  And again, do not consent to a search.

Police will try to make you think: “Busted.  The jig is up. May as well come clean now.  Give up.  You cannot win at this point.”  But don’t believe that for a minute!  You need to be prepared.  Knowing the law can help keep your confidence level up, and help you avoid or minimize legal trouble.

5.  Unlawfully prolonged detention

“Am I free to leave?”  Here is the scenario.  You’re stopped by police for a headlight out, or speeding.  Normally it takes five or ten minutes for a police officer to complete the process, hand you the ticket, encourage you to pay it without taking it to court, and walk away.  You understand that to mean that the government intrusion upon your liberty is now over and you are “free to leave.”

Now, let’s change the scenario.  You’ve been stopped for something normally resolved with a traffic ticket within five minutes, but this time the officer is prolonging the detention.  Is that legal?

The courts will apply a balancing test under the “totality of the circumstances” to determine whether they think the greater intrusion upon your Liberty interest was balanced by a greater level of reasonable suspicion of criminal activity.

But one of the factors courts will consider is: “to what extent did the person acquiesce to the detention vs. communicate a desire to end it and leave?

A common game played by police in court is to claim that “at that point, the person was free to leave and the prolonged time was consensual.”  If believed, then the prolonged detention might need less justification, fewer facts supporting a reasonable suspicion of criminal activity.

Since “Fleeing a police officer” is a crime in Minnesota – whether in a motor vehicle or on foot – whether a person is begin “detained” by police or not, ought to be a simple black and white question.  Either you are “free to leave” or not.

The best way to make a record of that is to ask: Officer am I free to go now?  And don’t just do it once.  Do it more than once.  Say it loud and clear, for the camera and microphones.  It doesn’t matter what the answer is.  If you ask the question, you’re winning.

This will help your lawyer challenge the legality of the prolonged detention, search and arrest later, should it come to that.

At times it can be a good idea to just start slowly walking away, to force the police officer to tell you to stop.  (Yes, you can walk away from a car stop even if you’re not the passenger.)

6.  “You have the right to remain silent.”

When you hear that, that is your cue to – what?    It’s your cue to stop forming words and allowing them to escape your mouth!

If you want to say anything, you can say:  “Officer, I realize you are doing your job but I am not a lawyer or a police officer.  I need to assert my legal right to remain silent, and to consult legal counsel before answering questions or talking about this situation at all.”  Repeat as necessary.

No matter what they do or say, they cannot require you to speak.  So don’t.  If police direct you to show your hands, lie down, hands behind your back, stand over there, and the like, follow their commands.  But do not speak.

7.  Field Exercises

Sometimes police want to build a case for impaired driving.  When they do, they will ask you to perform what they optimistically term “Field Sobriety Tests.”  These are not scientifically valid and are designed to incriminate.  Even completely sober people have a difficult time “passing” them.  If you do them, you will fail.  If you don’t, you won’t.

What to do?  Don’t! 

Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “One leg stand,” “Horizontal Gaze Nystagmus” eye test.  You can and should refuse to do any of these.

When you do, the police officer may invite an excuse.  But don’t take that bait!

Any excuse could be incriminating.  Instead you can say: Officer, I am aware of my legal rights and I respectfully choose not to do any field exercises or tests.”  You may get asked repeatedly.  If so, just keep repeating that you choose not to do them – no excuses.  (Who cares if you have one leg! That’s beside the point.)  It’s your legal right.

Important:  (Note that if the police officer has factual reason to suspect impaired driving and requests that you blow into a Preliminary Breath Test (PBT) machine and you refuse to blow, you can be arrested in Minnesota for that refusal.)

8.  Smile, you’re being recorded

From the beginning of a traffic stop, to sitting in a squad car, to the police station or jail, it’s best to assume that you and all you say are being recorded.

This recording may later hurt you, or help you.  Even when alone or with another person in the back of a police car, this is normally recorded – even when no police officer is in the car.

Phone calls from jail are recorded for later use as evidence.  Be aware of this.  Avoid talking about the case in any of these contexts.

9.  Keep your cool

if arrested. Hitting the panic button will only make it worse.  Police may try to exploit your trauma and emotional upset.  Remain calm, cool, collected.

The long game can be won, by playing defense in the short game.  You or someone on the outside can help you contact a Minnesota criminal defense lawyer and if need be, a bail bond agent.  Most people will be able to get out within a few days or less.

Liberty-Lawyer.com logo sm wideThomas C. Gallagher is a Minneapolis marijuana lawyer frequently representing people charged with possession of marijuana and related “crimes” in Minnesota.

Have a comment?  You are welcome to leave your comments and responses below.

Thomas C. Gallagher Elected Chair of Minnesota NORML Board of Directors – Marijuana Legalization in Minnesota

On September 16, 2017 the Board of Directors of Minnesota NORML elected Thomas C. Gallagher to the position of Chair of the Board.  Gallagher is a Minneapolis Criminal Lawyer who twice campaigned for election as a Representative in the Minnesota House in District 61B (incumbent Paul Thissen) in 2014 and 2016.  He was the endorsed candidate of Republican Party of Minnesota in both election cycles.

Minnesota NORML is a non-partisan Minnesota Nonprofit with 501(c)(4) status,” Gallagher noted.  “Our goal is legal marijuana in Minnesota for responsible adult use.  Minnesotans should have equal rights to cannabis as to beer and wine.  This means age 21 and older, taxed and regulated the same as beer and wine, and legal small batch home production.”

Thomas C. Gallagher, Chair, Minnesota NORML

Home grow” Gallagher said, “is essential.  Ending marijuana prohibition is only incidentally about marijuana; it is really about personal freedom.  We want to empower the People, support Liberty for all.  With legal home grow, anyone can grow their own cannabis for medicinal or personal use with little money.  Freedom should not be limited to people with money.”

“Now that all major polling shows majority support for legalization of marijuana (and a super-majority for medical marijuana), why – in a democracy – is the will of the People not yet enacted into law?” Gallagher asks.

If our elected officials lack the political courage to enact the will of the People, then we say “Let the People Decide!”  Bills in the Minnesota legislature would place a constitutional amendment on the general election ballot to, finally, legalize marijuana for responsible adult use like beer and wine.  Even politicians unwilling to support legalization should be able to support democracy, the vote and “allowing” the People to decide.  We support these Bills.

“It’s not inevitable.  There are vested interests who now profit from the current Prohibition regime fighting hard to reverse the progress we’ve made, and to stop the return of Freedom to the People of Minnesota,” Gallagher warned.  “’How soon will it be legal?’ people ask me.  ‘How soon will you join us working hard to make it happen?’ is my smiling reply” says Gallagher.

For the City Pages article: New NORML chair is a Republican lawyer with tips on driving with marijuana.

Minnesota NORML holds monthly Members Meetings and other events and activities to help people connect and get involved.  For further information:
https://mnnorml.org/
https://www.facebook.com/mnNORML

#LetThePeopleDecide

Jesus as Defense Lawyer: The Woman Accused of Adultery

Do you remember the story about Jesus as defense lawyer for the woman accused of adultery?

What can we learn about criminal law from the story of the Jesus and The Adulterous Woman in John Chapter 8 of the New Testament?

We can learn about what criminal defense lawyers do.  And we can learn about the laws of evidence.

We can learn about a jury’s right and power to sentence.  And we can learn about connecting persuasively with people.  The story of Jesus as defense lawyer is short and entertaining but filled with wisdom.

The narrative

First, the story from John Chapter 8:

But Jesus went to the Mount of Olives.  At dawn He went to the temple complex again, and all the people were coming to Him. He sat down and began to teach them.

Then the scribes and the Pharisees brought a woman caught in adultery, making her stand in the center. “Teacher,” they said to Him, “this woman was caught in the act of committing adultery. In the law Moses commanded us to stone such women. So what do You say?” They asked this to trap Him, in order that they might have evidence to accuse Him.

Jesus stooped down and started writing on the ground with His finger. When they persisted in questioning Him, He stood up and said to them, “The one without sin among you should be the first to throw a stone at her.”

Then He stooped down again and continued writing on the ground. When they heard this, they left one by one, starting with the older men. Only He was left, with the woman in the center. When Jesus stood up, He said to her, “Woman, where are they? Has no one condemned you?”

“No one, Lord,” she answered.

“Neither do I condemn you,” said Jesus. “Go, and from now on do not sin anymore.”

John 8:1-11 HCSB

What do criminal defense lawyers do?

In this story of Jesus as defense lawyer, he shows us what criminal defense lawyers do.

Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger's oil on panel version c. 1600

Jesus as defense lawyer for the woman caught in adultery, Pieter Brueghel the Younger’s oil on panel version c. 1600

We defend the human being accused of a crime, to be punished if convicted under the laws.

In this case the crime was adultery.  And if convicted under the laws, the punishment  could be death – death by a group of people throwing stones at you until eventually dead, a death by torture. 

Jesus as defense lawyer

The accused person could testify.  Through much of our legal history the accused was incompetent to testify due to a presumption that they would lie to save themselves.  But even with that right, the accused having an advocate speak for her gives her a better chance of being heard, fairly.

Jesus accepts, advocates for an unpopular person

Here, Jesus speaks for her, and advocates for her life.  He accepts the challenge.  Jesus as defense lawyer, advocates for a socially condemned person.

This is the most important thing a criminal defense lawyer does.  It is our sacred duty, our sacred honor.

The advocate for the accused seeks the outcome desired by the accused.  Anything else would make us not an advocate: unethical or a failed advocate.

Our tool for achieving that outcome the law (including the law of evidence and the law of jury power), and our ability to connect with people persuasively.

The laws of evidence

We can trace today’s laws of evidence back to the time and place of Jesus, and earlier.  Jesus as defense lawyer, knew the laws well.

The laws of Moses required two or more witnesses to the crime before someone could be sentenced to death – a rule against hearsay, a right of confrontation, and a corroboration rule. Deuteronomy 19:15.

One accusing witness was not enough to trigger the death penalty.  Deuteronomy 17:6. Jesus and the crowd were told (“they said to him”) that the woman was reportedly “caught in the act.” Yet there is no witness or witnesses identified nor is there any witness testimony. This made a death penalty illegal under the law.

Gender fairness

Had there been two or more witnesses present to accuse and claim to be witness to the woman’s adultery, the law proscribed the death penalty for both the woman and the man. Deuteronomy 22:22 (“If a man is discovered having sexual relations with another man’s wife, both the man who had sex with the woman and the woman must die.”)

Where is the man? How do we know the man is not any one of the men in the de facto jury?  The prosecutors do not have the man who they claim committed adultery with the woman.

Could this be the meaning of Jesus’ argument?: “The one without sin among you should be the first to throw a stone at her.”  Was that was a challenge to the prosecutors to produce the guilty man, if they could?

Many presume the woman’s guilt in the story.  But read carefully.  It tells what the prosecutors said: “they said to Him, ‘this woman was caught in the act of committing adultery.‘”  That statement is an accusation, just a charge, an unproven claim.  Jesus as defense lawyer, points that out.

The prosecutors fail to produce evidence to prove claim

Presumption of innocence - not enough evidence

Presumption of innocence – not enough evidence

After the accusers all have left, Jesus asks a legal question: “Woman, where are they? Has no one condemned you?”  With no accusers remaining, our attention is drawn to the requirement of eyewitnesses to the crime before guilt could be established and a sentence imposed.

Jesus’ statement: “Neither do I condemn you” can be interpreted to mean that Jesus was no eyewitness to any claimed behavior of the woman.  The presumption of innocence remains unless overcome by evidence of guilt.  An accusation alone is nothing.  Jesus as defense lawyer makes this clear.

One interpretation of the story can be that Jesus gained her acquittal by skillful use of the laws accepted by the jury.

A jury’s right and power to sentence

Was the woman put on trial in the proper manner under the laws at the time?  The contrary appears more likely (not unlike the Trial of Jesus, later).

And yet, we can still use the story to illustrate the jury’s traditional right and power to sentence.

Whether a proper, lawful trial or not – the accusers urged a death sentence to be carried out by the crowd, right there on the spot.

Jesus as defense lawyer, invoked not only the law and its requirements.  He also made a direct appeal to the right, and the power of the de facto jury to refuse to convict her.

Jury lenity and jury nullification

Today we have many terms for this including jury lenity and jury nullification.

Jury lenity is the jury’s right to be more lenient than the law requires.

Jury nullification is the power of the jury to deliver a not-guilty verdict even when it believes the accused guilty of violating the letter of the law.

The modern practice of removing sentencing power from the jury destroys the true jury trial, as this story about Jesus as defense lawyer shows.

Law or equity?

As often is the case, it is difficult to know whether the de facto jury walked away after the argument of Jesus in deference to the laws of evidence or out of compassion.  But when Jesus said: The one without sin among you should be the first to throw a stone at her,” was this not a plea for compassion?

His later statement to her: Go, and from now on do not sin anymore,” implies that perhaps she did sin, but either lawful proof was too weak; or both he, the jury, and the accusers had compassion.  If so, this could have been an appeal to jury nullification or lenity, as well as an appeal to follow the laws of evidence and of a fair trial – either or both.

Criminal defense lawyers can relate to this experience of Jesus as defense lawyer.  We often don’t know.  It is enough that proof beyond a reasonable doubt was lacking.  But we want our clients to avoid future accusations regardless.

Prosecutors attempt to set up Jesus for prosecution

They'll stone you when you're trying to be so good

They’ll stone you when you’re trying to be so good

The ancient Greeks, Aristotle, spoke of ethos, pathos, and logos as the paths of persuasion.  Clearly the ethos of Jesus was also on trial.

“Ethos” is an appeal to ethics – a means of convincing someone of the character or credibility of the persuader – here Jesus.  After all, Jesus had returned there again to teach his gathered students, writing on the ground.

The scribes and the Pharisees then brought a woman before him and his students and accused her of adultery, demanding her death, to trap Him, in order that they might have evidence to accuse Him.

The prosecutors used the poor woman as a pawn in a game designed to destroy the ethos; the credibility of Jesus to his students.  The prosecutors would smear Jesus by association with an accused criminal.  By baiting him to defend her, they hoped to make him complicit in her alleged crime.  Criminal lawyers today understand this tactic used against Jesus as defense lawyer.

Connecting persuasively with people

The description of his behavior shows Jesus’ confidence.  He is a teacher. The prosecutors interrupt as he is writing on the ground while instructing his students.  They address him with respect.  (Ethos goes both directions.)  Jesus listens with respect.

He makes his short argument on her behalf, then resumes writing on the ground quietly, waiting for the people for do the right thing.

We see social mirroring.  We see the invocation of shared values and laws.  He is connecting.  Jesus makes good use of his ethos to persuade.

Using logical argument

“Logos” is an appeal to logic – a way of persuading an audience by reason.

Jesus has pointed out the lack of an eyewitness, the lack of corroboration by two eyewitnesses, the unlawful hearsay accusation, the lack of an identified male accused adulterer (“caught in the act?”), the lack of confrontation of witnesses — all contrary to law.

These are appeals to logic.  Jesus shows that the prosecutors charge is not proven under the law by their evidence — or lack of evidence.

Why should we care?

“Pathos” is an appeal to emotion – a way of convincing an audience of an argument by eliciting an emotional response.  The one without sin among you should be the first to throw a stone at her.

Jesus challenges each listener to publicly declare that he or she is without sin.  He equates being the first to throw a stone at her with being the first to publicly declare being without sin – impossible for an honest person.

Identification

I see you

I see you

This challenge pierces right to the heart of any human being.

It  requires us to shift focus away from the accused woman, and to look inside, to search within ourselves instead.

Jesus correctly asks the jury to question whether the issue is really about them, not the lady accused.

She is not “the other:” they are like her – connected by something in common.

Aspirational

Jesus invites them to be greater than the low identity that the prosecutors invited them to assume.  Liberty and love go hand in hand.

The lessons of this story of Jesus as defense lawyer are memorable.  We can all learn from it, regardless of religious belief.  Criminal defense lawyer can learn much from it, too.

What do you think?

Leave your comment below.

Gallagher-Defense-logoThomas C. Gallagher is a Minneapolis Criminal Lawyer, interested in both history and the law.

If you enjoyed this article, you might like our: The Trial of Jesus: A Criminal Law Perspective, or Romeo and Juliet Law: Minnesota Sex Crimes Based On Age.

The Necessity Defense for Medical Marijuana Patients – 2015 Minnesota Proposed Legislation Redux

The problem:  In Minnesota today, a medical marijuana patient charged with a marijuana crime is no longer allowed by the courts to tell the jury they were treating illness with marijuana.

shhhhThe solution:  A Bill in the 2015 Legislature would legislatively overrule the court decision that took away “the necessity defense” from medical marijuana patients facing marijuana charges.

Marijuana has been used as effective medicine for thousands of years.  In the 1930s, Minnesota joined a social experiment of Prohibition outlawing the plant – even for medical use. Today though, a majority in the U.S.A. believe that medical marijuana should not be a crime.

Trial by jury limits the power of the government to enforce laws in ways that violate the conscience of the community.  Yet when a chronic pain patient using marijuana as medicine is charged with a marijuana crime, but is not permitted to have their physician testify, or to testify about it themselves; there is no meaningful jury trial.  When the court prevents the jury from hearing defense evidence, excluding the defense, her right to present a defense is violated.

“Necessity” has been a recognized legal defense to what otherwise would be a crime, since ancient times. The New Testament cites examples of eating holy bread through necessity of hunger or taking another’s corn. Mathew 12:3-4. Old English cases recognize the defense of necessity. It was a defense to breaking a law that the accused committed the act to save a life or put out a fire. A person did not commit the misdemeanor of exposing an infected person in public if the person was being carried through the streets to a doctor.

  1. Like self-defense, the necessity defense is an affirmative defense to a criminal charge – a “lesser-of-two-evils” defense. After the accused presents evidence supporting the defense, the judge instructs the jury on the law of the defense of necessity.  If the jury accepts the defense: the defendant did the prohibited act intentionally, but did so reasonably to avoid a greater evil, out of necessity; so it is not a crime.
  2. The necessity defense was repealed by a 1991 Minnesota court decision, in State v. Hanson, 468 NW 2d 77 (Minn Court of Appeals 1991). FFI: http://wp.me/pAFjr-5U
  3. The Minnesota Legislature can restore the rights to a jury trial and to present a defense by passing HF 542 & SF 404. The Bill restores the necessity defense to medical marijuana patients charged with a marijuana crime.  Jurors have the right to know the relevant facts before judging a person’s fate.
  4. People like Angela Brown, and her 15 year-old son, should be allowed to present a necessity defense at her trial, so the jury can then have the power to decide her case based upon the true facts, not some version of the truth manipulated by the court.

Urge your Minnesota Rep. and State Senator to support the necessity defense Bill,  HF 542SF 404, to assure medical patients have the “right to introduce evidence or testimony of a medical need to use, … or [evidence of] a benefit derived from the use” of marijuana or derivatives.

Thomas Gallagher is a Minneapolis Marijuana Lawyer working in criminal defense.