Category Archives: Constitutional Rights

Marijuana Legalization in Minnesota: What Should It Look like?

Has the time come for marijuana legalization in Minnesota?

Opposing legalization is now political suicide

Opposing marijuana legalization for responsible adult use is now political suicide.  That might surprise a few.  But much has changed.

Last month Gallup reported its polling on the issue“Sixty-six percent of Americans now support legalizing marijuana.”

Democracy?  Bipartisan Majorities

And support is bipartisan.  Though more Democrats support marijuana legalization than Republicans, “Gallup found last year that a slim majority of Republicans supported legal marijuana for the first time, and this year’s figure, 53%, suggests continued Republican support.”

Pew Research Center reports similar polling, pointing out that support for marijuana legalization is now double what it was in 2000.

History doesn’t repeat; it rhymes

Students of history draw lessons from the alcohol Prohibition life cycle.  Why did it take so long to end it, even after a majority of Americans opposed it?

The five percent tipping point
Marijuana legalization at the Capitol.  Minnesota NORML.

Marijuana legalization at the Capitol. Minnesota NORML.

One answer?  The tipping point was when about five percent of the voters made legalization a wedge issue.  In other words they would disregard political party, other issues, and vote for a political candidate solely on the issue of re-legalization.  The alcohol Prohibition repeal soon followed.

Elections matter

In the 2018 general election, two single-issue marijuana legalization parties achieved major party status in Minnesota.  Their candidates for statewide office received more than the five percent threshold to qualify as major political parties.

How many elections are won or lost by less than five percent of the vote in Minnesota?  Opposition to the majority will now has a severe price: losing.

The time has come for marijuana legalization.  But what should it look like in Minnesota?

What should marijuana legalization look like in Minnesota?

The issue is Liberty, not marijuana.  Ending marijuana Prohibition is consistent with conservative political values.  Less government means more freedom.  Prohibition is a government bloat program, that destroys lives, destroys our freedom.

We the People have at least equal rights to marijuana as we do to beer and wine.  The fact that marijuana is safer than beer and wine, undercuts the Prohibitionist lie that “marijuana is a dangerous drug.”  Death by overdose happens with alcohol, but cannot happen with marijuana.  Marijuana has no toxic dose level, unlike caffeine, aspirin and many other commonly used, legal drugs.

The three legal models for marijuana 

We’ve seen three models for our legal rights to marijuana, in chronological order:

  1. The Tomato Model
  2. The Prohibition Model
  3. The Beer and Wine Model

The Tomato Model

The Tomato Model of marijuana legalization

The Tomato Model of marijuana legalization

Under the Tomato Model of marijuana laws, the people have rights to marijuana equal to our rights to tomatoes.  The law lightly regulates tomatoes.  Tomatoes are not a crime to grow, possess, or sell.

The Tomato model means laws the repeal of laws criminalizing it.  People are free to do with marijuana what they can do with tomatoes.  We call it de-criminalization.

This was the state of the marijuana laws before the marijuana Prohibition era began.   Advocates of the tomato model say we should return to this.  Of the three legal models, the tomato model is the most conservative.  It protects the People’s Liberty most.

The Prohibition Model

The writing is on the wall: Vote Against Prohibition

The writing is on the wall: Vote Against Prohibition

Marijuana Prohibition never would have happened but for the alcohol Prohibition.  As the alcohol Prohibition was winding down in the 1930s, state by state, the government Prohibition bureaucracy ramped up its anti-marijuana propaganda; much of it with appeals to racism.  They succeeded.  They tricked the public into funding a massive anti-marijuana government bureaucracy.  It was a solution in search of a problem.  At the time, marijuana usage rate was infinitesimal.  Now almost every American has used marijuana at least once, thanks to Prohibition.

Though ten states have legalized marijuana for adult use, Minnesotans still live under the shadow of marijuana Prohibition.  The government still pays police officers to break down doors, toss people’s cars, searching for marijuana.  Then we pay prosecuting attorneys to charge people with marijuana with crimes, label us criminals, strip our civil rights and lock us up.

And enforcement disproportionately impacts African-Americans, despite equivalent usage rates with other ethnic groups.  Marijuana legalization ends these social evils.

The Beer and Wine model

Wine may not be for everyone, but a crime?

Wine may not be for everyone, but a crime?

Under “the beer and wine model,” the people of Minnesota have equal rights to marijuana just the same as to beer and wine.

The metaphor works because people are familiar with beer and wine.  The law treats marijuana the same as beer and wine in every way.  It also works because marijuana is safer than beer or wine.  This undercuts opponents’ “public safety” argument.

Wherever the law now says “beer” or “wine,” we can add the word marijuana.  What could be more simple?

Step one – decriminalization
Prohibition Still Doesn't Work. NORML.

Prohibition Still Doesn’t Work. NORML.

Of course, we need to delete all criminal laws referencing “marijuana” and “THC.”  This includes deleting both from the Schedules in Minnesota’s version of the Controlled Substances Act, now in Minnesota Statutes Chapter 152.  We call this “de-scheduling.”

In addition, the criminal drug laws will be amended to delete all references to THC and marijuana.  Most of these are also in Chapter 152.

That is the decriminalization component.  For supporters of The Tomato Model, that is all we should do.

Step two – regulation

Under the beer and wine model, we not only completely decriminalize, we also enact a set of laws regulating marijuana production and sale.  Here the existing beer and wine laws guide us.

We have equal rights to marijuana as to beer and wine.  So the marijuana laws mirror those regulating beer and wine.

Conservatives and Liberty advocates may prefer The Tomato Model for marijuana laws, as we had before Prohibition.  But here history has another lesson for us.

The legal framework for alcohol was The Tomato Model before the alcohol Prohibition.  But after the repeal of alcohol Prohibition, the laws regulated alcoholic beverages.  We’ll skip the reasons for that.

Suffice it to say, strong public support now exists for re-legalizing marijuana for responsible adult use under The Beer and Wine Model.  The ten states that have legalized so far have substantially followed The Beer and Wine Model.  Marijuana legalization in the Untied States so far means decriminalized and regulated like beer and wine.

What’s the Big Idea?

The Beer and Wine Model is the big idea.  Liberty.  Equal rights.  Civil rights.  Racial justice.  These core American values support the beer and wine model of legalization, far better the evils of Prohibition.

What should marijuana legalization look like in Minnesota?  The People should have at least equal rights to marijuana as to beer and wine.  With that core principle, the rest takes care of itself.

Details Matter Too

We’ll take a deeper dive into the details of proposed legislation in the future.  But now let’s take a look a few of the important details of re-legalization in Minnesota.

Home Grow is Alright With Me

Even with regulated beer and wine, we have the right to produce beer and wine at home in small batches.  Under the beer and wine model for marijuana regulation, we can grow marijuana on our own property, in small batches.

A little Minnesota history

Minnesota laws contradict each other when it comes to forms of marijuana.

In the 1970s, the laws favored plant-form marijuana and disfavored “the resinous form,” which we now call “wax.”  Then they thought “the resinous form” more dangerous than plant-form.   The distinction remains in Minnesota Statutes definition of a “small amount of marijuana.” That definition makes an exception for a small amount of the resinous form of marijuana, which currently remains a crime.

Yet in the 2010s, the Minnesota legislature crafted a Medical Marijuana law which favored “the resinous form” (concentrates) and disfavored plant-form marijuana.  More recently they thought that the resinous form was safer than plant-form.  The legislature then approved only the resinous form, for legal use within Minnesota’s original medical marijuana program.

The public policy in these two sets of laws conflict.

A rose is a rose is a rose

The time has come to end the legal distinction between plant-form and the resinous form.  We should treat all forms of marijuana as marijuana.  It’s the same plant, the same substance.  The distinction between forms creates needless confusion.  If it made any sense, the legislature would not have contradicted itself.

Repair the Minnesota Medical Marijuana Program
The once and future medical cannabis

The once and future medical cannabis

The lack of plant-form and home grow in Minnesota’s medical marijuana program has undermined it.  Now, Minnesota’s medical marijuana program is super-expensive and out of reach for disabled, sick people.  And insurance does not cover it.

The “concentrates only” approach of Minnesota’s medical marijuana program adds unnecessary cost.  Plant-form is less costly to produce.

The lack of legal home grow for Minnesota medical marijuana patients denies access to medical care to low-income, disabled people.  They can grow their own, cheap.

Suppliers and distribution

The law of supply and demand is stronger than criminal law

The law of supply and demand is stronger than criminal law

The “bad model” at this point is Colorado, the first state to legalize.  Why?  Because it  has a super-expensive seed to retail sale surveillance regimen then meant to reassure and deter diversion.  Now that ten states have legalized for adult use, this is an unneeded expense.

If retail cost is too high, the underground economy will continue.  We need to destroy the underground economy using the laws of economics, not failed criminal laws.

Suppliers and distribution.  The existing two medical suppliers and existing legal hemp growers are places to look for beginning suppliers.

Over-taxation

In some other states, over-taxation is a problem.  If retail cost is too high, the underground economy will continue.

Equal rights, and justice:  The “beer and wine model” comes to the rescue again.   We should not tax marijuana more than the beer and wine.  The “sin tax” on beer and wine is already sky-high.

Transitional issues

What are transitional issues?  These are issues that are big problems as we transition from a Prohibition Model, to a Beer and Wine Model of marijuana regulation.   But we expect that ten years after legalization many of these issues will subside.

There are many transitional issues.  Let’s mention a few.

Automatic record voiding of convictions and expungement

Minnesota’s legalization law should include automatic vacating of convictions and public records expungement.

Today, most people who qualify for criminal record expungement never file a Petition for Expungement in court due to cost barriers.  The law should require the government to automatically vacate every criminal conviction related to marijuana or THC, and expunge those public records.  We should remove the burden from the victims of Prohibition and put it on the government.

Many do not know that a typical Minnesota court expungement Order will not fully restore civil rights under federal law.  The conviction itself must be undone, vacated and dismissed, as if never happened.  We must do that, in order to fully restore all civil rights in a way the federal laws will recognize.  A simple sealing of public records will not fully restore civil rights.

Amnesty for Drug War P.O.W.s

We should immediately release all people locked up for any marijuana or THC crime, from jail or prison.

Force the Minnesota Department of Corrections to follow the law

When a court sentences a person to prison, it strips them of their civil rights and are commits them to the Minnesota Department of Corrections (DOC).  The Minnesota DOC revokes supervised release for legal medical marijuana users.  We must stop this Minnesota DOC policy and practice.   We need a statute to reign in this Minnesota DOC violation of existing Minnesota law.

What do you think?

Drop your comment below.

About the author

Thomas C. Gallagher, Minnesota NORML

Thomas C. Gallagher, Minnesota NORML Member

Written by Thomas C. Gallagher.  Gallagher has worked on re-legalization issues for over 30 years.

He is a former Chair of Minnesota NORML and is founding Board Member, since 2011.

Gallagher is also a criminal defense lawyer in Minneapolis with a heavy portion of marijuana defense cases.

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.

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 things 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!  This 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.
Thomas Gallagher, Minneapolis Criminal Lawyer

Thomas Gallagher, Minneapolis Criminal Lawyer

For more information about pretrial release and bail:  Do you have more questions about how to get your loved one out of jail, or 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, eight states in the U.S.A. have legalized marijuana for responsible use by adults 21 years and older; and, the majority 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 2017 despite a majority in the polls favoring legalization, criminal Prohibition lingers on, destroying innocent lives.

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.  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).
  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.  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 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!  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 it 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?  Suffice it to say that 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. assert and 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.  This will help your lawyer challenge the legality of the 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 may 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.  What to do?  Don’t!  Police cannot legally require anyone to do these field exercises, such as the “Nine-step walk and turn,” “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, even if falsely.  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.  (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 almost always recorded for potential 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.  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 with a few days or less.

Thomas 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.

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

The Romeo and Juliet Syndrome: Minnesota Sex Crimes Based On Age

In Shakespeare’s Romeo and Juliet, Lady Capulet says her daughter Juliet is “not yet fourteen,” being about two weeks from her fourteenth birthday.  Though we never are told her lover Romeo’s age, it’s apparent that he is also a teen, older, but still of tender chin (without beard).

Each from families bearing grudges towards each other, the star-crossed lovers’ fate is tragic.  But were they criminals?  Not then, as Juliet’s mother makes clear.

Would they be criminally prosecuted for age-based sex crimes in Minnesota today?  Young people like them can be and often are prosecuted in juvenile and adult criminal courts in Minnesota.  Should they be?  Should we instead change the laws in Minnesota to decriminalize young love?  Should foolish love be a crime?

 “Oh, what a tangled web we weave; When first we practise to deceive!” (from Marmion; A Tale of Flodden Field, by Sir Walter Scott.)

Age-based sex crimes are crimes based upon some aspect of sex, plus a too-young age.  Common law rape required an element of force, coercion or lack of consent.  The more modern invention, often-called “statutory rape” since it does not require an element of force or lack of consent, involves quite consensual acts.

But it rests upon the legislative fiat that a person younger than 16, for example, is so feeble-minded as to be incompetent to consent to sexual acts.  (See, Minnesota Statutes §609.342, subdivision 1 (a) “Neither mistake as to the complainant’s age nor consent to the act by the complainant [sic] is a defense.” The “complainant” is usually opposed to the prosecution.)

This premise appears deceptive – the more so considered next to the fact that in Minnesota the minimum age for competence to be criminally prosecuted in a delinquency petition is ten years old. See, Matter of Welfare of S.A.C., 529 N.W.2d 517 (Minn. App. 1995).

Why would the same body of law, the same jurisdiction, consider a ten year old competent to form intent in her mind to do a criminal act, but consider a thirteen year old incompetent to intend to have sex?  A tangled web, indeed.

O Romeo, Romeo, wherefore art thou Romeo?

“O Romeo, Romeo, wherefore art thou Romeo?”

Do we really want to permanently label our Romeos and Juliets sex criminals, for the crime of being young lovers?  Do we want them to have to Register as a Predatory Offender for a minimum of ten years up to life?

Though many of Minnesota’s Criminal Sexual Conduct statutes contain exceptions for lovers within a range of 24 to 48 months depending upon the crime, for those outside these exceptions “mistake of age,” they say, is not a defense.

 “The Party was trying to kill the sex instinct, or, if it could not be killed, then to distort it and dirty it.”   — George Orwell (1984)

These days, one could categorize the growing list of sex crimes based upon proximity: penetration, touch, and non-touch.  When sexual penetration is criminal, it is a more serious crime than touch, which in turn is generally thought to be more serious than non-touch.  Examples of non-touch sex crimes include child pornography or indecent exposure.

Before our modern day Romeo and Juliet became lovers, their flirting included sexting.

Young lovers have been around long before Minnesota criminalized them.  But some non-touch sex crimes are an artifact of recent technology, like smart phones.  Most kids have them these days, and take pictures with them, sometimes naked and arguably sexual images of themselves.  Then they share them with each other over cell phone towers and Wi-Fi connections to the internet.  The images may be stored on their phones or in the data cloud.  Sexting is a new word meant to describe sex texting – sending images via text messaging applications.

Minnesota laws have not kept pace with the times.  Should every foolish act be made a crime?  Our laws criminalizing child pornography are now being used to prosecute young people for taking naked and arguably sexual images of themselves, then sharing them with each other.

A criminal Complaint or Petition for Adjudication of Delinquency accuses them of Possession of Child Pornography, Dissemination of Child Pornography, or both, under Minnesota Statutes §617.247.  Such prosecutions appear to violate the young person’s fundamental right to freedom of speech and expression under the First Amendment of the U.S. Constitution as well as the Minnesota Constitution.  Better, let’s change the laws to make them less unfair.

 Can a juvenile be a “predatory offender” due to sexting or being a young lover?

Labeling juveniles “predatory offenders,” requiring them to register their whereabouts, vehicles, schools, addresses, and on and on; and sending them to lock-up in prison of they slip up any little part of doing so – is that what we really want to do after a juvenile has had consensual sex with his or her beloved, or after sexting?

Rehabilitation vs. Predatory Offender Registration for ten years to life.

Juvenile courts were a result of social reform movements of the late 19th Century.  Rather than criminally prosecute juveniles like adults, a separate juvenile court has been set up with a greater focus on rehabilitation for those adjudicated responsible for some “criminal” act.

An important aspect of juvenile courts is that they have traditionally been non-public – confidential – to protect the juvenile from severe collateral consequences, and allow the kid to leave youthful mistakes in the past.  In recent years, that has been eroded to a degree.  In Minnesota, if a juvenile is charged with a felony and is 16 years or older, the case is public. (Almost all “sex crimes” are felonies in Minnesota.)

Current Minnesota statutes contain no juvenile exception for “predatory offender registration.”   See, Minnesota Statutes § 243.166.  This conflicts with the main, rehabilitative purpose of juvenile court and its protection of juveniles from life-long public exposure.

The only ways to prevent a juvenile charged with a sex crime from being required to register with the state as a sex criminal for ten years to life; is to get the entire case dismissed, an acquittal, or a stay of adjudication.  An adjudication triggers registration, under current law.

Criminal lawyers and courts can wrestle with these things, to try to save some young people from the jaws of the law.  But wouldn’t it be better to change the laws to make them less unfair and less harmful?

Thomas C. Gallagher is a Minneapolis criminal lawyer who handles sex crime defense cases and juvenile sex crime delinquency cases in Minnesota, including those involving claims of criminal sexual conduct based on age, and sexting child porn cases.