Category Archives: Domestic violence defense attorney

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.

How to Get Rid of a Domestic Abuse No Contact Order in Minnesota

In a criminal case with a “domestic relationship” element, it’s common for the court to issue a No Contact Order prohibiting the accused from having contact with the person claimed to be “the victim.”  The person they’re calling their victim is not consulted; is not asked.  In fact, the witness they’re casting in the victim role has no real voice in this – at least not in Minnesota in 2017.  He or she cannot “press charges;” can’t “drop the charges.  The current system takes the control away from him or her, and gives it to the prosecutor.  It’s been that way for decades.

If you are the accused, forget it.  The judge is not going to drop the no contact order for you.  No, this is written for the witness – one forced into the role of victim of the prosecution.

Ain't Nobody's Business If I Do

Ain’t Nobody’s Business If I Do

If you are the witness in a misdemeanor domestic assault case, for example, chances are you want the no contact order dropped.  But how?  The information here should help get you started, regaining control over your life – taking it back from the government.

Does this scenario sound familiar?  You and your other were enjoying some free time together, with adult beverages.  After a few drinks, some conflict and less restraint in expressing it.  Somehow, the police got called.  The 911 call – by whomever – was recorded.  Tempers flared.  Police officers showed up.  They picked someone to arrest, sometimes with help.  In what now seems like no time, it’s over.  They’re gone.  And so is your other, who is now in jail.  Work was missed.  Bail money.  A lawyer.  And – a No Contact Order.  The pretrial No Contact Order could be in place for months.  After that, it may be replaced with a probation No Contact Order for years.

In order to know how to try to get rid of it, it’ll help to understand what it is – to drill down into it.  Here we go.

In a criminal case, any kind of criminal case, the court can and often does set conditions of pretrial release.  Or it can release the accused on their personal recognizance (meaning no conditions, just show up for court appearances.)  One condition of pretrial release the court can require is bail.  Bail can be in the form of cash or a bond.  In Minnesota, we have the right to pretrial release on money only bail, or unconditional bail.

In other words, we have the right to be presumed innocent before a trial and release without any conditions other than bail.  For non-felony cases there is a maximum bail.  (For felony cases, there is no maximum.)  The maximum bail for a non-felony case is four times the maximum fine.  The maximum for a misdemeanor is $1,000 so the maximum bail is $4,000.

For a gross misdemeanor the maximum fine is $3,000 so maximum bail is $12,000.  Since we have the right to money-only bail, without any other conditions, in a non-felony case the maximum bail must be without other conditions.  And, perhaps not coincidentally, when judges set unconditional bail amounts in non-felony cases, it’s equal to the maximum:  $4,000 in a misdemeanor cases and $12,000 in a gross misdemeanor case.  This is good to know, since most domestic assault cases are non-felony.

It also means that the court cannot issue a no contact order as a condition of pretrial release in a non-felony case if the defendant posts maximum bail.  Some people were not happy with that.  So, several years ago Minnesota adopted a statute authorizing courts to issue a Domestic Abuse No Contact Order – a name so long it soon was more often referenced by an acronym, D.A.N.C.O.  It was modeled after the earlier Minnesota Domestic Abuse Act’s Order for Protection law, a civil case heard in family court but with criminal penalties for violations.

Bottom line, a defendant can now post maximum bail in a non-felony domestic assault (or similar) case, and get no other conditions of pretrial release, yet still be subject to a DANCO.  Minnesota Statutes §629.75, Subdivision 1 (b), says in part:

“A domestic abuse no contact order is independent of any condition of pretrial release or probation imposed on the defendant. A domestic abuse no contact order may be issued in addition to a similar restriction imposed as a condition of pretrial release or probation.”

Perhaps a court will properly strike down the law as unconstitutional one day, but that is beyond the scope of this article.  This is a description of what courts are doing now in Minnesota.

It’s important to understand that in a criminal case there could be two no contact orders: one as a condition of pretrial release, the other as a DANCO.  It may help to understand the distinction by looking at the remedy for a violation to each.  If a condition of pretrial release is violated, the remedy is for the court to issue an arrest warrant, book the defendant into jail, and revisit the issue of pretrial release in a new bail hearing.  If a DANCO is violated, that can be charged as a new, additional crime with a different date of alleged offense (compared to the original criminal charge).  There could be an arrest, jail, a bail hearing, on that new charge of violation of a DANCO.   (The one, same act could be both a violation of a condition of pretrial release; and a criminal violation of a DANCO.)

As a result, at least when it comes to the No Contact condition, it may not matter much whether the defendant posts maximum, unconditional bail or not.

Do courts ever rescind or get rid of No Contact Orders?  Yes, sometimes, but they make it difficult.  The reality is that the witness (“the victim” of the prosecution) has no real voice unless they work hard and persevere.  It helps if he or she knows how to go about it.  It also helps to have a witness lawyer helping make sure that he or she will be heard.

Domestic violence cases, perhaps like many things, vary along a continuum.  A few are horrific; but the vast majority are not.  Just ask any police officer what the most common 911 response call is – “a domestic.”  In how many of these cases is alcohol a factor?  Almost all.  The majority do not involve any physical harm or injury or minimal like a slap, bruise or scratch.  The harm caused by the criminal prosecution in response is typically massive and disproportionate.  But you already know that now, don’t you?

The number one question when you go to court will be: “are you afraid of him or her?”  What is written in the police reports will be reviewed, over and over.  People are not always the best historians when they are angry and drinking.  (But discussing the events of the night in question is often not a good idea.  Discuss with your lawyer before doing so.)

“Did you say, ‘when you go to court?”  Yes, you as the witness, were never asked and now the burden has been squarely placed on your shoulders to go to court to plead with the prosecutor, then the judge to drop the no contact order.  It’s your only chance.  (The prosecutor or their “advocate” may discourage you from coming to court to ask the No Contact Order be dropped.  If you don’t come, it won’t get dropped.)

Many prosecutors have people working for them claiming to be “victim advocates.”  Leaving aside the prejudicial “victim” labeling, are they really advocates?  A few good ones are.  But many see themselves as the advocate of the prosecution agenda, whose job it is to control and manipulate “their” victim to serve the ends of the state.  The few good ones actually listen. The best will even fight for the witness’s position and truly advocate for it.  Which type will you get?  Luck of the draw.  If you get a good one, this is good fortune.  The bad ones are best ignored to every extent.

Minnesota has a Victim’s Rights Act, Minnesota Chapter 611A.  One might think that prosecutors claiming to represent “victims” interests would use and cite this law often.  I’ve almost never heard it happen.  But I have cited it in most of my domestic assault defense cases, and every time I’ve represented a witness.  Why?  Because the law says that prosecutors and courts are required to listen to the “victim” and allow them a voice.  But many don’t seem to want to hear it.  Many prosecutors want to use the witness for their purposes and disregard the effect on their real lives, only to discard after use without thought or care.

It helps for the witness to have a lawyer experienced in domestic violence cases.  Your lawyer should know the courtroom, the players, and how to make sure your voice is heard.  We will not be ignored.  We will make your voice heard.

More can be written.  More could be said.  Hopefully this brief discussion has been useful for you.  It’s a stressful situation to call police for help, only to have them and their prosecuting lawyers turn into the enemy that threatens to ruin you and your family.  But there are countermeasures.  You can assert your power.  You don’t need to let them have it.  You can fight back, and regain control over your life.

If you have more questions, consider calling a Minnesota criminal defense lawyer experienced in domestic crime defense to discuss your options.

Thomas C. Gallagher is a Minnesota domestic violence defense lawyer with decades of experience with domestic assault and other domestic crime cases and Minnesota restraining orders.  He regularly represents the accused to successful outcomes; and sometimes is retained as a witness lawyer.