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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.

Self-defense: Dominance, Escalation and Deception

Whether you think little or a lot about self-defense, you can live a better life when you consider self-defense from two perspectives: the practical and the legal.  The different schools of self-defense training agree on many things.  Similarly, the law of self-defense agrees in many ways across jurisdictions, cultures, even history.   And though practical self-defense training (how to do it) and the law of self-defense seem to be quite different perspectives, they share much in common.

Whether a legal defense of self-defense is accepted will depend partly upon what people believe the defendant’s situation was at the time – a totality of the circumstances.  Inevitably jurors, judges, all of us will compare what we believe the person being judged did, with what we imagine we would have done in those hypothetical circumstances.

“Better judged by twelve than carried by six.”

A wise aphorism in the lore of self-defense is “better judged by twelve than carried by six.”  The person required to use force in self-defense faces a two-fold threat: first surviving the physical attack; and second surviving the potential legal threat of being wrongly accused of a crime.

Dominance, Escalation and Deception

Some physical attacks are part of a robbery, a rape, a riot, or planned.  Putting those to one side for now, let’s look at the other sort – attacks that spontaneously rise from anger, conflict or a sense of having been treated disrespectfully by someone.  What are some strategies and tactics that can be used to both good practical and legal effect?

The Social Reality

Humans are social animals.  We have always lived in groups, each with our roles within the group.  Like other social animals, we have orders of social dominance, and individual competitions for dominance ranking.  These can be in part based on coercion (such as laws and law enforcement) as well as the actual use of force – lawful and unlawful.  Generally we are unaware of our social dominance orders and roles.

But when it comes to self-defense, awareness can be a powerful tool to help us avoid trouble – to avoid both physical attacks as well as legal attacks.

A person may present to you their subjective belief that you have treated them unjustly or wronged them in some way.  How can you use dominance, escalation and deception to avoid trouble?

call-of-the-wild-image-excerptWhen animals compete for social dominance, they often will display an escalation of threatening physical posturing, sometimes followed by an attack and fight.  They know what they are competing for – social dominance, a recognition by the other of their superior position.

If at some point one of the competitors backs down and shows surrender, this submission will cause the winner to cease the attack.  The dominant animal will not normally hurt the submitting one.  One great story about this in literature is Jack London’s The Call of the Wild.

Your humility may not be as deep and sincere as you might like – but you can use some tactical deception and adopt an attitude of humility.  If backing down helps avoid a conflict, you win.  You can’t stop someone from baiting you.  But you can refuse to take the bait.

Though humans can’t necessarily be trusted to stop attacking a person who is clearly not competing for dominance, it is a strategy that may work in some situations.  If the conflict is about the person’s perception of honor, justice, having been wronged – it doesn’t matter if they are justified – this may be a situation where conceding dominance, and de-escalation of conflict tactics may resolve the situation enough so that you can leave the situation, and move on.

Asserting dominance, escalation of conflict, can be just the thing

When a person or group threatens attack or attacks as part of a plan, like robbery or rape; conceding dominance and de-escalation of conflict tactics are unlikely to work.  In these situations, the aggressor is a predator with a goal, acting with rational purpose not just emotion.

Here, asserting dominance authoritatively, escalation of threat displays and the use of force may be best.  Why?  Predatory behavior seeks an easy target.  To ward off predators, be a hard target.  Show strength, confidence, and dominance.  Lead the escalation of conflict.  To the extent that the predator is primarily opportunistic, they may be deterred. Where not discouraged, the predator may be effectively disabled by force.

Evade, Escape, Engage.

Where practical, it’s best to avoid a potential physical concentration.  No one wins a fight, when everyone gets hurt.  This could mean crossing the street, walking the other way, driving away – any way out of there, away from the threat.

Sometimes it’s not a reasonable option to retreat – for example if the threat is already close and would simply attack you from behind if you turned and ran.  But in unarmed combat especially, creating some distance can increase safety.  Even when the attacker is armed, creating distance can sometimes reduce risk of harm.

In many traditional martial arts disciplines, for example Wing Tzun, a general rule is that we do not initiate an attack.  This idea, dating back hundreds – perhaps thousands of years, is not based on any legal considerations.  It’s a fighting tactic to either avoid a fight by not initiating; or forcing the opponent to physically commit to an action that can then be exploited with various combative counter-techniques.  This practice of not initiating a fight will also be helpful in the event of legal trouble, and the assertion of a legal defense of self-defense.

Before and once an attack is underway, we assess the threat and seek to bring a proportionate, reasonable response.  We don’t want to respond disproportionately, but the perfect is the enemy of the good.

Too little force to mount an effective defense could result in serious injury or death for ourselves or loved ones.  Too much could lead to legal trouble.  Those who judge us from outside the situation have the stress-free benefit of hindsight.  The arm-chair quarterbacks often think they could’ve done better, even though they weren’t there.

Stop the Threat

Once force is used, when should it stop?  Self-defense systems generally teach that you should use necessary force until the threat is no longer a threat.  Contrary to the impression created in many films and television shows, the lawful self-defender does not seek to hurt or to kill, but rather to disable the attacker or attackers – to stop the threat.

If an attacker is hurt or killed that is an unintended consequence of the focused goal of self-defense – to simply stop the threat.  Once the attacker is disabled from continuing the attack, the use of force against them should also stop.

After the use of force in defense of self or another

Once you have confirmed that the threat has been stopped or disabled, if it is safe to do so (being aware of third parties and weapons), it’s a good idea to render First Aid or whatever assistance can be rendered to the now disabled attacker, and contact the police if possible.

We’ll look at how to handle police contacts in the future (what to do, what to say and when).  But what you do, and knowing what to do, before police contact stemming from the use of force in self-defense is far more important.  Prepare yourself by learning and training in self-defense – not only for your sake but for the sake of your family, co-workers, and those around you.

Thomas Gallagher is a Minneapolis Criminal Lawyer whose practice includes asserting the defense of self-defense and defense of others on behalf of clients.

Comments are welcome below.

Minnesota Court Waters Down Legal Definition of Illegal Drugs: Toilet Water Now Criminal to Possess

Water Bong

Water Bong

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree.  The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.  The case is Minnesota v  Peck, A08-579, Minnesota Supreme Court, October 22, 2009.

The majority opinion takes an absurd literal view, arguing in essence that any amount of a substance dissolved in water makes that water a “mixture” containing that substance.  Perhaps.  But, since Minnesota’s criminal prohibition laws are organized to make greater quantities of drug possession a more serious crime than smaller quantities, such a simple-minded view defeats the purpose of the quantity-based severity levels.

If a person possessed one-tenth of a gram of methamphetamine, they could be charged with a Controlled Substance Fifth Degree crime, with a five-year maximum.  But – dissolve the one-tenth of a gram in 26 grams of water, on purpose or by accident, and now under this new decision from the Minnesota Supreme Court, that can be prosecuted as Controlled Substance First Degree – with a 30-year prison term.  Just add water for five times the sentence!  In the case of marijuana, a non-criminal amount under 42.5 grams smoked through a bong could give the police and government lawyers the legal right to charge a felony drug crime with possible prison time – not for the marijuana, but for the bong water. This defeats the legislative purpose of treating larger quantities of drugs more harshly.  Worse – it makes no sense.  It is irrational.  It leads to an absurd result.

What is a bong?  It is a water pipe.  A water pipe, such as a bong, can be used to smoke tobacco, marijuana, methamphetamine (as in the Peck case), or anything that can be smoked.  Smokers view the water which has been used to filter and cool the smoke as something disgusting, not unlike a used cigarette filter, to be discarded – sooner or later.  The used water is not commonly used for any other purpose.  Apparently a naive or misguided police officer testified otherwise in the Peck case, and – amazingly -the four in the majority of the court appears to have given that testimony credit.

In general, courts have made efforts to prevent police and government lawyers from having the ability to manipulate the facts or evidence in such a way as to either create criminal liability for targeted people, or, to increase the penalty the target might suffer.  Here is an instance to the contrary.

If the government wants to charge a more serious drug crime – what to do?  Just add water!  (Water is heavy – heavier than drugs.  Drug crimes are based on weight.  Water is not currently defined by law as an illegal drug.)

Frequent news reports remind us about the drugs in the rivers and most of our municipal water supplies (not concentrated enough to hurt us, we are reassured).  Type “in water supply” into your favorite internet search engine and you can read thousands of reports of scientific studies documenting this.

As a result, if you have water sourced from a river, like we do in Minneapolis, then you could now be charged with a Minnesota Controlled Substance First Degree Crime (toilets tanks hold way more than 25 grams of water with illegal drugs dissolved).  This can be a particularly troubling variation of the trace-drug criminal case, where only a trace of suspected illegal drugs is found.  Trace cases can be problematic, in part because there may not be enough of the suspected material to be tested twice for its chemical identity. 

The widespread scientific reports of cocaine contamination (in trace amounts) on most United States currency, would be another example of “trace evidence of illegal drugs possession.”  Under the Peck case, we can have a situation of a trace amount of illegal substance “mixed” with water, which is heavy.  Or – we could have a relatively small amount (by weight) of illegal contraband mixed with a large amount of (heavy) water.

Even if you believe some drugs possession should be a crime – should one gram mixed in water be treated the same as one kilogram (1,000 grams) in powder form?

What can be done about this particular absurd injustice?

  1. Ask the legislature to repeal the criminal prohibition laws.
  2. Remember this case at election time.  Vote!  You can vote for or against Minnesota Supreme Court candidates, including incumbents.
  3.  Jury Nullification, or the rule of jury lenity.  Jurors have legal rights to acquit, despite the facts, despite the judges instructions on the law.  Just do it!
  4. Remove all water sourced from rivers from your home and office, including toilets, in the meantime.

At least the dissenting opinion, by Justice Paul H. Anderson, joined by Justice Alan C. Page, and Justice Helen M. Meyer, exhibits common sense.  Here is what Justice Paul Anderson wrote in dissent of the majority opinion:

“The majority’s decision to permit bong water to be used to support a first-degree felony controlled-substance charge runs counter to the legislative structure of our drug laws, does not make common sense, and borders on the absurd…the result is a decision that has the potential to undermine public confidence in our criminal justice system.”

It’s a good read (link at the beginning of this article, above).  It is shocking that four in the majority could have disagreed with the dissenters.  Hopefully, this is the beginning of the end of the 100 year experiment in using criminal blame as a strategy to solve a public health problem.

It’s time to change the laws.  This absurdity makes it all too clear. Written by Thomas C Gallagher, Minneapolis Drug Lawyer

How to Know > Do You Need a Criminal Defense Lawyer?

Do I need a Minnesota Criminal Lawyer?

Do I need a Minnesota Criminal Lawyer?

Do You Need a Lawyer?

When it comes to criminal law, most people have been fortunate never to have ask themselves that question.  We do not expect the unexpected.  How do you know when, “I need a lawyer!”

Value of Keeping Your Public Criminal Records Clean

With no public criminal record, your potential future employers won’t be scared off by a criminal conviction.  You could be disqualified from certain occupational licenses  in the event you were convicted of a crime.   Certain convictions can also result in: loss of civil rights, such as voting and firearms rights; removal and deportation from the U.S.; denial of naturalization; loss of student financial aid; loss of housing; offender registration, and other negative consequences.

For many, the largest, quantifiable impact will be to future income stream.   How can a criminal conviction affect your future income?  If you assume a person is age 30 and will work until 70, that is 40 years. Multiply 40 years times a conservative $20,000 estimated reduction in annual income as the result of a conviction.  That would amount to $800,000.  At eight percent interest per year, that would be over one million dollars in lost income by age 70. I have had clients suffer a $45,000 per year reduction in income while an expungement proceeding was pending in court, so the real number could be in the millions, depending upon career path.

Is Jail or Prison Time Probable if Convicted? 

If you are charged with a serious criminal offense, there may be a threat of jail or even prison time.  Even for minor crimes, jail can be a real threat, when a person has prior convictions.  The maximum possible incarceration term specified in the criminal statute charged is rarely executed.  In felony cases, the Minnesota or Federal Sentencing Guidelines will provide a “presumptive sentence” after based upon the severity level of the offense of conviction and criminal history score.  Though there can be upward or downward departures from the presumptive sentence, it is useful to look at the presumptive sentence. There are also “mandatory minimum” sentencing statutes in Minnesota and United States Statutes which can be cruel, severe, and lengthier than the presumptive guidelines sentence.  It is vital to consult a criminal defense lawyer to discuss these factors. In non-felony, misdemeanor cases, up to one year in jail can be possible in Minnesota cases.

If It Is Important to You, Then It’s Worth Getting the Best Lawyer You Can to Help

For many reasons, it is valuable to prevent a criminal charge, to prevent a criminal conviction, and to prevent a criminal sentence in Minnesota.  The rule is simple.  If it is important, then it is important to have a good lawyer’s help in protecting it.  You and your family are worth a lot.  A good criminal lawyer can help protect your future, and your future income earning potential.  Protect your good name while you can – before it’s too late, before a guilty plea.  (Keep in mind that in order to qualify for a Minnesota expungement someday under Minnesota’s expungement statute, you’ll need to plan ahead in order to do so, with the help of a good criminal defense lawyer while the charge is still pending.)

This article was written by Minneapolis Criminal Lawyer  Thomas Gallagher.  Gallagher answers questions about Minnesota law court cases and issues every day, free, over the phone.  He also provides free half-hour office consultations by appointment.  You can give Gallagher a call with your question or to make an appointment at 612 333-1500.

Avoiding Traffic Stops – New Minnesota Laws 2009

Another year, another truckload of new laws – the usual, right?  How does that affect you?  For the most part, hopefully it doesn’t.

But when you consider the fact that most criminal law problems – large and small – start as vehicle traffic stops; it pays to be aware of new laws allowing police to stop you.  Some of these went into effect June, July and some August 1, 2009.  All represent an expansion of government power and a reduction of your liberty and freedom.

 Do you remember several years ago when advocates of another law to mandate seat-belt use upon penalty of a petty misdemeanor fine, reassured us “don’t worry, we will never ask for a primary seat belt law;”  How long is “never,” again?  Not that long, it seems.

It starts with a traffic stop...

It starts with a traffic stop…

Police now can stop you for merely not wearing a Seat-belt in Minnesota.  A “primary violation” seat belt law gives police the legal right to stop a vehicle if someone in the vehicle appears to not wear a seat belt.  The previous version of the seat belt law did not allow traffic stops solely for the appearance of not wearing a seat belt.  This year’s law does.  The law eliminates personal choice, and personal responsibility.  It hands over more responsibility and more power to the government, taking it away from the individual.  It reduces the need for people to educate themselves, be responsible for themselves, and develop a personal moral code.  It reduces your freedom.  As usual, they claim sacrificing your freedom is worth it – for your own good.

The new “primary” seat belt violation law increases the potential for stops and arrests resulting from racial profiling.  Racial profiling is a real problem – difficult to solve.  Though police generally don’t view themselves as racist (few people do), they are no different from the rest of us, and are no more perfect in relation to racial stereotyping and its effects.  We know that when it comes to race, there is a disparate impact upon people identifiable as part of a racial minority group that can only be explained by race.  Creating more opportunities for police to stop people for petty, technical violations inevitably leads a worsening of the racial profiling problem.

Social control by force – by law enforcement – is corrosive to our culture and our youth.  Why learn responsibility as an individual if the government allows you little of it, and controls ever smaller aspects of your life – year after year, law after law?  This seat belt law gives law enforcement yet another reason to pull someone over, and to find another, bigger reason to interfere with your life.

Expansion of Child Seat law.

Under the new law, children in a motor vehicle must now be in a child passenger restraint system until their eighth birthday or they reach 4 feet 9 inches tall.  Of course, this is yet another reason for police to stop you if it appears you might be in violation of this.

Global Positioning Systems on Windshield .

Global Positioning Systems (GPS) can now lawfully be mounted or located near the bottom-most part of a vehicle’s windshield.  Previously, anything mounted on the front or rear windshield put the driver at risk of a traffic stop by police.  The “obstructed windshield” statute, used by police to justify such traffic stops, does have some language about obstruction to the drivers view – yet, it gave police the legal excuse to stop someone if there was anything on the windshield, or between the windshield and the driver.  These have included RADAR detectors (otherwise legal), notepads stuck to the windshield, air fresheners or other items hanging from the rearview mirror, and the like – in addition to GPS units mounted to the windshield.  At least now there is an exception for GPS units mounted to the lowest portion of the windshield.  Presumably in that location, the driver’s view will not be impeded.

What about a RADAR detector?  Prudence might argue for a newer RADAR detector with a GPS unit incorporated in the same unit.  That – or don’t mount it to the windshield.  (See, Speeding Laws in Minnesota for a discussion of MN speed law and defense.)

Tips for Avoiding Traffic Stops.

Other than changing your race, age, car, etc., how can you minimize your risk of a traffic stop?  Of course, obeying the traffic laws seems obvious.  But what about all of the technicalities the police can use to either ruin your day, or ruin your life?  Here’s a list of a few:

  1. Avoid placing any decals of any kind on your front or rear windshield, even where instructed to do so by a government agency.  Instead, place them on a side window, where necessary.
  2. Make sure there are no cracks in your windshields.  In winter, make sure they are free of ice and snow.
  3. Avoid hanging items from your rear view mirror, like air fresheners.  Place them below the windshield level.  Avoid hanging anything from sun visors.
  4. Make sure all of your lights, brake lights, turn and lane change indicator lights, as well as license plate illumination light – are all working.
  5. Make sure your vehicle is displaying proper license plate or other registration evidence.
  6. Make sure your vehicle’s suspension, alignment and steering are good enough that your vehicle does not weave.
  7. Avoid tinted glass police may view as illegal.  (And work on changing this law.)

Given the plethora of overreaching laws already in existence, it has never been more important to prevent police from violating your privacy and liberty interests.  Traffic stops are the narrow end of the wedge the government can drive into you and your life, to hurt or destroy you.  Every police contact creates a risk of a life-altering criminal charge – innocent or not.  Every smart citizen should strive to avoid these police contacts in the first place.

For further information: Author, Thomas Gallagher, Minneapolis Criminal Lawyer.