“Can rights to firearms be restored after misdemeanor crime of domestic violence conviction?”
Yes, you can restore gun rights after a misdemeanor domestic. But it’s complex. Once upon a time, the law stripped a person’s civil rights for a felony; but not a misdemeanor. A nice bright line. Well, not any more.
What happened? Politics, legislation, new laws.
On the bright side, we could solve the problems new laws cause, with even newer laws. The Minnesota legislature could solve this problem; and so could the United States Senate and Congress. But the focus here will be practical, on the law as it now stands.
Felony vs. Misdemeanor
A felony is a more severe level of conviction than a misdemeanor. A felony conviction triggering loss of civil rights, including Second Amendment rights, is not new. But their loss from selected misdemeanors only goes back to around 1996. (Go here for a summary of restoration of gun rights after a felony conviction.)
The federal “Violence Against Women” Act, a/k/a the Lautenberg Amendment, created a statutory definition of a “misdemeanor crime of domestic violence.”
And that definition strips persons with “misdemeanor crime of domestic violence” convictions of their civil rights to guns. The federal law affects your gun rights after a Minnesota state misdemeanor domestic conviction.
“Does the Minnesota Conviction fit within Federal Definition?”
The federal definition of “misdemeanor crime of domestic violence:”
“(A) the term ‘misdemeanor crime of domestic violence’ means an offense that—(i) is a misdemeanor under Federal, State, or Tribal law; and18 U.S.C. § 921(33) (a).
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian . …
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial … , either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.“
Federal definition is narrower, than Minnesota’s
This federal definition is narrower than Minnesota’s definition in at least three ways. First, it requires a statutory element of physical force (or a deadly weapon) in the state statute of conviction; which is lacking in most Minnesota cases.
Second, the federal relationship element is narrower than Minnesota’s broad relationship definition (which includes for example, college roommates).
Third, the due process protection qualifiers exclude cases with a right to counsel violation, or missing factual basis in support of the adjudication of guilt.
As a result, convictions which might at first appear to qualify as “misdemeanor crimes of domestic violence” may not actually qualify under the federal definition. If the Minnesota case does not fit the federal definition, then the federal law does not impair gun rights.
Minnesota three-year ban; automatic restoration
Even if the federal ban doesn’t apply, there are still Minnesota statutes which also strip gun rights after a domestic assault conviction. Let’s take a look at the Minnesota three-year ban now, before we get back to the federal laws.
Three-year loss of gun rights after a misdemeanor domestic assault: Minnesota’s general rule is an automatic three-year ban for a domestic assault conviction. Minn. Stat. § 609.2242, subd. 3:
“(e) … a person is not entitled to possess … a firearm if a person has been convicted on or after August 1, 2014, of domestic assault under this section or assault in the fifth degree under section 609.224 and the assault victim was a family or household member as defined in section 518B.01, subdivision 2, unless three years have elapsed from the date of conviction and, during that time, the person has not been convicted of any other violation of this section or section 609.224. … A person who possesses a firearm in violation of this paragraph is guilty of a gross misdemeanor.”Minn. Stat. § 609.2242, subd. 3
Minnesota Statutes Section 624.713, subd. 1 (8), says the same – broad ban on firearm possession for three years after date of conviction.
What happens after Minnesota three-year ban?
Does the statute automatically restore gun rights? Or is it necessary to petition the court?
Minnesota law automatically restores gun rights three years after the date of conviction. This is the date the judge accepted the guilty plea or verdict. Usually the sentencing date is the date of conviction. However, you may still need to try to get Minnesota to restore rights to satisfy the requirements of the federal ban; if the conviction fits within the narrower federal definition.
For convictions that are outside the federal “misdemeanor crime of domestic violence” definition, no further court action should be necessary.
Federal Law Recognizes: States are in Charge
The states can restore gun rights after a domestic conviction: Here, a court summarizes the legal history, and current law, that the states decide:
“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).DuPont v. Nashua Police Dept, 113 A. 3d 239 (New Hampshire Supreme Court 2015).
‘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).”
States can restore gun rights for misdemeanors
Another court emphasizes this, including gun rights after misdemeanor convictions:
“It is clear from the federal law that the majority of domestic violence offenders will not regain their firearms possession right. However, there are procedures for the restoration of the right … It is up to state legislatures to constrict or expand the ease with which convicted misdemeanants may apply for a receive relief under these measures.”U.S. v Smith, 742 F.Supp.2d 862 (S.D.W.Va. 2010), cited in, Enos v. Holder, 855 F. Supp. 2d 1088, 1099 (Dist. Court, ED Calif. 2012).
Conclusion? Yes – Minnesota courts can restore gun rights after a “misdemeanor crime of domestic violence.” The federal courts and federal law acknowledge this.
If case fits narrow federal definition, Minnesota can still restore rights
We’ve already discussed how the moment of conviction automatically triggers the Minnesota three-year ban. And it automatically expires three years later assuming no further convictions.
But this question remains. What will it take to get relief from Minnesota to end the ban for Minnesota convictions within the narrow federal “misdemeanor crime of domestic violence” definition?
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.”18 U.S. Code § 921 (a) (33)
Three pathways: restore gun rights after domestic
This federal statute, as interpreted by the courts, currently contains three potential pathways. The pathways lead to full civil rights after a “misdemeanor crime of domestic violence.” We’ll explain. But first the list from 18 U.S. Code § 921 (a) (33) (B) (ii):
- “the conviction has been expunged or set aside;”
- “the person has been pardoned;” or
- “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”
In Minnesota, a convicted person can apply to the Minnesota Pardons Board for a pardon. If it grants a pardon, this restores civil rights to firearms to the satisfaction of the federal law’s requirement.
A person can apply for a pardon without a lawyer, or can retain a lawyer to help. Most applicants do not use a lawyer to assist with their application.
A Minnesota pardon is one way to restore your gun rights after a Minnesota misdemeanor domestic conviction.
2. “Conviction has been Expunged or Set Aside”
Can an expungement restore gun rights after a misdemeanor domestic conviction? Or, should we get an Order Setting Aside?
A plain reading of the phrase “expunged or set aside” communicates either of two separate ideas. Yet, rarely in English usage we use the conjunctive “or” to really mean “and.” This redundancy is unusual in our written language; more common in speech, used for emphasis, to unwind our thoughts into words.
In the legal context, “to expunge” has a meaning different from the meaning of “to set aside.” In Minnesota, the expungement remedy has been gutted over the years by the legislature. Today for most it means to partially seal, or make partially non-public, criminal history records, including records of arrest, charge, conviction. But compare a Minnesota Statutes Chapter 609A expungement, with Chapter 299C expungement.
It’s a legal remedy with a range of possibilities. But all seek to give the person the benefit of a fresh start, at least to some extent. (Problem? The expungement remedy fails unless total, complete and without exception. So most Minnesota “expungements” fail.)
To set aside
The meaning of “to set aside” in the legal context is different, connoting setting aside a conviction. Other similar words used in Minnesota include “vacate (the adjudication) and dismiss (the charge).” The essence of “to set aside” is to undo the problematic conviction. So, a court Order could completely undo the conviction, as if it never did happen. Or, the prosecuting attorney and the defense attorney could agree to vacate the conviction, and ask a judge to approve. In one possibility, the agreement could replace the conviction with another that would not trigger the federal disability.
A federal court decision has rendered a typical 609A Minnesota Expungement Order an 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” & “set aside” interpreted to have equivalent meanings under 18 U.S. Code § 921 (a) (33) (B) (ii))
Time will tell whether other courts, especially those with jurisdiction over Minnesota, will agree with this Tenth Circuit case. But prudence dictates navigating around its dangers prospectively.
The lawyer seeking restoration of civil rights after a misdemeanor domestic conviction can seek an Order Setting Aside Conviction (“Vacate and Dismiss”). This should overcome the problems presented by the 10th Circuit’s Wyoming v. US.
3. “Person has had Civil Rights Restored”
Now, let’s discuss the third pathway mentioned in the federal statute to get back gun rights after a misdemeanor domestic conviction.
The law’s third way is “the person has … had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).”
On the surface, the plain language reading is good for the person seeking to solve this problem. But, courts have interpreted this language in a restrictive way, rendering this path uncertain for people with Minnesota misdemeanor convictions.
Unlike the bad “expungement” case, the 10th Circuit’s Wyoming v. US, here there are numerous court cases repeating the unhelpful interpretation – though a few take an opposing view. Though there are several published court opinions on these issues, few are Minnesota specific.
This may help a criminal lawyer like Thomas Gallagher defending an ineligible person in possession charge. But for a person seeking full civil rights restoration, it’s easier to navigate around via a safer path.
Flawed approach to gun rights after domestic
Take for example, US v. Keeney, 241 F. 3d 1040 (Court of Appeals, 8th Circuit 2001). The holding was that defendant’s civil rights to firearms could not be restored within the federal statute’s meaning; because as a misdemeanor in that state, no other civil rights were taken away in the first place (voting, jury duty, hold public office.)
But other cases held that a defendant who served even one day of executed jail time; lost all civil rights while locked up. Therefore they qualify for restoration of civil rights.
A lawyer defending a person from a new criminal charge based on a prior; might challenge this restrictive interpretation of the statute’s language. But, prospectively a person seeking a clear and unequivocal full rights restoration may be better off taking another path.
And that view has a big flaw. The Second Amendment guarantees our fundamental right to arms. Courts should not require loss of some other civil right before being willing to restore civil rights to firearms. After all, this right is more fundamental than voting or a jury trial.
Minnesota is better than that
Now let’s look specifically at Minnesota’s law. We can see that Minnesota Statutes automatically take away gun rights after a misdemeanor domestic assault conviction; for three-years. And the law automatically restores these civil rights after that period, assuming no other convictions.
In addition, we have a Minnesota Statute automatically restoring civil rights lost due to any conviction upon discharge from sentence. (For most, discharge from probation or supervised release is the date of discharge from sentence.). And this includes civil rights to firearms.
That statute, Section 609.165, titled “RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS AND AMMUNITION,” contains the general rule of rights restoration, with an exception for “felony crimes of violence.”
“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 .…”Minn. Stat. §609.165 RESTORATION OF CIVIL RIGHTS; POSSESSION OF FIREARMS
So, these two Minnesota statutes restore gun rights of a person with a “misdemeanor crime of domestic violence” conviction; after three-years without a new conviction.
Federal law leaves it to the states to restore gun rights. So a person in that situation has their gun rights restored under both state and federal law.
The nitty gritty
This legal analysis seems plain enough. Still, a person may wish something that others will accept as clear evidence of restoration.
Bottom line on a court Petition to “Restore Civil Rights to Firearms” after a “misdemeanor crime of domestic violence” conviction? It’s not the best solution. Why? Because several cases hold that since the other core civil rights are not lost for a misdemeanor; courts cannot restore civil rights to guns. But, some cases take an opposing view. For example, any defendant who served any executed time in jail lost all civil rights, during that time.
The best remedy: gun rights after domestic
What is the best remedy, then? How should the remedy be characterized?
- Pardons Board: Seek a full pardon from the Minnesota Pardons Board.
- Courts: 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, though in brief, outline form. And there is more law on this topic, but these are the main points for now. Want an even briefer recap?
Summary: gun rights after domestic
Minnesota and federal laws affect the gun rights after a misdemeanor domestic conviction.
The Minnesota gun rights disability, general rule is an automatic three-year ban beginning on the date of conviction (sentencing date).
Then, the federal statutes provide for a lifetime ban for convictions that fit a narrow federal definition: “misdemeanor crime of domestic violence.” Unlike the Minnesota statute, the federal definition requires “physical force” or a “deadly weapon,” a narrower relationship requirement, and due process protections.
And for Minnesota convictions that do fit within the federal definition, the States decide when to restore gun rights. State law restores gun rights either by operation of statute, court Order, or Pardon.
Best solutions for restoring gun rights after a domestic
What are the best remedies to ensure recognition of gun rights restoration after a “misdemeanor crime of domestic violence” conviction? They are (1) a Pardon; or (2) a court Order Setting Aside Conviction. Such a court Order could result from either litigation, or from an agreement with the prosecutor.
Or, you might try to amend the record to a different conviction that does not fit the federal definition. That can be a way to clean up problems caused by an unclear court record. If the original court record fails to detail the specific statutory subdivision of conviction; one subdivision may fall within the federal definition while another may not. For example, domestic assault – cause fear vs. bodily harm; or disorderly conduct – speech vs fighting or brawling.
New legislation, either Minnesota or federal, could fix the problems presented here. But now, it’s far easier to prevent the loss of gun rights after a domestic, than to regain them after. And a good criminal defense lawyer like Thomas Gallagher can help you avoid losing your civil rights in the first place.
But if it’s already too late for prevention, this article lays out the pathways to redemption. No one can guarantee efforts to restore civil rights will be successful, but knowing the paths may help.
What about gun rights after a Minnesota felony conviction?
See our articles for in-depth discussions of:
Minnesota felony “crimes of violence,” includes non-violent crime convictions.
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.
Attorney Gallagher shares his experiences in gun law with other attorneys presenting Continuing Legal Education seminars on Minnesota Gun Law. He also writes extensively on firearm law topics.