Once upon a time in Minnesota, an expungement restored a person convicted of a crime to full rights of citizenship. But today, for example, a typical Minnesota Expungement does not restore civil rights to:
- Privacy, or
- Minnesota Department of Human Services records.
So Minnesota expungement is broken.
What can we do to fix it?
To fix something, we first diagnose the problem and its causes.
We want a way to fully restore civil rights after a criminal conviction. And expungement once did that in Minnesota.
First, what is expungement?
Sometimes people hear a word and think they understand its meaning. But they really don’t.
Expungement is a legal term connoting a court Order or statute that restores rights after a loss of rights due to conviction.
“Expunge is defined as “[t]o remove from a record, list, or book; to erase or destroy.“ Expunge, Black’s Law Dictionary (10th ed. 2014).”Bergman v. Caulk, Minn. Supreme Court, A18-1784, Feb.5, 2020
And once, in Minnesota, the destruction of any record of conviction restored all civil rights. But over the years, that changed.
So now, let’s take a look at the civil rights of citizenship.
What are “civil rights?”
Rights claimed and enjoyed by citizens; but not slaves, prisoners, helots, foreigners, metics.
This extends from ancient Greek and Roman law, through English law, to American law.
Civil rights are the cornerstone of democracy. Without them, you are not a full citizen.
Divide & conquer:
Your civil rights reduced to “a bundle of sticks”
Some people are more equal than others? Civil rights of citizenship include:
- Life, liberty and property
- Guns, firearms, weapons
- Equal protection of the laws
Compare voting rights with gun rights
But rather than restore full citizenship rights, the laws of Minnesota restore some but not others.
For example, after the completion of most felony sentences, Minnesota law restores voting rights. But for many felonies, like possession of 1.6 ounces of marijuana, Minnesota law strips away gun rights for life.
Voting rights: A conviction for voting without voting rights, is a one-year-and-one-day maximum felony, with presumptive probation under the Minnesota Sentencing Guidelines. Minnesota Statutes §201.014, Eligibility to Vote, Subd. 3, Penalty. Minnesota Sentencing Guidelines 5.B., Severity Level by Statutory Citation, 2019 page 103.
Gun rights: But a conviction for ineligible person in possession of a firearm, is a fifteen year maximum felony. And it triggers a mandatory minimum three year prison commitment under Minnesota Statutes §609.165, subd.1b; §609.11, subd.5; and the Minnesota Sentencing Guidelines.
So by this metric, your gun rights are much more important and valuable than your voting rights (three years minimum prison vs. zero jail minimum).
Moreover, if you live with your spouse, child, parent, roommate and they vote; you’re o.k.
But if they exercise their right to possess a firearm; you risk three years in Minnesota prison, as an ineligible person in possession of a firearm.
So, in the real world, restoration of which civil right is more important?
And the result of the current state of the laws? Partial, second-class citizens, with disparate impact based on “race.”
We have people living here without their full civil rights. And we are imprisoning people on a technicality – just possession of a firearm – even where no harm to anyone.
Over time, this trend leads to a gradual diminishment of all of our civil rights – bit by bit.
So who here wants all their civil rights?
And who here wants to be a full citizen?
Let’s look at some civil rights laws
So let’s begin with a look at a representative federal gun rights 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 …”18 U.S. Code § 921 (a) (33) (B) (ii)
But how do the courts interpret that language?
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 [“expunged or set aside”] 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)).
So, in order for an expungement to restore civil rights, it must:
- Set aside the conviction, as if it never happened; and
- completely remove all effects of a prior conviction.
But Minnesota expungements currently fail that test.
Minnesota Expungements fail to restore civil rights; don’t remove all effects of a prior conviction.
Minnesota expungement Order failures:
- Special, privileged status for:
- Minnesota Department of Human Services
- State and federal police
- Types of evidence:
- Fails to restore full civil rights
Bergman v. Caulk, Minnesota Supreme Court, 2020
The plaintiff in this case, Bergman, was convicted in 1996 of domestic assault. And later a court granted an expungement order, under the court’s “inherent authority” (not the expungement statute, 609A). But then in 2018, despite granting carry permits after background checks; the defendant Sheriff denied his carry permit application due to the 1996 conviction. (A misdemeanor crime of domestic violence results in loss of gun rights.)
The court concluded:
“the expungement that took place in 2007 under the district court’s inherent authority did not remove, erase, or destroy the executive branch records of Bergman’s prior domestic assault conviction. We therefore hold that expungement by inherent authority does not by itself satisfy the federal meaning of expungement, and Bergman’s right to carry a firearm in Minnesota cannot be reinstated under these circumstances.”Bergman v. Caulk, No. A18-1784, Minnesota Supreme Court, Feb. 5, 2020.
What about statutory expungements under Minnesota Statutes Ch. 609A?
The Minnesota Caulk decision limits itself to inherent authority of the court expungements. So what about statutory expungements under Minnesota Statutes Ch. 609A? Courts grant most “Minnesota expungements” under this statute.
First, we need to understand that Minnesota law creates a lifetime firearms ban for people convicted of felony “crimes of violence.” Minnesota Statutes §624.712, subd. 5.
But beware: many of the listed “crimes of violence” are actually non-violent, such as marijuana possession.
Next, we need only look at Minnesota’s main expungement statute, Minnesota Statutes §609A.03, Subd. 5a:
“An order expunging the record of a conviction for a crime of violence as defined in section 624.712, subdivision 5, must provide that the person is not entitled to ship, transport, possess, or receive a firearm for the remainder of the person’s lifetime.”Minnesota Statutes §609A.03, Subd. 5a
What could fix the problem with Minnesota expungements?
The Minnesota legislature could pass a new Minnesota Statute that:
- completely removes all effects of a prior conviction.
- Sets aside prior convictions
- So that the conviction is legally undone; meaning it never happened.
- Compare to criminal lawyers getting plea agreements to “vacate the adjudication and dismiss the charge” after successful completion of conditions.
Recommendations for expungement language in marijuana legalization law
- Use clear, unambiguous terms in legislation
- The term “expungement,” standing alone, is now tainted, ambiguous; due to Minnesota usage. (Compare to federal and other states.)
- Instead, use:
- Set aside the adjudication or conviction
- completely removes all effects of prior adjudication or conviction
- Fully restores all civil rights without exception
About the author, Attorney Thomas C. Gallagher
Attorney Thomas C. Gallagher is a Minneapolis criminal lawyer with over three decades experience.
So Attorney Thomas Gallagher defends people accused of gun crimes; and supports civil rights to firearms. (For information on getting gun rights back after a conviction, see our page: Gun Rights Restoration.)
Gallagher also works for legalization.
Attorney Thomas Gallagher serves with the Minnesota chapter of the National Organization for the Reform of Marijuana Laws.