Civil Rights & Guns: Minnesota Expungement Broken

Full rights of citizenship: 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:

• Firearms,
• Privacy, or
• Minnesota Dept. of Human Services records.

So, Minnesota expungement is broken. What can we do to fix it? To fix something, first we diagnose the problem and its causes. We want a way to fully restore civil rights after a criminal conviction. And expungement did that in Minnesota, once upon a time. How do we get back what we once had?

What is “expungement?”

Sometimes people hear a word and think they understand its meaning. But they may not. 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.”

Bergman v. Caulk, 938 NW2d 248 (Minn. Supreme Court 2020)

As a practical matter, to work an expungement must be total and complete, without any exception.

And once, in Minnesota, “expungement” meant the complete destruction of each, every and any record of conviction, which effectively restored all civil rights. Expungement was once meaningful, complete, and effective in Minnesota. But over the years, that changed. So now, let’s take a look at the civil rights of citizenship.

What are “civil rights?”

Civil rights are the rights of citizens — rights claimed and enjoyed by citizens; but not slaves, prisoners, helots, foreigners, metics. This extends from ancient Greek and Roman law, through English law, up to American law. Civil rights, rights of citizens, are the cornerstone of democracy. Without them, any of them, you are not a full citizen.

Divide & conquer: First, they divide your civil rights into “a bundle of sticks.” Then they infringe upon first one, then another, and so on, until all are lost.

Are some people more equal than others? Civil rights of citizenship include:

• Life, liberty & property
• Guns, firearms, weapons
• Voting
• Speech
• Religion (See, Religious use of marijuana win: Minnesota Rastafarian)
• Equal protection of laws
• Jury court

Civil rights: voting rights, gun rights

But rather than restore full citizenship rights, the laws of Minnesota restore some, but not others. For example, after most felony sentences, Minnesota law restores voting rights. But for many felonies, like possession of 2.1 pounds 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 a Minnesota prison, as an “ineligible person in possession of a firearm.” So, in the real world, which civil right is the most valuable?

And the result of the current state of the laws is 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 nobody was injured, harmed or even threatened.

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?

Look at civil rights laws

Let’s begin with a look at a representative federal gun rights statute, 18 U.S. Code § 921 (a) (33):

“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 exposed a typical 609A Minnesota Expungement Order as ineffective 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. US, 539 F3d 1236 (10th Cir 2008) (holding “expunge” & “set aside” 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” fail that test.

Minnesota Expungements fail

Minnesota Expungements fail to restore civil rights; because they don’t remove all effects of a prior conviction. Minnesota expungement Order failures:

• Partial
• Limited
• Special, privileged status for:
  • Minnesota Dept. of Human Services
  • State and federal police
  • Military
  • Government
• Types of evidence:
  • DNA
• 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, 938 NW2d 248 (Minn. Supreme Court 2020)

What about 609A statutory expungements?

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 almost all 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, including simple marijuana possession.

Next, we need only look at Minnesota’s main expungement statute:

“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.”

Minn. Stat. § 609A.03, Subd. 5a

Fixing civil rights defect of Minnesota expungement

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, ab initio.
• Compare to disposition: “vacate the adjudication and dismiss the charge” after successful completion of conditions.

Recommendations for expungement language in marijuana 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:
  • Qualify for Pardon
  • “Set aside” the adjudication or conviction
  • completely removes all effects of prior adjudication or conviction
  • Fully restores all civil rights without exception

Question? Call Attorney Thomas Gallagher, 612 333-1500

Attorney Thomas Gallagher is a Minnesota criminal lawyer with over 35 years experience. And he defends people accused of gun crimes.

He supports civil rights to firearms. For information on getting gun rights back after a conviction, see:

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.

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