Virginia Gun Rights Restoration Failures

If you call me with a tax law question, I am going to refer you to an attorney who practices tax law.  The same is true with all the other areas of law that are outside my wheelhouse.

The reason for this should be readily apparent.  As attorneys we have an ethical obligation to avoid taking cases where we lack the necessary competency.

However, not everyone understands the level of complexity involved in firearms law and this can lead to disastrous consequences.

In particular, I am talking about gun rights restoration.

Over the last year I have encountered a number of purported gun rights ‘restorations’ which do not, in fact, restore the rights of the petitioner and can lead to state or federal charges against the person who believes that his or her rights have been restored.

These failed restorations generally fall into one of four categories:

1) The petitioner was convicted of a federal felony

The 1994 case of Beecham v. United States, (511 U.S. 368) made it clear that  a state does not have the power to restore the firearm rights of a person whose disability was imposed by a federal or military felony.  However, I have received calls from several potential clients who claimed that they have a signed order from their circuit court purporting to do just that.

Just to be clear … if you have been convicted of a federal felony then there are only two ways to get your gun rights back and only one of them is actually available.

1 – By applying to the Secretary of the Treasury for relief from firearms disabilities

This is governed by 18 U.S.C. § 925(c).  The problem?  Since 1992, Democrat-lead efforts in Congress have prevented the agency from expending any appropriated funds to investigate or act upon applications for relief.  Furthermore, the US Supreme Court held in the 2002 case of  United States v. Bean (537 U.S. 71) that this refusal to process an application is not a ‘denial’ of the request and therefore, the District Courts have no jurisdiction to review the ‘denial’.

2 – By receiving a presidential pardon.

Information and instructions for submitting an application for a presidential pardon are available here.

Therefore, absent a presidential pardon, a person suffering under a disability imposed by a federal or military felony cannot have his or her gun rights restored and any state order purporting to do so is ineffective.

2) The disqualifying charge was a misdemeanor charge of domestic violence

I have written about this before but it bears repeating here.  In early 2015 I received an email from someone who claimed that they had successfully petitioned a circuit court to restore their firearm rights after having been convicted of misdemeanor domestic violence.

The problem here?

1)  While a misdemeanor crime of domestic violence makes you a prohibited person under federal law, Virginia does not remove the firearm rights of those convicted of misdemeanor domestic violence;

2)  The jurisdictional grant of power in 18.2-308.2(C) to restore firearms rights only applies to those who are prohibited persons under Virginia law; and

3)  The federal courts have repeatedly held that states may not ‘restore’ that which was never taken away.

In one of many cases to uphold this premise, United States v. Jennings, 323 F.3d 263 (4th Cir.), the court held that “restoration of a thing never lost … is a definitional impossibility.

This leaves a simple pardon from the Governor as the only path by which those convicted of misdemeanor domestic violence in Virginia may currently seek to remove their federal disabilities.

A court order from a Virginia court, purporting to restore rights never taken away by the State, is ineffective.

3) The disqualifying offense was from another state

Under the terms of the Firearms Owners Protection Act (FOPA),  the consequences and status of a disqualifying conviction must be “determined in accordance with the law of the jurisdiction in which the proceedings were held.”  This is codified at 18 U.S.C. § 921(a)(20).

The Virginia State Police has this to say about convictions from another state,  “While an individual may have his firearms rights restored under state law, we must determine if their rights are also restored under federal law. We have been advised that the removal of federal firearm disabilities that were imposed by a state conviction will occur under 18 USC 921(a)(20) only if the restoration of rights proceedings are held in the jurisdiction where the conviction occurred.”

Therefore, a court order from a Virginia court, purporting to restore rights taken away by a conviction in another state, is ineffective.

4) The restoration is conditional

The final category occurs when a restoration is validly granted but contains some sort of condition on the type of firearm that may be purchased or possessed, such as:

– This restoration is valid only for rifles and shotguns and does not authorize the possession of handguns.

The US Supreme Court held in the 1998 case of Caron v United States (524 U.S. 308), that a gun rights restoration must be all-or-nothing.  In other words, if there are any restrictions on the types of firearms that the petitioner may possess then the restoration order fails to remove the federal disability.

Therefore, if a purported restoration has such a condition it is ineffective.

What if I have one of these ‘failed’ restorations?

If you have a purported restoration that falls into one of these categories then I would be glad to offer you a free consultation.

Contact me at (276) 206-9615 and we will discuss your options.

Posted in ATF, BATFE, Criminal Law, Federal Law, Gun Rights Restoration, US Supreme Court, Virginia Law, Virginia State Police | Comments Off on Virginia Gun Rights Restoration Failures

The current application form for a Virginia CHP misstates the requirements for certain restoration scenarios

Magnifying_GlassIn assisting one of my clients I have discovered several errors in the current version of the Application for a Concealed Handgun Permit (SP-248) that I believe need to be corrected.

The issues are on page 2 in the Form 2 section (see the embedded form below). That section deals with the various mental health dis-qualifiers for a Concealed Handgun Permit (CHP) under § 18.2-308.09 subsections 2, 3, and 4.

Applicants are directed to one of five sub-parts in that section based upon their answers to questions 8b, 8c, and 8d.

Each of those sub-parts appropriately asks if the applicant has had his or her rights restored pursuit to the applicable provisions of § 18.2-308.1:1, § 18.2-308.1:2, or § 18.2-308.1:3.

However, in each of the sub-parts, the SP-248 then goes on to ask if 5 years have elapsed “since the date of restoration.”  This is an incorrect statement of the law in every case.

– In § 18.2-308.09(2), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:1, the five-year period begins when they were “discharged from the custody of the Commissioner.

– In § 18.2-308.09(3), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:2, the five-year period begins when their “competency or capacity was restored pursuant to § 64.2-2012.

– In § 18.2-308.09(4), the General Assembly specifies that for those whose original prohibition was based upon § 18.2-308.1:3, the five-year period begins when they were “released from commitment.

The form, as currently printed, misstates the requirements for applying for a CHP and places the applicant in a position where answering the question truthfully will almost certainly result in their application being erroneously denied.

I have forwarded my concerns to the Virginia State Police for review and possible correction.  I will keep my clients informed as I get updates.

Download (PDF, Unknown)

 

Posted in CHP, Concealed Handgun Permit, Gun Rights Restoration, SP-248, Virginia Law, Virginia State Police | Comments Off on The current application form for a Virginia CHP misstates the requirements for certain restoration scenarios

Governor McAuliffe announces he will ‘expeditiously’ sign individual restoration orders

Gov_SigFollowing Friday’s decision by the Virginia Supreme Court striking down Governor McAuliffe’s blanket restoration of political rights, Governor McAuliffe was quick to issue an official response.

For those clients who need their voting rights restoration in order to apply for restoration of their firearm rights, the Governor’s response contained some good news.

He stated that “The men and women whose voting rights were restored by my executive action should not be alarmed. I will expeditiously sign nearly 13,000 individual orders to restore the fundamental rights of the citizens who have had their rights restored and registered to vote. And I will continue to sign orders until I have completed restoration for all 200,000 Virginians.

It appears as if those who actually registered to vote following the April 22nd executive order should expect to quickly receive an individualized restoration from the Governor. If you fall into this category then you simply need to wait.

For those who fall into the second category of those who purportedly had their rights restored based upon the April 22nd order but did not actually register to vote the path forward is not yet clear.  While the Governor indicated he will continue to sign orders for each one until he has restored everyone, there is no indication as to whether a request may be made for expedited processing.

The Governor’s Restoration of Rights page has not yet been updated to reflect the ruling but I expect we will receive more guidance over the next few days.  I will keep my clients informed as details emerge.

Posted in Executive Orders, Gun Rights Restoration, Virginia Law, Virginia Supreme Court | Comments Off on Governor McAuliffe announces he will ‘expeditiously’ sign individual restoration orders

The Virginia Supreme Court has struck down Governor McAuliffe’s blanket restoration of political rights

VASCIn a ruling issued late today, the Virginia Supreme Court has struck down the Governor’s blanket restoration of the political rights of over 206,000 convicted felons who had completed their sentences and been released from supervised probation or parole.

The 63 page ruling, included below, will require the Virginia Department of Elections to “cancel the registration of all felons who have been invalidly registered.

While I have not yet had time to review the ruling, I can immediately imagine a number of other questions that need to be asked:

  • I have had at least one client, whose political rights were purportedly restored based upon this order, become a notary public.  What is the status of the documents that she has notarized?
  • If any person whose political rights were purportedly restored based upon this order has served upon a jury, will that cast a shadow upon any resulting verdicts?

I will refrain from asking any further questions until I have had a chance to read the entire opinion but the key question for my clients is this:

How does this impact my ability to petition for the restoration of my gun rights?

Here is the short answer … if your political rights were restored as part of the April 22nd blanket restoration then you will have to re-apply for individual restoration and wait for that individualized executive order to be issued before we can submit your petition to the courts.

The good news (assuming that there is nothing in the opinion that would prevent such action) is that Governor McAuliffe has indicated that if he were to receive this ruling that his office was prepared to quickly issue individualized restoration orders for everyone covered by his blanket order.

I will be following up as I get a chance to read the order and the Governor has a chance to respond to the ruling.

The Entire Ruling

Download (PDF, 314KB)

Posted in Executive Orders, Gun Rights Restoration, State Constitutional Provisions, Virginia Law | Comments Off on The Virginia Supreme Court has struck down Governor McAuliffe’s blanket restoration of political rights

The complete guide to the new Form 4

Filling_Forms

This guide will walk you through every step of the post-41F Form 4 process and make it as easy as possible.  The fields referenced are based upon the September 2019 revision of the Form 4.  As new revisions of the form are released, I will update this guide.

Getting Started

In almost all cases the dealer you are buying the NFA item from will already have the Form 4s with their portion completed before you arrive.  So I will only focus on those fields that need to be completed by the transferee (buyer).

FFL PRO-TIP:  If you do need a copy of the new Form 4, it is available for download from the ATF website.  If you save it to your computer and open it with Adobe Reader (rather than editing it in your browser) then it will auto-copy the data you type into the ‘ATF Copy’ to the ‘ATF Copy 2’ and the ‘CLEO Copy’.  You can also save a copy with your FFL info typed in to speed up the processing of future applications.

Form 4 – Page 1

  • Box 2a should contain the name of your trust (exactly as it appears on the header of the trust document) and the mailing address for the location where the item will initially be stored.
  • In Box 2a you should also check the box for TRUST.
  • Box 2b should contain the name of the county in which the physical address from 2a is located.  Note: Virginia is one of the few states where there are independent cities that are not part of the surrounding counties. If you live in an independent city (like Alexandria for example) then put your city in 2b (e.g.  “Alexandria City”).

Form 4 – Page 2

  • Box 12 should contain the information about the applicants CLEO.
  • Box 13 should have the name of the trust in the first blank and ‘all lawful purposes‘ in the second blank.
  • Box 14, 15, 16, and 17 should be left blank.  For trust applicants, these background questions and photos will be part of a separate form for each ‘responsible person’ (Form 23) for which I will provide instructions further down in this guide.

Form 4 – Page 3

  • Box 21 should contain the number of responsible persons on the trust.  I have a detailed article here laying out which persons on your trust are considered ‘responsible persons’ but the short answer is that you are a responsible person and so are those people listed on Schedule B of your trust.  If you want to remove joint trustees from your Schedule B before submitting your application I have a guide to doing so here.
  • Box 22 should contain your full legal name and the full legal names of all those on Schedule B of your trust.
  • Box 23 should contain your method of payment and, if you are paying with a credit card, the information about the credit card and the amount being paid.  You only need to sign in Box 20 if you are paying with a credit card.  (More about this in the signing section below)

A Completed Sample of Form 4

The following sample form illustrates what a completed Form 4 should look like.

Download (PDF, 1.75MB)

Signing the Completed Form 4

Each copy of the completed Form 4 should be signed in the following places:

  • On the top of Page 3 sign your name and add “as trustee” at the end.
  • Only sign on Page 3 Box 23 if you are paying with a credit card.

Important:  The ATF requires all signatures to be in either blue or black ink.

Turning to the Form 23

I have a comprehensive guide to the Form 23 here.

Notifying Your CLEO

The Settlor of the trust will need to mail his or her CLEO (from the Form 23) the CLEO copy of the Form 4 and the CLEO copy of their Form 23.

All other responsible persons will only need to mail his or her CLEO (from their Form 23) the CLEO copy of their Form 23.

Important Note:  The CLEO copy of the Form 23 does not have a photo affixed.  You should also not send fingerprint cards to the CLEO.

Fingerprint Cards

Each Form 23 to be sent to the ATF will need to be accompanied by fingerprints of the responsible person taken on 2 FBI (FD-258) fingerprint cards.  As I noted here, many NFA dealers offer in-store fingerprinting so you should check with your local gun store.  Failing that, you should be able to get fingerprinted at your local law enforcement agency.  No matter who does the fingerprinting, you should make sure that they use the correct FD-258 cards.

Mailing the Completed Form 4 Packet to the ATF

Now we need to prepare the packet to mail to the ATF.  Note that If you are building more than one NFA item, you will need a separate packet for each item.

This packet should include:

  • The first 2 copies of the completed Form 4 with original signatures in blue or black ink on both copies.  (These are marked ATF Copy and ATF Copy 2 on the bottom of the forms)
  • The ATF Copy of the Form 23 for each responsible person of the trust with photos affixed and fingerprint cards included. (DO NOT STAPLE)
  • A single copy of your notarized trust instrument (including all schedules and amendments)
  • Payment for the amount of the tax ($200) payable to BATFE (unless you entered credit card info on the Form 4)

The entire packet should be mailed to:

National Firearms Act Division
Bureau of ATF
PO Box 5015
Portland, OR 97208-5015

If this guide leaves any questions unanswered, please feel free to contact me.

Posted in 41F, 41P, BATFE, CLEO Notification, Fingerprinting, Form 23, Form 4, NFA Transfers, NFA Trusts | Comments Off on The complete guide to the new Form 4