Gun rights restoration is a state-by-state process

Posted on September 4, 2014 by John Pierce

Out_Of_StateSince publishing my article about Virginia not recognizing out-of-state gun-rights restorations I have been inundated with questions.

The first group of questions prompted a second article about whether a non-resident with a Virginia conviction could get their gun rights restored in Virginia.  The answer by the way … was “No.”  UPDATE:  Since July 1, 2015 that answer has changed.  Non-residents may now get their gun rights restored in Virginia.

The second group of questions was about restoration for federal offenses.  The short answer for those questions is “There currently is no method by which you may have your rights restored.”

That left those questions asking some version of whether another state would recognize the gun rights of those who have had them restored in Virginia.  Before going into the details, let me go ahead and tell you the answer … “Probably not.”

When I shared this answer with one client, he asked if I thought such a ban would survive a court challenge.  I told him that I believe it would and here is why:

In the DC v. Heller decision, the  United States Supreme Court reiterated that the “opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.”  This seems to preclude a rights-based challenge to state felon-in-possession laws.

Without a rights-based challenge, we look to statutory law, both federal and state, for guidance.

At the federal level, possession by those convicted of a felony is addressed in a number of provisions of 18 u.S.C. § 922.  However, 18 U.S.C. § 921(a)(20) exempts those who have “been pardoned or [have] had civil rights restored” from these prosecutions. However, it does not require states to recognize each other’s rights-restoration processes.

Therefore, it is entirely up to each state as to whether they (a) allow convicted felons to seek the restoration of gun rights at all and (b) recognize other state’s restoration orders.

A few local examples that illustrate the issue are North Carolina and West Virginia.

While I am not licensed to practice law in North Carolina, a University of North Carolina School of Government guide on the topic notes that “G.S. 14-415.4(c) states that a person may petition the court for a restoration order if his or her civil rights, including the right to possess a firearm, have been restored in the other jurisdiction for at least 20 years.”

You read that right … according to the article, if you have your rights restored in Virginia and then move to North Carolina … you need only wait a couple of decades before you can petition to have them restored in North Carolina.

What about West Virginia?  While I am similarly not licensed to practice law in West Virginia, it appears that they have the same statutory issue as Virginia.  § 61-7-7(c) of the WV Code allows a person to “petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm.”

So what does this all mean?  Can you summarize it for me?

While there may be states that automatically recognize gun-rights restorations from other states, I don’t have an example of one that does.

Generally you should assume that a gun-rights restoration in a given state only allows you to purchase, possess, and transport firearms in that state!

Posted in Criminal Law, Federal Law, Gun Rights Restoration, Interstate Firearm Transfers, Interstate Move, Interstate Travel, Virginia Law | Comments Off on Gun rights restoration is a state-by-state process

We have another eForms update

Posted on August 27, 2014 by John Pierce

logo_eFormsToday the ATF announced that more forms are being returned to eForms over the next month.

But … before you ask … Forms 3 and 4 are NOT included in the list.

Perhaps most useful to NFA owners, Form 5 is being returned to service immediately.  Form 5 is used to transfer NFA items tax-free to lawful heirs or beneficiaries of a trust.

The entire notice is as follows:

ATF is pleased to announce the return of the following eForms to active service: ATF Form 5 on 8/27/2014, ATF Form 9 on 9/2/2014, and ATF Form 5300.11 (AFMER) on 9/5/2014.

Please note that at this time no date has been determined for the return of the ATF Forms 3 and Form 4 to service on the current platform. In the interim, ATF has devoted additional resources to paper forms processing within the NFA Branch to augment the volume of receipts and current pending applications.

Here’s hoping that Forms 3 and 4 will be part of the next roll-out.

Posted in ATF, BATFE, eForms, Form 4, Form 5, NFA Trusts | Comments Off on We have another eForms update

Purchase, possession, and transportation of a firearm while under felony indictment in Virginia

Posted on August 26, 2014 by John Pierce

IndictmentA recent posting at OpenCarry.org reveals that, when asked by clients, many defense attorneys are themselves not completely sure of the effects of an indictment on the accused’s right to purchase, possess, or transport firearms.

But an understanding of this issue is crucial for the person being indicted since a misstep can lead to additional charges, bail being revoked, and plea bargain offers being withdrawn.

Let’s take a quick look at state and federal laws that are on-point …

Purchase

In this area, federal law governs.  18 U.S.C. § 922(d)(1) prohibits the sale of firearms and ammunition to those “under indictment for … a crime punishable by imprisonment for a term exceeding one year.”  

Subsection (n) of this section further prohibits “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to … receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

These prohibitions, unlike some others, do not simply apply to licensed dealers but to all sales including private sales between individuals.

Question 11(b) on the federal form 4473 completed by a prospective buyer attempting to purchase a firearm asks “Are you under indictment or information in any court for a felony, or any other crime, for which the judge could imprison you for more than one year?”

If you answer “Yes” to this question then the dealer will refuse the sale.  If you answer “No” to this question then you are committing both a state and federal felony by willfully making a materially false statement.  Under Virginia law, this will be prosecuted under § 18.2-308.2:2(K) of the Code of Virginia.

It is especially important to note than an Alford plea with deferred disposition does NOT extinguish an indictment until such time as the court actually acquits.  Therefore, during the time that the disposition is deferred, the accused remains under indictment for purposes of this prohibition.  This was the key question in the January 2014 case of Maldonado-Mejia v. Commonwealth.

Transportation

Federal law also contains a prohibition at 18 U.S.C. § 922(n) prohibiting the interstate transportation of firearms or ammunition by anyone “who is under indictment for a crime punishable by imprisonment for a term exceeding one year.”

But what about transportation inside the state?  There is no state law that prohibits the transportation of a legally owned firearm by someone under indictment.  However, if the accused has a Concealed Handgun Permit (CHP), § 18.2-308.013(B) of the Code of Virginia states that:

An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15 of § 18.2-308.09, holding a permit for a concealed handgun, may have the permit suspended by the court before which such charge is pending or by the court that issued the permit.

While the statute says that the permit “may” be suspended, the accused would be well served to not exercise the privilege of concealed carry until they are certain that their permit has not been suspended.

Possession

Neither federal nor Virginia state law directly prohibits the simple possession of otherwise legally obtained firearms by a person under felony indictment.

However, it is often in the best interests of the accused to transfer ownership and control of such firearms to a trusted family member or friend until the issues giving rise to the indictment have been resolved.

Finally

This discussion may be moot in any case since the conditions of bail often will stipulate that the accused not possess firearms.  Any such stipulation would ultimately govern.

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Criminal Law, Indictment, Interstate Travel, Virginia Law | Comments Off on Purchase, possession, and transportation of a firearm while under felony indictment in Virginia

May a non-resident get their gun rights restored in Virginia?

Posted on August 26, 2014 by John Pierce

Residents_OnlyUPDATE:  As of July 1, 2015 this article is no longer correct.  Non-residents may now get their gun rights restored in Virginia.

…………………………….

An increasing percentage of my law practice deals with gun rights restoration.  Therefore, it is not surprising that I am frequently asked how, or if, a non-resident may petition to have their gun rights restored in Virginia.

The typical discussion goes something like this:

“I lived in Virginia 20 years ago.”

“While there I was convicted of felony X.”

“I have since moved to State Y.”

“State Y requires that I have my rights restored in Virginia before I can get my rights restored in State Y.”

“How do I do that?”

This is the point where I have to deliver some really bad news … there is no way for a non-resident to get their rights restored in Virginia.

You heard that right … absent a pardon, which are generally only granted in “exceptional situations,” non-residents have no vehicle by which they may pursue the restoration of their gun rights in Virginia.

Last year, the Supreme Court of Virginia addressed this very issue in the case of Commonwealth v. Leone, 747 S.E.2d 809 (2013).  The court’s summary of the issue was:

The plain language of Code § 18.2-308.2(C) provides only one method by which a petitioner can have his firearm rights restored, and that method is to “petition the circuit court of the jurisdiction in which he resides.”

Article VI, Section 1 of the Constitution of Virginia grants to the General Assembly the power to determine the jurisdiction of the courts of the Commonwealth. In Gallagher v. Commonwealth, 284 Va. 444, 452, 732 S.E.2d 22, 26 (2012), we held that “[t]he legislative grant of jurisdiction to the circuit courts, in Code § 18.2-308.2(C), to restore firearm rights falls directly within that constitutional grant of power to the General Assembly.”  The jurisdiction to restore firearm rights is vested solely in the circuit courts.

However, when the General Assembly granted circuit courts the jurisdiction to restore those rights, it limited the territorial jurisdiction of circuit courts to adjudication of petitions for restoration filed by persons who reside within the territorial jurisdiction of the circuit court. … Territorial jurisdiction is the “authority over persons, things or occurrences located in a defined geographic area.”

So … if you want to have your firearms rights restored in Virginia and no longer live here … you are going to need to move back … at least for a time.

Posted in Gun Rights Restoration, Interstate Move, Non Resident Issues, Virginia Law | Comments Off on May a non-resident get their gun rights restored in Virginia?

Will Virginia honor a gun rights restoration from another state?

Posted on August 21, 2014 by John Pierce

TrapThis is not a question that many people think to ask … but if they have had their right to possess firearms restored by another state prior to moving to (or visiting) Virginia then they absolutely should.

Because the answer … unfortunately … is a resounding “no!”

The entire body of law governing gun rights restoration is a minefield for the unwary but this issue is a particularly insidious trap.

In the case of Farnsworth v. Commonwealth, 599 S.E.2d 482 (Va. Ct. App. 2004), the court held that anyone who has been convicted of a felony, “under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof” has only two options for having their rights restored as far as Virginia is concerned.  

The first is to have one’s political rights restored by the governor and the second is to petition the Circuit Court in the jurisdiction where one resides “for a permit to possess or carry a firearm.”

Since a restoration by another state does not satisfy either of these requirements, it is not recognized by Virginia.

The court’s analysis is based upon the clear text of § 18.2-308.2 of the Code of Virginia which states that:

A. It shall be unlawful for (i) any person who has been convicted of a felony; … whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof, to knowingly and intentionally possess or transport any firearm or ammunition for a firearm …

B. The prohibitions of subsection A shall not apply to … (iii) any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Virginia provided the Governor, in the document granting the pardon or removing the person’s political disabilities, may expressly place conditions upon the reinstatement of the person’s right to ship, transport, possess or receive firearms.

C. Any person prohibited from possessing, transporting or carrying a firearm … under subsection A, may petition the circuit court of the jurisdiction in which he resides for a permit to possess or carry a firearm …

Who needs to be aware of this issue?

1)  Anyone who has had his or her right to possess firearms restored in another state and who has subsequently moved to Virginia.

2)  Anyone who has had his or her right to possess firearms restored in another state who is visiting and will be in possession of firearm while in Virginia.  This includes hunters and those engaged in the shooting sports.

What should I do if I fall into one of these categories?

If you fall into the first category then you should petition the court in the jurisdiction where you reside for your right to possess and transport firearms to be restored.  If you are in possession of any firearms or ammunition you should immediately transfer them to a trusted family member or friend until such time as your right to possess them has been restored by your local circuit court.

If you fall into the second category then you are unfortunately out of luck.  Virginia only allows you to petition for a restoration of rights in the jurisdiction where you reside.  If you reside outside of Virginia then you cannot have your right to possess firearms in Virginia restored.  I will be writing more about this issue in my next article.

Wait … doesn’t federal law govern in this area?

No.  While 18 U.S.C. § 921(a)(20) exempts those who have “been pardoned or [have] had civil rights restored” from federal prosecution, it does not require states to recognize each other’s rights-restoration processes.

A final note

While I may only speak to Virginia law, it is very likely that there are other states with similar issues.  If you have had your right to possess firearms restored in Virginia and are planning to move out of state … do not automatically assume that your restoration will be recognized.

Seek the counsel of an attorney licensed to practice law in the state to which you are planning to move to make sure that you will not be walking into a similar trap.

Posted in Gun Rights Restoration, Interstate Move, Interstate Travel, Virginia Law | Comments Off on Will Virginia honor a gun rights restoration from another state?