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Felon in Possession Firearm question

Venator

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From: http://www.michiganprosecutor.org/alger/Articles/Gun Laws.doc.

<SNIP>

Restorations pursuant to Michigan law are misleading, however, because they do not satisfy federal law.

Federal law prohibits convicted felons from possessing firearms unless they've had their convictions set aside OR had their civil rights fully restored, AND are not subject to any state firearms restrictions.

And, Michigan law as of October 1, 2003 disqualifies convicted felons from jury service, meaning that this civil right is no longer restored post-sentence, as is the case with the rights to vote and hold public office, and as of July 1, 2001 makes convicted felons permanently ineligible to receive a concealed pistol permit, meaning that they are subject to a state firearm restriction regardless of whether they even apply for a concealed pistol permit; a recent Attorney General opinion concluded that persons who have had their convictions set aside are eligible for concealed pistol permits, however, restorations are insufficient for that purpose because they do not erase the conviction.

This leaves us with the following situation: if you have a prior felony conviction and have had your right to possess firearms restored under Michigan law, your possession of firearms will still be a violation of federal law both because you haven't had your civil rights fully restored and you remain subject to a state firearm restriction.




It should be noted that federal prosecutions would have to be predicated on a connection to interstate commerce, however, it is difficult to imagine a firearm without the required nexus to interstate commence resulting from its manufacture and/or subsequent history – such proofs pertain to the firearm and not the possessor.

So, the bottom line is that while either the setting aside of your felony conviction or the restoration of your right to possess firearms will bring you into compliance with Michigan law, only a set aside will enable you to possess firearms under federal law. Still unresolved is the status of persons who were eligible for or in fact received a restoration prior to the recent changes in Michigan law.

Todd,

HAve you read this??? Michigans gun right restoration does I think meet the Federal requirment??? Thoughts.

Some federal case law on whether a purchase permit meets the requirement under (ii) for exemption of the school zone. Seems to me it does. Read the entire decision here.
United States v Tait (2000) http://openjurist.org/202/f3d/1320/united-states-v-tait

In this case the person (Charged with school zone violation among other things)had a permit to possess a handgun issued in Michigan and Alabama. The court said the Michigan and Alabama permits counted as did his restoration of rights. At least that’s my understanding. It also may help OC in that the decision makes a reference to a background check not being needed and as long as Michigan issues a "license" to the person they are covered or that they satisfy Michigan law. As long as Michigan is okay with handgun possession then so are the Feds. Thoughts? I may be all wrong on this, but maybe not.

I have some highlights below.

The grand jury's second count against Tait charges him with a violation of 18 U.S.C. 922(q)(2)(A) (the "Gun-Free School Zone Act"). The section states, "It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. 922(q)(2)(A). Tait was on high school property, an obvious "school zone," at the time of his alleged criminal conduct. However, as with 922(g)(1), an exception to the firearms prohibition of 922(q)(2)(A) applies. Section 922(q)(2)(B)(ii) provides:
18
Subparagraph (A) does not apply to the possession of a firearm ... if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license....
19
18 U.S.C. 922(q)(2)(B)(ii).
20
The Gun-Free School Zone Act dictates that Tait violated federal law via possessing a handgun in a school zone unless Tait was licensed by Alabama, and either Alabama or Escambia County verified that Tait was qualified to receive the license.5 As Tait did possess a handgun in a school zone, and Tait was licensed in Alabama, the issue boils down to whether Alabama or Escambia County adequately verified that Tait was qualified to receive the license.
21
Alabama's licensing requirements are lenient:
22
The sheriff of a county may, upon application of any person residing in that county, issue a qualified or unlimited license to such person to carry a pistol ... if it appears that the applicant has good reason to fear injury to his person or property or has any other proper reason for carrying a pistol, and that he is a suitable person to be so licensed.
23
Ala.Code 13A-11-75 (1975). The government argues that Tait's license is void for purposes of 922(q)(2)(B)(ii) for two reasons: first, because Alabama's requirements for verifying an applicants' qualifications are too relaxed to ever qualify their licensees for 922(q)(2)(B)(ii) protections; and second, because Tait was not a suitable person to be licensed under Alabama law. According to the government, these licensing deficiencies resulted in Tait receiving a void license which did not qualify for the exception in 922(q)(2)(B)(ii).
24
The government first argues that Alabama licenses never qualify for the exception in 922(q)(2)(B)(ii) because Alabama does not require its licensing agents to conduct background checks on firearms license applicants. The 922(q)(2)(B)(ii) exception only applies if "... the law of the State ... requires that ... [the sheriff] verify that the individual is qualified under law to receive the license." 18 U.S.C. 922(q)(2)(B)(ii). By its basic terms, the statute merely requires that the Alabama sheriff ensured that Tait was qualified under Alabama law to receive the license. While the Alabama law is extremely lenient, it is nonetheless the only pertinent law. Alabama has chosen its laws, and these are the laws which determine whether the federal statute's exception applies. See Caron v. United States, 524 U.S. 308, 118 S.Ct. at 2011-12, 141 L.Ed.2d 303.6 Alabama is free to set forth its own licensing requirements, and Congress chose to defer to those licensing requirements when it established "qualified under law" as its criterion for the exception to the Gun-Free School Zone Act. Therefore the government's first argument with respect to 922(q)(2)(B)(ii) is rejected.7
25

The government next argues that Tait failed to qualify for an Alabama license, even under Alabama's lax standards, because Tait was not a suitable licensee. The government maintains that Tait was not suitable based on Alabama Code section 13A-11-72(a), which provides: "No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his ... possession or under his ... control." Ala.Code 13A-11-72(a) (1975). The government's argument fails due to a recent Eleventh Circuit opinion, United States v. Fowler, 11th Cir., 1999, 198 F.3d 808 (1999). The Fowler court held, "Without an express limitation on the certificate restoring civil and political rights ..., under Alabama law the restoration of civil and political rights restores the firearm rights limited by 13A-11-72(a)." Id.
26
The government tries to distinguish Fowler on two bases: first, that the defendant in Fowler received a written pardon restoring his civil rights (whereas Tait's civil rights were restored via operation of Michigan law); and second, that the Fowler case involved the interpretation of 922(g) rather than 922(q). Both distinctions are irrelevant. First, the Supreme Court held in Caron, "Massachusetts restored petitioner's civil rights by operation of law rather than by pardon or the like. This fact makes no difference." Caron, 524 U.S. 308, 118 S.Ct. at 2011, 141 L.Ed.2d 303. The critical issue is whether civil rights were restored unconditionally-not how the civil rights were restored. Tait's civil rights were restored, without reservation; thus Tait is entitled to the same protections as any other person without state-imposed limitations on his civil rights-including the protections of the 922(q)(2)(B)(ii) exception.
27
As for the government's second point, the fact that this court was evaluating 922(g) rather than 922(q) in Fowler is entirely irrelevant. Utilizing Fowler's line of reasoning, this court holds that Tait's firearms rights were restored for purposes of exceptions to 922(g) as well as 922(q). Fowler held that a felon's right to firearms was completely restored for purposes of removing 13A-11-72(a) limitations. Fowler, 198 F.3d 808. Tait's suitability for firearms licensing was equally restored. To hold otherwise would be non-congruous with Fowler. We therefore hold that the district court properly dismissed Count Two of the indictment against Tait.
 

stainless1911

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What if a person lied, denied, or otherwise led you to beleive that their record was clean, that they were not a felon or had a domestic charge. If you let them shoot your guns, would you still get into trouble? I could understand how someone might be ashamed of something they had already been punished for, and would want to bury it in their past.
 

Bronson

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Jul 14, 2008
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Battle Creek, Michigan, USA
A friend of mine has a misdemeanor domestic violence charge from a few years ago and his lawyer told him he would have to have it expunged before he could get a LTP a handgun.

Is it illegal for me to have a gun in my possession if I am riding with him in his vehicle? If we went to his (large) private property and were target practicing with my handguns, would it be technically illegal for him to shoot my pistols?

Lautenberg Amendment

The act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining (protection) order for domestic abuse. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such person.

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside

Bronson
 

fozzy71

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Roseville, Michigan, USA
Thank you sir.

The best part of this is the fact that the charge he received/accepted is a joke. They were separated at the time and sort of trying to make ammends but she used the opportunity to make sure he went to jail. :(

I hope none of you ever have your wife call the mason police on you because she bumped her head getting out of bed. When they get called, someone is going to jail (and going to have pay mason for the privilege to be there). :uhoh:
 
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Haman J.T.

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IANAL!

According to the following site, if you have your felony expunged in the state where the felony occurred, then you can possess firearms again with no Federal Restrictions.

http://felonyguide.com/Felony-Gun-Laws.php

http://felonyrestrictions.com/Owning-a-Gun.php

The fact that MCL 750.224f restores your firearm rights (read: civil rights restoration), I believe that a case could be made that the federal laws would be satisfied as well. In addition, MI allows for felons to participate in elections once their sentence is complete.

http://www.michigan.gov/sos/0,1607,7-127-1633_11619-123989--,00.html#35

ghart129 - I would contact your lawyer to discuss this information. If possible, expungement would be the best way to go.

I believe expungement only works if you have a single conviction.At least thats how I read it.
 

DrTodd

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Brian, I had to call my attorney friend who is pretty versed in Criminal law. He had a copy of this, he read it, and then he gave me his non-binding opinion.

Before the CPL law was passed, the ATF allowed general firearm possession in Michigan by those who fell under Michigan law. Basically, a non-listed felon could automatically get his federal rights back just by the passage of time.

In 2001, the CPL law was passed that said felons could not get a license. Since now there was a restriction in the CPL law, those felons who had automatically got the right back, no longer had the right to possess a firearm.

To cover that, Michigan gave the CPL authority to give CPL applicant w/ a felony a permit; ie getting rid of the state disability.

It appears that at this point, felons could once again legally possess firearms under state and federal law.

But, Public Act 739 of 2002 prohibits a felon from serving on a jury. Since the feds require that ALL rights must be restored, and that absent expungement, in Michigan a felon can't serve on a jury, federal law says a felon in Michigan can't possess a firearm no matter what the CPL Board says.

BTW the court case was 2002, the jury law was PA 739 of 2002 which became law in October, 2003.

The problem is the ATF letter that I have provided at the end of this post. The case that you cited was decided without benefit of this letter. See letter below. The ATF is, IMHO, hostile to the 2nd Amendment. However, they are given almost complete control interpreting federal law regarding firearms. Absent a federal court decision specifically reversing this understanding, my opinion is that this would hold.


An open Letter To the Michigan State Police
1155 Brewery Park Boulevard, Suite 300
Detroit, Michigan 48207-2602
March 20, 2000
This is to apprise you of the recent decision by the United States Sixth Circuit Court of Appeals in Hampton v. United States, 191 F. 3d 695 (6th Cir.
1999). This decision affects whether certain Michigan felons are prohibited from receiving or possessing firearms under Federal law.
The Gun Control Act of 1968 (“GCA”) makes it unlawful for any person who has been convicted of a crime punishable by imprisonment for a term
exceeding one year to ship, transport, possess or receive a firearm. 18 U.S.C. § 922(g)(1). What constitutes a “conviction” for such a crime must
be determined in accordance with the law of the jurisdiction in which the proceedings were held. 18 U.S.C. § 921(a)(20). Any conviction for which
a person has received a pardon, expungement, or restoration of civil rights shall not be considered a conviction for GCA purposes, unless the
pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. Id.
A State restores a felon’s civil rights for purposes of the GCA only if it allows him or her to vote, to hold public office, and to serve on a jury. Under Michigan
law, a convicted felon is entitled to vote and hold public office once he or she is released from custody. Prior to the Hampton decision, the Sixth Circuit
held in several cases that Michigan law did not restore the right to sit on a jury to Michigan felons upon completion of sentence. This line of cases was
overturned by the Hampton decision, which held that Michigan law restores a felon’s right to sit on a jury upon completion of his or her sentence.
Based on the Hampton decision, an individual who has been convicted of a felony in Michigan has his or her civil rights substantially restored upon
completion of sentence. In determining whether the convicted felon still has Federal firearms disabilities, however, it is necessary to examine
Michigan law to determine whether the felon is still subject to any restrictions on his or her firearms rights. In Caron v. United States, 524 U.S. 308;
118 S. Ct. 2007, 2012 (1998), the Supreme Court held that Federal law prohibited convicted felons whose civil rights had been restored from
receiving or possessing firearms if State law imposed even a partial restriction on their firearms rights.
Michigan law places a convicted felon under two types of state firearms restrictions. The first restriction is under Mich. Comp. Laws Ann. § 750.224f,
which prohibits a convicted felon from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving or distributing firearms.
This restriction separates convicted felons into two categories; those convicted of specified felonies and those who are not. If the felony conviction is
categorized as a “specified felony”, the felon is subject to this restriction for a period of five (5) years after he/she has met all conditions of sentence,
i.e. released from prison, paid all fines, and completed all terms of probation and parole. Further, after this five (5) year period has expired the
“specified felon” must also apply for and receive a restoration of his or her state firearms rights from the local concealed weapons licensing board
(gun board). Mich. Comp. Laws Ann. § 750.224f(2)(b). A specified felony is defined under Mich. Comp. Laws Ann. § 750.224f(6) and includes
crimes of violence against a person or property, burglaries (and breaking and entering) of occupied dwellings; drug offenses; offenses involving the
possession or distribution of a firearm; offenses where there was the unlawful use of an explosive; and arson.
Mich. Comp. Laws Ann. § 750.224f creates a different restriction for felons convicted of “non-specified” felonies. A ‘non-specified” felon is subject to the
same restrictions as those convicted of “specified felonies” but only for a period of three (3) years after completion of all conditions of sentence. Further,
there is no requirement for a felon convicted of a “non-specified” felony to obtain a restoration of his or her state firearms right from the local gun board.
The second state law firearms restriction is imposed under Mich. Comp. Laws Ann. § 28.426(b) which provides that an application for a concealed
weapons license cannot be approved if the applicant was convicted of a felony or confined for a felony in this state or elsewhere during the eight (8)
years immediately preceding the date of his application. It is important to note that this restriction applies to all convicted felons across the board and
does not categorize them based upon the type of felony conviction.
An individual who has been convicted of a felony in Michigan is still subject to Federal firearms disabilities after completion of his or her sentence if
Michigan law places any restrictions on that felon’s state firearms rights. Unless the convicted felon’s firearms rights have been completely restored
under State law he/she is subject to the Federal prohibition on receipt or possession of a firearm. Accordingly, if a convicted felon is subject to either
of the firearms restrictions under Mich. Comp. Laws Ann. §§ 750.224f or 28.426 he or she is still subject to firearms disabilities under Federal law.
If you have any further questions, please contact our Office of Division Counsel at (313) 393-6000.
Sincerely yours,
Michael W. Morrissey
Division Director
Detroit Field Division
Bureau of Alcohol, Tobacco and Firearms
Department of Treasury
 
Last edited:

CharleyMarbles

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Jun 3, 2010
Messages
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Clio, Michigan, USA
Brian, I had to call my attorney friend who is pretty versed in Criminal law. He had a copy of this, he read it, and then he gave me his non-binding opinion.

Before the CPL law was passed, the ATF allowed general firearm possession in Michigan by those who fell under Michigan law. Basically, a non-listed felon could automatically get his federal rights back just by the passage of time.

In 2001, the CPL law was passed that said felons could not get a license. Since now there was a restriction in the CPL law, those felons who had automatically got the right back, no longer had the right to possess a firearm.

To cover that, Michigan gave the CPL authority to give CPL applicant w/ a felony a permit; ie getting rid of the state disability.

It appears that at this point, felons could once again legally possess firearms under state and federal law.

But, Public Act 739 of 2002 prohibits a felon from serving on a jury. Since the feds require that ALL rights must be restored, and that absent expungement, in Michigan a felon can't serve on a jury, federal law says a felon in Michigan can't possess a firearm no matter what the CPL Board says.

BTW the court case was 2002, the jury law was PA 739 of 2002 which became law in October, 2003.

So if I read this right I am eligible to own a firearm now seeings my conviction was 15 odd years ago ???? AND it was a NON-specified felony???
 

Venator

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Messages
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Brian, I had to call my attorney friend who is pretty versed in Criminal law. He had a copy of this, he read it, and then he gave me his non-binding opinion.

Before the CPL law was passed, the ATF allowed general firearm possession in Michigan by those who fell under Michigan law. Basically, a non-listed felon could automatically get his federal rights back just by the passage of time.

In 2001, the CPL law was passed that said felons could not get a license. Since now there was a restriction in the CPL law, those felons who had automatically got the right back, no longer had the right to possess a firearm.

To cover that, Michigan gave the CPL authority to give CPL applicant w/ a felony a permit; ie getting rid of the state disability.

It appears that at this point, felons could once again legally possess firearms under state and federal law.

But, Public Act 739 of 2002 prohibits a felon from serving on a jury. Since the feds require that ALL rights must be restored, and that absent expungement, in Michigan a felon can't serve on a jury, federal law says a felon in Michigan can't possess a firearm no matter what the CPL Board says.

BTW the court case was 2002, the jury law was PA 739 of 2002 which became law in October, 2003.

Thanks so much for looking into this. Well done. So if a felon but can serve on a jury you would be okay. Or you could get a pardon, expungment and have all your rights restored.
 

NHCGRPR45

Regular Member
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May 30, 2010
Messages
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Chesterfield Township, MI
OC4me, its good that you asked the question before getting caught, with a gun. i don't know what your felony is for, but i will at least agree that yes, its far to easy to get hit with a felony!

IMO yes some real dirt bags need to never see the light of day! rape, child molesters, and a few others, i don't think you should be held a felon for sex with a high school sweet heart, a good friend of mine got hit with a statutory rape charge, when he was 17 she 15 it was entirely consentual i had talked to her the next day and it was a prom night get a room thing!

he now a felon and.......a sex offender! for doing IMO absolutely nothing wrong. would i be pissed if someone slept with my kid, yes. but unless it was actually a rape i wouldn't be going to the cops about it either.

IMO the easiest however slowest way to get rid of guns is to not ban guns, but to make gun owners criminals. for very simple screw ups, get a speeding ticket, well that shows you have no self control and a blatant disrespect for the law, so nope you can't own guns. :shocker:

and lastly any firearm counts for felons, even OTC sales of black powder rifles and pistols, smooth bore or rifled.

well thats IMO stay safe everyone!
 

DrTodd

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So if I read this right I am eligible to own a firearm now seeings my conviction was 15 odd years ago ???? AND it was a NON-specified felony???

Afraid not. Perhaps I should distill it down to the situation right now: a felon MAY NOT possess a firearm in Michigan because Michigan does not allow a "Felon" to serve on a jury. Federal law requires that ALL disabilities (firearm AND other) be removed; MI law does NOT provide an exception the the jury law.
 

Venator

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Afraid not. Perhaps I should distill it down to the situation right now: a felon MAY NOT possess a firearm in Michigan because Michigan does not allow a "Felon" to serve on a jury. Federal law requires that ALL disabilities (firearm AND other) be removed; MI law does NOT provide an exception the the jury law.
WAit, I thought a felon could possess a firearm under state law, but would not be exempt from Federal law.

My sources tell me that the State Police ARE informing the ATFE of any know felon (other than an expungment, pardon.) that may be approved for a purchase permit or a CPL. And the ATFE will actively investigate. Again this is hearsay as I did not hear this from the MSP or the ATFE.
 

CharleyMarbles

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Jun 3, 2010
Messages
151
Location
Clio, Michigan, USA
WAit, I thought a felon could possess a firearm under state law, but would not be exempt from Federal law.

My sources tell me that the State Police ARE informing the ATFE of any know felon (other than an expungment, pardon.) that may be approved for a purchase permit or a CPL. And the ATFE will actively investigate. Again this is hearsay as I did not hear this from the MSP or the ATFE.

So then I assume just petitioning the gun board is NOT going to allow me my full rights and I need to petition the Gov. for a pardon???
 

DrTodd

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Messages
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Location
Hudsonville , Michigan, USA
WAit, I thought a felon could possess a firearm under state law, but would not be exempt from Federal law.

My sources tell me that the State Police ARE informing the ATFE of any know felon (other than an expungment, pardon.) that may be approved for a purchase permit or a CPL. And the ATFE will actively investigate. Again this is hearsay as I did not hear this from the MSP or the ATFE.

"a felon could possess a firearm under state law, but would not be exempt from Federal law" If this means Michigan says it is OK to possess a firearm but feds say NO, then yes.

Federal law requires that, in order for a felon to possess a firearm, the state in which the person lives has to have restored the person so that there is not any limit on their rights/privileges. Since Michigan law states that a felon may not serve on a jury and there is no exception (other than expungement) made in this particular law, no felon may possess a firearm. If Michigan law regarding the composition of juries had provided for a way that felons could serve on a jury, then it would presumably be legal for them to possess a firearm under federal law.
 
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