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Thread: How does Vermont get around the Federal Gun Free School Zone law?

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    Regular Member paul@paul-fisher.com's Avatar
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    How does Vermont get around the Federal Gun Free School Zone law?

    From what I understand, the Federal GFSZ law basically says if you have a license from your state to carry a firearm, you are exempt from the law.

    Since VT has Constitutional Carry and has never issued permits, how do you guys carry within 1000' feet of a school?

    Thanks!


    --Moderator Note--
    Edited title for clarification. In this case the original "VT" refers to Vermont.

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    Regular Member Thundar's Avatar
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    The law was ruled unconstitutional once by SCOTUS because it had no relation to interstate commerce. It was reenacted with a statement that guns around schools does have an effect upon interstate commerce.

    It is not enforced because everybody knows it is unconstitutional.

    The real problem is that what is ultimately constitutional is what 5 people in black robes say is constitutional. The minority opinion in McDonald is chilling. Those 4 justices did not accept Heller as binding. They will overturn it if given a chance.

    All it takes is a heart attack, a stroke or an automobile accident from one of the 5 pro gun supreme court justices for gun rights to be severely damaged.

    Dormant unconstitutional laws such as the GFSZA are a real threat, not because they can be used against gun owners now, but because they will be used against gun owners when the make up of the supreme court changes.
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

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    this thread really confused me. I live in Va near Va Tech an as far as i am aware, NO college in my area allows guns to be carried on campus. we have all kinds of colleges near me and not one allows any type of carrying on campus. Lynchburg college, liberty univ, va tech, averett,Lord knows how many community colleges, sweet brier, randolph, and plenty more. most all of the schools have signs saying specifically no guns including none that are stored in yoru car.

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    Regular Member paul@paul-fisher.com's Avatar
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    VT is the official abbreviation for Vermont from the Federal government including the Post Office.

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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by gutshot View Post
    I refuse to be drawn into a argument about grammar and correct usage of abbreviations. I think it incumbent on any writer to do his best to help the reader, who may not have the extensive education, literary experience or knowledge of USPS regs. of the writer, understand his meaning. As we can see from this thread a wee bit of ambiguity slipped into this one. If anyone insists on using US Postal Service abbreviations I recommend they include the zip code for clarity.
    Whatever. Why would anyone in their right mind ask a question about Virginia Tech in the VERMONT forum? Also, why would I ask a question about a college when GFSZ regulations (do I need to explain that one as well) have nothing to do with colleges?

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    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by gutshot View Post
    I refuse to be drawn into a argument about grammar and correct usage of abbreviations. I think it incumbent on any writer to do his best to help the reader, who may not have the extensive education, literary experience or knowledge of USPS regs. of the writer, understand his meaning. As we can see from this thread a wee bit of ambiguity slipped into this one. If anyone insists on using US Postal Service abbreviations I recommend they include the zip code for clarity.
    I live in Michigan (MI) and we get confused with Montana (MT)... why not use the pre-zip abbreviations which are actually correct? The postal abbreviations are for mailing purposes. The only downside is Vermont postal abbreviation is VT and the pre-zip abbreviation is Vt.. Oh well, just a thought...
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    Regular Member turbodog's Avatar
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    Quote Originally Posted by paul@paul-fisher.com View Post
    Whatever. Why would anyone in their right mind ask a question about Virginia Tech in the VERMONT forum? Also, why would I ask a question about a college when GFSZ regulations (do I need to explain that one as well) have nothing to do with colleges?
    Federal doesn't. Some states do.

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    How did everyone get from GFSZs to ZIP codes? Even tho in states that believe in a citizens right to exercize the 2nd Amendment, BIG BRO. could enforce GFSZ or anyother law, if thay choose to, the same way the Obama Admen. said thay would arrest people in Cal. for weed, even if Cal. voters made it legal. There are legal ways we can fight this, 1st. invoke the 10th. Amendment, 2nd. stop sending any money, in the name of taxes to the Federal Government, ( we only get about 10 cents out of every dallar back anyway ), 3rd. put the Federal Government on notice that if thay were to send Feds into our states in a intimidateding way, the Sheriff of what ever county thay were in would arrest them and put them in jail, if the Sheriff did not have enough force them he could deputize as meny law abiding gun owners as he would need, if still not enough the Govenor of the state could invoke the first part of the 2nd Amendment, and gather all state law abiding citizens together as the Unorganized Militia. If all 50 states would stand up to the Federal Government, we would no longer worry about GFSZs or anyother unconstitutional laws.
    Last edited by rickc1962; 12-31-2010 at 02:38 PM.

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    Back to Vermont

    Quote Originally Posted by paul@paul-fisher.com View Post
    From what I understand, the Federal GFSZ law basically says if you have a license from your state to carry a firearm, you are exempt from the law.

    Since VT has Constitutional Carry and has never issued permits, how do you guys carry within 1000' feet of a school?

    Thanks!
    Is there anybody from Vermont that has experience in this issue that can answer Paul's question? Please, we're from Wisconsin and we make maple syrup too. Help us out.

    Is it an issue? Has anybody been arrested or hassled for carrying openly or concealed in a GFSZ?

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    Regular Member MKEgal's Avatar
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    Quote Originally Posted by paul@paul-fisher.com
    Why would anyone in their right mind ask a question about Virginia Tech in the VERMONT forum?
    Also, why would I ask a question about a college when GFSZ regulations (do I need to explain that one as well) have nothing to do with colleges?
    +1

    Quote Originally Posted by phred
    we're from Wisconsin and we make maple syrup too
    LOL!

    I like the idea about declaring that all adults (nonfelons, etc.) are members of the state militia.
    I like better the Montana (IIRC) law that simply says "for the purposes of the federal GFSZ Act, all are licensed to carry". (No that's not the exact wording.)
    Last edited by MKEgal; 01-18-2011 at 05:04 PM.
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    Regular Member jpm84092's Avatar
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    I can't help but notice that this thread has responses, but none of them came from a Vermont (VT) resident. (If one is to believe the poster's bio information shown.)

    I have checked Vermont (VT) law and find that Title 13 Chapter 85:4003 makes it unlawful for a person to possess a firearm "on any school property including vehicles". The website www.handgunlaw.us interprets this as being inside a building, not merely on the grounds. (I have not verified this.)

    I too would like to hear how VT Citizens handle the Federal GFSZ. One poster suggested that the Federal Statute would only be used as a penalty enhancer, but his bio did not indicate that he/she was from Vermont.

    And yes, I live in Utah, but I have a "dog in this fight". I am from Wisconsin and have been working from afar to help WI change their concealed carry law from "right denied" to "constitutional carry" (Like AK, AZ and VT = meaning Vermont, not Virginia Tech).
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    Quote Originally Posted by jpm84092 View Post
    I can't help but notice that this thread has responses, but none of them came from a Vermont (VT) resident. (If one is to believe the poster's bio information shown.)

    I have checked Vermont (VT) law and find that Title 13 Chapter 85:4003 makes it unlawful for a person to possess a firearm "on any school property including vehicles". The website www.handgunlaw.us interprets this as being inside a building, not merely on the grounds. (I have not verified this.)

    I too would like to hear how VT Citizens handle the Federal GFSZ. One poster suggested that the Federal Statute would only be used as a penalty enhancer, but his bio did not indicate that he/she was from Vermont.
    I think what it boils down to, is that it's just not an issue in VT. People from VT aren't here participating, because they mostly just don't have any issues: they just carry, and that is that.

    I keep up with the news from northern New England, and I can only recall one case, from about 4-5 years ago, where someone was charged with having a gun on a school campus in VT. I don't remember the particulars, other than that he was being actively pursued by LE for another crime, and jumped the fence to an elementary school and ran into (and I think briefly hid in) the school building.

    My "dog in this fight" is that I'm moving to NH, and depending on which part of Coös County I land in, I'll either be just a few miles, or just a few yards, from VT (or ME). NH is pretty skinny that far north, so it pays to know all three states' laws.

    NH, by the way, also doesn't have an exemption to the FGFSZA, because licensees don't undergo a background check. NH has no laws against carrying on campus or inside school buildings. How does NH "get around it"? Nobody cares, just the same as VT.

    Nobody has ever been charged under the federal law unless they were also doing something that brought the feds into it, like dealing drugs in a school zone. The odds of a local or state LEO referring a gun possession case to the feds, when it doesn't violate state laws and there are no other violations in play, are simply miniscule. Could they? Sure. Would the feds pursue it? Possibly, but not likely.

    If the feds pursued it and won a conviction, it would open up a new challenge to the post-Lopez modification of GFSZA. Absent other federal violations, they'd probably lose, and they don't want to lose that carrot when it comes to carrot-and-stick plea bargain negotiations. GFSZA charges are always an add-on charge, something they settle for when the defendant agrees to a plea bargain.

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    Regular Member Anubis's Avatar
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    Quote Originally Posted by jpm84092 View Post
    I too would like to hear how VT Citizens handle the Federal GFSZ.
    They don't handle it.

    To legally pass through a "school zone" (defined in USC title 18 part 1 chapter 44 section 921) with a firearm, section 922 requires that one must be "licensed" (not defined in 921) by the state containing the school zone. Assuming that means a CC license, there's no such thing as a Vermont CC license, and if a Vermonter has, say, a Florida CC license, that doesn't work either.

    If you think the BATFE will never decide to enforce 922, you trust them a lot more than I do.
    Last edited by Anubis; 03-01-2011 at 04:47 PM.

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    Regular Member paul@paul-fisher.com's Avatar
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    OK, we have heard from all sorts of states but no one who actually lives in VT. I guess it must not be a problem then.

    MT has some wording in their laws that basically says that if you are a resident of MT, you are assumed to have been issued a license that is compatible with the Federal GFSZ.

    So far, that hasn't been challenged in Federal court.

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    Regular Member AZkopper's Avatar
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    Well, AZ allows for unrestricted Open Carry, and nowadays for unrestricted Conceal Carry. AZ has no GFSZ law. The only law is that a gun on a school campus must be unloaded and out of sight in a locked vehicle.

    Local and state officials have no interest in enforcing the federal GFSZ law. We just ignore it. Now there is a bill in the State Legislature that basically states that if you are legally able to own a gun in AZ, you are 'deemed' licensed by the state for purposes of the federal GFSZ--just so the feds can't come in and enforce it on us.

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    Quote Originally Posted by AZkopper View Post
    Well, AZ allows for unrestricted Open Carry, and nowadays for unrestricted Conceal Carry. AZ has no GFSZ law. The only law is that a gun on a school campus must be unloaded and out of sight in a locked vehicle.

    Local and state officials have no interest in enforcing the federal GFSZ law. We just ignore it. Now there is a bill in the State Legislature that basically states that if you are legally able to own a gun in AZ, you are 'deemed' licensed by the state for purposes of the federal GFSZ--just so the feds can't come in and enforce it on us.
    Thanks, this is good to know. Could you give the number of the bill or a reference to it that we could look at it and see what the pertinent language is?

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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by phred View Post
    Thanks, this is good to know. Could you give the number of the bill or a reference to it that we could look at it and see what the pertinent language is?
    Phred, don't forget, we copied MT legislation into the suggested WI legislation.

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    Regular Member AZkopper's Avatar
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    Here it is, AZ House Bill HB2392:

    http://www.azleg.gov/FormatDocument....ls/hb2392p.htm


    State of Arizona
    House of Representatives
    Fiftieth Legislature
    First Regular Session
    2011

    HB 2392

    Introduced by Representatives Seel, Gowan, Smith D, Stevens: Ash, Barton, Burges, Court, Crandell, Dial, Fillmore, Gray R, Harper, Judd, Kavanagh, Mesnard, MonteAfrican American, Olson, Ugenti, Urie, Yee, Senators Biggs, Gould


    AN ACT
    amending title 13, chapter 31, Arizona Revised Statutes, by adding section 13-3121; relating to firearms.


    Be it enacted by the Legislature of the State of Arizona:

    Section 1. Title 13, chapter 31, Arizona Revised Statutes, is amended by adding section 13-3121, to read:

    START_STATUTE
    13-3121. Firearm possession; outside the grounds of a school

    For the purposes of 18 United States Code section 922, a person who lawfully owns or possesses a firearm pursuant to the constitution and laws of this state is considered by this state to be individually licensed and verified to possess a firearm immediately outside the grounds of a school.

    END_STATUTE

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    AZKopper: Thanks a bunch

    Paul: Yup, I know. I thought it might be useful for if/when our suggested legislation meets a hurdle. Just building up the "files".

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    Regular Member paul@paul-fisher.com's Avatar
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    Quote Originally Posted by phred View Post
    Paul: Yup, I know. I thought it might be useful for if/when our suggested legislation meets a hurdle. Just building up the "files".
    Gotcha! Thanks!

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    Quote Originally Posted by KBCraig View Post
    I think what it boils down to, is that it's just not an issue in VT. People from VT aren't here participating, because they mostly just don't have any issues: they just carry, and that is that.

    I keep up with the news from northern New England, and I can only recall one case, from about 4-5 years ago, where someone was charged with having a gun on a school campus in VT. I don't remember the particulars, other than that he was being actively pursued by LE for another crime, and jumped the fence to an elementary school and ran into (and I think briefly hid in) the school building.

    My "dog in this fight" is that I'm moving to NH, and depending on which part of Coös County I land in, I'll either be just a few miles, or just a few yards, from VT (or ME). NH is pretty skinny that far north, so it pays to know all three states' laws.

    NH, by the way, also doesn't have an exemption to the FGFSZA, because licensees don't undergo a background check. NH has no laws against carrying on campus or inside school buildings. How does NH "get around it"? Nobody cares, just the same as VT.

    Nobody has ever been charged under the federal law unless they were also doing something that brought the feds into it, like dealing drugs in a school zone. The odds of a local or state LEO referring a gun possession case to the feds, when it doesn't violate state laws and there are no other violations in play, are simply miniscule. Could they? Sure. Would the feds pursue it? Possibly, but not likely.

    If the feds pursued it and won a conviction, it would open up a new challenge to the post-Lopez modification of GFSZA. Absent other federal violations, they'd probably lose, and they don't want to lose that carrot when it comes to carrot-and-stick plea bargain negotiations. GFSZA charges are always an add-on charge, something they settle for when the defendant agrees to a plea bargain.
    If the police run a background check on you before you are issued the permit, you are exempt from the GFSZA. I would recommend that someone get's a background check from the police or AG (whoever does it in NH) and bring that to your licensing authority (if it's your town selectman or something) and include it in your application for a license, that way, according to the exemptions laid out in 18 USC 922(q), you would be exempt. I would imagine most PD's run a background check on you before giving you a license, I know the state police do for non-resident licenses.

    Secondly, the background check thing in itself may not be an issue, Alabama does not require a background check to get a carry license, but the 11th circuit ruled that an Alabama permit will exempt you from the GFSZA.

    I would argue realistically that the only way a New Hampshire license may not be valid for an exemption would be if it's issued by the mayor or town selectman, and they do not run a background check on you at all, and you do not include a background check in your application.

  22. #22
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    i can tell ya how we get around the school zone thing here; first we whip out our trusty maps, then google it up, we walk 6 blocks- unloaded and encased, then we cut through some guy's yard, and get over to the sidewalk on the next street, while the guy who's yard we cut through is persuing us asking; what the hell you doin my yard? we shake him, find a quiet spot, and holster up, go another few blocks, and then damn it, back into the case the gun goes- unloaded, cause were back on the edge of another school zone. then we get pissed, and call one of our buddies to come get us, and get us the hell out of this town.

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    The fallacy in the argument is that a "license" is a piece of paper a person obtains from a State. This is not true. A license is not a piece of paper; but rather, a license is permission by the State to engage in a particular activity. The piece of paper that everyone refers to as a "license" is merely evidence of the State granting that permission.

    Remember, we are talking about federal criminal law here; and a federal prosecution. The federal gov't is usually not bound by state actions or decisions. However, in this particular case, the federal gov't has agreed to be bound by state law. So if the state says its OK, then its OK.

    Because they have agreed to be bound by state law, there is no State's rights constitutional violation; and in-fact all state licensed (as in given permission; not issued a paper license) gun owners are allowed in school zones unless there is a specific state law to the contrary.
    Last edited by cocked&locked; 04-14-2011 at 04:20 PM.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by Jared View Post
    Secondly, the background check thing in itself may not be an issue, Alabama does not require a background check to get a carry license, but the 11th circuit ruled that an Alabama permit will exempt you from the GFSZA.
    That ruling would be very interesting to read.... do you have any reference to where one might find it?

    TFred

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    Quote Originally Posted by TFred View Post
    That ruling would be very interesting to read.... do you have any reference to where one might find it?

    TFred
    US v Tait (2000) 11th Circuit

    « up202 F.3d 1320 (11th Cir. 2000)
    UNITED STATES of America, Plaintiff-Appellant,
    v.
    Wiley Block TAIT, Defendant-Appellee.
    No. 99-11825
    Non-Argument Calendar.
    United States Court of Appeals,
    Eleventh Circuit.
    Feb. 4, 2000.
    Appeal from the United States District Court for the Southern District of Alabama. (No. 99-00012-CR-CB), Charles R. Butler, Jr., Chief Judge.

    Before TJOFLAT, BARKETT and WILSON, Circuit Judges.

    WILSON, Circuit Judge:

    1
    A federal grand jury returned a two-count indictment against Wiley Block Tait in January, 1999. The indictments arose from a 1997 incident wherein Tait possessed a pistol. Count One charged Tait with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). Count Two charged Tait with possessing a firearm in a gun-free school zone in violation of 18 U.S.C. 922(q)(2)(A).

    2
    Tait filed a motion to dismiss both counts, claiming that exceptions to both 922(g)(1) and 922(q)(2)(A) made his possession of the pistol legal. The district court granted Tait's motion to dismiss both counts, based on the court's interpretation and application of relevant statutes. The government appeals the district court's dismissal. This court reviews de novo dismissals based on statutory interpretation. Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1139 (11th Cir.1992).

    3
    We affirm.

    BACKGROUND

    4
    At the time of Tait's alleged violations, Tait had three prior felony convictions in the state of Michigan: a 1958 conviction for the crime of Utter & Publish; a 1962 conviction for Attempted Larceny from a Motor Vehicle; and a 1968 conviction for Enter Without Breaking. Each conviction was punishable by imprisonment for a term exceeding one year. In March, 1997, the Escambia County, Alabama Sheriff's Department issued Tait a pistol license. On November 3, 1997, the Atmore, Alabama Police Department arrested Tait after he allegedly placed a fully-loaded gun against a student's neck while on Escambia County High School property. The two-count indictment against Tait followed.

    DISCUSSION

    Count One: Violation of 922(g)(1)

    5
    The grand jury's first count against Tait charges a violation of 18 U.S.C. 922(g)(1). This section makes it "unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year" to possess a firearm in or affecting commerce or to receive a firearm which has been shipped or transported in interstate commerce. 18 U.S.C. 922(g)(1). Tait's felony record, consisting of three separate crimes each punishable by more than one year imprisonment, brings him within the ambit of the 922(g)(1) prohibition against possessing firearms. However, 922(g)(1) has a pertinent exception. Section 921(a)(20) provides:

    6
    What constitutes a conviction of [a crime punishable by imprisonment for a term exceeding one year] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

    7
    18 U.S.C. 921(a)(20).

    8
    The first sentence of 921(a)(20) makes clear that Michigan law-the state of Tait's convictions-dictates whether Tait's felonies constitute convictions under 922(g)(1). The second sentence of 921(a)(20) provides the exception to 922(g)(1): a conviction will not count as a conviction for purposes of 922(g)(1) if, inter alia, the state of conviction (Michigan) restores civil rights to the person previously convicted. Tait argues that he did not violate 922(g)(1) because his civil rights were restored under Michigan law.

    9
    The district court determined that Michigan does restore civil rights to persons previously convicted, and that Tait's civil rights were so restored. The district court was without the benefit of a recent Sixth Circuit case, Hampton v. United States, 191 F.3d 695 (6th Cir.1999) when it rendered its decision in this case.1 Hampton unequivocally confirms the district court's conclusion that Michigan restores all civil rights to convicted felons. The Hampton court determined that Michigan restores civil rights by operation of law (as opposed to granting certificates or otherwise memorializing the restoration). See id. at 702. Hampton relied on United States v. Bolton, 32 F.Supp.2d 461 (S.D.Texas 1999), in reaching its decision. The Bolton court held:

    10
    [T]his Court finds that Michigan law provides for the automatic reinstatement of all civil rights of convicted felons following release from custody and completion of probation. Thus, once [the defendant] completed his sentence ..., all or essentially all of [his] civil rights-namely, his right to vote, to hold public office, and to serve on a jury-were "restored automatically by the force of the very [Michigan] laws that suspend[ed] them."

    11
    United States v. Bolton, 32 F.Supp.2d at 465 (quoting United States v. Dahms, 938 F.2d 131, 134 (9th Cir.1991)).

    12
    Thus, under Hampton, Tait's civil rights were restored. This conclusion does not, however, automatically qualify Tait for the exemption in 921(a)(20). Section 921(a)(20) contains an "unless" clause: the restoration of civil rights exempts a convicted felon from the prohibition against possessing a firearm "unless such ... restoration of civil rights expressly provides that the person may not ... possess ... firearms." 18 U.S.C. 921(a)(20). The Supreme Court discussed this "unless" clause at length in Caron v. United States, 524 U.S. 308, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998). Caron involved a Massachusetts statute which prohibited felons from possessing handguns, but which did not prohibit felons from possessing rifles. The issue in Caron was whether the state prohibition against felons possessing some weapons, but not all, triggered the unless clause. See id. at 2011. The Court held that the prohibition did trigger the unless clause. The Court essentially held the unless clause is "all-or-nothing;" either state law triggers the clause by banning felons from possessing some firearms, or state law does not trigger the clause because the state does not ban felons from possessing any firearms. See id. Since Massachusetts had deemed felons unfit to possess some weapons, the statutory unless clause had been triggered (and therefore felons in Massachusetts do not qualify for the 921(a)(20) exception). If Massachusetts had remained silent on the issue, the unless clause would not have been triggered.

    13
    Michigan, like Massachusetts, grants restoration of civil rights by operation of law. As such, Tait received no written restoration of civil rights which could have expressed any limitations on those rights. Rather, these limitations would also be found in Michigan law. The government contends that section 750.224f of the Michigan Code provides the limitation in Tait's case. The section prohibits persons convicted of "specified felonies" from possessing firearms.2 Mich. Comp. Laws 750.224f (1999). A "specified felony" is a felony in which:

    14
    An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

    15
    Mich. Comp. Laws 750.224f(6)(i).

    16
    The government contends that one of Tait's crimes, Attempted Larceny from a Motor Vehicle, should be considered a specified felony.3 The district court found that Tait's attempted larceny from a motor vehicle conviction did not qualify as a specified felony. Whether attempted larceny from a motor vehicle is a specified felony turns on whether the crime involves a substantial risk of physical force, or the use, attempted use, or threatened use of physical force as an element of the crime. The district court, finding no Michigan law which defines physical force, determined that "a logical interpretation of the larceny from motor vehicles statute would be that physical force is not required."4 Absent an element of physical force, larceny from motor vehicles would not be a specified felony. Consequently, the conviction would not trigger the unless clause under Caron, and the restoration of Tait's civil rights would qualify for the 921(a)(20) exception. Therefore, we hold that Tait's civil rights were unreservedly restored to him by operation of Michigan law, and Tait was not subject to prosecution under 18 U.S.C. 922(g)(1). The district court properly dismissed Count One of the indictment against Tait.

    Count Two: Violation of 922(q)(2)(A)

    17
    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.

    CONCLUSION

    28
    Wiley Block Tait, a former felon, possessed a firearm in a gun-free school zone. Under some circumstances, these facts would have subjected Tait to prosecution under 18 U.S.C. 922. However, Tait violated neither 18 U.S.C. 922(g)(1) nor 18 U.S.C. 922(q)(2)(A) in this instance, because both sections have exceptions which legalized Tait's possession. Therefore, the district court's order is

    29
    AFFIRMED.
    NOTES:

    1
    The state of Michigan is part of the Sixth Circuit. Thus Hampton v. United States is controlling on this issue until and unless the Michigan Supreme Court rules otherwise. See Hampton, 191 F.3d at 702.

    2
    Section 750.224f contains exceptions, as well as its own restoration conditions, which are not relevant to this appeal.

    3
    Specified felonies also include felonies which specifically involve controlled substances, firearms, or explosives, as well as the felonies of burglary of an occupied dwelling, breaking and entering an occupied dwelling, and arson. See Mich. Comp. Laws 750.224f(6)(ii)-(v). The district court aptly concluded that by separating out burglary of an occupied dwelling and breaking and entering an occupied dwelling, Michigan legislators intended that burglary of a non-occupied dwelling and breaking and entering of a non-occupied dwelling should not themselves be considered specified felonies. Hence, attempted larceny from a motor vehicle (being akin to burglary or breaking and entering of a non-occupied dwelling) likewise would not be a specified felony.

    4
    The Michigan statute defining larceny at the time of Tait's conviction in 1962 provided:

    Any person who shall commit the offense of larceny by stealing or unlawfully removing or taking any wheel, tire, radio, heater or clock in or on any motor vehicle, house trailer, trailer or semi-trailer, shall be guilty of a felony, punishable by a fine not to exceed $1,000.00, or by imprisonment in the state prison not more than 5 years.

    Any person who shall enter or break into any motor vehicle, house trailer, trailer or semi-trailer, for the purpose of stealing or unlawfully removing therefrom any goods, chattels or property of the value of not less than $5000.00, or who shall break or enter into any motor vehicle, house trailer, trailer or semi-trailer, for the purpose of stealing or unlawfully removing therefrom any goods, chattels or property regardless of the value thereof if in so doing such person breaks, tears, cuts or otherwise damages any part of such motor vehicle, house trailer, trailer or semi-trailer, shall be guilty of a felony, punishable by a fine not to exceed $1,000.00, or by imprisonment in the state prison not more than 5 years.

    Mich. Comp. Laws 750.356a (1968).

    5
    Tait argued to the district court and on appeal that the Gun-Free School Zone Act is unconstitutional under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The district court determined that it "need not reach the constitutionality issue because Tait's permit removes him from the reach of 922(q)." This court declines to entertain Tait's constitutional argument for the same reason.

    6
    The Caron court noted, in the context of a discussion of 922(g), that state laws provide the source of law for determining restoration issues, as well as for determining whether a former felon is too dangerous to possess a firearm. In other words, federal law uses state findings to determine whether the federal law has been violated. See Caron, 524 U.S. 308, 118 S.Ct. at 2011-12, 141 L.Ed.2d 303.

    7
    The government argues that Alabama's licensing requirements are so relaxed that they will always fail to qualify their licensees for the 922(q)(2)(B)(ii) exception. The government maintains that Congress envisioned a background check when drafting the exception. This would require states to check for prior felonies before issuing firearms licenses. If the state failed to do so, their licenses would be valid for state purposes, but the licensees would not garner the 922(q)(2)(B)(ii) protections. While the government's argument is persuasive, it misses the point. Tait's civil rights were fully restored by operation of Michigan law; hence, even if Alabama had conducted a background check, Tait would have qualified for the license so long as Alabama allowed former felons to possess firearms. Whether Tait qualified for a license under Alabama laws is discussed later in this opinion. Having determined that Alabama's licensing procedure is not relevant to this appeal, we decline to decide whether, in general, Alabama's licensing procedure qualifies its licensees for 922(q)(2)(B)(ii) protections.

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    Last edited by cocked&locked; 04-14-2011 at 06:12 PM.

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