Legally Speaking Be Careful What You Ask For When Advocating
Enforcement
by Karen L. MacNutt
My client looked distinctly uncomfortable. He was, after all, the
vice president of a local bank, deacon of his church, and, to all
his neighbors, a model citizen." So," I asked, "How can I help
you?"
"It was so long ago," he began, "I don't want my children or
grandchildren to know."
"Why don't you tell me about it," I prompted. His eyes would not
meet mine.
"The ATF came to my house this morning. It was so embarrassing.
Not even my wife knew." He paused.
"What did they want?"
"They said I was a felon and I had bought a gun and if I did not
surrender all the guns in the house to them right away they would
arrest me on the spot. They took my guns. They took my wife's
guns. They even took my son's gun. They said that if there were
any guns in the house, they would arrest me as a felon in
possession of guns. They said they were going to turn the case
over to the US Attorney to see if they were going to prosecute."
"How did you come to their attention?"
"I wanted to buy a shotgun for my son's 25th birthday. When I
filled out the 'instant check' stuff, the man in the gun store
said I would have to wait. I went back a couple of weeks later
and since nothing had come back saying I was disqualified, they
let me buy the gun. Now the ATF is saying I lied on the form and
I have a felony record."
"Do you?" I asked.
"Well," my client said, "I didn't think so. I've only been in
trouble once and it was just stupid stuff while I was in
college." He paused. "It was during one of those student
demonstrations in the late '60s. We were protesting something.
Well, this is really stupid. . .I mooned the dean and they
charged me with indecent exposure." He let out a big sigh.
"The judge said if I didn't do it again there would be no problem
and I would not be disqualified from anything. We all thought it
was a big joke at the time. I didn't even have a lawyer. I think
I had to pay $25 or something. I've owned guns for years. I've
had a pistol permit for over 20 years and this is the first time
I've ever had a problem. It was so long ago. Can they still hold
it against me?"
The short answer was, "yes." They can hold an old conviction
against you.
Gun rights activists often propose toughening the criminal laws
as an alternative to more gun laws. They should be careful of
what they ask for. Some of the repressive laws they are
suggesting will be used against them in ways they never dreamed
of.
For example, most people think felons should be barred from
possessing guns forever. Most people think that "felons" are
desperate or violent people. That is not always the case.
Felonies are not always violent. Some laws are drafted so broadly
that widely different behavior is made illegal.
Lewd behavior is a felony in some states. Lewd behavior can run
all the way from relieving yourself in an inappropriate place, to
social protest, to sun bathing, to the acts of a really perverted
mind. Pornography can be totally disgusting and is a felony in
many places.
On the other hand what is pornographic changes. The term has been
applied to classical art such as all those naked Greek statues.
It has also been applied to parents who took naked pictures of
their children as babies in typical baby behavior.
In many states gambling is a felony. Getting a woman with child
(even if you marry her later) can be a felony. Procuring an
abortion used to be a felony. Even though the act is no longer
criminal, if you did it when it was illegal and were convicted,
you would be a felon.
Cheating on your income tax or filling out a host of government
forms incorrectly can be a felony. Then there are those heinous
crimes such as donating too much money to a political campaign,
allowing an endangered species to commit suicide against your
windshield, filling in that swampy (wetlands) part of your
backyard and certain types of illegal dumping. Many of these laws
do not require intent. The fact you were unaware you were
violating the law is not a defense.
Some people violate the law by accident or stupidity, other
people are truly evil and vile. Putting people in jail without
regard to the circumstances of their offense is not just. Our
laws must be able to distinguish among these groups. As our
firearms laws become more complex, more people find themselves in
violation of those laws unintentionally. We must keep law
enforcement local and we must allow the courts some flexibility.
With the exception of some computer crimes, just about any
anti-social activity that should be criminal, is already
criminal. Stacking charges or creating overlapping federal and
state jurisdiction allows for multiple prosecutions for the same
crime. We should not promote a system that allows the state to
zero in on someone and then keep dragging that person before
different courts until it gets a conviction. Such convictions are
not based on the guilt or innocence of the person charged. They
are based upon the accused's financial and emotional weakness.
When the NRA proposed the "instant check" as an alternative to a
waiting period, sportsmen believed they were making a good faith
compromise. The "instant check," however, created the framework,
not just for national gun registration, but for a national
tracking system of all citizens. Made possible by computers, the
federal government is compiling massive amounts of information
about all of us. Not all of that information is correct.
Each state has different laws and standards. There is no uniform
labeling of crimes or characterization of offenses as
misdemeanors or felonies. In many states, the older criminal
records are not in good order.
When I started practice, all records were kept by hand locally.
Different courts kept their records in slightly different ways.
There were differences in the way judges handled cases. Many
states have methods which allow the judge to impose court
supervision without giving the accused a criminal record. Terms
such as "pre-trial diversion," "pre-trial probation,"
"continuance without a finding," "placing on file," "conditional
dismissal," and "suspended finding," describe dispositions which
do not result in giving the accused a criminal record. Because
judges believed nothing other than a fine would result from such
dispositions, they were quick to impose them without much thought
to the guilt or innocence of the accused.
In some areas, records of closed cases have been destroyed
leaving only cryptic entries describing the charges but not the
disposition of the case. When the NICS check is conducted, it
frequently turns up these partial records. To make matters worse,
the "instant check" also looks at the NCIC records of arrests. If
no follow up entry was made in that data base indicating what
happened after the arrest, the government tends to treat the
reported arrest as if it were a conviction. The citizen is then
forced to prove he was not convicted. There is no time limit on
convictions, so that a check could turn up a record 60 years old.
Tracking down older public records can be very difficult.
If that were not bad enough, many states have similar sounding
crimes, some of which are felonies and some are not. It can get a
little confusing. For example, if someone were charged with
larceny, we would have to know whether it was larceny "over" or
"under" to determine if it was a felony. If the item stolen
exceeded a certain value, it is larceny "over" and a felony. The
problem is that the value of the item taken to create the felony
of larceny "over" is not constant from state to state. The theft
of a hubcap in one state could be a felony, while the exact same
act in another state is not. Even within a state, the laws
change. Penalties have crept up. If you were convicted of drunk
driving in Massachusetts in 1993, you are not disqualified from
having a gun. If you were convicted of the same crime in 1994 you
are disqualified.
A criminal conviction remains forever unless you are pardoned,
have the record expunged or you live in a state that
automatically expunges a record on the passage of time. Most
states do not automatically expunge records. Some states seal
records after a period of time. The sealing of a record does not
remove the conviction, it simply hides it from the general
public. If you have a sealed record, you should consult with your
attorney before answering any governmental questionnaire that
asks about convictions.
In my client's case, if he had a conviction, even though it was
over 35 years ago, it was still a conviction. The attitude some
people take of, "If you don't see it, it can't hurt you," is
dangerous. With improvements in data entry and computers, you
cannot assume that old records will not be found.
This brings us back to my client. Our first problem was to
determine what had happened in the original court proceeding.
That was difficult, because most of the original records had been
destroyed. There were two possible crimes he could have been
charged with. One was a misdemeanor, the other was a felony. Both
had similar sounding names such as "open and gross lewdness" or
"lewd behavior." It was impossible to tell from the records which
offense he had been convicted of. It was also impossible to tell
from the record whether he had been convicted or his case had
been continued and dismissed. The normal disposition of this type
of case would have been a continuation and dismissal. On the
other hand the mooned college official may have demanded a higher
price for the affront to his dignity.
The "instant check" people assumed the worst, even though the
records were ambiguous. In the end, we petitioned the court to
reopen a 35-year-old case to correct and complete a record that
had been destroyed.
My client was one of a growing number of people who have become
entangled in a complex web of laws based on old and incomplete
information. Prior to computers, this information was happily
inaccessible. That is no longer the case. Not only have faulty
records caused trouble for some people, but court interpretations
of the Firearms Owners Protection Act have opened the door to
serious problems.
At one time, the federal government refused to recognize state
pardons of people with felony convictions and further refused to
recognize the state classification of a crime as a misdemeanor if
the potential penalty was greater than two years. This led to
problems with people who committed state crimes, which were
misdemeanors under state law but are treated as felonies under
federal law.
This also caused problems for people who received pardons or who
had their right to own firearms restored under state law. Such
people acquired guns in good faith, believing they were in
compliance with the law only to be prosecuted by the federal
government as felons in possession of firearms. To help these
people the Firearms Owners Protection Act amended federal law to
provide that, "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 under this
chapter, unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship,
transport, possess, or receive firearms."
This provision has been interpreted by a number of federal
district and circuit courts in different ways. One line of
thought was that a restoration of rights had to be full. If any
limitation was placed on firearms ownership, this section did not
apply. The other line of thought was that the rights were
restored or limited under federal law to the same extent they
were restored or limited under state law.
For example, in Massachusetts, it used to be that five years
after a conviction for a felony a person's right to own rifles,
shotguns, and handguns was restored but their right to carry
handguns outside their home was not. There were also a number of
pardons given out to restore limited firearms rights such as the
right to have a firearm for hunting, or the right to have just
rifles and shotguns.
In 1998, the United States Supreme Court ruled in Caron v. United
States, 118 S.Ct. 2007, that if there were any limitations on
firearms ownership remaining after a restoration of rights, that
the federal law prohibited such person from possessing any
firearms. That is, even if the state specifically said the person
could have certain firearms, the federal law would not recognize
that.
This has resulted in prosecution or threats of prosecution of
scores of firearm owners who thought they were in compliance with
the law. Even people who resided in those areas where the courts
had previously recognized a partial restoration of firearms
rights were held to be subject to prosecution. That is, people
who acquired firearms in good faith and in reliance on the ruling
of their federal circuit court are now held to be in violation of
the law.
The ruling of the Supreme Court is contrary to the plain meaning
and expectations created by the statute. It recreates the very
ambiguity in the law that the 1986 Firearms Owners Protection Act
was intended to correct. It once again raises the prospects of
people being prosecuted under federal law for being a felon in
possession of firearms as a result of a violation of state law,
even though the state has forgiven the offense and removed the
disability.
As the "instant check" involves more and more Americans, some
people have been shocked to find that they have criminal records
due to some stupid transgression they fairly believed to have
been dismissed. Others who believed themselves to have been
pardoned and specifically forgiven for an offense are suddenly
finding that they are subject to prosecution as a felon in
possession of firearms.
When the government proclaims that thousands of felons have been
prevented from buying firearms, I wonder how many of them are
people who legitimately thought their rights had been restored or
who are victims of poor record keeping?
Before we demand that all those who failed the background check
be prosecuted, we should first ask, "How accurate is the data
base the refusal was based upon?" We should then ask, "What are
the circumstances?"
In many instances, I believe fair-minded people would come to the
conclusion that the people involved should not be prosecuted.
Published in Gun Week
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