Restoration of Rights?

[pcosmar]

I have a question and would like to ask some input. I am going to appeal my recent case.
In the Firearm Owners Protection Act 1986, there is a provision for "restoration of rights" for those who are classed as Prohibited Persons.
I had in my youth gotten stupid and was convicted of a felony. I did time and parole, and have worked hard to get past my past. I moved back to my home state and bought a home near where I grew up.
My rights had been restored in the state where I had gotten in trouble, But I had not applied to BATF because I was not buying a gun yet. I wanted to get reestablished in this area first.
My brother (a retired LEO) gave my wife a shotgun as a house warming present. My wife was concerned with predators, as we are in a very rural area. The gun was in our home.
The police got called out for a disturbance at a secondary residence on my property(a mobile home) by a very drunk step daughter. They asked about weapons and I said there was a shotgun in the house. They ran a check on me and I was arrested for A felon in possession.
On the advice of my lawyer I plead guilty to Attempted possession. In reading around the web, I have found what seems to be a conflict between what the "Law" says and "Policy" as it is practiced.
It seems that getting on the prohibited persons list is automatic, but getting off once that status changes is almost impossible.
I am going to attempt an appeal, At the time of the arrest my rights had been restored. That was ( unfortunately ) not reflected on their Instant Check.
Any help or advice would be appreciated.

 

[armoredman]

Gawd I hate to say this - you are done. Congress defunded ATFE from doing 2A rights restoral several years ago. A fed judge may NOT do it, as was tried in Texas some time ago. Try like all get out to get suspended sentance, or something like that, or you're looking at 5 years club Fed. Say "Thank you" to your drunken step daughter, and prepare to wear orange again. Sorry, I wish I had better news, as we don't need non violent inmates reducing space for the truely dangerous ones. The few I have seen who came back in our system for just this crime, (which happens, too, going to state lock up instead of Fed), got between 1 and 3 years.
I sincerely wish you the best of luck.

 

[Gunfire]

IANAL

I think if you plead guilty you can only appeal procedure, not substance. You may have a better shot going for a pardon by the governor.

 

[pcosmar]

On the "Attempted possession" I got 6 months. I am looking at the arrest as improper as I had my rights restored prior to the arrest. LE did not have that information at the time.

 

[pcosmar]

Gunfire, Not this Govener.

 

[Gunfire]

On the "Attempted possession" I got 6 months. I am looking at the arrest as improper as I had my rights restored prior to the arrest. LE did not have that information at the time.

So 'Attempted Possession' is not a felony?

 

[Gunfire]

My rights had been restored in the state where I had gotten in trouble

Was it expunged with restoration of all rights?

I think Wyoming is fighting this very battle. There is a topic abut it. Read that.

 

[pcosmar]

Yes the attemped possossion is a felony. My question was ,if my rights had been restored by the previous state and I am NOT a prohibited person. This charge of Possession by a felon could be thrown out on an appeal. I entered the plea to attempted on advice of my attorney, he said it was the best we could do.
My rights had been restored, BATF not doing their job of correcting this led to this charge.

 

[Trebor]

Here's the problem:

Your rights were restored at the STATE level. Under state law you'd be OK to own a gun.

Unfortunately, you are still prohibited from possessing a firearm under FEDERAL law. Your restoration of rights under state law has no effect on your federal prohibition.

Talk to a good attorney.

 

[pcosmar]

I have read of several cases in several states, and yes I am watching Wy. My rights were restored with a stipulation of "no hand guns, or concealed weapons". This was neither. A 12ga double barrel field gun.

 

[pcosmar]

I was not charged under federal law. I was charged under state law in a state where I had commited NO crime.

 

[pcosmar]

I have been searching for state law regarding this. Every thing seem to be related to handguns and concealed carry. Nothing on long guns, especialy a shotgun on a rural farm. I only found some of this due to the Dems pushing the restoration of rights issue. Lots online about that right now. I may be in my favor, or I my be grasping at straws.

 

[Gunfire]

I would add incompetent representation to the appeal. What I have heard though is if you plead guilty or no contest, as opposed to being convicted, Your rights to appeal are fairly limited. Didn't you tell anyone that you think your rights have been restored. Didn't you have paperwork about it? Did you hire a lawyer to restore your rights from the original conviction? So no one cared that it was protection for your wife? That's the problem with the GCA and lautenburg. It has effectively left your wife defensless. What good is a defensive firearm with a triggerlock or any such device to keep you from possessing.

You can always have six or 12 black powders and bows strategically placed at your home for her protection, right now. No pepper sprays or electric stun guns, in my state anyway.

I also thought if it was a state crime his rights could be restored but not a federal crime because of the unethical circumvention of the law by congress.

 

[pcosmar]

I have run into a lot of misinformation, and I pled on the advice of my attorney. I was not aware of my restored right at the time. I took their word for it, that this was the best deal.
My rights had been restored and my attorney should have checked it out. There is a lot of confusion regarding what the 'Law" is, and what is policy . the applied "policy" is not the law.
The Law onder FOPA1986 says I have rights, Policy as applied by the BATF and theState of Michigan says I don't. I have to appeal. I just don't know if I have any real chance.

 

[hammer4nc]

Please keep us informed as your case progresses. As others have mentioned, disparity between federal and state codes seems to be the catch-22.

I don't have personal experience with them, but you might try contacting the Second Amendment Foundation. They handle some legal challenges (Katrina gun confiscations), and at minimum maintain a lawyer referral service.

Link: http://www.saf.org/default.asp?p=mission

Best of luck.

 

[Gunfire]

I was not aware of my restored right at the time.

Are you saying that you did nothing to expunge it but that a certain amount of time had passed and the rights are automatically restored? I think this is law in Texas, 10 years. The problem with that is the conviction is still there and would show in other states as a felony through the fbi. Many other states do not have automatic restoration so it would not apply unless the conviction was expunged or pardoned. Then it would be removed from the fbi database by the respective state so no other state would see it. Any lawyers please correct me if I'm wrong.

Just so you know, there are alot of people that believe that you should have never lost your right to bear arms in the first place and those that believe they should automatically be restored after a certain probation period like 10 years. Let the man without sin cast the first stone. Mistakes happen but men can change. In my eyes, you did nothing except what a man should, protect your family and loved ones. How can anyone fault you for that? Stay strong for them.

 

[Gunfire]

I have to take it back about the incompetent lawyer. If you only got 6 months for a second felony you did good. If you would have not plead and were convicted, you could easily have gotten 5 years. You would have more grounds for appeal but you would still be in prison. Not good for your family.

Good luck. Talk to a real lawyer.

 

[pcosmar]

To be honest I was expecting to be flamed. I found this site,while searching the law and opinions about the law. I am searching for hope, but there may be none.
I was searching for any lay or amendments that were added since the FOPA1986.I have found none. I have found that it is the "Policy" of the BATF to not correct errors,or to record the restoration of rights. Policy is not law.
My rights were restored in the state where I was convicted.
I did not apply to the BATF, I was not buying a gun.
I had no conviction in this state.
I did not have the shotgun when questioned.
I had not used it.
The LEO were called to a disturbance at a second dwelling, on my property.
I was honest with LEO when asked(maybe a mistake). I did not know it was a problem.
Upon an instant check I was arrested.
I had done nothing,commited no crime.
They entered my home and removed My Wifes shotgun.
I was told that A plea to attemped possession was the best deal I could get.
I will appeal, and I have some more information now.
I don't know if I have a chance, But I have none if I don't try.

Any one who thinks Faster Instant Checks and more information in their hands is a good idea, might look into how they will correct the errors in their records. It might not be just me.

 

[DMF]

First, were you charged and pleaded guilty in state or fed court? It makes a difference.

Second, blaming the ATF for "not correcting this" is completely wrong, and irrelevant. The ATF does not maintain the NCIC system, which is what clued the cops into your prior felony conviction, and ATF has no authority to change the information contained in that system. Also, ATF has been barred by Congress from processing applications for relief from a federal firearms disability since October 1992.

Third, while Congress has barred ATF from processing applications for relief from firearms disabilities, there are alternative methods of having rights restored.

http://www.atf.gov/firearms/faq/faq2.htm#a7

http://www.atf.gov/firearms/faq/faq2.htm#a8

So if in fact your rights had been restored under both state and federal law, then your lawyer was an idiot for advising you to plead this out. However, if there may be other factors making you prohibited, as some court orders to restore rights have restrictions on firearms ownership which could mean you are still prohibited under state or federal law, and therefore your lawyer's advice may have been correct.

 

[DMF]

Unfortunately, you are still prohibited from possessing a firearm under FEDERAL law. Your restoration of rights under state law has no effect on your federal prohibition.

That is not correct:

http://www.atf.gov/firearms/faq/faq2.htm#a8

Depending on the circumstances a restoration of rights by a state court could restore a person's rights under federal law.

 

[DMF]

My rights were restored with a stipulation of "no hand guns, or concealed weapons".

I missed this when I made my first post.

ANY restriction regarding firearms possession by a court order restoring rights, means under federal law (18USC922(g)(1)) you are still prohibited from possessing ANY firearms. Further, some states treat this issue the same way when the restoration of rights was ordered by another state's court. Therefore, your current state may not recognize the restoration done by the other state making you criminally liable under your current state's laws.

 

[Blackfork]

G. GORDON LIDDY.

G. GORDON LIDDY is a convicted felon, but always talks about his wifes firearms. They live in the same house. He even puts out a firearms calendar. How does he manage it?

 

[DMF]

http://thehighroad.org/showthread.php?p=2680832&highlight=Liddy#post2680832

Liddy is a blowhard idiot who says things his audience WANTS to hear, regardless of whether or not they have any attachment to reality/truth.

 

[beerslurpy]

Guys, stop misleading him. Felon in possesion is both a state and federal crime. He was charged at the state level, not by a US Attorney. All he has to do is get his rights restored at the state level and he is good to go.

Next time, dont plead guilty to things you arent guilty of. If you think you are saving time and money by doing things this way, you are sorely mistaken.

If your state-level sentence included a prohibition against any sort of firearm, you are nailed for all firearms. That's federal law. Unless you can get that condition lifted, you wont get anywhere. But all the bureaucratic machinery is there to do it. You just have to put in the effort. Assuming that MI is anything like FL, they will evaluate your character and all that and assuming you havent been causing trouble recently, they will probably restore you to full citizenship.

 

[DMF]

beerslurpy, I can't speak for others, but I was not misleading him.

According the original poster his restoration of rights included a restriction on possessing handguns. This means under federal law he is still a prohibited person for ALL firearms. As I said some states also treat that restriction the same way, and it's possible the state law in the state where he is convicted of being a felon in possession of a firearm does that.

Further some states don't recognize an a court order restoring rights, and only recognize pardons, expungements, and/or convictions overturned on appeal.

Therefore it is you who is misleading people with this statement:

All he has to do is get his rights restored at the state level and he is good to go.

Because it is NOT that simple.