So, I won a (non-violent) felon in possession case in the MN court of appeals

[Rmeju]

I'm the attorney, btw, not the defendant.

Obligatory warning: If you're a non-violent felon in MN, you should really talk to a lawyer before picking up a gun based on what you read in this internet post!

I took a pro bono appellate case through our state's appellate public defenders office at the beginning of last year, and recently won. The main issue wasn't 2A related, but part of it was. My guy's secondary conviction was for our state law felon in possession statute, but his prior wasn't violent. I've seen this topic pop up from time to time on THR, so I thought I'd share the public details for those who are interested.

The MN Supreme Court recently left open the door to a challenge to the state law for non-violent felons, so I thought I'd give it a shot to see if I could win by saying that the felon dispossession law violated my guy's 2A rights. For you legal eagles who are interested in seeing the briefing, I've attached my opening brief. The 2A stuff starts on p.18 (pdf p.25)

In response to the constitutional argument, the prosecution pretty much folded. They actually came back and argued that my guy should never have been prosecuted in the first place, because a different state law restored his gun rights when his sentence was up, and that his conviction was a mistake. I took this as sort of a compliment regarding my 2A argument, figuring they would have fought it if they thought they could win. The state law in question restores all of a felon's civil rights upon expiration of the sentence (including any probation, etc.), except for the gun rights of violent felons.

I couldn't make this argument because it had been waived for other reasons at trial, in consultation with the trial attorney (and the case law on this point was a bit hazy anyway) but hey, I couldn't stop the prosecutor from saying it.

Naturally, we were fine with this position on our side, but with the proviso that the court of appeals actually agreed with the prosecutor's reading of that law... the question had never been squarely decided, and after all, the logical extension of this reasoning would be to severely narrow the otherwise-lifetime ban on non-violent felons. Under this interpretation, the "lifetime" ban would simply be reduced to a ban for the duration of the sentence (again, including probation, etc.).

The court of appeals agreed, and they published the case (meaning it sets precedent). Personally I viewed this as a better result than getting the law struck down, since it basically means my legislature voluntarily chose not to violate the constitution in the first place. I've attached the decision here, in case anyone wants to read it. The pertinent piece is short, and starts on p.8.

 

[Officers'Wife]

It's always interesting to me how many precedents are made in cases of less than stellar citizens. My compliments.

 

[Jim Watson]

You mean in Minnesota, you really do "pay your debt to society?"

Reminds me of the old western movie with the guy getting his gunbelt and sixshooter back from the warden when released from Yuma.

 

[Frank Ettin]

Nicely done.

It appears that the applicable Minnesota statute would also obviate the federal disqualification under 18 USC 922(g)(1) since federal law looks to state law with respect to a state law conviction; and the (g)(1) disqualification expires (18 USC 921(a)(20)):

...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,...

The opinion was a bit sketchy, but is it correct that the firearm disqualification would not automatically expire were the conviction for a "...crime of violence as defined in section 624.712”?

 

[Comrade Mike]

It's always interesting to me how many precedents are made in cases of less than stellar citizens. My compliments.

Because stellar citizens don't get arrested or face trial. look at Clarence Gideon's past.

 

[Rmeju]

The opinion was a bit sketchy, but is it correct that the firearm disqualification would not automatically expire were the conviction for a "...crime of violence as defined in section 624.712”?

Frank, you are correct that the opinion was a bit wishy washy (for example, stating that he was not an ineligible person "at the relevant time," as well as its reference to statutorily-defined crimes of violence).

Since the arrest, one of my guy's other priors has since been reclassified as a "crime of violence," which is probably where the "at the relevant time" language came from. I also note that in Minnesota, there are several crimes on the "list" that are considered "crimes of violence" even if they are not actually accompanied by any violence. The big one is possession of any amount of any drugs (small amount of marijuana excepted), but includes others.

The cases I've read seem to indicate that the judiciary is hardly receptive to a challenge on the grounds that the crime wasn't actually violent. I've often wondered if the legislature chose to define jaywalking as a crime of violence, whether that would stand up to a court challenge, since the logic isn't all that much different. Not that I'm trying to shove a gun in the hands of former drug-users or anything, but the cases seem to breezily dismiss the need for actual violence without much analysis.

That said, if you wrote a bad check once upon a time, this case could potentially be used to help you out.

Also, thanks for posting about the federal law. I vaguely understood that to be the case, but I didn't want to post about it since I hadn't really looked into it.

 

[Rmeju]

Oops, Frank! I realized I didn't actually answer your question!

The opinion was a bit sketchy, but is it correct that the firearm disqualification would not automatically expire were the conviction for a "...crime of violence as defined in section 624.712”?

I believe it is correct. 624.713 imposes a lifetime ban. It doesn't state it in those terms, but if you've got the felony, then you're prohibited.

609.165 is the restorative statute. 609.165 subd. 1 generally restores the felon's rights upon "discharge" of the sentence, but subd. 1(a) & (d) seem to pretty clearly indicate that this is inapplicable to violent felons (and violent juveniles) gun rights, absent the special petition contemplated in subd. 1(d).

 

[Frank Ettin]

Oops, Frank! I realized I didn't actually answer your question!...

Thank you for following up. It's an interesting question.

Although it's too early to actually start talking about trends post-Heller, I find it interesting that both Sam (your case in a state court) and Tyler (Tyler v Hillsdale County Sheriff's Department (Sixth Circuit, No. 13-1876)) seem to be taking a harder and closer look at firearms disqualifications.

I strongly doubt they'll disappear, but I think that folks who have had more benign sorts of problems will begin to start seeing opportunities to seek relief.

 

[Crawdad1]

For you legal eagles who are interested in seeing the briefing, I've attached my opening brief. The 2A stuff starts on p.18 (pdf p.25)

Only the law profession could use the word 'Brief' here.

Great work.

 

[Rmeju]

Only the law profession could use the word 'Brief' here.

Touche! A misnomer if ever there was one.

 

[danez71]

Congrats Rmeju.

Its an interesting read for sure.

 

[Derry 1946]

It's a very well-constructed and well-written brief. I would have enjoyed getting the benefit of the court's analysis on the merits. It's an interesting collision of mindsets. Judges who traditionally read 2A broadly (Justice Scalia and ilk) are also traditionally stricter law-and-order types, less prone to side with criminal defendants arguing that the legislature was wrong to classify an offense as violent (as on your jay-walking example). Well done, and thanks for sharing.

 

[Rmeju]

It's a very well-constructed and well-written brief. I would have enjoyed getting the benefit of the court's analysis on the merits.

Thanks! Yeah, that would've been great, of course, but so it goes. I don't think either the appellate judges or the prosecutor wanted to deal with my 2A argument, especially over a gross misdemeanor that, on its own, only warranted probation. Even at the oral argument, I got a question or two from the judges to the effect of "if we agree with your statutory argument, do we need to decide the constitutional argument?" I had to say no, but I also knew that that probably meant I was winning on statutory grounds.

I would've loved to see what they had to say about the 2A argument, but that interpretation of the statute was no small consolation prize.

 

[ApacheCoTodd]

Pro bono...

Good for you!

And good for him as well.

Todd.

 

[Spats McGee]

Congratulations! I'll read your pleadings whenever I get to come up from air on my own.

 

[herrwalther]

My "Brief" encounter with the law was anything but. Our CJ system is so bogged down, I don't wish to be on the defendant side ever again. Though I have worked both sides of the bannister. My brush lasted 6 months all over someone at my former place of employment not following proper paperwork. 6 months I was a suspected felon on bail.

In any case, congratulations on your victory.

 

[Rmeju]

Congratulations! I'll read your pleadings whenever I get to come up from air on my own.

Good luck! I know how that can get.

Looking forward to hearing what you think!

 

[equin]

Congrats from a fellow barrister!