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
PO Box 488
Buffalo, NY 14209


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11 jun 2000