TENNESSEE LAWS ON THE RESTORATION OF CIVIL RIGHTS
With the increased availability of civilian handgun permits in May 1994 and even more extensively in October 1996, there came an increase in the number of individuals who wanted to go back and address their prior criminal records so that they could obtain a civilian handgun permit and/or to allow them to purchase firearms. This is necessary because it is the felony conviction (and in some instances a misdemeanor conviction) renders the person “disqualified” to purchase or possess a firearm.
Even when we are dealing only with a state law conviction, the firearms disqualification remains a result of the combined effect of state and federal law. State law may be the source of the felony or applicable misdemeanor conviction, but the consequence of that state law conviction also triggers a separately actionable federal disqualification under 18 U.S.C. § 922 which, if violated, constitutes a federal felony.
The restoration process can effectively allow certain convicted felons to regain the core set of rights which the federal courts consider key to the determination of whether an individual’s “civil rights” have been fully restored. While it is possible under state law to go back and address most felony and misdemeanor convictions, state felony convictions for violent crimes and drug offenses are beyond help at this time. See, Tennessee Code Annotated § 39-17-1307(b).
There are several statutes which address the restoration issue. In order to determine which set or sets of statutes are involved, it is necessary to determine the source of the disqualifying conviction. If a federal court rendered the conviction, then the restoration process is controlled by federal law. If a state court rendered the conviction, then the individual must seek relief under the laws of the state where the conviction was imposed. While Tennessee has a restoration procedure presently as part of its law – not all states do.
Those individuals convicted in federal court have no practical solution to their disqualification problems at this time. There is a restoration process under federal law that is part of the Gun Control Act. The process is phrased in terms of removal of the federal firearms disabilities. Petitions for removal of the federal firearms disability are directed to the Attorney General pursuant to 18 U.S.C. § 925(c). The authority to review such petitions has been delegated by the Attorney General to the Director of the Bureau of Alcohol, Tobacco and Firearms. See 27 C.F.R. § 478.144. However, even though there is a federal statute and a regulatory procedure for restoration petitions, Congress continuously refuses to appropriate funds for ATF to review such petitions. By denying funding, Congress effectively suspends the statutory grant of jurisdiction to the federal district courts to review convicted felons’ applications for restoration of their firearms privileges.
Even though those with federal convictions have no practical avenue of relief at this time, some of those individuals with Tennessee felony convictions do have the ability to seek restoration of their civil rights which will result in the successful removal of their federal firearms disqualifications.
2. State Law
In order to understand the function and significance of Tennessee’s restoration statutes, it is necessary to understand the combined effect of the state and federal disqualification statutes. Tennessee law makes it a crime for individuals convicted of a violent crime or felony drug offense to possess a handgun. See, Tennessee Code Annotated § 39-17-1307(b). Federal law provides that it is a felony for an individual who has been convicted of a felony in any court to possess any firearm. See, 18 U.S.C. § 922(g). Even though Tennessee’s restriction is limited to handguns, federal law supplements the state law restriction and prohibits possession of any firearms.
At first read, it would seem clear that persons convicted of felonies in any state or federal court have lost the right to possess a firearm. Generally, that assessment is correct. However, as with most areas of the law, there are exceptions to the general rule. This particular area of the law also has exceptions to the exceptions.
The Restoration of Rights Exception under Federal law – Not all convictions are Section 922(g) “convictions”
When you examine the impact of federal law on the firearms issue under state law, it is important to understand that not all felony convictions or even the limited number of relevant misdemeanor convictions are disqualifying convictions with respect to firearms under the Gun Control Act. The issue is actually whether the individual is within the class of individuals who have been “convicted . . . of a crime punishable by imprisonment for a term exceeding one year” as that phrase is used in 18 U.S.C. § 922. At first glance, this seems pretty simple – but keep in mind that this is a federal law and is therefore brought to you by the same collective wisdom that created the tax code and the bankruptcy code.
The phrase is a term of art in the Gun Control Act. As an initial matter, the phrase does not include certain business and white collar crimes. 18 U.S.C. § 921(a)(20)(A). The phrase also excludes persons who have been pardoned and those who have had their civil rights fully restored. Thus, a convicted felon does not include everyone convicted of a felony. Even those who have been convicted of a disqualifying felony but who has been fully restored to their civil rights without an express limitation on the ability to possess, receive, ship or transport a firearm is not within the class of individuals under are defined under the Gun Control Act as having been convicted of a felony. 18 U.S.C. § 921(a)(20) provides:
The term “crime punishable by imprisonment for a term exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime 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.
Under the federal statute and in the context of a state conviction, it is necessary to determine whether there has been a pardon or whether the individual has had their civil rights fully restored. Since the existence of a pardon is readily determined, the inquiry focuses on those who do not receive a pardon but who have nonetheless had their civil rights restored. The term “civil rights” is not separately defined in the Gun Control Act, so our analysis turns to the interpretation of the term “civil rights” as construed and applied by the federal courts.
The federal courts which have examined the issue currently conclude that the determination of whether an individual’s civil rights have been restored under state law requires an examination of whether the individual has the right to vote, the right to sit on a jury and the right to hold public office. Limiting the discussion to those instances where the predicate conviction was from a state court, it is appropriate to begin the analysis with the Sixth Circuit decision in United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990).
In Cassidy the defendant had a prior Ohio felony conviction and was later found in possession of a firearm. The defendant there argued that since his rights had been restored following completion of the state sentence he could not be convicted of the federal offense. The Sixth Circuit held that:
Considering the definition as a whole, it is clear that Congress intended that [federal] courts refer to state law to determine whether an individual should be subject to federal firearms disabilities by virtue of a [state] criminal conviction. If state law has restored civil rights to a felon, without expressly limiting the felon’s firearms privileges, that felon is not subject to federal firearms disabilities. This is the clear and unambiguous intent of Congress as expressed in § 921(a)(20).
The Sixth Circuit concluded that the restoration of citizenship rights under state law must include three specific rights – the “right to vote, right to seek and hold public office and the right to serve on a jury” – in order to satisfy the requirements of the Gun Control Act. However, the Court rejected the government’s argument that a defendant had to have a separate “restoration of gun rights” under state law to remove the federal firearms restrictions. There is no such thing as a separate or required procedure for the “restoration of gun rights” according to the Sixth Circuit.
If a state restores (1) the right to vote, (2) the right to hold public office and (3) the right to sit on a jury and does not limit the right to own firearms, then the state has fully restored the rights of citizenship to the individual and there is no federal firearms disability. The removal of the federal firearm restriction is automatic because it is completely derivative of a state’s full restoration of the rights of citizenship:
“Applying our construction of the statute to defendant Cassidy, we find that Cassidy did have a restoration of civil rights as contemplated by 18 U.S.C. § 921(a)(20) because, after his release from prison, the right to vote, to serve on a jury and to seek and hold public office were restored to him.” United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990).
Since the federal disabilities are derivative of the individual’s status under state law, we need to determine how the Tennessee restoration process works and what its effect is relative to the rights to vote, sit on a jury and hold public office.
Tennessee’s Restoration of Rights Statute
Tennessee has several statutes which address the restoration of rights procedure. Presently, Tennessee law provides at least three separate restoration procedures. The determination of which process applies depends on the date of the underlying conviction.
If you would like discuss whether you qualify for a restoration under Tennessee law, please feel free to contact us. With offices in Nashville, we can handle cases anywhere in the state.