On any given week, we field close to a dozen phone calls about gun rights. And in any given week, those conversations go in about a dozen different directions. Gun laws are complex. The interplay between state and federal statutes leave many people, attorneys included, scratching their head. That is why the attorneys at Leverson Budke strive to stay current in this particular field. While there are many nuances to the relevant state and federal statutes, this article will highlight some of the basics with respect to restoration of gun rights in Minnesota.
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Criminal Conviction
The first question I ask potential clients is whether they have been convicted of a crime in Minnesota. If the answer is no, then there is a good chance they are not prohibited so long as they haven’t been civilly committed or are currently subject to a restraining order. Many first time offenders are able to resolve their case in a way that does not result in a conviction. A stay of adjudication or continuance for dismissal would result in the charges against you being dismissed after successful completion of probation. Under those circumstances, you would not be subject to the state or federal firearm prohibitions. That doesn’t mean the government always gets it right. We have seen people denied because the federal government mistakenly believes there was a conviction when there was not. If you believe this happened to you, contact us to discuss further.
Felony Crime of Violence
If you were convicted of a felony crime of violence, you are prohibited from possessing a firearm for the rest of your life. However, you are able to petition the court for an order that restores your right to possess a firearm. Essentially, you are prohibited from owning a gun until you get the court to say otherwise. This particular law gets tricky because many people are entirely unaware that they have been convicted of a felony crime of violence. Minnesota law defines “crimes of violence” in a somewhat bizarre way. For example, a drug charge is considered a crime of violence. I frequently have to deliver the most nonsensical news that people will hear — that their twenty-year-old drug charge from college has them labeled a violent felon.
If you have been convicted of a felony crime of violence, and wish to petition the court for restoration of your gun rights, you must show good cause for that request. “Good cause” is not necessarily a terribly hard burden to meet. The desire to go hunting can be considered good cause for the court to grant your petition. The more relevant inquiry is whether you pose any risk to the public. “Good cause” is your ticket in the door; once you’re there, you have to prove you’re not a public safety concern. This is where an experienced lawyer is necessary. While you may think your record speaks for itself, it’s important to remember that judges do not take petitions for gun restoration lightly. You must do more than just show that you haven’t been convicted of anything else recently.
It’s especially important to have an attorney when you file this because you don’t get to keep pestering the court with this request. If you are denied, you must wait three years before filing it again. Don’t risk it; contact us today to make sure it gets done right.
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Misdemeanor Crimes of Domestic Violence
Even if you were not convicted of a felony, you may still be prohibited if you were convicted of a misdemeanor crime of domestic violence. This is a lifetime prohibition similar to the felony crime of violence. However, there is no path towards restitution with this offense on your record. There is no petition that we can file to have your rights restored.
That being said, even this particular issue isn’t so cut and dry. The federal government defines “domestic violence” in a more narrow way. Under the federal definition, the statute under which you are convicted must have an element of harm. In Minnesota, you can be convicted of domestic assault for causing harm to another person or creating a fear of harm. If you are charged under the latter, you are not subject to the firearm prohibition. In addition, you are only subject to the prohibition if the victim in your court file is a spouse or child of yours, or someone similarly situated to a spouse or child. In the event your conviction does not meet the narrow definition provided by the federal government, don’t celebrate yet. You will still have to take some action. The federal government will likely still have you flagged as prohibited because they will see a conviction for domestic assault. Under these circumstances, you will have to create a Voluntary Appeal File with the FBI. This process can be time-consuming and complicated, so it’s best to contact an attorney. The attorneys at Leverson Budke frequently pursue this course of action.
If you were convicted of domestic assault (harm), your options are more limited. The federal statutes state that an expungement will solve your problems. However, federal law and Minnesota law define “expungement” differently. To make a long story short, the remedy available in Minnesota is insufficient for purposes of the federal prohibition. That means the only option to remove this from your record, and successfully overturn the federal prohibition on firearms, is to seek and obtain a pardon. This is not an easy thing to do — especially when the conviction is for domestic assault. If you would like to pursue this option, however, the attorneys at Leverson Budke are knowledgeable on the subject and would be happy to help.
If you do not wish to seek a pardon for a domestic assault (harm) conviction, the only other option would be to see if the prosecutor would agree to allow you to withdraw your plea and immediately re-enter a plea under the domestic assault (fear) statute. This, however, is entirely dependent on your prosecutor.
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If you need your gun rights restored, call us at (651) 829-3572 today or click below to schedule an appointment
Moving Forward
As you can see, the paths toward restitution are complicated. And identifying which path to take is not always easy. If you are prohibited from possessing a firearm, or you believe you may be prohibited, contact us at (651) 829-3572 to discuss whether there may be a way to restore your gun rights.