Firearm Rights Restoration.

Can firearm rights be restored when federal and state prohibitions overlap?

Does a state firearm rights restoration order automatically remove a federal firearm disability under 18 U.S.C. § 922(g)? The short answer is: not necessarily, and there are two main reasons why. First, state firearm rights restoration orders may also remove a federal firearms disability arising from a state conviction if the relief fully restores the person’s firearm rights under the law of the jurisdiction where the conviction occurred. Restoring rights under state law is not the same thing as removing a federal firearm disability, and removing a federal firearm disability may require federal-law relief or qualifying state-law relief, depending on the conviction and prohibition. Second, the issue of firearm rights restoration is one where the correct remedy depends on the specific prohibition(s) that apply. As a result, you must target the specific prohibition(s) that are at issue in your case, and you must obtain the correct remedy for that prohibition.

It is also important to distinguish firearm rights restoration from expungement. Expungement and firearm rights restoration are both forms of post-conviction relief, and both can potentially remove federal firearm disabilities. However, they are legally distinct and distinct forms of relief. Similarly, obtaining a criminal-record set-aside does not necessarily remove federal firearm prohibitions under 18 U.S.C. § 922(g). State-level restoration rules and remedies also vary greatly from one state to the next; furthermore, once obtained, a state-level firearm rights restoration order is generally only effective within that state, and does not apply nationwide.

Finally, it is very common for a single prior conviction to trigger both federal and state firearm prohibitions. Because the federal and state criminal justice systems operate independently of one another, these prohibitions can apply simultaneously. This is why, to restore your federal firearm rights, it is critical to focus the restoration process on the right prohibition and to seek the right remedy for that prohibition. Our federal firearm rights restoration lawyers and attorneys work closely with our clients to identify their specific prohibitions and seek the correct remedy for their circumstances.

Which non-felony events can bar firearm possession?

Under federal law, qualifying non-felony events can impose restrictions on firearm possession. These events include, but are not limited to:

• Qualifying misdemeanor domestic-violence convictions, Federal law separately prohibits firearm possession after a qualifying misdemeanor criminal offense involving domestic violence, which requires a qualifying domestic relationship and misdemeanor use of force. See 18 U.S.C. § 922(g)(9).
• Mental health adjudications, commitments, and other qualifying events, Federal law separately prohibits firearm possession after qualifying mental health adjudications and commitments, among other qualifying events. Certain mental health adjudications can create firearm disabilities without a corresponding criminal conviction. See 18 U.S.C. § 922(g)(4).
• Protective orders, Possession of firearms may be prohibited during the period that a qualifying protective order is effective. See 18 U.S.C. § 922(g)(8).
• State-level prohibitions, Some states prohibit firearm possession after non-felony events as well.

Because of the way these federal and state prohibitions are structured, removing one prohibition does not necessarily remove all prohibitions that apply. For example, if a state court grants you the restoration of firearm rights after a conviction for a misdemeanor criminal offense involving domestic violence, your state-level prohibition (if any) will be lifted. However, a state court’s order granting firearm rights restoration may remove a federal prohibition arising from a qualifying state conviction, but generally will not remove a federal prohibition arising from a federal conviction or a separate § 922(g) basis. Similarly, removing a prohibition under one federal statute (i.e., 18 U.S.C. § 922(g)(9)) does not automatically remove prohibitions under others (i.e., 18 U.S.C. § 922(g)(4) or § 922(g)(8)). As a result, one of the first steps in seeking restoration of firearm rights after a non-felony event is identifying all specific prohibitions that apply, and then targeting those prohibitions with the appropriate remedy or remedies.

The attorneys at Spodek Law Group carry more than fifty years of combined experience between them.

What federal relief is actually available when a federal disability remains?

If there is a continuing federal disability under 18 U.S.C. § 925(c) after obtaining firearm rights restoration under state law, federal relief may be available in certain circumstances. While 18 U.S.C. § 925(c) contemplates an affirmative application process for restoring firearm rights, Congress has long blocked funding for the processing of these applications. With this in mind, federal pardon recipients can sometimes seek restoration of federal firearm rights.

If a pardon for a federal conviction was received prior to the current restrictions on federal restoration processing, a pardon recipient may be eligible to seek firearm rights restoration under 18 U.S.C. § 925(c). Otherwise, if you received a pardon, your right to own or possess firearms may not have been affected by your conviction in the first place. And, if your conviction was state-level and you received a federal pardon, your federal pardon may or may not restore your firearm rights depending on when the pardon was issued and the circumstances surrounding the issuance.

A federal pardon is another possible route for removing certain federal-conviction firearm disabilities, but the ATF is not the ordinary route. As a result, if you are seeking restoration after a federal conviction, you should reach out to a federal firearm rights restoration lawyer or attorney at Spodek Law Group promptly.

All of this information emphasizes why an informed and comprehensive approach is essential. If you’ve previously sought firearm rights restoration or are thinking about doing so, it is critical to correctly identify the specific prohibition(s) at issue, match those prohibitions with the available remedy or remedies, and work to implement that remedy or those remedies effectively and efficiently.

How do New York, Minnesota, Virginia, Arizona, and Washington restoration routes differ?

Since each state has its own set of rules and requirements for restoring firearm rights, the restoration route that you need to take will depend on your specific circumstances and the location where you live. For example, in New York, individuals with a single felony conviction can generally pursue restoration through a certificate of relief, but those with multiple felony convictions may need to pursue a certificate of good conduct. In Minnesota, felony convictions classified as crimes of violence result in lifetime prohibitions; however, for non-violent felony convictions, firearm rights typically return when the individual’s other civil rights are restored.

Similarly, in Virginia, restoration of civil rights is generally a prerequisite to restoration of firearm rights, which then requires litigation in the state circuit court. In Arizona, firearm rights may be automatically restored after an eligible first felony sentence ends, though this is not true for all individuals. Others must petition the state for a restoration order. Washington’s firearm rights restoration route differs as well, with processes and outcomes that vary based on the nature of the conviction and other factors involved.

As a result, the risk of relying on generalized information about firearm rights restoration is significant. You need a strategy that is custom-tailored to your unique circumstances, and you need a law firm that has extensive experience litigating the restoration of firearm rights in the specific jurisdiction where it is necessary. This includes experience in federal firearm rights restoration, and, as discussed above, this is particularly important in cases in which a continuing federal disability is at issue.

In addition to the specific state-level procedures that must be followed, remember that state restoration is only the first step if your goal is to ensure that you can own or possess firearms nationwide. Achieving a state-level firearm rights restoration order is often not enough, and this is why you need to target the correct federal remedy (or remedies) if a federal prohibition under 18 U.S.C. § 922(g) remains in effect. At Spodek Law Group, our comprehensive approach to firearm rights restoration begins with a holistic review of your circumstances, and it focuses on identifying all applicable prohibitions, and their specific remedies, from the very beginning.

When do restoration orders reach background-check systems, and what can a denied applicant do?

When it comes to accessing the NICS database and exercising firearm rights restoration, there are a number of considerations to keep in mind. As a general rule, when you get rejected for a firearm purchase transaction, NICS generally cannot retain the information relating to the rejected purchase. However, if you request to be on the Voluntary Appeal File (VAF), NICS will assign you a unique personal identification number, and VAF information may be retained indefinitely, while certain application materials are retained for three years under the FBI’s records schedule. If you are on the VAF and get rejected, you can appeal and, upon successful appeal, NICS will issue the denial reversal immediately. When you get rejected for a firearm purchase through NICS without being on the VAF, you can request review through the FBI’s NICS appeal process.

Applicants to restore their firearm rights in New York have an additional concern. A New York state court restoration order will be forwarded to the New York State Police, but there is no automatic or widespread process for updating the relevant federal firearm databases with that information. This means that, in order to remove a federal firearm disability, New York applicants will need to take separate action to ensure that information about their restoration reaches the relevant federal authorities. As identified in the New York materials, a person whose restoration request is denied by the Division of Criminal Justice Services (DCJS) can seek review under Article 78 of the New York Civil Practice Law and Rules.

In Minnesota, the restoration process also involves a number of specific procedural requirements. Applicants petitioning for restoration of firearm rights in Minnesota must show good cause and prove that they have been released from physical confinement. If an applicant’s restoration petition is denied, they generally cannot file another petition for three years.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028 to speak with our team.