Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, Federal Statutes and Who is Not Allowed to Possess Firearms. Here are just a few of his responses.
Audience Question: When somebody completes probation, are rights automatically restored or does one have to apply to the courts to have them restored?
Rick Hodsdon: That is a great question and it’s state specific. There are some states where the probation discharge order will restore all civil rights as a blanket. In some jurisdictions, it will not. When you are discharged from probation then you can seek restoration of civil rights. You’re going to have to make a special effort. Even in jurisdictions where civil rights are restored, the big three civil rights historically are the right to possess firearms, vote, and hold office. There are some states where you can get a general discharge. It would restore your right to vote and even to hold office but not firearm authority unless that’s explicitly listed. You really really need to know the laws of your state., the federal honors it, but it’s based on state law and not in Federal.
Audience Question: Under 18 U.S.C. 3041, may local state officers arrest for Federal firearms crime?
Rick Hodsdon: Generally, state law enforcement officers don’t have the authority to enforce any Federal law unless there’s been a cooperative agreement, a designation agreement across. For example, you can be part of a federal task force, fugitive task force. Having said that though, a lot of states, as we discussed early on in the seminar, a lot of states have incorporated Federal prohibitions as a matter of state laws. If you’re one of those states where Federal law and state law overlaps then your law enforcement officer may arrest somebody for example because they’re dishonorably discharged military and they are in possession of a firearm, you wouldn’t book him in or arrest him or take him into custody under Federal law but rather under state law because those Federal prohibitions have been incorporated.
Audience Question: A number of folks are asking you to go back one slide to that resource slide that you had. I think with the law enforcement resource side.
Rick Hodsdon: I can tell you that they may have changed their name because some people make fun of them like, you know, LRAT. Is that really a good name for what they do? The contact information is still that.
Christina: We’ll leave that right there so folks can write down the phone number and the email address.
Rick Hodsdon: I would encourage the use of the email. For one thing, they actually are unlike many of the federal folks that I tend to make fun of who are afraid to put things in writing. They actually will respond in writing with an opinion you can use especially for regulatory and enforcement purposes. Use that email resource.
Audience Question: Is a pardon or an expungement considered an affirmative defense or is it a bar to an arrest?
Rick Hodsdon: That again is going to be dependent to a large measure to the state law. A pardon and this is probably going to depend in context on whether you’re talking, arrests or if you are talking about regulatory permitting of firearms. If your defense for possession of a firearm is pardoned or expunged, I think it’s like self-defense according to the US Supreme Court. It’s an affirmative defense in the sense that the defendant’s going to have to raise it. Once you have raised your affirmative defense then the burden of the prosecution to prove beyond reasonable doubt the lack of the affirmative defense. I would use that from mile for criminal prosecution. I would analytically suggest that you use the self-defense model and that will probably help. You realize the prosecution will prove in all likelihood
Audience Question: Our agency has to take citizen information to determine whether the conditions include no firearms. What’s your experience or info about such things like conditions of release?
Rick Hodsdon: If the person has been charged in state court or federal, sorry that has been primarily state court. If they have been charged with a crime and the crime is punishable by more than a year then by operation of that last clause we talked about in Federal law, they can’t lawfully ship, receive, transport firearms. If the crime is such that it’s not a felony. Let’s say someone is arrested and charged for misdemeanor domestic assault. The conviction would result in disqualification but while the case is pending it is not. The conditions of release are not going to be enforceable under Federal law. They may be enforceable under state law. The person has to surrender firearms with the conditions of release on their misdemeanor domestic assault and they don’t do that. Then it’s going to be potentially a crime under the state law. It’s going to be certainly a violation of pre-trial release. It would not be a Federally enforceable offense. Federal has to be a felony level offense.
Audience Question: Does a cohabitant include roommate or shared housing?
Rick Hodsdon: Federal law has tended to indicate that- personally I should tell that’s never fully defined. The two Supreme Court cases on this issue are the ones we talked about. The Supreme Court has not given us direction as to whether platonic roommates qualify or not. There are lower courts that tend to indicate, that I’m aware of cases, that say they are not unless you need to show some kind of a domestic relationship or intimate relationship. On the other hand, there is a lower Federal Court case that says people who are living together, a case in which the respondent is in a domestic violence case and was prosecuted had a wife but he had a girlfriend. The girlfriend who was the petitioner in the case got a domestic abuse order against him. He wound up getting prosecuted with possession of a firearm under this provision. The defense was well we don’t have a domestic relationship. I have a wife. She was just a girlfriend. The Federal court said she still meets the criteria.
Audience Question: We have Alford pleas in Missouri. I have always considered them to be the same as a guilty plea as people are sent to prison. Is it considered a conviction for gun ownership?
Rick Hodsdon: We have Alford pleas in Minnesota too and, in short, the answer is absolutely. When I teach this, I taught thousands of Minnesota lawyers and police officers and staff of law enforcement. We talked about Alford pleas. As I described to my law enforcement people, all an Alford plea is somebody who doesn’t have the intestinal courage to actually admit they did it but they know they are going to get convicted. For all legal intents and purposes, an Alford plea is, in fact, a conviction.
Audience Question: If someone who is prohibited from possessing firearms lives with someone who has firearms in the home, locked in a safe, can that prohibited person still be prosecuted?
Rick Hodsdon: The prohibited person can only be prosecuted for possession. The defense is going to be are they in possession? Certainly, if I were a defense attorney, if there’s a shotgun in a gun case and the defendant does not have access to the lock, to the code, to the key, whatever in hell would access it, I think I’d have a really good argument to find this person, my client judged as never in possession. The roommate was in possession, the spouse was in possession but my client was not. They have no ability to access the firearm. I would be quite surprised at least from a criminal prosecution standpoint that I would be able to convince the jury on those facts beyond a reasonable doubt that the defendant was in possession. On the other hand, if it’s a “wink, wink, nod, nod,” like the straw buyer and so on then maybe the person still could be convicted.
Audience Question: Can a convicted felon own or possess a crossbow?
Rick Hodsdon: A crossbow unless if it’s a traditional spring tension crossbow. There are actually crossbows where the device shoots a bolt, you know, a small arrow with a discharge of an explosive device. That would be a prohibition. Federal Law wouldn’t prohibit possession of crossbows. Usually when a person’s on probation or parole or supervision, many states will prohibit a person under those circumstances from the possession of a firearm or other dangerous or deadly weapon. As a matter of state law, they might be prohibited at least while in supervision from the possession of a crossbow. Federal law would not prohibit it.
Audience Question: Does a defendant have to advised by their attorney that their firearms rights may be impacted when they plead to one of the disqualifying categories?
Rick Hodsdon: That’s going to be a matter do they have to be advised. The short answer is there’s nothing in the statute that requires it. If they plead guilty and do not realize that their guilty plea is now going to disqualify them from the possession of firearms, down the road that may factor into whether or not they were subject to ineffective assistance of counsel. I would draw the analogy to the immigration case where that issue has come up. The defense attorney has not advised the client about potential immigration consequences and the issue comes up. Do we have a situation of ineffective assistance from counsel? Is that grounds for satisfying a guilty plea, I would see some parallels there. There’s nothing in Federal law that would mandate the defense attorney advise of those consequences. Some of the defense attorneys at least I overhear when I’m down at court, they’ve become more sophisticated now understanding the effects of disorderly conduct conviction. Five years ago, ten years ago, they say plead guilty to disorderly conduct. You want to keep your firearms? I got the prosecutor to agree to amend that charge to disorderly conduct so you’ll plead guilty to that. That way you won’t have to worry about it. Now, as people are understanding that disorderly conduct does not necessarily go to get you out of the woods, Now I go down to it is kind of funny to me to listen to a prosecutor, usually a city attorney, a defense attorney arguing back and forth under disorderly conduct when they show you on the screen clause one, clause three, clause one, clause three. It is all about firearms.