In this blog, I wanted to discuss several fact patterns related to restoring gun rights in Michigan. This blog illustrates how federal law and Michigan law interact together. Michigan has a broad definition for firearms, where the Federal definition excludes antique firearms, a/k/a black powder firearms. The two tools to restore gun rights are conviction expungement by application, not automatic expungement, and a Michigan petition to remove a firearm disability.Thank you for reading this post, don't forget to subscribe!
No Firearm Disability under Michigan Law but a Firearm Disability under Federal Law.
The defendant is convicted of false pretenses with intent to fraud, a five-year maximum felony. The defendant completes his probation in two years, with no problems during probation. According to MCL 750.224f, the defendant is prohibited from possessing a firearm for three years, starting on the date of his discharge from probation. Four years pass, under Michigan law, the defendant is no longer prohibited from possession of a firearm. However, the defendant is still prohibited from possession of a firearm under federal law, 18 US Code 992 (g). This situation results in what I all partial firearm disability. The definition of a firearm under federal law excludes “antique firearms.” 18 US Code 921(a)(3) states: (3)The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
Furthermore, there is a more specific definition for “antique firearms.” 18 U.S. Code § 921 (16) states: The term “antique firearm “means—(A) Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or(B)any replica of any firearm described in subparagraph (A) if such replica—(i)is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or(ii)uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term “antique firearm” shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle-loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.
In summary, certain qualifying black powder firearms fall outside of the definition of a firearm under federal law, as a result, a person with a felony conviction under federal law may hunt with these qualifying weapons. Please visit this link for more details. Click Here.
A warning. Michigan’s definition of a firearm includes black powder firearms, antique or otherwise. Michigan’s definition of a firearm is the following. Firearm means any weapon that is designed to, or may readily be converted to, expel a projectile by the action of an explosion. MCL 750.222(e). This definition includes an antique firearm, replica, or black powder gun.
So without doing more, assuming that the Petitioner’s felon conviction qualifies for automatic restoration under MCL 780.224f, this Petitioner may safely hunt in Michigan with a qualifying antique firearm. However, this Petitioner will not be able to walk into a gun shop and purchase a modern firearm. The FFL dealer is required to check NICS for felony convictions.
What would it take to restore federal gun rights for this Petitioner? In other words, lift the firearm prohibition for Petitioner under federal law?
The definition of the term “crime punishable by imprisonment for a term exceeding one year” has to be examined. 18 U.S. Code § 921 (20) states: 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.
There are two paths to lifting the federal prohibition of firearms for the petitioner, expungement of the felony or “civil rights restored.”
The “civil rights restored,” exception to the definition of “crime punishable by imprisonment for a term exceeding one year” is confusing and misleading. It might seem that an automatic restoration of firearm rights under Michigan law would qualify as “civil rights restored.” Unfortunately, the case law regarding this phrase does not support this interpretation. At least two federal courts, including the United States Supreme Court, and one Michigan court has held that automatic restoration of gun rights in Michigan does not prevent federal prosecution under 18 U.S. Code § 922(g)(1). A copy of the Michigan case, Smith v Macomb County Concealed Weapons Board, No 323696 2016 is available here. The reasoning behind these court decisions is that Michigan’s Conceal Pistol License (CPL), MCL 28.425b prohibits a license for anyone convicted of a felony. Even though the Petitioner may possess a firearm under Michigan law, the Petitioner cannot obtain a CPL, hence his/her civil rights have not been fully restored, and the federal government can lock up the Petitioner for something Michigan states is just fine. These rulings offend this author for two reasons: 1) A plan reading of the statutes would logically lead a citizen to believe they were not in jeopardy of prosecution under federal law; 2) Carrying a concealed weapon is a crime in Michigan MCL 750.227 until someone obtains a license. A CPL is a license, a request for a special firearm privilege not available to ordinary gun owners.
The defendant must expunge his felony conviction by application under MCL 780.621. Automatic expungement will not lift the federal firearm disability because the FBI will not remove a felony conviction from the NICS background database without a court order of expungement.
AUTOMATIC RESTORATION OF FIREARM RIGHTS IN MICHIGAN WILL NOT PREVENT FEDERAL PROSECUTION FOR POSSESSION OF A FIREARM.
Automatic removal of a firearm disability under MCL 780.224f does not remove the underlying conviction. The conviction remains, as a result, the federal government may still prosecute the petitioner under federal law.
The best path to restoring normal gun rights is for the Petitioner to expunge the felony conviction via the application process, not automatic expungement. To do this, the Petitioner must qualify under MCL 780.621. If the convicting court agrees to expunge the felony conviction, an order will be sent to the Michigan State Police. When the Petitioner’s NICS record will be updated is not clear. It may be necessary for the Petitioner to open a voluntary appeal file to receive a Unique Personal Identification Number (UPIN). Read about a VAF here. Once the Petitioner has a UPIN, he/she may walk into a Federal Firearms License (FFL) dealer and purchase a modern firearm using the UPIN.
Two or More Felony Convictions For a Specified Felony.
In this fact pattern, the Petitioner has two convictions for Felonious assault, MCL 780.82, a crime that has a maximum potential sentence of 4 years. The current version of MCL 780.621, the new law “Clean Slate” in Michigan, is a mess. This author believes that Clean Slate would only allow the expungement of both of these felonies if they occurred at the same time, and these convictions were the last convictions in this person’s history. As a result, this Petitioner may not expunge his/her conviction, and the only remedy is to restore the Petitioner’s Michigan gun rights under MCL 28.424. As discussed above, that means if the Petitioner’s Michigan gun rights are restored, the federal statute would still be applicable, so the only way to forgo violating 18 U.S. Code § 922(g)(1) is to use an antique firearm and/or black powder firearm.
Two misdemeanor convictions, one of which is for misdemeanor domestic violence under Michigan law.
In this fact pattern, the defendant would be prohibited from possession of a firearm under Michigan law, MCL 780.621, for a conviction of a crime of domestic violence. Likewise, 18 U.S. Code § 922(g)(9) states: “(g) It shall be unlawful for any person— (9) who has been convicted in any court of a misdemeanor crime of domestic violence . . .” Once the defendant has successfully completed his probation and paid all fines and restitution, the clock would start and run for eight years. After eight years, the defendant would no longer be capable of prosecution for possession of a firearm under Michigan law. In other words, the defendant’s firearm rights are automatically restored. However, the federal firearm disability remains. The defendant could hunt safely in Michigan with a qualified antique firearm under the ATF rules.
To remove the federal firearm disability, the defendant must expunge his domestic violence misdemeanor. He must use the walk back strategy. Start with the last conviction, either automatic expungement under MCL 780.621g or expungement by application MCL 780.621. However, the defendant must use expungement by application to remove the domestic violence conviction. The FBI will not honor an expungement by automatic expungement and remove the conviction from the NICS database.
18 U.S. Code § 921 (33) (B) (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
One specified felony conviction, one none specified felony where the Petitioner was discharged from parole without full payment of restitution.
In this fact pattern, the petitioner has two felony convictions, one is a specified felony, one is not a regular felony.
MCL 750.224f(1) states: . . . a person convicted of a felony shall not possess . . . a firearm in this state until the expiration of 3 years after all of the following circumstances exist: . . . (c) The person has successfully completed all conditions of probation or parole imposed for the violation.
Automatic restoration of gun rights would fail due to Petitioner’s neglect to pay restitution as a condition of probation/parole. Similarly, the same requirement for “successful completion of probation or parole,” appears in MCL 28.424. As a result, the Petitioner could not obtain their Michigan gun rights until such time as the restitution is paid off and three years pass.
There is another path for this defendant, expungement by application. The Defendant could use the walk-back strategy and expunge the last felony first by application, then expunge the second felony by application. If successful both felonies will be expunged under Michigan law with signed orders from the court, the FBI should honor the expungement.
One final thought related to restoring gun rights. Unlike a petition to set aside a criminal conviction, a petition to restore gun rights does not require the involvement of a Prosecutor, Michigan State Police, or the Attorney General. The standard of proof to restore gun rights under MCL 28.424 is “clear and convincing.” This means to assure a reluctant Judge, a Petitioner had better present more evidence than just an affidavit that he/she completed probation. A Petitioner would be in a far better position to restore their Michigan gun rights if they present written documents related to their probation/parole. This would corroborate the Petitioner’s testimony related to the requirement of successful probation.
About the author:
Matthew Benedict is a gun rights restoration attorney practicing in Northern Michigan. Call today for an appointment: 2318834170
Please visit my gun rights restoration blog here: Gun Rights Restoration Blog