Firearm Rights Restoration in Michigan after a felony conviction
A conviction for a serious crime has consequences, incarceration, fines, restitution, and the loss of gun rights. Some, but not all, felony convictions result in the defendant effectively losing all their firearm rights. What exactly happens? There are two governmental bodies associated with gun rights, the federal government and state government, federal gun rights and state gun rights. Michigan has a criminal statute that prohibits certain convicted felons from possessing firearms. The statute is MCL 750.224f.
This statute is very thorough and effectively prevents the qualifying felon from any association with firearms and ammunition. The exact language is “a person convicted of a specific felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm [and ammunition] in this state.” MCL 750.224f(2). The net effect is that the felon’s gun rights are removed, and if they are caught with a firearm or ammunition, the felon will be facing a parole violation and new criminal offense–a new five-year felony.
The Basics of Firearm Rights Restoration
At the State level, not all felony convictions result in a loss of the defendant/felon’s firearm rights. First, in order for the prohibitions found in the statute to apply, the felony has to carry a potential jail sentence of 4 years or more.
MCL 750.224f (9)(b) states: “felony” means a violation of law of this state, or of another state, or of the United States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law. An “attempted” label for a conviction results in a reduction of the maximum jail sentence. However, according to the definition above, the “attempted” tag has no influence on determining which felony convictions qualify under MCL 750.224f.
The statute then divides felonies into two classes, specified felonies, and none specified felonies. A conviction for a none specified felony results in only a temporary loss of the defendant’s gun rights. MCL 750.224f(1) states:
. . . a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:
(a) The person has paid all fines imposed for the violation.
(b) The person has served all terms of imprisonment imposed for the violation.
(c) The person has successfully completed all conditions of probation or parole imposed for the violation.
Stated another way: A conviction of a none specified felony under MCL 750.224f results in automatic restoration of firearm rights after 1) all fines are paid; 2) all jail time is served; 3) and probation or parole has been completed–successfully.
The second category of felony convictions under MCL 750.224f is called “specified felony.” MCL 750.224f states:
A person convicted of a specified felony shall not possess, use, transport, sell, carry, ship, or distribute ammunition in this state until all of the following circumstances exist:
(a) The expiration of 5 years after all of the following circumstances exist:
(i) The person has paid all fines imposed for the violation.
(ii) The person has served all terms of imprisonment imposed for the violation.
(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.
(b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute ammunition has been restored under section 4 of 1927 PA 372, MCL 28.424.
A conviction of what is deemed a “specified felony” results in a revocation of the defendant/felon’s firearm rights until said rights are restored. There is no automatic restoration of gun rights. The only way to restore a defendant/felon’s gun rights is through the restoration process outlined in MCL 28.424.
The definition of a “specified felony” is the following:
“specified felony” means a felony in which 1 or more of the following circumstances exist:
(a) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
(b) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance.
(c) An element of that felony is the unlawful possession or distribution of a firearm.
(d) An element of that felony is the unlawful use of an explosive.
(e) The felony is burglary of an occupied dwelling, or breaking and entering an occupied dwelling, or arson.
The felon’s conviction must be compared to the definition of a specified felony. If the felon’s conviction falls within the definition, then the defendant/felon must wait five years after a successful discharge and then petition the circuit court for restoration of gun rights. The Michigan appellate courts have heard cases where the parties are arguing over whether or not the conviction qualifies as a specific felony. There is some case law to help, but not a lot. Most likely, the defendant/felon’s attorney will have to carefully review the elements of the conviction and decide whether or not the crime qualifies as a “specified felony.”
The Restoration Hearing
MCL 28.424 is the statute that explains the restoration hearing. View the statute here.
At the hearing before the circuit court, the petitioner(defendant/felon) must prove all of the following, by clear and convincing evidence:
(a) The individual properly submitted a petition for restoration of those rights as provided under this section.
(b) The expiration of 5 years after all of the following circumstances:
(i) The individual has paid all fines imposed for the violation resulting in the prohibition.
(ii) The individual has served all terms of imprisonment imposed for the violation resulting in the prohibition.
(iii) The individual has successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition.
(c) The individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of other individuals.
Subsection (c) will be the most difficult element to prove in court. Firearm restoration is similar to other forms of restoration of rights cases, such as driver’s license restoration and criminal record expungement. An attorney experienced in these other forms of restoration cases will be able to draw upon that experience to craft and execute a persuasive case for the restoration of firearm rights. I don’t recommend people go through this hearing and procedure without an attorney. A successful bid to restore firearm rights requires careful planning and legal expertise.
Federal Gun Rights
Federal gun laws are not as forgiving as Michigan. Any conviction that is capable of incarceration for over a year is considered a felony under federal law. 18 U.S. Code § 922(g)(1) Most gun dealers are FFL dealers, tied to the federal government. When a person attempts to make a gun purchase, the ATF form 4473 must be completed for a firearm transaction. The dealer will check the National Instant Criminal Background Check System, (NCIS), and the felony will show on the applicant’s NCIS record. The transaction will be denied.
Currently, Michigan law is not favorable for restoring federal gun rights. The case precedent doesn’t directly support the idea that a gun restoration under MCL 28.424 would restore all “civil rights” as required by federal law. This is why “automatic” restoration of gun rights does not restore gun rights under the federal law. As a result, the best practice for restoring federal gun rights is a criminal record expungement. Still further, due to the change in federal administration, I also recommend simultaneously restoring firearm rights under Michigan law and MCL MCL 28.424. The current trend is that a criminal expungement of a specified felony is not enough for the FBI. In 2021, Michigan residents should obtain both an expungement of the specified felony and restoration of state level gun rights. This strategy will put a person in the best position to secure a restoration through a Voluntary Appeal File (VAF) via the FBI. If the VAF fails to restore federal gun rights, then the last resort is a lawsuit filed in federal court. If a Michigan resident does not qualify for a criminal record expungement, they may still seek a partial restoration of gun rights under MCL 28.424. A partial restoration means that the federal government can still prosecute the individual for possession of a firearm, however due to the federal definition of firearm, antique firearm are not counted as a firearm under federal law. In sum, a partial restoration of gun rights means the person is ok in Michigan, but not on the federal level, but can still hunt with a qualifying black powder rifle under the ATF rules.
Automatic Restoration and Federal Law
A Michigan resident that was convicted of a felony that creates/results in automatic gun rights restoration under MCL 750.224 is still in jeopardy under 18 U.S. Code § 922(g)(1). As a result, the safest practice for a person that has automatically restored gun rights under Michigan law, but still has a felony conviction, is to hunt with an “antique firearm” in Michigan.
Michigan Gun Rights Restoration in 2021 under the Biden Administration
Two events have shaken up restoring gun rights for convicted felons in Michigan. First, the passage of the new expungement law, “Clean Slate” in Michigan. Second, the election of Biden to President. As mentioned above, both a restoration of gun rights under state law, MCL 28.424, and a criminal record expungement, under MCL 780.621 is the best course of action to a secure a full restoration of firearm rights under federal law.
Gun Rights Lawyer Fees
My contract requires a minimum advance of $2500.00 for costs and fees, and I charge an hourly fee against the deposit. If and when the $2500.00 is consumed, the client is billed directly. I also charge $35 an hour for travel. If you would like me to review your criminal history and render an opinion on whether your criminal convictions are “specified felonies” or whether your convictions result in automatic gun rights restoration, I charge $175.00 for this service. Similarly, I charge $175.00 to review a criminal history for expungement.
About the Author:
I highly recommend everyone interested in gun rights restoration to read my companion post to this article: Case Studies for Restoration of Gun Rights in Michigan. Learn why automatic gun rights restoration will not prevent a federal prosecution for felon in possession of a firearm. Check it out here. Please visit my gun rights restoration blog here.
Matthew Benedict is a firearm restoration attorney practicing law in Northern Michigan, including Traverse City and Grand Traverse, Leelanau, Antrim, Wexford, Mason, Lake, Otsego, Roscommon, Kalkaska, Benzie, Manistee, Crawford, and Osceola Counties. Call today for an appointment: 231-883-4170