PERMITS TO PURCHASE AND FIREARM DISQUALIFICATIONS CLE for ETI.pdf · PERMITS TO PURCHASE AND...
Transcript of PERMITS TO PURCHASE AND FIREARM DISQUALIFICATIONS CLE for ETI.pdf · PERMITS TO PURCHASE AND...
PERMITSTOPURCHASEANDFIREARMDISQUALIFICATIONSMinnesotaChiefsofPoliceAssociation
April16,2019
Greg T. KryzerAssistant Wright County AttorneyCivil Division
THREE NUMBERS TO REPRESENT PERMITS TO PURCHASE
17
23
Learning Objectives
• List the steps involved in processing a permit to purchase
• Recall the various State and Federal Firearm disqualifications
• Understanding of court holdings related to firearms
• Know how to properly defend a challenge in court
Topics Covered
1. Permits to Purchase
2. State Disqualifications
3. Federal Disqualifications
4. Appeals
5. Scenarios
1.PERMITS TO PURCHASE
Transfer PermitMinn. Stat. § 624.7131
Commonly the Permit to Purchase
Any resident can file a application for a permit:- Provides Name and ID Number
- Lists Physical Characteristics
- Sign a release
- Affirms they are not prohibited from possessing a firearm
Processing the Permit• After an application is received you MUST
provide a written receipt
• You have 7 days to make a determination
• Move quickly with the background check
Checklist• Run a Background Check
- Minnesota Crime Information System- NICS- Minnesota BCA- Commissioner of Human Services
• Look for active warrants
Background CheckIf you find something go into the Court System
- MNCIS- MGA – Minnesota Government Access
Tip: Get the Source Documents- Criminal Complaint - Sentencing Order- Register of Actions (MNCIS)- Police Reports- Check with prosecuting authority- Get out of State records if possible
Sealed Records• Sealed Records can be opened and used part of the
investigation. Minn. Stat. § 609A.03 Subd. 7(b)(1)
• Need to file a petition with your county court to access seal BCA records
• Talk with your city attorney in advance, these are time sensitive
• File in the Miscellaneous Court File
Out of State Records• Most Courts have online records
• Check the originating state record to see if they are charged with a crime of violence
• Call the local police department
• Call the court, get a copy of the conviction
• If all else fails, print off what you can find
Permit Denial• Send the Applicant a written letter
• Outline all of the reasons why
• Reference and include all source documents
• The letter will be the evidence the court relies during an appeal
Voiding a Permit• Permit is void if they later become disqualified
• Five days to return the permit
• Send a letter to the permit holder- Follow the denial template- Certified Return Receipt Mail
• Failing to return is a misdemeanor
Under 21A person 18 years of age can buy an Assault Rifle
They will need a transfer permit to buy the rifle
Best advice is to put an age notation on the permit
2.STATE DISQUALIFICATIONS
State Firearm Disqualifiers
What are disqualifiers?
State and Federal Regulations- The statute requires you to look at
Minn. Stat. § 624.713
Cannot deny based on danger to self or others
State Firearm Disqualifiers• Minn. Stat. § 624.713 - Persons not eligible to
possess a pistol or semi-automatic military-style assault rifle, or any other weapon.
1. Anyone under the age of 18, with exceptions.2. Adjudicated or found delinquent of a crime of
violence.3. Been committed for being mentally ill or unable
to stand for trial due to mental illness.
State Firearm Disqualifiers4. Three years if convicted of a misdemeanor or
gross misdemeanor under Chap. 152 or been committed for treatment due to “habitual use” of controlled substances or marijuana.
5. Been committed for being chemically dependent.
6. Peace officer who is informally admitted to a treatment enter, but can get a certificate allowing possession.
State Firearm Disqualifiers7. Persons (including juveniles) charged with a crime of violence and who are participating in a pre-trial diversion program.
8. Three years for conviction of Domestic Violence. Minn. Stat. § 609.2242, Subd. 3(d).
9. If convicted of assaulting a family member, and you used a firearm, term is per the court’s discretion at sentencing.
State Firearm Disqualifiers
10.Federal Incorporation:A. Convicted of a FelonyB. Fugitive from JusticeC. Unlawful User of Controlled SubstancesD. Judicial Commitment for Mental Illness E. In the United States IllegallyF. Discharged under dishonorable conditionsG. Renounced citizenshipH. Domestic Assault
State Firearm Disqualifiers
11. Three Year Disqualification for some Gross Misdemeanor violations:
A. Crimes for the benefit of a gangB. Assaults motivated by biasC. False ImprisonmentD. Child Endangerment or NeglectE. Burglary in the Fourth DegreeF. Setting a Spring GunG. RiotH. Stalking
12. Persons presently charged with a felony
State Firearm Disqualifiers13. Currently subject to an Order for Protection.
- The order will most likely have a reference to firearms
Felony Crimes of ViolenceLifetime ban for conviction of a felony crime of violence
- Includes felony convictions for murder, manslaughter, aiding suicide, assault 1°-5°, domestic assault, crimes for benefit of a gang, robbery, kidnapping, false imprisonment, soliciting prostitution, criminal sexual conduct 1°-4°, malicious punishment, child endangerment or neglect, theft of a firearm, arson 1°-2°, burglary 1°-2°, drive by shooting, riot, terroristic threats, and stalking.
Also includes all felony drug offenses and theft of a firearm.
Minn. Stat. § 624.712 Subd. 5
The Hidden Crimes of ViolenceIn 2014 the Legislature removed:
- 3rd Degree Burglary- Theft of an motor vehicle
But…Only applies to “crimes committed on or after August 1, 2014”
Laws 2014, c. 260, § 1
Felony Crimes of Violence• A felony sentenced as a stay of imposition becomes a
misdemeanor at the end of the sentence, however, for purposes of firearm restriction the nature of the offense is controlling not the sentence.
• A person who receives a stay of imposition is prohibited from possessing a firearm
State v. Anderson, 733 N.W.2d 128 (Minn. 2007); State v. Moon, 463 N.W.2d 517 (Minn. 1990).
Felony Crimes of Violence• 609.165, Subd 1a. The discharge order for any
person convicted of a felony crime of violence must state they are not entitled to possess a firearm for the remainder of the person’s lifetime.
• Persons discharged from sentence before August 1, 1993 are subject to a 10-year restriction.
• Not subject to this restriction if firearm rights are restored under Subd. 1d or 18 USC § 925.
3.FEDERALDISQUALIFICATIONS
Federal Firearm DisqualifiersMinn. Stat. § 624.713 mirrors federal law 18 USC § 922 section G
(1) convicted of a crime punishable by more than 1 year(2) fugitive from justice(3) unlawful user of or addicted to a controlled substance(4) adjudicated as a mental defective or committed to a mental institution(5) aliens illegally in the United States(6) discharged from the armed services under dishonorable conditions(7) renounced United States citizenship(8) subject to a court order restraining from committing domestic violence (Orders For Protection)(9) convicted of a misdemeanor crime of domestic violence
Felony ConvictionSection 922 (g)(1)
Convicted of a Crime Punishable by more than one year.- Must have a finding or plea of guilty.- Restriction is generally for life.- If convicted of a State Felony
– State law determines when gun rights are restored. 18 USC 921 (20) and U.S. v. Carol 524 U.S. 308
In Minnesota, non-violent felon’s civil rights are restored upon discharge and violent felonies may be subject to lifetime ban (discharged after Aug 1, 1993)
Federal Domestic ViolenceMisdemeanor Crime of Domestic Violence
Includes State, Federal or Tribal misdemeanor
1. Crime must have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon
2. Committed by a current or former spouse, parent, or guardian of the victim, or
3. Have a child in common, or
Federal Domestic Violence4. Person who is cohabiting with or has cohabited with
the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim
This definition is different from Minnesota Law
Federal Domestic ViolenceQualifying MN Offenses:• Domestic Violence – 609.2242• Intent to cause fear does not qualify
U.S. v. Larson (8th Cir. 2001)
• The crime must include an element of force or attempted force or threatened use of a deadly weapon.
Disorderly Conduct – 609.72 Subd. 1 (1) Fighting or BrawlingU.S. v. Fischer, 641 F.3d 1006 (8th Cir. 2011)
Interference with a 911-callViolation of an Order For ProtectionFifth Degree AssaultMalicious Punishment of a Child
Charged with a FelonyFederal Law prohibits a person charged or indicted with a felony from possessing a firearm.
18 U.S.C. 922 (n) – Minn. Stat. § 624.713 Subd. 1a.
Loop hole is a Continuance for Dismissal
- Not currently subject to a complaint- Have not been convicted
U.S. v. Hill, 210 F.3rd 811 (8th Cir., 2000).
User of a Controlled Substance1. A person who has lost self-control with the drug
2. Current user of a drug (without a prescription)
- Conviction for use or possession in the past year- Multiple arrests in the past five years, with most recent arrest in the past year- Drug test shows unlawful use of a drug in the past year (DWI?)
27 C.F.R. 478.11
Federal Firearm RestorationExpungement
• U.S.C. Title 18, Part I, Chapter 44, § 921 (a)(33)(B)(ii).
• A person is not considered convicted for purposes of firearms restrictions if the conviction has been expunged, set aside, pardoned or the person has had civil rights restored, unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not transport, possess, or receive firearms.
Federal Firearm RestorationExpungement
• Minnesota Expungement system only changes the classification of the data from public to private
• Does not remove, rescind, or set aside the conviction
• Expungement in Minnesota does not qualify under 18 USC 921 as a restorative event
• Wyoming v. A.T.F., 539 F.3d 1236 (10th Cir. 2008).
Federal Firearm RestorationFederal Disqualifier
• Mainly applies to Domestic Violence Convictions
• State Court Petitions under Minn. Stat. §609.165, Subd. 1d cannot restore a federal firearms restriction
• The state has not taken away rights and cannot restore them
Federal Firearm Restoration Federal Disqualifier
• 18 U.S.C. § 925 (c) allows a person to petition the Attorney General (ATF) for relief from a firearm disability
• ATF is barred from using government funds to process § 925(c) applications
• Will return the application unprocessed
Can’t appeal until the application is denied by the ATF United State v. Bean, 537 U.S. 71 (2002).
Federal Law ConflictsFederal Law says it is a gun disqualifier but State Law says I need to issue the gun permit?
- Conspiracy to Commit Offense against the United States?
18 U.S.C. 371
- Discuss the risk factors with your City Attorney
4.APPEALS
Appeals
Meet with your City Attorney
• Review the complaint• Review your denial letter• Gather the record• Review potential witnesses
Unlike permits to carry, no attorney fee provision
Appeals
• This is a civil proceeding
• You can call the Petitioner first
• Get your denial letter into the record
Scenario 1Applicant has a prior stay of imposition for a 2nd
degree assault conviction. Discharged in July, 1993. Currently under a CFD for a terroristic threats incident.
Grant or Deny?
What if the assault was against his girlfriend who he lived with at the time?
Scenario 2The Applicant was convicted of 5th Degree Drugs and sent to prison. Five years later his firearm privileges were restored by the court. A criminal history shows no other convictions, but you know from prior contacts he has a disorderly conduct conviction for a fight with his daughter’s mom.
Grant or Deny?
MNCIS only shows the general conviction to MN ST §609.72, Subd 1
Scenario 3You issued a permit to a person whose BCA check was clear. Six months later you get a call from your Sheriff informing you they just denied the person on a carry permit because they have a juvenile sex offense conviction?
What do you do?
CONTACTINFORMATIONGREGT.KRYZER
WRIGHTCOUNTYATTORNEY’SOFFICE
763-682-7344
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QUESTIONS?