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  • Writer's pictureAttorney Neil Tassel

Important developments in the restoration of rights arena: BATF opinion rejected

Updated: Feb 5, 2021

In the last week, two important decisions were issued by trial courts in Massachusetts which hopefully signal significant improvement for those wishing to exercise their Second Amendment rights after a misdemeanor conviction for a non-violent offense. Recently I wrote about the background situation in which a person convicted of a non-violent misdemeanor in state court will permanently lose their right to possess a firearm unless that right is restored by the state-or if the conviction is vacated.

Massachusetts law mirrors the federal provision which creates a crime for an individual to possess a firearm (or obtain a license to do so in the Commonwealth) if they have a felony conviction. Complicating the matter is that federal law defines a felony as a state misdemeanor which carries more than two years potential incarceration. This makes many people with non-violent misdemeanors in Massachusetts disqualified to possess a firearm. However, federal law provides that it is not a crime to possess a firearm if the state has restored the "civil rights" of the individual.

Massachusetts by statute affords two ways to restore a citizen's right to possess a firearm and obtain a "license" after a non-violent misdemeanor conviction. A resident may obtain an FID card to primarily possess rifles and shotguns in the home or place of work if they apply after waiting five years following the completion of their sentence or probation. If the resident wishes to apply for an LTC to own handguns and carry a firearm outside the home or place of work they must apply for a discretionary restoration of rights from the Firearms License review board (the FLRB).

The restoration of civil rights has spawned much litigation. Much of it focuses on the question of whether a state misdemeanor can be used to enhance a federal sentence due to a state conviction. The U.S. Supreme Court in the 2007 decision of Logan v. United States, is the source of significant confusion. There, the defendant had several Wisconsin convictions for misdemeanors. Because Wisconsin did not strip him of civil rights, the defendant made the claim that the convictions should not be used to enhance his sentence since civil rights never lost are "restored". This argument was rejected by the Court which understandably differentiated losing a right and then having it restored from never losing it in the first instance. The Court in dicta suggested that the term civil rights included the rights of voting, running and holding public office, and serving on a jury.

In 2018, the BATF issued notice to the Commonwealth that in its opinion the restoration of rights by it was ineffective and that persons restored were still prohibited to possess firearms. In turn, rather than support the citizens of the Commonwealth, the Firearms Record Bureau (FRB) issued letters to the chiefs of police that everyone who had an FID card or LTC after having their rights restored should have their licenses revoked. Each of these law abiding people who had their licenses revoked had three choices: lie down and accept it, appeal the revocation, or fight to reopen and vacate their old conviction.

The FRB did not need to bow to the whim of the BATF. In 2014, the New Hampshire Supreme Court held that Logan did not render the Massachusetts restoration of rights scheme invalid in Dupont v. Nashua. The Court there held that Massachusetts did not have to strip the civil rights of voting, seeking and holding office, or sitting on a jury to trigger a restoration of rights. CIting Heller and McDonald, the Supreme Court cases that acknowledge the Second Amendment right of the private citizen to keep firearms for self defense, the Court held that the right to possess firearms was a "civil right" and that Congress intended to permit the states to decide which of their citizens should have that important right restored after a conviction.

Now to the original point of the blog. Two Massachusetts courts have issued decisions which follow the Dupont holding. The Superior Court, in Capano v. Dunne, found that the FLRB had the authority to restore applicants right to possess firearms again. After the 2018 BATF letter the FLRB eventually continued to hear cases but refused to restore rights. The Capano Court orders them to continue to exercise their statutory authority. Praise and donations should go Comm2A for their work on this case, as well as Attorney Jason Guida who represented the plaintiff. This week, in another matter, the Plymouth District Court ordered the Pembroke Police Department to reissue the FID of my client after a Logan revocation. Calling the failure of the FRB and the Police to stand up for the Commonwealth's residents against the incorrect position of the BATF "an abuse of discretion" the Court made it clear that the restoration of rights should continue. Appellate action if taken on these cases will possibly, once and for all, resolve the restoration of rights for Massachusetts residents.

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