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Guns and Voting: Restoration of Civil Right to Vote Not Enough to Get Around Federal Ban on Possession Gun After Felony Conviction

Kish Law LLC

A recent case out of Alabama addressed the intersection between gun possession and having the right to vote restored after an earlier felony conviction. As just about everybody knows, a person convicted of a felony usually loses some of their “civil rights”, even if they never go to jail. The federal government makes it a separate crime if a previously-convicted felon possesses a firearm. Many states, however, have laws that quite sensibly restore a person’s “civil rights”. Another portion of the federal gun laws says that when a convicted felon’s civil rights have been “restored”, then the conviction does not count when deciding if the person violated the law prohibiting felons from having guns. Our beloved Eleventh Circuit Court of Appeals here in Atlanta decided that having a person’s right to vote restored under Alabama law was not the same as having ones civil rights (plural) restored, so that the person could be convicted for possession of a gun after a felony conviction. The case is United States v. Thompson.

in March, 1994 Mr. Thompson was convicted of assault, and under Alabama law he automatically lost the right to possess a firearm, to hold office, to serve on juries, and to vote. Eleven years later, Thompson applied to the State of Alabama for restoration of his civil rights. He got a letter from the State of Alabama Board of Pardons and Paroles in early, 2006, which said that he could once again register to vote and actually vote in elections. However, the letter also said that “THIS CERTIFICATE IS NOT A PARDON AND DOES NOT RESTORE, REMOVE OR ADDRESS ANY OTHER RIGHTS, PRIVILEGES OR REQUIREMENTS.” Another letter said that, ” If you desire to have any additional rights restored, please inquire at your local probation and parole office.” Three and a half years later, the police arrested Mr. Thompson while he had a gun. A federal grand jury charged Thompson in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Thompson moved to dismiss the charges, pointing out that because his right to vote was restored, he fell within the exception described at 18 U.S.C. § 921(a)(20), which provides that “[a]ny conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” § 921(a)(20) (emphasis added).

The Eleventh Circuit began by noting that neither the statute nor the legislative history clarifies which civil rights must be restored to a convicted felon in order to satisfy the § 921(a)(20) exception. Earlier cases said that when a convicted felon’s civil rights are “unreservedly” restored, the person qualifies for the § 921(a)(20) exception, but that that the exception does not apply where a convicted felon has no civil rights restored after his conviction. One of the earlier cases noted it was an open question as to whether “all civil rights must be restored or merely some of them, and if only some, which ones, in order for § 921(a)(20) to preclude a convicted felon’s prosecution under § 922(g)(1).” With that as background, the Court of Appeals turned to the question of whether the restoration of only the right to vote was a sufficient restoration of civil rights under § 921(a)(20) to preclude a convicted felon’s prosecution for possessing a gun.

For two reasons, the Eleventh Circuit decided that restoration of only the right to vote is not good enough to use the exception. First, the Court pointed out that the law was written using the plural word “rights” and not the singular “right.” Second, the Eleventh Circuit surveyed the landscape of other federal appellate decisions, concluding that the single restoration of the right to vote was not enough to allow for a defendant to use this exception.

The bottom line is that when a person gets a state felony conviction, he or she should try everything possible to get as many of their rights restored as possible, if they ever want to again possess a gun.

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