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

GREG.KRYZER@CO.WRIGHT.MN.US

763-682-7344

EMAILISTHEBEST!!

THANK YOU

QUESTIONS?