NH Supreme Court takes aim at federal felon-in-possession statute



In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20).  In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury).  In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.

While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).

Gregory DuPont’s 1998 Massachusetts DUI carried a potential maximum prison sentence of two and a half years, thus rendering him ineligible, under both Massachusetts and federal law, to possess a firearm.  In 2005, the Massachusetts Firearm Licensing Review Board (FLRB) restored DuPont’s firearms rights, finding that he was “a suitable person to possess a license to carry firearms.”  In 2007, the City of Nashua (NH) issued DuPont a license to carry a pistol or revolver, and in 2009 the New Hampshire Department of Safety (DOS) issued him an armed security guard license.

In 2013, when DuPont applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License, a background check revealed that the 1998 state conviction was disqualifying under federal firearms law.  As a result, the federal license was denied and DuPont’s state licenses were revoked.  The state trial court denied DuPont’s appeal, reasoning that DuPont could not “be deemed suitable to possess a license to carry a pistol or revolver” because, “[u]nder applicable federal law, which New Hampshire must follow under the Supremacy Clause of the U.S. Constitution, [he] cannot possess a firearm.”  The circuit court agreed, relying on Logan v. United States, 552 U.S. 23 (2007), to hold that because DuPont had never lost any of the “core” civil rights (vote, jury, office) he could not benefit from the “civil rights restored” exception under 18 U.S.C. § 921(a)(20)(B).  The court explained that the right to carry a gun “is a constitutional, not civil, right.”

The state high court disagreed, relying on the Second Amendment to hold that Massachusetts’ restoration of his firearms rights was enough to bring him within the “civil rights restored” proviso:

The Sixth Circuit has opined that Heller “suggests that a handgun possession ban . . . might infringe a civil right.” United States v. Sanford, 707 F.3d 594, 597 (6th Cir. 2012) . . . . In addition, the Supreme Court has referred, in an unrelated context, to the loss of the right to bear arms as the deprivation of a civil right. See Nat. Fedn. of Indep. Business v. Sebelius, 132 S. Ct. 2566, 2600 (2012) (noting that “[a]n individual who disobeys” a law passed under Congress’s Commerce Clause power “may be subjected to criminal sanctions . . . [which] can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections”).

The court reasoned that when Congress used “civil rights restored” as a touchstone for regaining firearms rights it meant that “by reinvesting a person with core civic responsibilities, the state vouches for the trustworthiness of that person to possess firearms (unless that right is withheld).”

Thus, as the petitioner puts it: “The right[s] to vote, hold office and sit on a jury are simply surrogates for an underlying state determination/vouching for a person’s trustworthiness to possess a firearm.” We find it unlikely that Congress intended to credit the restoration of “core rights” as indicative of trustworthiness, but exclude the restoration of the very right at issue – the right to possess firearms – from the trustworthiness calculus. Cf. Coram v. State, 996 N.E.2d 1057, 1077 (Ill. 2013) (Karmeier, J., writing separately) (opining that “whether a person previously convicted of an offense constitutes a present danger with a weapon going forward, and whether that individual’s rights to keep and bear arms should be restored . . . , logically, should be the core question” instead of “quibbling over what rights irrelevant to that question have been restored, or, as some cases would have it, how many of those rights”).

Put another way, 921(a)(20) reflects “the general intent of Congress to redirect enforcement efforts against firearms owners that have a demonstrated potential for serious unlawful activity.”  The court quoted the Ninth Circuit’s statement in U.S. v. Valerio that “[b]y contrast to the right to vote, no civil right could be more relevant to a felon’s future dangerousness than the right to possess firearms.” 441 F.3d 837, 842 (9th Cir. 2006). The court therefore concluded that the “civil rights” contemplated by § 921(a)(20) must include the right to keep and bear arms, and that restoration of that civil right alone (if no others are lost) brings a conviction within the § 921(a)(20) exemption.  It distinguished Logan by pointing out that, unlike the the defendant in that case, DuPont had received a “status-altering dispensation,” a “token of forgiveness” from Massachusetts through the FLRB’s determination thatv his gun rights should be restored.

As previously noted, the FLRB specifically found that the petitioner was “a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth.” Given our conclusion that the right to keep and bear arms is a civil right for purposes of § 921(a)(20), the petitioner has had one civil right “restored” in the Logan sense. Accordingly, we conclude that Logan does not exclude the petitioner from § 921(a)(20)’s exemption.

Further, even though only one civil right was lost and restored, this was enough to bring petitioner’s 1998 conviction within § 921(a)(20)’s exemption, based on precedent holding that the exemption does not require a “full” restoration of rights.

The FOPA amendment . . . exempted felons to whom the convicting jurisdiction extended a subsequent gesture of forgiveness, or partial forgiveness, by means of pardon, expungement, or restoration of civil rights. The theory was no doubt that such a subsequent forgiveness should be credited as an acknowledgment of rehabilitation or an affirmative gesture of goodwill that merited exemption from the firearms bar. . . . [T]he ultimate question is whether the state, by its “gesture of forgiveness,” has “vouche[d] for the trustworthiness of that person to possess firearms (unless that right is withheld).” . . .  The gesture of forgiveness here – explicit restoration of firearm rights – vouches for that trustworthiness more directly than any other.

In asserting a state’s right to interpret the scope of the exemption in 921(a)(20), the New Hampshire court specifically declined to follow federal court decisions involving convictions for misdemeanor domestic violence, in which restoration of gun rights by itself was found insufficient to bring a prior conviction within the exemption.

We decline to follow those cases. We conclude that our interpretation of § 921(a) better fulfills Congress’s purpose of “defer[ring] to a State’s dispensation relieving an offender from disabling effects of a conviction.” Logan, 552 U.S. at 37. Here, Massachusetts acted clearly and directly to remove the restriction the petitioner’s 1998 conviction had placed upon his civil right to keep and bear arms. We hold that Massachusetts thereby restored the petitioner’s civil rights within the meaning of § 921(a)(20).