Firearms Restrictions Resulting from Misdemeanor Conviction

6.6Firearms Restrictions Resulting from Misdemeanor Conviction

Federal and Michigan statutes provide for restrictions on the purchase, possession, or receipt of firearms by individuals convicted of certain misdemeanor offenses. Michigan also provides for licensing restrictions for individuals convicted of certain specified misdemeanors.

A.Federal Restrictions for Domestic Violence Misdemeanors

18 USC 922(g)(9) prohibits a person convicted of a misdemeanor domestic violence crime from possessing or receiving firearms or ammunition:

“(g) It shall be unlawful for any person—

* * *

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

“A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence under 18 USC 922(g)(9)], unless—

(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and

(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either

(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.” 18 USC 922(a)(33)(B)(i).

“A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence under 18 USC 922(g)(9)] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 USC 922(a)(33)(B)(ii).

Note: In certain circumstances, a conviction may be set aside under MCL 780.621 or MCL 780.621g. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 3, Chapter 3, for additional information.¹

For purposes of 18 USC 921(a)(33)(B)(ii), restoration of civil rights after a conviction must take place according to the law of the jurisdiction where the conviction was entered. See Beecham v United States, 511 US 368, 371 (1994). Accordingly, a defendant convicted of a misdemeanor crime of domestic violence will fall under the 18 USC 921(a)(33)(B)(ii) exemption if the defendant is incarcerated. United States v Wegrzyn, 305 F3d 593, 595 (CA 6, 2002) (Court held that a defendant convicted of a misdemeanor crime of domestic violence under 18 USC 922(g)(9) faces the risk under MCL 750.81(2) of serving confinement in jail, which would subject the defendant to a loss of civil rights while incarcerated under MCL 168.758b and an automatic restoration of the defendant’s civil rights once released; a restoration of the defendant’s civil rights provides the defendant with an exemption under 18 USC 921(a)(33)(B)(ii)). But see, Logan v United States, 552 US 23 (2007), where the United States Supreme Court held that the exemption found under 18 USC 921(a)(20)² did not cover situations where the defendant retained his or her civil rights at all times, and “whose legal status, postconviction, remained in all respects unaltered by any state dispensation.”

A person who “does not have the same freedom to transport a firearm as a Michigan citizen without a domestic assault record” sufficiently triggers the “unless clause” of 18 USC 921(a)(33)(B)(ii). United States v Sanford, 707 F3d 594, 596-597 (CA 6, 2012), overruling United States v Flores, 118 Fed Appx 49 (CA 6, 2004) (although the defendant had some of his civil rights restored after his Michigan law convictions for misdemeanor domestic violence crime of domestic assault, the defendant’s “ineligibility [under MCL 28.425b(7)(h)(ix)³] for a concealed weapons permit [for eight years after each domestic assault conviction] restrict[ed] [the defendant’s] ability to transport firearms sufficiently to trigger the ‘unless clause’” of 18 USC 921(a)(33)(B)(ii), which provides that “[a] person shall not be considered to have been convicted of [a misdemeanor domestic violence crime] for purposes of [the offense of possessing a firearm after a conviction for a misdemeanor crime of domestic violence] if the . . . person . . . has had civil rights restored [after the domestic violence conviction,] . . . unless the . . . restoration of civil rights expressly provide[d] that the person may not ship, transport, possess, or receive firearms”).

The penalty for knowingly violating 18 USC 922(g)(9) is a fine and/or a maximum ten-year prison term. 18 USC 924(a)(2). “[I]n a prosecution under [18 USC 922(g)] and [18 USC 924(a)(2)], the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif v United States, 588 US ___, ___ (2019) (“hold[ing] that the word ‘knowingly’ [contained in 18 USC 924(a)(2)] applies both to the defendant’s conduct and to the defendant’s status”).⁴

A person may apply to the US Attorney General for relief from disabilities imposed under 18 USC 922(g)(9). See 18 USC 925(c). 18 USC 925(c) permits the US Attorney General to grant the requested relief “if it is established to [the US Attorney General’s] satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.”

Federal law also prohibits the sale or other disposal of firearms or ammunition to a person who has been convicted of a misdemeanor crime of domestic violence. See 18 USC 922(d)(9) and 18 USC 924(a)(2), which impose a fine and/or a maximum ten-year prison term against a person who sells or otherwise disposes of a firearm or ammunition to someone he or she knows or has reasonable cause to believe “has been convicted in any court of a misdemeanor crime of domestic violence.”

Federal law does not exempt “the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof” from the statutory provisions of 18 USC 922(d)(9) and 18 USC 922(g)(9).

B.Michigan Restrictions Following a Misdemeanor Conviction

A person convicted of a misdemeanor involving domestic violence is prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm or ammunition in Michigan “until the expiration of 8 years after all of the following circumstances exist:

(a) The person has paid all fines imposed for the violation.

(b) The person has served all terms of imprisonment imposed for the violation.

An applicant will be denied a concealed pistol license under MCL 28.425b(7)(h) if the county clerk determines, “[b]ased solely on the report received from the department of state police under [MCL 28.425b(6)⁵],” the applicant, within the last eight years immediately preceding the date of application, was convicted of, among other offenses, assault or domestic assault (MCL 750.81), aggravated assault without a weapon or aggravated domestic assault without a weapon or prior conviction (MCL 750.81a(1) or MCL 750.81a(2)), fourth degree child abuse (MCL 750.136b(7)), stalking (MCL 750.411h), and fourth degree criminal sexual conduct (MCL 750.520e), or a federal, state, or local law substantially corresponding to one of these provisions.⁶ MCL 28.425b(7)(h)(ix).⁷ MCL 28.425b(7)(i) also provides for the denial of a concealed pistol license if the county clerk determines, “[b]ased solely on the report received from the department of state police under [MCL 28.425b(6)],” that the applicant was convicted of certain specified misdemeanors within three years preceding the date of the application.⁸ MCL 28.425b(11) requires “the county clerk [to] send by first-class mail a notice of statutory disqualification for a license under this act to an individual if the individual is not qualified under [MCL 28.425b(7)] to receive that license.”

Note: For exemptions from firearm licensing restrictions, see MCL 28.432 and MCL 28.432a.⁹

“Upon entry of a court order^[¹⁰] or conviction of 1 of the enumerated prohibitions for using, transporting, selling, purchasing, carrying, shipping, receiving or distributing a firearm in [MCL 28.425b,] the department of state police shall immediately enter the order or conviction into the law enforcement information network [(LEIN)].” MCL 28.425b(8).

A person who carries a concealed pistol without a license is “guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00.” MCL 750.227(2)-(3).

¹ See Hampton v United States, 191 F3d 695, 702-703 (CA 6, 1999), where the petitioner could not be convicted under 18 USC 922(g)(1) when MCL 750.224f did not restrict the convicted felon’s ability to possess a firearm because its restriction period had expired. But see United States v Williams, 134 F Supp 2d 851, 852-853 (ED Mich, 2001), where a convicted felon was subject to federal prosecution for firearms possession because he failed to comply with the restrictions imposed by MCL 750.224f, even though he had completed his sentence and his civil rights were otherwise restored under Michigan law.

² “[18 USC 921(a)(33)(B)(ii)] tracks [18 USC 921(a)(20)] in specifying expungement, set aside, pardon, or restoration of rights as dispensations that can cancel lingering effects of a conviction[, which] . . . [the] parenthetical qualification [contained in 18 USC 921(a)(33)(B)(ii) that specifically sets out civil rights restoration requirements] shows that the words ‘civil rights restored’ do not cover a person whose civil rights were never taken away.” Logan, 552 US at 36.

⁴ The Rehaif Court “express[ed] no view, however, about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other [18 USC 922(g)] provisions not at issue here.” Rehaif, 588 US at ___. In Rehaif, the Court specifically addressed 18 USC 922(g)(5) (alien illegally or unlawfully in the United States); it is uncertain to what extent its findings would apply to 18 USC 922(g)(9).

⁶ MCL 28.425b(7)(f) also provides for the denial of a concealed pistol license if the county clerk determines, “based solely on the report received from the department of state police under [MCL 28.425b(6)]” at the time of the application, the applicant was convicted of a felony in Michigan or elsewhere, or a felony charge against the applicant is pending in Michigan or elsewhere. An applicant may also be denied a concealed pistol license if the county clerk determines, “based solely on the report received from the department of state police under [MCL 28.425b(6)],” the applicant was charged with certain specified misdemeanors “pending against the applicant in this state or elsewhere at the time [of application]” under MCL 28.425b(7)(h) or MCL 28.425b(7)(i). See Sections 6.4(B) and 6.5(D) for additional information.

⁷ See MCL 28.425b(7)(h) for the full list of criminal convictions or pending charges that warrant denial of a concealed pistol license.

⁸ See MCL 28.425b(7)(i) for the list of misdemeanor convictions and pending charges that preclude the applicant from obtaining a concealed pistol license.

⁹ MCL 28.432 discusses situations where the pistol licensing statute does not apply. MCL 28.432a discusses situations where the requirements to obtain a license to carry a concealed pistol do not apply.

¹⁰ See Section 6.7 for information on firearms restrictions resulting from a court order.