Firearms and Ammunition Restrictions Resulting From Felony Conviction

6.5Firearms and Ammunition Restrictions Resulting From Felony Conviction

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

Michigan’s firearm restrictions are not in “‘direct and positive conflict’” with the federal firearm restrictions in 18 USC 922(g). In re Schultz, 334 Mich App 730, 739 (2020), quoting 18 USC 927. There is no direct and positive conflict between state and federal law because “the Michigan statutes that provide for restoration of a felon’s firearm rights do not interfere with the federal government’s ability to enforce 18 USC 922(g) or require, authorize, or excuse its violation.” Schultz, 334 Mich App at 739. Therefore, “[t]he restoration of firearm rights to felons under Michigan law is not preempted by the federal felon-in-possession statute.” Id. at 740.

A.Federal Restrictions on the Possession or Receipt of Firearms or Ammunition by Convicted Felons

18 USC 922(g)(1) prohibits a person convicted of a crime punishable by imprisonment for a term exceeding one year from possessing ¹ or receiving firearm or ammunition:

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

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;^[²]

* * *

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.”

For purposes of 18 USC 922(g)(1), “[w]hat constitutes a conviction of [a crime exceeding a one-year term of imprisonment] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” 18 USC 921(a)(20). “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”³ Id.

Note: Under certain circumstances and pursuant to certain conditions, an individual may apply to have specific felony and misdemeanor convictions set aside under MCL 780.621 or may have them automatically set aside under MCL 780.621g.⁴ See MCL 780.621 ; MCL 780.621g. For more information on setting aside a conviction, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 3, Chapter 3.

The penalty for knowingly violating 18 USC 922(g)(1) is a fine and/or a maximum ten-year prison term. 18 USC 924(a)(2).⁵ “[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”).⁶

Federal law also prohibits the sale or other disposal of firearms or ammunition to a convicted felon. See 18 USC 922(d)(1) 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 of a crime punishable for more than one year in prison.⁷

A person may apply to the US Attorney General for relief from disabilities imposed under 18 USC 922(g)(1). 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.”

“[18 USC] 922(g) does not prohibit a felon from owning firearms[; r]ather it interferes with a single incident of ownership . . . by preventing the felon from knowingly possessing his (or another person’s) guns.” Henderson v United States, 575 US 622, 626 (2015). Thus, while 18 USC 922(g) “prevents a court from instructing an agency to return guns in its custody to a felon-owner . . . [and] prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use[,]” it “does not affect[ the felon’s] right merely to sell or otherwise dispose of [the guns].” Henderson, 575 US at 626-628, 631 (finding that “when a court is satisfied that a felon will not retain control over his guns, [so that he could use them or direct their use,] [18 USC] 922(g) does not apply, and the court has equitable power to accommodate the felon’s request[]” to transfer his guns to a third party).

B.Michigan Restrictions on the Purchase or Possession of Firearms by Convicted Felons ⁸

Unless a person is convicted of a specified felony as defined in MCL 750.224f(10)(d), MCL 750.224f(1) prohibits a convicted felon from purchasing or possessing firearms until the expiration of three years after certain circumstances have been met:

“Except as provided in [MCL 750.224f(2)], a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in [Michigan] until the expiration of 3 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.

A felon’s firearm rights need not be restored by court order if the felon was not convicted of a specified felony; a felon’s firearm rights are automatically restored three years after the felon has satisfied all obligations related to his or her conviction of an unspecified felony. In re Schultz, 334 Mich App 730, 734-735, 740 (2020); MCL 750.224f(1).

If a person is convicted of a specified felony as defined in MCL 750.224f(10)(d), MCL 750.224f(2) prohibits a convicted felon from purchasing or possessing firearms until the expiration of five years after certain circumstances have been met:

“A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in [Michigan] until all of the following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances exist:

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

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

(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.

(b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored under . . . MCL 28.424.”^⁹

The restoration of firearm rights after conviction of a specified felony requires that a court issue an order restoring the felon’s firearm rights if the court “finds by clear and convincing evidence that the statute’s requirements were met, as was the case [in Schultz].” Schultz, 334 Mich App at 737; MCL 28.424(4).

In Schultz, the defendant was convicted of unlawfully driving away an automobile (UDAA), MCL 750.413, which does not constitute a specified felony under MCL 750.224f(10); “UDAA is a property offense that does not involve use of physical force, a substantial risk of the use of physical force, possession of a firearm, . . . the use of an explosive, . . . possession of controlled substances[,] or a trespass against an occupied dwelling.” Schultz, 334 Mich App at 735 (citation omitted). Consequently, the convicted felon in Schultz was permitted “under Michigan law, [to] possess firearms three years after all obligations relating to the conviction [were] discharged.” Id.; MCL 750.224f(1).

“A person who possesses, uses, transports, sells, purchases, carries, ships, receives, or distributes a firearm in violation of [MCL 750.224f(1)-(2)] is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.” MCL 750.224f(6). A person is “guilty of a felony punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both” if he or she sells a firearm or ammunition to someone whom the seller knows is either “under indictment for a felony” or “prohibited under [MCL 750.224f] from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm.” MCL 750.223(3)-(4).

A convicted felon’s firearm rights may be restored under Michigan law under certain circumstances even when the convicted felon would remain subject to the firearm restrictions set forth in the federal felon-in-possession statute, 18 USC 922(g). In re Schultz, 334 Mich App 730, 733-734 (2020) (holding that “MCL 750.224f and MCL 28.424 provide for complete relief from criminal liability under Michigan’s felon-in-possession statute, regardless of potential liability under the federal [felon-in-possession] statute 18 USC 922(g)]”). However, a petitioner whose state firearm rights have been fully restored “could still be convicted of possessing a firearm under 18 USC 922(g).” Schultz, 334 Mich App at 737.

“Michigan’s ‘felon in possession’ statute, MCL 750.224f, prevents a police department from delivering lawfully seized contraband firearms to the designated agent of a convicted felon.” People v Minch, 493 Mich 87, 89 (2012). However, MCL 750.224f does not “prevent a court from appointing a successor bailee to maintain possession of a defendant’s weapons during his or her period of legal incapacity.” Minch, 492 Mich at 89-90. “The [trial] court may order the police department to turn over the firearms to an appointed successor bailee as long as the operative order is clear that the nature of the relationship between [the] defendant and the successor is that of a bailment and that [the] defendant must have no control over or access to the firearms whatsoever.” Id. at 96 (defendant convicted of felon-in-possession could have his mother possess his firearms as a bailee, but not as an agent, until he regained the requisite legal status to possess them again).

MCL 750.224f “does not apply to a conviction that has been expunged or set aside, or for which the person has been pardoned, unless the expunction, order, or pardon expressly provides that the person shall not possess a firearm or ammunition.” MCL 750.224f(9). In certain circumstances, a conviction may be set aside under MCL 780.621 or MCL 780.621g.¹⁰

C.Michigan Restrictions on the Selling or Possession of Ammunition by Convicted Felons ¹¹

Unless a person is convicted of a specified felony as defined in MCL 750.224f(10)(d), MCL 750.224f(3) prohibits a convicted felon from engaging in certain activities involving ammunition until the expiration of three years after certain circumstances have been met:

“Except as provided in [MCL 750.224f(4)], a person convicted of a felony shall not possess, use, transport, sell, carry, ship, or distribute ammunition in [Michigan] until the expiration of 3 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.

If a person is convicted of a specified felony as defined in MCL 750.224f(10)(d), MCL 750.224f(4) prohibits a convicted felon from engaging in certain activities involving ammunition until the expiration of five years after certain circumstances have been met:

“A person convicted of a specified felony shall not possess, use, transport, sell, carry, ship, or distribute ammunition in [Michigan] until all of the following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances exist:

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

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

(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.

(b) The person’s right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute ammunition has been restored under . . . MCL 28.424.”¹²

“A person who possesses, uses, transports, sells, carries, ships, or distributes ammunition in violation of [MCL 750.224f] is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.”¹³ MCL 750.224f(7).¹⁴

D.Michigan Licensing Restrictions for Convicted Felons

If the county clerk determines “[b]ased solely on the report received from the department of state police under [MCL 28.425b(6)¹⁶],” that an applicant was convicted of a felony in Michigan or elsewhere, or that a felony charge against the applicant is pending in Michigan or elsewhere, the applicant is disqualified from obtaining a license to carry a concealed pistol.¹⁷ MCL 28.425b(7)(f). A convicted felon is disqualified from obtaining a concealed pistol license even if the convicted felon has had other firearm rights restored. Howard v Mecosta Co Clerk, 336 Mich App 426, 430-432 (2021). See MCL 28.422; MCL 28.725b(7)(f); MCL 28.426. Additionally, a person who is subject to the restrictions set out in MCL 750.224f (i.e., a convicted felon who has not satisfied the conditions for restoring his or her right to possess a firearm),¹⁸ may not obtain a firearm license under MCL 28.422(3)(e) or a concealed pistol license under MCL 28.425b(7)(e). For exemptions from firearm licensing restrictions, see MCL 28.432 and MCL 28.432a.¹⁹

Note: 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.”

“Upon entry of a court order^[²⁰] 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 obtains a firearm in violation of [MCL 28.422], [the firearm licensing statute,] is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.”²¹ MCL 750.232a(1). 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.”²² MCL 750.227(2)-(3).

In certain circumstances, a conviction may be set aside under MCL 780.621 or MCL 780.621g.²³ In the event that an individual’s conviction is set aside, the Michigan Attorney General ²⁴ has stated: “[A] person convicted of a felony whose conviction has been set aside by order of a Michigan court in accordance with [MCL 780.621], if otherwise qualified, may not be denied a concealed pistol license under [MCL 28.425b(7)(f)]. A person convicted of one of the offenses described under [MCL 28.425b(8)], whose conviction has been set aside, may nevertheless be denied a concealed pistol license on the basis of information concerning that conviction if the [county clerk^²⁵] determines that denial is warranted under [MCL 28.425b(7)(n)].”²⁶ OAG, 2003, No 7133 (May 2, 2003).

¹ Possession under 18 USC 922(g) encompasses both “‘actual’ and ‘constructive’ possession alike. . . . Actual possession exists when a person has direct physical control over a thing[, and c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object. [18 USC] 922(g) thus prevents a felon not only from holding his firearms himself but also from maintaining control over those guns in the hands of others.” Henderson v United States, 575 US 622, 626 (2015) (citations omitted).

² 18 USC 921(a)(20) provides that a “crime punishable by imprisonment for a term exceeding one year” does not include a “State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 USC 921(a)(20) also excludes antitrust or similar offenses related to the regulation of business practices.

³ Any restoration of civil rights after a conviction must take place according to the law of the jurisdiction where the conviction was entered. Beecham v United States, 511 US 368, 371 (1994).

⁴MCL 780.621g, effective April 11, 2021, has been referred to as part of the Clean Slate legislation. See 2020 PA 193. It provides for the automatic setting aside of certain misdemeanor and felony convictions if all the requirements set forth in MCL 780.621g are satisfied. For more information about the automatic setting aside of convictions, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Volume 3, Chapter 3.

⁵ See 18 USC 925(a)(1) for exemptions from federal firearm restrictions, which includes exemptions in certain circumstances for “the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.”

⁶ 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)(1).

⁷ Crimes punishable by more than one year in prison do not include antitrust or similar offenses related to the regulation of business practices, or state two-year misdemeanors. 18 USC 921(a)(20).

⁸ MCL 750.231 exempts certain persons and organization from certain regulations related to firearm control. However, the exemptions contained in MCL 750.231 do not apply to convicted felons under MCL 750.224f. See MCL 750.231(1).

⁹ MCL 28.424(1) permits “[an] individual who is prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm under [MCL 750.224f(2)] . . . [to] petition the circuit court in the county in which he or she resides for restoration of those rights.” MCL 28.424(3)-(4) set out the procedures governing a circuit court’s restoration of a convicted felon’s firearms rights, including when the court must restore the convicted felon’s firearms rights and the appeals process if those rights are denied.

¹¹ MCL 750.231 exempts certain persons and organizations from certain regulations related to ammunition control. However, the exemptions contained in MCL 750.231 do not apply to convicted felons under MCL 750.224f. See MCL 750.231(1).

¹² MCL 28.424(2) permits “[an] individual who is prohibited from possessing, using, transporting, selling, carrying, shipping, or distributing ammunition under . . . [MCL 750.224f(4)] [to] petition the circuit court in the county in which he or she resides for restoration of those rights.” MCL 28.424(3)-(4) set out the procedures governing a circuit court’s restoration of a convicted felon’s ammunition rights, including when the court must restore the convicted felon’s ammunition rights and the appeals process if those rights are denied.

¹³ “Any single criminal transaction where a person possesses, uses, transports, sells, carries, ships, or distributes ammunition in violation [MCL 750.224f], regardless of the amount of ammunition involved, constitutes 1 offense.” MCL 750.224f(7).

¹⁴MCL 750.223(3)-(4), which makes it a felony “punishable by imprisonment for not more than 10 years or by a fine of not more than $5,000.00, or both[,]” for a person to sell a firearm or ammunition to someone whom the seller knows is either “under indictment for a felony” or “is prohibited under [MCL 750.224f] from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm[,]” has not yet been amended to reflect the amendment to MCL 750.224f, effective May 12, 2014, which also restricts a convicted felon’s possession of ammunition. It is anticipated that MCL 750.223 will be amended to also include a person selling ammunition to a convicted felon under MCL 750.224f.

¹⁷ MCL 28.425b(7)(f) 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)],” a felony charge against the applicant is pending in Michigan or elsewhere at the time of application. See Section 6.4(B)(1) for additional information. Other reasons an applicant may be denied a concealed pistol license include if the county clerk determines, “[b]ased solely on the report received from the department of state police under [MCL 28.425b(6)],” an applicant was convicted of certain specified misdemeanors within eight years immediately preceding the date of application under MCL 28.425b(7)(h) and certain specified misdemeanors within three years immediately preceding the date of the application under MCL 28.425b(7)(i), or the applicant has been 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 6.6(B) for additional information.

¹⁸ MCL 750.224f(1) and MCL 750.224f(3) prohibit a person convicted of a felony from engaging in certain activities involving firearms or ammunition until the expiration of three years after certain circumstances have been met. MCL 750.224f(2) and MCL 750.224f(4) prohibit a person convicted of a specified felony from engaging in certain activities involving firearms or ammunition until the expiration of five years after certain circumstances have been met.For additional information on MCL 750.224f(1)-(4), including the circumstances a person convicted of a felony or a specified felony must meet, see Sections 6.5(B)-(C).

¹⁹ 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.

²⁰ See Section 6.7 for information on firearms restrictions resulting from a court order.

²¹ “A person who intentionally makes a material false statement on an application for a license to purchase a firearm under [MCL 28.422], is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.” MCL 750.232a(3). See also MCL 28.422(14), which also makes it a “felony punishable for not more than 4 years or a fine of not more than $2,000.00, or both” for “[a] person who forges any matter on an application for a license under [MCL 28.422][.]” “A person who uses or attempts to use false identification or the identification of another person to purchase a firearm is guilty of a misdemeanor, punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.” MCL 750.232a(4).

²² “A license to carry a concealed pistol that is issued based upon an application that contains a material false statement is void from the date the license is issued.” MCL 28.425b(12).

²⁴ Courts “are not bound by Attorney General opinions.” American Axle & Mfg, Inc v City of Hamtramck, 461 Mich 352, 373 (2000). However, “they can be persuasive and provide insight into the historical development of a statute that may aid in construing ambiguous language.” Id. at 373.

²⁵ MCL 28.425a formerly required “[e]ach county [to] have a concealed weapons licensing board.” However, effective December 1, 2015 (see enacting Section 2), 2015 PA 3 amended MCL 28.425a to eliminate the county concealed weapon licensing boards and to transfer the duty of issuing and maintaining concealed pistol licenses to the county clerks. To date, the OAG opinion has not been amended to reflect the statutory amendment.

²⁶ Formerly MCL 28.425b(7)(o). Before June 2, 2015, MCL 28.425b(7)(n) allowed for denial of a concealed pistol license if issuance would be detrimental to the individual or public. However, effective June 2, 2015 (see enacting section 3), 2015 PA 3 deleted that language in MCL 28.425b(7)(n) and replaced it with language that now allows denial of a concealed pistol license if the applicant does not have “a valid state-issued driver license or personal identification card.” To date, the OAG opinion has not been amended to reflect this statutory amendment.