Friday, March 8, 2013

Split Noted: When Does Restoration Civil Rights Discount a Conviction for the ACCA?

Per United States v. Swims (7th Cir. Feb. 28, 2013)

18 U.S.C. 922(g)(1) renders the interstate shipping, transporting, or receiving of a firearm a crime for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.  In turn, 18 U.S.C. 920(a)(2) excludes certain crimes from the statutory term "a crime punishable by imprisonment for a term exceeding one year," and further defines that term as:
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.  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.
In this case, upon serving his state sentence for aggravated robbery, Swims received a letter informing him "of the restoration of your right to hold offices . . . . [and] the right to restoration of licenses granted to you."  The letter did not mention Illinois's standing prohibition on gun ownership by felons.  Thus, Swims contended that this letter meant that he "has had civil rights restored," such that the aggravated robbery adjudication did not count as a conviction.

The Seventh Circuit rejects this argument, reasoning that the letter has to include restoration of "the big three" civil rights--i.e., the right to vote, hold office, and serve on a jury--in order to trigger the second sentence of the statute.  The Seventh Circuit notes, however, a circuit split over the "anti-mousetrapping" doctrine, which concerns the "unless" clause of the second sentence.  (p.4)

The anti-mousetrapping doctrine says that any restoration of civil rights itself must notify a convict that he is still forbidden from possessing firearms for the "unless" clause to apply.  Five circuits (the CAs 5, 7, 9, 11 & DC) follow this rule, while four (the CAs 4, 6, 8, & 10) hold that if the restoration is silent, but state law still would prohibit firearm ownership, the "unless" clause nonetheless applies.

 I side with in the middle of this split.  To recap only the relevant statutory language:
Any conviction  for which a person has had civil rights restored shall not be considered a conviction unless such restoration of civil rights expressly provides . . . [the] firearms [restriction]. 
The plain text of the "unless" clause, i.e., the words "such" and "expressly" require reference to the document restoring civil rights.  If--as here--a convict receives a letter notifying him of the restoration of civil rights, and that letter does not also notify him of a restriction on gun ownership, the convict could reasonably believe that the clause does not apply to his conviction.  To the extent there is any ambiguity, both the rule of lenity and the doctrine of fair notice should require the same result.  If, however, a convict does not receive any notification of the restoration of rights, but the restoration happens automatically--and silently--by operation of state law, the same "document" restoring civil rights, i.e., the code book,  expressly provides the firearms restriction.

 The circuit split at issue here is caused by an antecedent issue, on which all circuits and the Supreme Court agree: "'restoration of civil rights' does not" "connote[] a case-by-case determination."  Caron v. United States, 524 U.S. 308, 313 (1998).  Despite the uniformity, I disagree for multiple reasons.

First, the terms of the unless clause (the exception to the exception), referring to "such . . . restoration of civil rights . . . expressly ," suggest that the restoration must take place by an individualized, affirmative action, rather than by silent operation of a blanket law.  To the extent relevant, legislative history confirms this suggestion.  When the relevant language was originally passed in 1981, the Senate Committee report described its effect:  "In the event that the official granting the pardon, restoration of rights or expungement of record does not desire it to restore the right to firearm ownership, this provision is rendered inapplicable where the order or pardon expressly provides that the person may not possess firearms."  S. Rep. 97-476 at 18.

Second, the statutory term "restoration of civil rights" is ambiguous (e.g., as to what rights matter), so I would resort to noscitur a sociis.  All of the other statutory actions with respect to a conviction--i.e., expungement, setting aside, or pardoning--require an individual determination.  (Even routine expungements, such as for juvenile convictions, require the court to take an individual action with respect to one person's record, and can be prevented by an individualized showing of the need for continued collateral consequences.)

Third, requiring an individualized determination is likely the only way to harmonize the first and second sentences of the statute.  Where a state restores certain civil rights by operation of law, such as Illinois did here, its law still treats the convict as a convict for all purposes, including the rights restored and the rights still denied.  Thus, the first sentence (providing that state law governs whether a state conviction qualifies) would mandate that the convict still be treated as convict.  In contrast, where a state restores civil rights by individual order, that order itself will determine for what purposes state law will treat the convict as a convict.  Thus, even the first sentence would--as the second sentence actually does--require reference to the individual order granting a restoration of rights.

Fourth, the entire second sentence of the statute is an exception to the first, thus triggering the canon that provisos be narrowly construed.  Requiring case-by-case determinations is certainly more narrow than crediting all operations of state law.

Finally, the overall purpose of the second sentence's exception appears to be the discounting of convictions where public officials have determined that individual circumstances (whether rehabilitation, or lack of original criminal intent) render unnecessary continued, generally-applicable deprivations of civil rights.  Thus, if a state has determined that an individual convict does not pose a threat to the public such that he may have his rights restored, the criminal code provides no reason to overturn that determination and still count the conviction.

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