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CLE: Guns – Criminal Laws and Civil Rights

July 13, 2011

The criminal defense lawyer members of the Minnesota Society for Criminal Justice often need to advise and advocate for clients on issues related to firearms.  A person could be accused of crime based on a gun (for example, felon in possession), or an enhanced charge or sentence based upon a gun (for example, a Minn Stat 609.11 minimum sentence.)  Or, a person could be concerned about the future impact on their civil rights to own or possess firearms in the event the person were convicted of a crime unrelated to firearms (for example, a drug crime.)

Handgun
Handgun

On July 10, 2011, Thomas Gallagher, a Minneapolis criminal lawyer and current President of the Minnesota Society for Criminal Justice, presented a Continuing Legal Education (CLE) seminar on “Guns – Criminal Laws and Civil Rights,” to the membership.

A recent US Supreme court case has clarified that we have an individual right to firearms:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”  District of Columbia v. Heller, 128 S. Ct. 2783, 554 US 570, 171 L. Ed. 2d 637 (2008).
Self-defense is a related issue for criminal lawyers considering the impact of guns on their practice.  Gallagher noted somewhat different legal standards for self-defense, depending upon various factors including: whether death was the result or not; whether it took place in the person’s own home or not; whether the person it was used against was an intruder or a co-resident; whether there is a “duty to retreat;” and what might be considered “reasonable force” under what circumstances.  He noted that historically in the United States, there has been a cultural hostility to the idea of a “duty to retreat” being layered on top of “reasonable force used in self-defense, under the circumstances.”  Yet, in Minnesota there is in the law a “duty to retreat” if practical, before using reasonable self-defense, especially when outside one’s own home.   (There might be even within one’s own home, depending upon circumstances.)
Some common gun crimes Minnesota defense lawyers see, include:
    1. Possession of firearm by ineligible person, Minn. Stat. § 624.713, subds. 1(b), 2.
    2. Possession of firearm with removed serial number, Minn. Stat. § 609.667, subd. 2.
    3. Reckless discharge of a firearm, or Intentional Discharge of a Firearm Under Circumstances that Endanger the Safety of Another, in violation of Minn. Stat. § 609.66, subd. 1a(a)(2).
    4. Negligent storage of firearms, Minn. Stat. §  609.666.
    5. False Statement on Application for Gun Purchase (misunderstood legal terms).
    6. Carry without permit, unless exception applies. Carrying of weapons without permit, non-prohibited persons, (see Minn. Stat. §  624.714, subd. 9).  State law prohibits any person, other than a law enforcement officer or a state prison guard who is performing assigned duties, from carrying a pistol in a motor vehicle or in a public place without obtaining a “permit to carry.” A permit to carry is not required to carry the pistol in the following situations:
  • in one’s home, place of business, or on one’s land;
  • from the place of purchase to one’s home or place of business;
  • from one’s home or place of business to a repair shop;
  • between one’s home and place of business;
  • in the woods, fields, or on the waters of this state for hunting or target shooting in a safe area; or
  • in a motor vehicle, snowmobile, or boat if the pistol is unloaded and in a secured box or package.

In addition to crimes based upon prohibited possession or uses of guns, Minnesota has criminal statutes which enhance penalties or provide “mandatory minimum” sentences, if some other type of underlying crime is also associated with a gun in certain ways.    Minn. Stat. Section 609.11 is one such statute.  Various criminal statutes are listed.  If a gun is possessed or used impermissibly in relation to one of those other, listed crimes, then a mandatory minimum sentence can apply.  Defense lawyers will try to get a prosecutor to agree to drop a gun enhancement under 609.11.  Otherwise, the criminal defense lawyer can make a motion to the court to do so, for example,  a Royster motion to dismiss gun enhancement in a drug case.  State v. Royster, 590 N.W.2d 82, 85 (Minn. 1999).  See also, US v Spotted Elk, 548 F.3d 641 8th Cir 2008) (gun bartered for drugs was not used in connection with.)

When it comes to a person losing  their civil rights to purchase, possess, or use firearms, there are many, many ways for this to happen, and many of these were discussed.  Probably the two most common scenarios are: (a) a person who has lost their civil rights to firearms due to a felony conviction; and (2) a person who has lost their civil rights to firearms due to selected misdemeanor, or other crimes of domestic violence.  A noted anomaly: a Minnesota state felon who has completed probation can get their civil rights restored if they petition the court for their restoration and the court grants that request.  But, a person convicted of, for example, misdemeanor domestic assault would not have a statutory right to petition the court for restoration of civil rights.  Another hazard to beware: Though a “stay of imposition” of sentence, completed successfully is deemed a non-felony conviction under  Minn. Stat. Section 609.13; under other Minnesota statutes such a conviction would still be a felony for purposes of civil rights to firearms.  Defendants have been commonly misinformed in that situation, for years.
Criminal lawyers should be prepared to advise the people they represent about the potential consequences of any criminal charge or resolution, upon their civil rights to firearms.
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