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Old April 6, 2013, 01:28 PM   #104
Junior Member
Join Date: April 6, 2013
Posts: 2

I'm new here, and after reading this thread, I've decided to join and throw in my 'two cents'. Hope it's worth more.

I wrote an email to the attorney handling this case before joining, but he has not responded. I wasn't sure if the information I provided was useful, or should be kept 'secret', but since he hasn't responded, I'm assuming my info wasn't much help. So, I will share it here.

Much of this discussion has focused on 'civil rights', specifically the three core 'civil rights' of (jury, voting, and public office). The feds claim that under California law, none of these rights are lost due to a misdemeanor MDVC, therefore they cannot be restored within the definition of Lautenberg even with expungement. Hence, no restoration of 'civil rights' then no 'gun rights' either.

However, the feds are wrong. To this date, I have not found anyone present this angle, or argue it in a Lautenberg case as related to California:

In California, just about anyone can become a Notary Public. But most people don't realize that a Notary Public is a 'public officer' commissioned by the Secratary Of State. It is well established that a Notary Public is considered 'holding public office' (a core civil right as recognized by Lautenberg).

However, an applicant will be denied if convicted under misdemeanor Penal Code 273.5 (Some degree of domestic violence). Even an existing Notary Public will have his/her commission revoked/suspended if convicted of MDVC during their tenure.

A person convicted of a MDVC cannot be commissioned for Notary Public
until after 5 years since their sentence has ended AND they have had their conviction EXPUNGED with a certificate of rehabilitation per PC 1203.4.

This is all outlined on the Secretary Of State's website and PDF file here:

It appears that under a MDVC one of the three core civil rights is lost, and restored.

Now, someone may try to argue that it's only 'one' civil right lost, and not all three, and therefore not considered a 'full' loss. Ok. Allow me to point you to documents submitted by the federal attorney in the Enos case. In the following documents the fed attorney representing the defendant U.S., argues about a previous 9th Circuit decision regarding the state of Washington. He acknowledges that a felon had all his civil rights restored after a expungement or pardon (vote, jury duty, hold public office), with one little exception. The ex-convict could not specifically hold office as a county sheriff. Therefore, even though his other core civil rights were intact, he was still considered a prohibited person under federal law from possessing a firearm since he could not hold the 'public office' of sheriff. Pay particular attention to the final paragraph, as it uses the word 'or'. This is the government's own argument, using their own choice of words.

United States Attorney
Assistant United States Attorney

ERIC HOLDER, as United States Attorney
General, and ROBERT MUELLER, III, as
Director of the Federal Bureau of Investigation,

CASE NO. 2:10-CV-02911-JAM-EFB
Date: November 16, 2011
Time: 9:30 a.m.
Place: Courtroom 6, 14th Floor
Judge: John A. Mendez

(excerpt from page 13):

...The fact that a state has restored an individual’s right to possess firearms is insufficient. In Andaverde, the Ninth Circuit addressed this very issue in the context of 18 U.S.C. § 922(g)(1), the felon-in-possession statute, as follows:

Andaverde first argues that, because Washington state law did not prohibit him
from possessing a shotgun, he should be considered as having had his civil rights restored. Therefore, Andaverde contends, his conviction is not a conviction for § 922(g)(1)’s purposes.

Andaverde is incorrect. In determining whether a felon continues to suffer a civil rights disability, the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office. United States v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510 U.S. 919, 114 S. Ct. 314, 126 L.Ed.2d 261 (1993); United States v. Dahms, 938 F.2d 131, 133 (9th Cir. 1991). Andaverde contends that this restoration analysis should turn on whether state law restores the right to bear arms.

Even if, in determining whether a felon’s civil rights have been restored, the court should look to state law giving felons the right to bear arms, the restoration of this single right does not prevent prosecution under § 922(g)(1). A restoration of rights must be “substantial,” not merely de minimus. Meeks, 987 F.2d at 578; Dahms, 938 F.2d at 133. We held in Meeks that, under Missouri law, which allowed convicted felons to vote and hold office, but which did not restore the right to serve on a jury, to hold office as a sheriff, or to be a highway patrol officer, the defendant had not had his civil rights “substantially restored” and thus could be prosecuted under § 922(g)(1). Meeks, 987 F.2d at 578.

Andaverde, 64 F.3d at 1309 (internal footnote omitted); see also United States v. Valerio, 441 F.3d 837, 843 (9th Cir. 2006) (noting that the individual’s right to vote and right to possess firearms had been restored, but holding “that is not enough”);

Brailey, 408 F.3d at 613 (“Because Brailey’s misdemeanor conviction did not remove Brailey’s core civil rights of voting, serving as a juror, or holding public office, his civil rights have not been ‘restored’ within the meaning of federal law by Utah’s 2000 amendment permitting him to possess a firearm.”); United States v. Leuschen, 395 F.3d 155, 160 (3d Cir. 2005) (stating that “[t]he absence of firearms restrictions, however, becomes relevant only if the convict’s core civil rights have been restored” and “[i]f the defendant ‘has not “had his civil rights restored,” it simply does not matter what the state law provides concerning possession of firearms.’”) (quoting Thomas, 991 F.2d at 211).

I hope this helps, and someone finds it useful.
Bakfyr is offline  
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