Restoration of civil rights - firearm...

Restoration of civil rights - firearms /CRS 18-12-108 and 18 USC 922 (g)(1)

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JIM

Colorado Springs, CO

#1 Jul 9, 2008
My reading of CRS 18-12-108 ("Possession of weapons by previous offenders") reveals that : only during the 10 year period following conviction and final adjudication for felony or domestic violence - is the possession of a weapon by previous offender COMMISSION OF A CRIME under Colorado statute. Also U.S. 10th Circuit Court of Appeals decisions in US v Hall, & US v Norman would indicate the full rights of citizenship are AUTOMATICALLY restored after this 10 year period, and 18 USC 922 (g)(1) prosecution does not "reach" Colorado convictions outside 10 year period. Other legal sources I have reference or consulted maintain that CRS 18-12-108 restricts defined prior offenders from firearm possession for indeterminate time period (life). Comments ?
JIM

Colorado Springs, CO

#2 Jul 9, 2008
Colorado Bureau of Investigation informs me that a person with a non-violent felony conviction in 1988 in Colorado is "prohibited from firearm possession". CRS 18-12-108 states that only during 10 year period follwing conviction, adjudication,probation,incarce ration, committment, supervised parole - is firearm possession the "commission of a crime". 10th Cicuit US Court of Appeals has ruled in US v Hall, 20 F.3d 1066, 1068 (10 Cir. 1994) & US v Norman 96-1342 & 96-1359, that Colorado automatically restored civil rights after adjudication with specific restriction of firearms right for only 10 years- after which full civil rights restoration precludes prosecution under 18 USC 922 (g)(1) So how can firearms possession be a "crime" after this 10 year period ? Is "somebody" making up their own law here ?
NumberEight

Calhan, CO

#3 Jul 23, 2008
JIM wrote:
Colorado Bureau of Investigation informs me that a person with a non-violent felony conviction in 1988 in Colorado is "prohibited from firearm possession". CRS 18-12-108 states that only during 10 year period follwing conviction, adjudication,probation,incarce ration, committment, supervised parole - is firearm possession the "commission of a crime". 10th Cicuit US Court of Appeals has ruled in US v Hall, 20 F.3d 1066, 1068 (10 Cir. 1994) & US v Norman 96-1342 & 96-1359, that Colorado automatically restored civil rights after adjudication with specific restriction of firearms right for only 10 years- after which full civil rights restoration precludes prosecution under 18 USC 922 (g)(1) So how can firearms possession be a "crime" after this 10 year period ? Is "somebody" making up their own law here ?
U.S Consitution, article 6, section 2. Federal gun laws supersede state laws.
NumberEight

Calhan, CO

#4 Jul 23, 2008
NumberEight wrote:
<quoted text> U.S Consitution, article 6, section 2. Federal gun laws supersede state laws.
Jim, sorry, but if you commited a crime which carried a manditory sentence of "Greater than one year" you cannot possess a firearm of any type. This is a federal law. Federal laws supersede any state laws. CBI is stating federal laws in your case and state laws are not in the equation. Your only recourse is a pardon by the Governor of the state in which the crime was commited. Think your situation is unfair, try this. I was convicted of a felony at the age of 15 for pushing another kid through a shrub "assult with an attempt to do bodily harm" I was sentenced to 6 months probation, with no further criminal actions. Since this action would consitute a "felony if commited by an adult" I am prohibited from possession of a firearm for life.
JIM

Colorado Springs, CO

#5 Sep 23, 2008
In the case of 18 USC Chapter 44 sections 921 (a)(20); 922 (g)(1) the term "conviction" cannot be applied UNDER FEDERAL LAW in Colorado convictions wherein the State HAS RESTORED ALL RIGHTS OF CITIZENSHIP. Depending upon the individual specifics of each circumstance, FEDERAL COURTS have ruled FEDERAL LAW does NOT apply to THESE convictions. Colorado constitution DOES TAKE PRECEDENCE OVER CRS 18-12-108 (weapon possession by previous offenders). Colorado constitution does provide for RESTORATION OF ALL RIGHTS OF CITIZENSHIP UPON COMPLETION OF SENTENCE - without exception. According to federal law (US 10th Circuit) FEDERAL LAW DOES NOT EXTEND TO THESE CONVICTIONS - because Colorado law (the State constitution)has automatically restored ALL civil rights INCLUDING firearm rights. Federal gun law respecting possession of firearms by those convicted of certain offenses is DEPENDENT upon STATE LAW in cases of pardon, expungement, or RESTORATION OF FIREARMS RIGHTS . In the case of Colorado the RIGHT is AUTOMATICALLY RESTORED upon completion of sentence. A person may be persecuted, harrassed, intimidated, arrested - BUT PROSECUTION for mere possession IN THE ABSENCE OF COLLATERAL CRIMINAL CONDUCT - WILL NOT PASS CONSTITUTIONAL TEST - Therefore D.A. is extremely unlikely to proceed. In short - I would not hesitate to arm myself with a firearm for defense of my person, home, or property. CAVEAT - Criminal conduct is a different matter. The bottom line is the Colorado constitution has already restored your right to possess a firearm IF YOU HAVE COMPLETED YOUR SENTENCE. Powers that be in Colorado will tell you otherwise. They are stuck between a rock & a hard place - can't amend Colorado constitution without voter approval/dare not acknowledge current legal predicament. This only concerns COLORADO CONVICTIONS - not convictions in any other jurisdiction.
Simon

Marysville, WA

#6 Oct 29, 2008
I was convicted of Felony Vehicular eluding in Colorado a few years back. I completed my community service and am done with my probation. I now live in Washington State. Am I allowed to possess a firearm, and I allowed to go to a gun shop and purchase a firearm. It seems that since it was a non-violent felony with just probation and no jail time then from what I have read my civil rights were automatically restored including the right to be in possession of a legal firearm.
JIM

Colorado Springs, CO

#7 Nov 2, 2008
Simon wrote:
I was convicted of Felony Vehicular eluding in Colorado a few years back. I completed my community service and am done with my probation. I now live in Washington State. Am I allowed to possess a firearm, and I allowed to go to a gun shop and purchase a firearm. It seems that since it was a non-violent felony with just probation and no jail time then from what I have read my civil rights were automatically restored including the right to be in possession of a legal firearm.
Under Colorado law ALL of your rights of citizenship WITHOUT EXCEPTION were restored upon completion of probation. This IS THE LAW in Colorado respecting Colorado convictions. The "carpet-baggers" elected to represent Coloradan's have "winked" at the Colorado consitution and legislated "law" (CRS-18-12-108) in violation of THE LAW of Colorado - the State constitution. This Colorado "law" is on the books but cannot be applied in State courts or used as a predicate conviction in federal courts in cases of otherwise lawful possession or use of a firearm IN COLORADO because of Article VII, Section 10 of the CO constitution. I doubt that you would pass a NICS background check through a dealer , but prosecution for LAWFUL possession seems unlikely. If you are seeking a CLEARING of "legal" obstacles that will be difficult short of receiving a pardon from the CO Governor. If you feel like you should arm yourself for defense of your person - I would do just that. If you are not engaged in criminal activities you should not have a problem. Just be prudent & careful.
JIM

Colorado Springs, CO

#8 Nov 2, 2008
QUALIFICATION -Obviously you CANNOT purchase a firearms through a NICS transaction - you would either perjure yourself or declare yourself ineligible to purchase on the form. Washington has provision for petitioning the court for "restoration" whereas Colorado does not. Question is - under Washington State's jurisdiction is your status affected by the CO conviction ? The CO constitution and 10th Circuit US court say your right is already restored under CO law (the State consitution). Given that condition it seems like Washington State court upon petition would concur that restoration is warranted. It's not a perfect world and with a "felony" curse , it matters WHERE you choose to live.
Don

Tacoma, WA

#9 Nov 19, 2008
On Nov 2, Jim stated that Washington State has a provision for "restoration" of right to purchase firearms. Do you know what the procedure is for starting this process? I live in Washington and have a felony that dates back to 1983. I believe all of my other rights have been reinstated as I just served on jury duty and haven't had any other problems. Is there any way that you know of that I can check to see if perhaps my right to purchase a firearm has been with reinstated without my knowing about it (even though I would be quite surprised if it was). Also, if my rights have not been reinstated, does that affect my wife's ability to purchase and own firearms? Any information would be greatly appreciated. Even though this has affected me for the last 25 years, I am still pretty ignorant to all of the particulars. Thanks again.
JIM

Colorado Springs, CO

#10 Nov 21, 2008
Don wrote:
On Nov 2, Jim stated that Washington State has a provision for "restoration" of right to purchase firearms. Do you know what the procedure is for starting this process? I live in Washington and have a felony that dates back to 1983. I believe all of my other rights have been reinstated as I just served on jury duty and haven't had any other problems. Is there any way that you know of that I can check to see if perhaps my right to purchase a firearm has been with reinstated without my knowing about it (even though I would be quite surprised if it was). Also, if my rights have not been reinstated, does that affect my wife's ability to purchase and own firearms? Any information would be greatly appreciated. Even though this has affected me for the last 25 years, I am still pretty ignorant to all of the particulars. Thanks again.
Don, If you haven't already- "Google" Washington State restoration of firearms right. There are attorneys specializing in the procedure. Federal court (10th Circuit) has held that your firearm right restoration was automatic by constitutional provision in Colorado upon completion of sentence. That fact should help the procedure in Washington State.
Rene

Littleton, CO

#11 Nov 23, 2008
Jim,
I have a weird one for you. I was convicted of a felony in 2005 and was given a 3 year probation period. From what I understand my rights were restored to me after I completed my probation, correct? Two weeks prior to being released from probation I picked up another case because I was in the passenger seat of a friends car and was intoxicated with a .024 alcohol level. This case I picked up seams to be a violation of probation. I told my probation officer about the case before being release and I was still released. I'm still going to court for this case and I’ve hired a attorney to represent me because a few details don’t add up. 1:We were pulled over in front of our house and I could have walked home, the office had no right to check me for alcohol. 2. My blood alcohol level was less the legal limit. Any help would be appreciated Have my right to posses a firearm been reinstated?
chandigg

San Angelo, TX

#12 Dec 7, 2008
i have a felony conviction from colorado in 1986, it was a theft (burglary) it was my 1st offense, but i did all of my probation, classes, etc... i now live in texas, & want to get my firearm rights reinstated, what should i do? how can i get a concealed carry license? and would being behind on child support stop me from passing a nics check
JIM

Colorado Springs, CO

#13 Dec 8, 2008
chandigg: Unless you were a juvenile at time of conviction, Colorado law has no provision for expungement. Under Colorado law however - there is no statutory PROVISION for expungement of your record since ALL of your rights of citizenship(without exception) were restored upon completion of your sentence. Now here is where it gets tricky: Since your conviction was for BURGLARY in 1986, CRS 18-12-108 did incompassed your conviction at that time for ten 10 years following your release from supervised probation. Your conviction was for an offense involving force & covered by CRS 18-12-108 in 1986. Therefore your rights were not restored for 10 years after release. Your issue - while you live in Texas is appropriate TEXAS law regarding a felony conviction. Your LOCATION MATTERS. Colorado courts recognize that 10 year provision for criminal penalty as a consequence of your conviction for the burglary offense - therefore a condition of your sentence. Your "restoration" of all rights was delayed for 10 years . Even if you still have a felony conviction on the record, Colorado law has automatically restored your rights. Texas law has no such provision for restoration of all rights. In Texas you may "legally" possess firearms on the premises of your residence. You are not eligible for a TX CHL due to the felony conviction on record in Colorado, plus I believe being behind on child support is still a disqualifier for the TX CHL. Your best case is probably that it would be UNLIKELY that Texas would ever prosecute you for LAWFUL possession , or use in defense of your person, home, or property from criminal threat. Federal law does not affect your Colorado conviction. Unless circumstances improve for previous offenders like yourself - your right to keep and bear arms is going to be de facto disabled for life. It takes about $20,000 to wage a constitutional challenge in Colorado courts and the prognosis is not good.That's why I present the above case for Colorado restoration in the context that you are unlikely to be prosecuted IN COLORADO. Your situation in Texas is a matter for Texas law and Texas courts. Unfortunately it takes $$$$$ to obtain pure justice in this country.
JIM

Colorado Springs, CO

#14 Dec 9, 2008
Rene wrote:
Jim,
I have a weird one for you. I was convicted of a felony in 2005 and was given a 3 year probation period. From what I understand my rights were restored to me after I completed my probation, correct? Two weeks prior to being released from probation I picked up another case because I was in the passenger seat of a friends car and was intoxicated with a .024 alcohol level. This case I picked up seams to be a violation of probation. I told my probation officer about the case before being release and I was still released. I'm still going to court for this case and I’ve hired a attorney to represent me because a few details don’t add up. 1:We were pulled over in front of our house and I could have walked home, the office had no right to check me for alcohol. 2. My blood alcohol level was less the legal limit. Any help would be appreciated Have my right to posses a firearm been reinstated?
Rene, Any felony offense under Colorado law in 2005 would be incompassed by the 10 year provision of CRS 18-12-108. This means under Colorado statute your possession of a firearm MAY be a crime (felony) during that 10 year window- depending upon the circumstances. That having been said, Colorado law still recognizes your right to act in self-defense, therefore possession for the purpose of defense of your home, person or property is an affirmative defense against prosecution under CRS 18-12-108. Your status regarding 18 USC 922 (g)(1)[federal firearms law] is in limbo still because State adjudication may still be in active status. The federal court (10th Circuit for Colorado) may not consider "all your rights of citizenship" restored just yet. My feeling - if I were in your shoes- I'd keep a low profile until 2018 - monitor the court cases coming before the 10th Circuit in the mean time.(And I would most certainly keep my nose clean).
Brian

Santa Barbara, CA

#15 Dec 10, 2008
I plead guilty to a misdemeanor domestic case in 1993. The only hitting involved was her hitting me, and instead of me hitting back, I ended up throwing a set of keys I had and accidentally broke a glass pane on a cabinet. She then filed a restraining order against me, which I broke by calling her on the phone asking her to please not divorce me. Well I was arrested, and the plea I made was to plead plead guilty to the misdemeanor domestic case...whether it was domestic violence or abuse...I'm not sure...perhaps they're the same thing. I was sentenced to 30 days in jail....28 suspended, so I ended up spending 2 days in jail.

She was charged with misdemeanor domestic assault with injury, where I was charged with misdemeanor domestic assault. This happened in 1993, and I've had no other domestic charges since...and that's been 15 years now. I now live in California, and went to purchase a firearm in to go target shooting with friends, and for home protection. The California DOJ has put a delay on my handgun. What are the chances of me being a firearm owner again?

I do want to add that I had two handguns during the incident in 1993, both of which were given back to me by the police.

Thanks for any information
Brian
Brian

Santa Barbara, CA

#16 Dec 10, 2008
I should have added that the domestic case that happened in 1993 was in IA.

Thanks
Brian
Brett

Pueblo, CO

#17 Dec 13, 2008
Curious...I have been contemplating on purchasing a gun from a friend that is fully registered and legal. The question that I have is whether or not it is legal for me to OWN a handgun. I was convicted of a felony (assault) which was later reduced upon the completion of my probation in 1997. The charge was an assault charge that I believe filed as a class 6 open ended offense. That was explained to me as not a felony but not a misdemeanor either? I have pulled my criminal record and it shows that the offense was dropped to a misdemeanor. What do I need to do to cover my end before I make any purchases?
Brett

Pueblo, CO

#18 Dec 13, 2008
oops...this took place in AZ in 1997. I now live in CO.

THANKS.

“FREE LEONARD PELTIER!!!”

Since: Dec 08

Southern Colorado

#19 Dec 15, 2008
I've looked at the criminal statute, the Colorado Constitution and the case of Hall. All that I can find is the current statute, which has been amended several times since the Hall decision. I would like to read the law and the constitution as it was written at the time of Halls arrest.

It stands to reason that some conservative legislators may have sought to close what they perceive as a loop hole. here is a couple of articles that indicates that the laws were changed in 1994.

As it is I am facing this same circumstance. I completed my criminal sentence in Oklahoma in January 1991.

A few months ago, the sheriffs came to my home on the suspicion of illegal activity, but there was none. However,I was already arrested for guns in my home.

There is a search & seizure issue here that we will be arguing. Failing that, we can proceed with an affirmative defense, since I have few livestock and we are rural. Firearms, as a tool-not a weapon, is necessary for home protection for my family, pets and livestock from predators.

As I read the current law, the 10-year reference is decisive of whether you can be charged with class 6 or Class 5 felony. The constitution restores civil liberties still, but the statute limits it (CRS-18-12-108). I hear your argument that it is contrary to the constitution, and in order for the state to restrict such civil restoration there had to be some basis to justify it so as to pass a constitutional review.

Here is a link to a couple of articles following up on the Fruitvale man -

http://www.gunsnet.net/forums/printthread.php...

To be aware on how gun laws affect you. You should always check the laws in your state concerning possession of a firearm by a previous/former felon. And then check under the pardon and parole board in the state you were convicted to see if a pardon would be advantageous to you. I checked and it looks like that if I had applied earlier, I could have avoided the legal system altogether with a pardon.

The Sheriffs had said that if each of the guns had been secured with a gun lock that only my wife could lock and unlock, I would have been clear. Now how in the hell am I suppose to know that or anyone else.

I've had over 18 years clean and then I get snagged back in on a technicality.

Well, I'll fight it as best as I can. Good Luck to everyone else in your pursuit to own a gun without fear of arrest!
JIM

Colorado Springs, CO

#20 Dec 24, 2008
BEN47 - You seem to have an excellent grasp of the issue in a nutshell. Obviously well researched. Thousands of decent law-abiding citizens in Colorado share your dilema.
The CO constitution is on your side, criminal justice circles, and mind-numbed robotic "sheep" have ignorantly adopted the myoptic view that "felons" (for life ???) should be restricted from firearm possession -(until THEY become a "felon" or domestic violence offender.

In order "to fight it as best as you can" -I would just incourage you to hang in there with a "NOT GUILTY" plea. Without a guilty plea from you -they would have to spend alot of $$$$ on a trial within 6 months - money they haven't got.
They would love to squeeze a misdemeanor "guilty plea" out of you after 6 months in the "torture chamber" of court seemingly endless court hearing appearances. That's how CJ squeezes plea bargains out of the folks. Plus the CJ system can use the court & community service fees you would end of paying. It's ALWAYS about $$$$$$.

Interesting "side bar" about the guns being locked up and wife only having the key. The more I think about that , I can only interpret it as some "friendly advise" by at least ONE COOL LEO.(Perhaps a key-board lock would suffice.) Your wife can attest that ony she knows the magic number.

As you are no doubt aware the D.A. has the burden of proof to establish that your possession was not constitutionally protected - for defense of home, person, or property. The frequency of home invasion robbery/assaults is unabated - that's your affirmative defense.

I'll say it again - you have the right to keep and bear arms restored by the CO constitution. The CO constitution can only be amended by a vote of the people - and CO/CJ "system" won't chance letting the cat out of the bag for all to see.
Tyrants trample on constitutions - enough said -right ? I've written letters to the editor on this subject - but have yet to have one printed.

This is heavily protected ground - this MYTH.

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