TN law

[Guest Traumaslave]

Just received this from the TBI.

http://mail.google.com/mail/?ui=1&view=att&th=11d1fdd396a168d2&attid=0.1&disp=vah&zw

[Guest SUNTZU]

That linked me to the gmail log in page.

[Guest canynracer]

ditto...

can you copy/paste it??

[Guest Traumaslave]

Sorry about that.

TENNESSEE FIREARMS PROHIBITION AND RESTORATIONS

AS APPLIED TO FEDERAL AUTHORITIES

Firearms Prohibition Under Federal Law

Federal law prohibits the shipment, transport, receipt, or possession<SUP>1</SUP> of any firearm or ammunition by a person who “has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,†or who “has been convicted in any court of a misdemeanor crime of domestic violence.†<SUP>2</SUP> 18 U.S.C. §§ 922(g)(1) and (g)(9). This prohibition applies to firearms and ammunition which have been shipped in interstate commerce. Id.

For purposes of the Gun Control Act as amended, Chapt. 44, Title 18 U.S.C. (“GCAâ€), a “crime punishable by imprisonment for a term exceeding one year†does not include certain State and Federal anti-trust and unfair trade practice crimes as well as State crimes punishable by less than two years that the State classifies as a misdemeanor. See 18 U.S.C. § 921(a)(20). What constitutes a conviction is determined by the jurisdiction of the proceedings. Id. A 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 the purposes of [the GCA] unless. . . [such action] expressly provides that the person may not ship, transport, possess, or receive firearms.†Id. (emphasis added).

Tennessee Firearms Prohibition

Tenn. Code Ann. § 39-17-1307© –A person convicted of a felony cannot possess a handgun. (Statute amended effective July 1, 2008).

Tenn. Code Ann. § 39-17-1307( – A person convicted of felony drug or violent offense (including attempt) cannot possess a firearm. (Statute amended effective July 1, 2008. Previous provision prohibited only handguns).

Tenn. Code Ann. § 39-17-1316(a)(2) – It is unlawful to sell a firearm to a person convicted of a felony unless that person has a pardon/expungement/set aside/restoration and that person is not prohibited by Section 1307. (emphasis added).

Tennessee Restoration of Rights

In Tennessee, those who have been “rendered infamous or deprived of the rights of citizenship by the judgment of any State or Federal court may have their full rights of citizenship restored by the circuit court†upon being pardoned or upon the expiration of the maximum sentence imposed for any such infamous crimes. Tenn. Code Ann. § 40-29-101. A Tennessee restoration of rights generally allows persons convicted of felonies to possess firearms<SUP>3</SUP> under State law; however, under the recently amended statute, persons convicted of any felony are prohibited from possessing handguns.<SUP>4</SUP> See Tenn. Code. Ann. § 39-17-1307©.

In an analysis under the former Tennessee statute which prohibited only persons convicted of violent or drug felonies from handgun possession, the Tennessee Supreme Court held that a person with such a conviction and a restoration of full citizenship rights may not possess handguns according to then Tenn. Code Ann. § 39-17-1307(. See State v. Johnson, No. W2000-01986-SC-R11-CD, 2002 79 S.W.3d 922 (Tenn. LEXIS 325 (Tenn. S. Ct. July 12, 2002).

Tennessee Expungement

According to Tenn. Code Ann. § 40-32-101, the expungement and destruction of criminal records is only available to a limited category of criminal defendants, and the application of this procedure is limited to very few specified circumstances after a felony conviction.

Tennessee law provides that a person may get his or her criminal record expunged if (a) the charge has been dismissed, ( no true bill was returned by a grand jury, © a verdict of not guilty was returned, (d) the person was released after arrest without charge, or (e) the charge or warrant was dismissed as a result of the successful completion of a pretrial diversion program.<SUP>5</SUP> Tenn. Code Ann. § 40-32-101(a)(1). Expungements pursuant to these provisions are not available after conviction for a felony according to the statute.

A person is entitled to have his or her felony (other than certain specified felonies such as sexual offenses) or misdemeanor record expunged if the charge was for protesting or challenging a State law or municipal ordinance which had the purpose of maintaining or enforcing racial segregation or discrimination, and 37 years or more have elapsed since the conviction and the person has not been convicted of any other offense since that time, other than minor traffic violations. Tenn. Code Ann. § 40-32-101(f)(1)(E). This opportunity for expungement would likely only be available to a small group of people who are in the described category.

If a convicted felon appeals and is granted a new trial because of new evidence or error under Tenn. Code Ann. § 40-30-117, and is then found not guilty, the person’s record can be expunged. Similarly, if the convicted felon is granted a writ of coram nobis,<SUP>6</SUP> and is found not guilty, the record can be expunged.

If a convicted felon has exhausted all judicial remedies and is then granted an exoneration by the Governor according to Tenn. Code Ann. § 40-27-109, all records regarding the crime are expunged and person’s civil rights are restored. A person whose crime has been exonerated by the Governor has no Federal firearms disability according to the definition in 18 U.S.C. § 921(a)(20) because the person has been fully restored according to the law of the jurisdiction, Tennessee.

An executive pardon provides no statutory right for exoneration. State v. Blanchard, 100 S.W.3d 226, 228 (Tenn. Crim. App. 2002). Similarly, “A commutation does not alter, change, or otherwise affect the adjudication of the prisoner’s guilt or the judgment entered by the trial court predicated upon the prisoner’s guilt of the crimes for which he was convicted.†Ricks v. State, 882 S.W.2d 387, 391 (Tenn. Crim. App. 1994). Such an action by the Governor only “affirms the sentence imposed by the jury or the trial court, and simply modifies this sentence.†Id.

Tennessee Law Applied to Federal Provisions

If there is any restriction regarding any type of firearms by State for a certain category of persons, then that category of persons have full Federal firearms disability. Caron v. United States, 524 U.S. 308, 312-317 (1998). In this analysis it makes no difference whether the restoration of rights is by operation of law or by a specific procedure. Id. at 313-314. Because persons convicted of any felony are prohibited by Tennessee law from possessing handguns, they are prohibited by Federal law from possessing any type of firearms or ammunition, even with a Tennessee restoration of rights or pardon.

A person convicted of a violent felony has Federal firearms prohibition pursuant to Tennessee law even though with restoration of rights as a result of the restriction on handgun possession imposed by Tenn. Code Ann. § 39-17-1307(. See Gregg v. US Dep’t Treas., ATF, No. 3:00-CV-65 (ED TN Mar. 19, 2001), citing Caron, 524 U.S. 308 and United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990). The analysis in Gregg was prior to the addition of handgun prohibition for all felonies and concerned whether an applicant for Federal firearms license was prohibited from firearms possession. See also, United States v. White, 808 F. Supp. 586 (MD TN 1992). Cf., United States v. Campbell, 256 F.3d 381 (6th Cir. 2001).

Tennessee’s prohibition on possession of handguns and not all firearms by persons with rights restored is the exact same situation as in Caron, in which the Court held that the person has full Federal firearms disability where the State restricted handgun rights. Under the revised Tennessee statute, all felony convictions result in a handgun prohibition under State law. Therefore, such persons have full Federal firearms disability under Federal law, even with a Tennessee restoration of rights or pardon.

Federal Relief from Firearms Disabilities

Although Federal law provides for Federal relief from firearms disabilities according to 18 U.S.C. § 925(a), appropriations legislation since 1992 has prohibited ATF from any action on applications by individuals for relief from firearms disabilities.

Presidential Pardon

The President of the United States has the power to grant pardons for offenses against the United States, except in cases of impeachment. U.S. Const. Art. II, Sec. II, cl. 1. Thus, under the Constitution, the President may grant pardons for Federal offenses only, with the exception of impeachments and does not have authority to pardon State offenses. The regulations issued under the GCA further provide that “A pardon granted by the President of the United States regarding a Federal conviction for a crime punishable by imprisonment for a term exceeding 1 year shall remove any disability which otherwise would be imposed by the provisions of this part with respect to that conviction.†27 C.F.R. § 478.142(a). A person who has been convicted of a Federal crime punishable by imprisonment for more than one year who is granted a Presidential Pardon no longer has firearms disability, unless the pardon expressly provides that the person may not ship, transport, possess, or receive firearms. See 18 U.S.C. § 921(a)(20).This is the link to the web site for the United States Pardon Attorney, which includes application forms, instructions and general information. http://www.usdoj.gov/pardon/<WBR>pardon_instructions.htm

Restoration for Tennessee Resident regarding Conviction in Other Jurisdiction

Tennessee may provide a restoration of rights to one of its citizens who has a conviction in another jurisdiction. This permits the person to exercise rights of citizenship within the State of Tennessee, such as voting, sitting on a jury, and holding public office. This does not, however, change the person’s status as a convicted felon for purposes of Federal firearms laws.

Conclusion

Persons convicted of a crime punishable by imprisonment for more than one year are prohibited by Federal law from possessing firearms and ammunition which have traveled in interstate commerce. A person who has a restoration of rights or pardon has no Federal firearms disability unless there is a specified limitation on the restoration of firearms rights. According to statute, a Tennessee restoration of rights specifically excludes restoration handgun rights to convicted felons. Therefore, persons with a Tennessee pardon or restoration of rights have full firearms disability under Federal law. The Tennessee expungement procedure is available only under limited circumstances as described above in accordance with the statute. “Expungements†granted under any other circumstances are outside the scope of the statutory authority and as such would not be considered valid for the purposes of restoration of rights. For most persons convicted of a felony in Tennessee, an exoneration by the Governor is the only way to have one’s record expunged.

If you have any questions or need any additional information, please contact ATF Division Counsel Nashville Pat Lancaster, patricia.lancaster@atf.gov, or (615) 565-1400.

[Fallguy]

I think everyone of the TFA's mailing list received it.

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