RESTORE YOUR RIGHT TO BEAR ARMS

At The Heath Law Firm, PLLC, I’ll fight aggressively to protect your rights to gun ownership, ingrained in Arizona’s collective culture and has a long history.

The Arizona Constitution provides an individual right to bear arms. It reads:

The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men. 1

While this right can be taken away in Arizona due to a criminal conviction, in many instances it can be restored. One caveat: This article only applies to Arizona convictions. If you’ve been convicted in another state or in federal court, this article does not apply. Of course, if you’re interested in this subject then, by all means, read on. Just know that anything that follows will not apply in your state. Each state has a different set of laws that governs the loss and restoration of gun rights.

This is an in-depth article that covers the ins and outs of Arizona gun rights restoration law. I’ll explain how to apply, eligibility, most common reasons for a denial, and how I can assist you in restoring your gun rights if you were convicted of an offense in Arizona.

How to restore gun rights lost by an Arizona conviction:

In Arizona, restoration of civil rights is separate from the restoration of one’s gun rights. You must specifically apply to restore your gun rights, even for first time convictions. 2 If you possess a firearm without first getting your rights restored, you could be charged with Misconduct Involving Weapons, a class 4 felony in Arizona. A class 4 felony carries a presumptive term of 2.5 years in the Arizona Department of Corrections or 4.5 years if you have a prior felony conviction so it’s extremely important that you first obtain a court order restoring your right to bear arms before possessing a weapon.

To restore your gun rights you must file an application in the court where you were convicted. There are two ways to apply: 1) Complete the court forms; or 2) File a custom motion. There are pros and cons to each option. My opinion is that custom motions are more effective but there is a higher cost and effort involved. And there’s a chance that you might miss important information or include too much. The advantage of court forms is that they do save time and money and the forms include at least the necessary information the court wants. If you want to try filing yourself, I recommend using the forms. But if you decide to hire me to assist you in restoring this important right, I’ll file custom motions for obvious reasons.

When am I eligible to apply to restore my gun rights?

There are limitations on when you’re eligible to apply for a restoration of gun rights. Eligibility depends on whether it was a felony, misdemeanor, or federal conviction.

1) Felony Convictions:

If convicted of a nonviolent felony, the general rule is that you can apply for your gun rights two years after discharge from probation or, as of July 1, 2015, when you’re eligible to set aside the offense (irrespective of the two years). See SB1189. But there are two exceptions.

Exception 1: If convicted of a dangerous offense, you can’t ever restore your gun rights. A dangerous offense is defined in Arizona as “an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” 3 Basically, if you were convicted of misusing a weapon to commit a crime or seriously hurt someone, you’re not getting a gun back ever. But dangerousness is a separate allegation that attaches to a crime so if that allegation is dismissed during litigation by way of plea agreement or jury verdict, those people might be eligible for restoring their right to bear arms under exception 2 below.

Exception 2: If convicted of a serious offense, you must wait at least 10 years after discharge from prison or probation to apply. Serious offenses include:

  • First degree murder;
  • Second degree murder;
  • Manslaughter;
  • Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument;
  • Sexual assault;
  • Any dangerous crime against children;
  • Arson of an occupied structure;
  • Armed robbery;
  • Burglary in the first degree;
  • Kidnapping;
  • Sexual conduct with a minor under fifteen years of age; and
  • Child prostitution. 4

Notably, the right to bear arms is not automatically restored after 10 years. One is just eligible to apply and the decision to restore that right is still in the sole discretion of the court. 5 These types of cases are very fact specific. The court will look into what happened during the offense and what happened since in determining whether to grant the request. So even if a person avoided the dangerousness allegation, if the offense was violent in nature, that person will have an extremely slim chance of ever getting that right back. Conversely, if there were or are real mitigating circumstances, rights could be restored after that 10 years have passed.

2) Misdemeanor Domestic Violence Convictions:

Only felonies take away gun rights except for one big exception–domestic violence misdemeanors. If you were convicted of a domestic violence offense, you’re federally prohibited from possessing a firearm. In Arizona, the avenue for relief is a motion to set aside the domestic violence conviction. This involves filing a motion in the court of conviction and requesting to “set aside” the misdemeanor conviction. This can only be done upon successful completion of all terms of probation. 6 So, you can’t have any unpaid fines or unfulfilled probation terms or you’re not eligible.

This is where things get complicated under federal law. For those that like simple answers, the bottom line is that you must get your offense set aside if you want to possess a firearm under the current state of the law. And if you’d like me to assist you with that, you can move on to the next section. For those of you that want to know the details and all the things that could possibly go wrong with future litigation, read on.

The nitty-gritty: Unlike a felony offense that has a specific provision prohibiting the restoration gun rights until relief is granted under A.R.S. §13-905, no such provision exists in Arizona for misdemeanors because a misdemeanor, by itself, doesn’t divest someone of gun rights in Arizona. It’s federal law that does that. The federal proscription is permanent unless you were convicted in a state that allows for pardons, set asides, or expungements and those tools do not expressly exclude the restoration of gun rights.

Under the original Gun Control Act of 1968 (which only dealt with felonies), the restoration of rights was a complicated issue and the case law conflicted. But in 1986, Congress fixed the issue with the Firearm Owners Protection Act (FOPA for short).  FOPA had a provision that prevented federal prosecution of those who had their rights restored by an individual state. However, in S.914 the restoration of rights “exception did not apply where the pardon or expungement order provided that the recipient might not own firearms.” 7 Thus, the Arizona Legislature’s clear prohibition against felon gun possession until that right is restored under A.R.S. §13-905 falls right under FOPA. The law was very clear because misdemeanors didn’t take away the right to bear arms at that time.

But along came the Domestic Violence Offender Act in 1997 (also known as “the Lautenberg Amendment”). This act prohibited anyone convicted of a domestic violence offense from possessing a firearm unless the conviction was expunged, set aside, or a person had their civil rights restored (only in states where domestic violence misdemeanors cause a loss of civil rights) unless that set aside or pardon expressly provides that a person can’t possess a firearm. 8. So, the question looms: Is the Arizona Legislature’s silence with respect to gun possession for DV misdemeanors a permanent prohibition for those convicted of domestic violence misdemeanors?

Arguably, no. First, 18 U.S.C. § 921(a)(33)(B)(ii) provides that the gun exemption to set asides must be “expressly” provided. Unlike A.R.S. § 13-905, 906, or 912 that expressly limited gun right restoration, A.R.S. § 13-907 is silent. While the Legislature was specific that felonies should be treated differently, the plain language of A.R.S. § 13-907 meant to restore “all penalties and disabilities resulting form the conviction” except those narrow exceptions in subsections (C) and (D). In other words, Arizona’s set aside does not expressly exclude the restoration of gun rights. If anything, the amendment to A.R.S. §13-907 in July, 2015 made it even more clear that the legislature intends that gun rights be restored for nonviolent offenses when a set aside is granted.

Now, it’s extremely important that a set aside is granted before possessing a firearm because a restoration of rights is not enough in Arizona. Arizona does not take gun rights away for misdemeanors. (Note, this is not the same thing as a temporary bar when one has a pending domestic violence case or is on probation. That’s different and you must follow a court order.) In other words, it’s not the conviction alone that takes away gun rights. This turned out to be a key detail for a man prosecuted for being a prohibited possessor in federal court.

One Arizona citizen challenged the law in the Ninth Circuit Court of Appeals, arguing that requiring a set aside violated the Equal Protection Clause 9. For example, while Arizona has a way to restore gun rights, other states don’t. So even though a person might now be living in Arizona, and if that person was convicted in another state that doesn’t restore gun rights, that person could never get rights back while a person convicted in Arizona for the same misdemeanor could. He argued that this wasn’t fair and that a restoration of rights was enough. He lost.

First, the Court held that a restoration of civil rights was not enough because there was nothing to restore when rights were never lost in the first place. Thus, only the exceptions in 18 U.S.C. § 921(a)(33)(B)(ii) allow someone convicted of a domestic violence offense to possess a firearm again. The Court noted that there will be discrepancies between the states. But, it concluded, Congress was well aware of those discrepancies and wanted to leave it to the states to decide procedures for revoking and restoring rights. The court noted that, “Defendant had, and has, several adequate legal mechanisms at his disposal for regaining his right to possess firearms: pardon, expungement, and setting aside of convictions.” In other words, he should have set aside his conviction before possessing a firearm.

To be clear, this only applies to domestic violence misdemeanor offenses. If you were convicted of a domestic violence felony offense, the same rules regarding felonies listed above apply (i.e. a motion to set aside unless you were convicted of a serious or dangerous domestic violence offense).

3) Federal Convictions:

If convicted of a federal felony, a restoration of rights is unlikely. Short of a presidential pardon or relief from the United States Attorney General, there is no good mechanism in federal law for restoring one’s right to bear arms like there is in Arizona.  This issue was brought to the United States Supreme Court and the answer was no. 10 Although Arizona has tools for restoring rights after conviction for a federal offense, that only applies to Arizona rights. 11.

What are the most common pitfalls to restoring my gun rights?

The three most common reasons for denial of gun rights are: 1) Not enough time has passed; 2) The nature of the offense; and 3) There are unpaid fines, restitution, or sentence conditions.

1. Not enough time has passed:

First, if convicted of a dangerous offense or if you were convicted of a serious offense and 10 years have not yet passed since your discharge from prison or probation, you’re not eligible, period. Hiring an attorney won’t help you there. But what if you’re eligible and still got denied? It’s important to remember that even though you’re eligible, you still must convince the court that your rights should be restored.

Judges are well versed on national studies showing that recidivism rates for offenders is high during the first five years after incarceration. There are a lot of complicated reasons for this (including a justice system that needs a serious overhaul) and I won’t open that can of worms in this article. The bottom line is that many judges want to a good amount of time to pass before considering a set aside or restoration of gun rights. The more time that’s passed, the better.

2. Nature of the offense:

Second, a court may deny your motion based on the nature of the offense. As always, if you’re convicted of a dangerous offense, you’re never eligible to get your rights back. It’s the other offenses that make it tricky. Those with multiple priors or subsequent priors are going to have a harder time convincing the court to grant their motion. Those convicted of serious offenses are going to have an even harder time. And no matter how much time has passed, even if you’ve got just one minor offense in your past, you must convince the court why your rights should be restored.

This is why hiring counsel and using custom motions is important. A good attorney can assist you in gathering the presenting the facts of your case in a compelling way.

3. Unpaid fines or restitution:

The third most common reason why an application is denied is failure to pay fines or restitution. This is the simplest problem to fix but may not be the easiest. Fines can be exorbitantly high in this state. But until they’re paid, you’re not eligible for a set aside. If you only owe fines, there is the possibility that you can request the court reduce those fines.

Should I hire an attorney and how much does it cost to have you restore my rights?

Short answer: yes. Please give me a call if your looking to restore your gun rights. When it comes to restoring your right to bear arms, there is no substitute for experience and a little elbow grease. Even if two years have already passed, restoring your right is not automatic upon application. Often, the prosecutor will vehemently object to restoring your constitutional right, even for non-violent offenses. That’s where an attorney can really help.

I’ve filed numerous cases and have experience in this state. We’re a boutique law firm that focuses on this niche area of law in Arizona. I know the pitfalls and can anticipate the objections. I’ll give you an honest assessment of your chances. And we’re not a big chain that tries to cover multiple jurisdictions but masters none or charges bottom of the barrel prices by taking on a high volume of cases and then files stock motions. Nothing is cut and paste here.

I believe in second chances and I believe in making deserving people whole again. One bad time in your life doesn’t define you for the rest of it. And each custom motion reflects that principle. We’ll meet together and talk about you. Every person is different and a quality motion to the court should reflect that.

Types of cases I take:

I only help those with Arizona convictions. I don’t take out-of-state or federal conviction cases. If you’ve been convicted outside of Arizona or in federal court, I’ll be the first to admit that I’m not the attorney for you. First, I focus on the niche area of Arizona. Second, if you’ve read the entire article, you’ve noticed that rights can only be restored in the place of conviction. Not only am I solely focused on Arizona law, I’m solely licensed to practice law in this state. So even if you now live here in Arizona but your conviction was in, say, California, for example, I’m sorry but I can’t help you. You must find an attorney in the state of conviction to assist you.

Also, don’t take any federal cases at this time. Although I do practice in federal court, I don’t focus on this area because, if you’ve lost your rights due to a federal offense, you must get a pardon from the President of the United States. There’s been some movement in Congress to change the harshness of the collateral damage brought on by a federal conviction but, so far, no bill has made it through. Nevertheless, take a look at the Office of Presidential Pardons and the ATF website that explains the process a bit further if you’re interested in looking into the process yourself.

That said, if you’ve been convicted of a crime in Arizona that was not a dangerous offense, it’s time to give me a call. I would love to assist you in making you whole again and helping responsible citizens, even those that made a mistake, obtain that important right.

Costs:

For most cases, I charge a flat fee of $1,500 for felony offenses and $750 for misdemeanors. I do offer discounts if you have multiple convictions that need cleaned up or must file in multiple courts in Arizona. Payment plans are also available.

As I’ve stated, I don’t file stock forms. I find that they aren’t as effective. And while I may not be the cheapest attorney out there, I’m not the most expensive either. I focus on value–fair fees in light of the quality, strategy, and craftsmanship of the work. Give me a call today at 480-442-0489 or send me an email with the contact form below.