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How Do You Get Your Gun Rights Restored In Michigan?

 

In Michigan, a felony conviction can cause the offender to lose his or her legal right to carry a gun.  A person convicted of a felony (“a violation of a law of this state, another state or the United States that is punishable by imprisonment for 4 years or more) shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm or ammunition in this state, contrary to MCL 750.224f(1) and MCL 750.224f(3), until the expiration of 3 years after ALL of the following circumstances have occurred:

  • The person has paid all fines imposed for the violation.
  • The person has served all terms of imprisonment imposed for the violation.
  • The person has successfully completed all conditions of probation or parole imposed for the violation.

Under these circumstances, the offender would automatically be restored the right to possess a gun after three years if all of these conditions were completed.

However, a person convicted of a “specified felony” shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm or ammunition in this state, contrary to MCL 750.224f(2) and MCL 750.224f(4), until the expiration of 5 years after ALL of the following circumstances have occurred:

  • The person has paid all fines imposed for the violation.
  • The person has served all terms of imprisonment imposed for the violation.
  • The person has successfully completed all conditions of probation or parole imposed for the violation.
  • The person had their rights restored by court order to possess firearms and ammunition.

A “specified felony”, as defined in MCL 750.244f(10), means a felony in which 1 or more of the following circumstances exist:

  • An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
  • An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance.
  • An element of that felony is the unlawful possession or distribution of a firearm.
  • An element of that felony is the unlawful use of an explosive.
  • The felony is burglary of an occupied dwelling, or breaking and entering an occupied dwelling, or arson.

In the case of a “specified felony”, the restoration of gun rights is not automatic.  The convicted felon prohibited from possessing, using, transporting, selling, purchasing, carrying, shipping, receiving, or distributing a firearm or ammunition due to a “specified felony” MUST petition the circuit court for restoration of those rights pursuant to MCL 28.424 no matter how long it has been since the offense occurred. A circuit court judge may restore these rights if ALL of the following have been satisfied by clear and convincing evidence:

  • The individual properly submitted a petition for restoration of those rights as provided under this section. MCL 28.424(4)(a).
  • 5 years have passed since the individual has paid all fines imposed for the violation resulting in the prohibition. MCL 28.424(4)(b)(i).
  • 5 years have passed since the individual has served all terms of imprisonment imposed for the violation resulting in the prohibition. MCL 28.424(4)(b)(ii).
  • 5 years have passed since the individual has successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition. MCL 28.424(4)(b)(iii).
  • The individual’s record and reputation are such that the individual is not likely to act in a manner dangerous to the safety of other individuals. MCL 28.424(4)(c).

The petitioner may file in the circuit court of the county in which he or she resides, no matter where the convictions actually occurred.  MCL 28.424(1) and (2).  However, only one petition may be filed in any 12-month period.  MCL 28.424(3).  If the circuit court judge refuses to restore rights, the petitioner must wait another year before he or she can try again.

The gun restoration rights statute was amended effective October 11th, 2017.  Before then, the local gun board approved or denied decisions to restore gun rights to felons.  Now the authority rests solely with the circuit court.  However, the trial judge has ample discretion to decide whether the petitioner is credible and whether he or she is actually reformed.

  • In re Kwaysee Williams, unpublished per curiam opinion of the Court of Appeals decided January 11, 2018 (Docket No. 334389) – Petitioner was denied restoration of his gun rights by the circuit court. The trial judge found that the statute was unconstitutional because it took authority away from the concealed weapons licensing board to make the decision, that the petitioner failed to provide notice to any prosecutors or law enforcement, and that his petition and testimony regarding his past contradicted his criminal record.  The Michigan Court of Appeals found that the circuit court made two errors.  First, the statute as amended clearly took gun restoration authority away from the concealed weapons licensing board to the circuit court, so the statute must be enforced as written.  Second, the statute does not have any requirement to provide notice to the Attorney General, Michigan State Police or the local prosecutor because the authority solely rests with the circuit court to decide.  However, the Court of Appeals agreed with the trial court that the inconsistencies between the petitioner’s testimony and the actual criminal history does not amount to “clear and convincing evidence” as required.  The petitioner claimed he only had a misdemeanor assault conviction on his court pleadings when his record reveals it was felony assault with intent to do great bodily harm.  Therefore, the petition was properly denied.
  • In re Robert Lee Colvin, Jr., unpublished per curiam opinion of the Court of Appeals decided May 14, 2019 (Docket No. 341690) – Petitioner was denied restoration of his gun rights by the circuit court after finding that a probation violation in 1992 meant, as a matter of law, he has not successfully completed his probation. Petitioner argues that he was sent to prison for the probation violation and ultimately released and discharged from both probation and parole, meaning that he “successfully completed all conditions of probation or parole imposed for the violation resulting in the prohibition.”  The Michigan Court of Appeals found that, on alternate grounds, that there was no way he could be eligible for gun rights restoration anyway because no evidence was provided that he ever paid the $7,842.00 of restitution due (the parole board has previously sent communication to the circuit court that he was discharged without ever having paid the balance on the “order of restitution”).  Since the court-ordered restitution was a part of his probation conditions and ultimately not paid, the petitioner did not “successfully complete” all of the requirements.  As a result, on this ground alone, his request was properly denied.

A petitioner who is successful in getting gun rights restored under Michigan law should understand that he or she will still be restricted under federal law.  According to 18 U.S.C. 922(g)(1), it is unlawful for a person convicted in any court of a crime punishable by imprisonment for a term exceeding one year (e.g. any Michigan felony) to possess a firearm.  As a result, restoration of rights under MCL 28.424 only permits the petitioner to possess certain types of firearms that do not take a modern cartridge, i.e. a pellet rifle, muzzle loader or black powder gun.  In addition, this restoration of rights might not be observed if the petitioner leaves the state.  Similar to recreational marijuana in Michigan, there is nothing that stops federal prosecutors from charging crimes under federal law despite the legality under the state statute.  Any convicted felon looking to restore gun rights should consult with an experienced attorney to ensure that he or she is eligible, that the best evidence can be presented to the circuit court, and that restrictions under federal law are understood.

If you or a loved one is seeking restoration of firearm rights and need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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