Ability of an individual convicted of certain crimes to regain the right to possess a handgun upon pardon or final discharge

FIREARMS--CRIMES--Ability of an individual convicted of certain crimes to regain the right to possess a handgun upon pardon or final discharge.

RCW 9.41.070(2) provides that one can regain the right to possess a firearm if the person is exempt under 18 U.S.C. § 921(a)(20).  This federal statute provides an exemption when an individual's civil rights have been restored, unless the restoration of civil rights expressly provides that the person may not possess a firearm.  The restoration of civil rights upon pardon or final discharge, pursuant to chapter 9.96 RCW, does not meet the exemption in 18 U.S.C. § 921(a)(20) because RCW 9.41.040(3) expressly provides that an individual whose conviction is subject to a pardon, annulment, or equivalent procedure cannot possess a handgun unless there is also a finding of rehabilitation or innocence.

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                                                                    June 1, 1993

HonorableAlbert Bauer
State Senator, District 49
401-C Legislative Building, MS 0461
Olympia, WA  98504-0461

Honorable Sid Snyder
State Senator, District 19
303 Legislative Building, MS 0419                                           
Olympia, WA  98504-0419

                                                                                                Cite as:AGO 1993 No. 10

Dear Senators Bauer and Snyder:

            By letter previously acknowledged you asked for our opinion on the following paraphrased question:

            Under RCW 9.41.070(2), may individuals who have been convicted of a violent or drug-related crime regain their right to lawfully possess and carry a handgun if, absent a finding of rehabilitation or innocence, they are pardoned or complete the terms of parole and receive a final discharge and restoration of civil rights under chapter 9.96 RCW?

                                                               BRIEF ANSWER

            The answer to your question is no.  RCW 9.41.070(2) provides that one can regain the right to possess a firearm if the person is exempt under 18 U.S.C. § 921(a)(20).  This federal statute provides an exemption when an individual's civil rights have been restored, unless the restoration of civil rights expressly provides that the person may not possess a firearm.  The restoration of civil rights upon pardon or final discharge, pursuant to chapter 9.96 RCW, does not meet the exemption in 18 U.S.C. § 921(a)(20) because RCW 9.41.040(3) expressly provides that an individual whose conviction is subject to a pardon, annulment, or equivalent procedure cannot possess a handgun unless there is also a finding of rehabilitation or innocence.

                                                                BACKGROUND

            The Uniform Firearms Act restricts a Washington citizen's constitutional right[1]to possess and carry handguns[2]if the citizen has been convicted of violent or drug-related crimes.[3]

             RCW 9.41.040 states, in material part:

                        (1) A person is guilty of the crime^[[4]^]of unlawful possession of a short firearm or pistol, if, having previously been convicted or, as a juvenile, adjudicated in this state or elsewhere of a crime of violence^[[5]^]or of a felony in which a firearm was used or displayed, the person owns or has in his possession any short firearm or pistol .                       

            The Uniform Firearms Act allows a criminal offender, who would otherwise be ineligible to lawfully possess a handgun under RCW 9.41.040(1), to regain that right under RCW 9.41.040(3), only if he or she has been found to be rehabilitated or innocent of the underlying crime.

            RCW 9.41.040(3) states, in relevant part:

            A person shall not be precluded from possession [of a handgun under RCW 9.41.040(1)] if the conviction or adjudication has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedurebased on a finding of the rehabilitation of the person convicted or adjudicated or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(Emphasis added.)

            As your letter suggests, we have previously answered the question of whether a criminal offender, who is unable to lawfully possess a handgun under RCW 9.41.040(1), may obtain a license to carry a concealed handgun under RCW 9.41.070[6], if the criminal offender has been paroled and obtained a final discharge under RCW 9.96.050.[7]

            In AGO 1988 No. 10 (copy enclosed), we determined that the specific provisions of RCW 9.41.040(3), when read together with the more general language in RCW 9.41.040(1) and 9.96.050, revealed the Legislature's intent to return a criminal offender's right to lawfully possess a handgun only if the criminal offender was either rehabilitated or ultimately found innocent.

            We also specifically said that a final discharge after parole under RCW 9.96.050 was not the same as a finding of rehabilitation or innocence[8]and that a paroled criminal offender could not obtain a license to carry a concealed handgun under RCW 9.41.070.[9]

                                                                    ANALYSIS

            Your opinion request essentially asks whether a 1992 amendment to RCW 9.41.070 changes this result.  Section 1, chapter 168, Laws of 1992, added the following provision to RCW 9.41.070:

                        Any person whose firearms rights have been restricted and who has been granted relief from disabilities by the secretary of the treasury under 18 U.S.C. Sec. 925(c) or who isexempt under 18 U.S.C. Sec. 921(a)(20) shall have his or her right to acquire, receive, transfer, ship, transport, carry, and possess firearms in accordance with Washington state law restored.

           Laws of 1992, ch. 168, § 1(2), p. 745 (emphasis added).

            RCW 9.41.070(2) references two sections of a federal statute which also makes it a felony to possess a handgun if you have been convicted of certain types of crimes.[10]

            RCW 9.41.070(2) first references 18 U.S.C. § 925(c), which allows a criminal offender otherwise unable to lawfully possess a firearm under § 922(g)(1) to

            make application to the Secretary [of the Treasury] for relief from the disabilities imposed by Federal laws with respect to the . . . possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

            RCW 9.41.070(2) next references 18 U.S.C. § 921(a)(20), which is the federal counterpart to RCW 9.41.040(3) and the basis for your opinion request.  This section of the federal firearms statute exempts certain crimes from the term "crime punishable by imprisonment for a term exceeding one year" as defined by Congress.  It excludes:

                        (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

                        (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

            18 U.S.C. § 921(a)(20) goes on to also define "conviction" by stating that:

            What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.  Any 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 purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

(Emphasis added.)

            In AGO 1988 No. 10 we concluded that under RCW 9.41.040(3) a pardon or parole did not restore the right to possess a handgun absent a finding of rehabilitation or innocence.  Your question is whether the underscored provisions of 18 U.S.C. § 921(a)(20), incorporated into Washington law in 1992, now compel a different result.

            In our judgment, the answer to this question is no.  Under 18 U.S.C. § 921(a)(20), a pardon, expungement, or restoration of civil rights removes the firearms prohibition "unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms".  To determine if this standard has been met, one must look to the whole of state law, not simply the certificate granting the restoration of civil rights.  United States v. Bell, 983 F.2d 910, 911 (9th Cir. 1993); United States v. Cassidy, 899 F.2d 543, 549-50 (6th Cir. 1990);United States v. McLean, 904 F.2d 216, 218 (4th Cir. 1990).  InUnited States v. Burns, 934 F.2d 1157 (10th Cir. 1991), the court went through the analysis as follows:

            Although this document purported to restore all civil rights plaintiff lost because of the 1965 convictions, it in fact did not restore plaintiff's right to possess firearms.  Compare Kan. Stat. Ann. § 21-4615 (1988) (providing that upon conviction of a felony, one loses the right to vote, hold public office, or sit on a jury, but not mentioning the right to possess firearms) and Kan. Stat. Ann. § 22-3722 (Supp. 1990) (providing the civil rights lost by operation of law may be restored once the sentence is discharged) with Kan. Stat. Ann. 21-4204(b) (Supp. 1990) (prohibiting felons from possessing certain firearms within five years of release).

Id.at 1160.

            As applied to Washington, RCW 9.96.010 provides for the restoration of civil rights when a person is pardoned by the Governor.  RCW 9.96.050 provides for the issuance of a certificate of discharge by the Indeterminate Sentence Review Board and "[s]uch discharge, regardless of when issued, shall have the effect of restoring all civil rights lost by operation of law upon conviction".  However, just as inUnited States v. Burns, there is a more specific statute that applies to the right to possess a handgun.  As we have pointed out, RCW 9.41.040(3) only restores the right to possess a handgun after a pardon, annulment, or other equivalent procedure if there is a finding of rehabilitation or innocence.

            The 1992 amendment incorporating 18 U.S.C. § 921(a)(20) did not abrogate the requirement that a finding of rehabilitation or innocence is necessary to restore the right to possess a handgun.  In effect, 18 U.S.C. § 921(a)(20) incorporates this Washington requirement.  We believe that the provisions of Washington's Uniform Firearms Act, which prohibit a pardoned or paroled criminal offender from possessing a handgun, when read together with the general civil rights restoration provisions after parole under RCW 9.96.010 and .050, show that while many of the offender's civil rights are restored upon pardon or final discharge, his or her right to lawfully possess a handgun is not restored because of RCW 9.41.040(3).

            We trust that the foregoing will assist you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        STEPHEN T. REINMUTH
                                                                        Assistant Attorney General

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