Wyo Legislature Expedites Restoration of Gun, Civil Rights for First-Time Nonviolent Felons; Also (Correctly) Strips Gun Rights from Nonviolent Felons

March 17, 2023 Update — Governor Mark Gordon (R) signed SEA No. 0094 into law today. Accordingly, starting July 1, 2023, first-time, nonviolent felons may seek restoration of their civil rights, including the right to vote, the right to hold public office, the right to sit on a jury, and the right to keep and bear firearms following a five-year waiting period after they complete their criminal sentence.

RAS

The dust has nearly settled on the 2023 legislative session in Wyoming. On March 17, 2023, Governor Mark Gordon (R) signed SEA No. 0094, also known as Senate File No. SF0120, into law. The law will go into effect July 1, 2023.

SEA No. 0094 allows for the restoration of all civil rights lost due to a felony conviction, including a person’s Second Amendment rights to keep and bear firearms, as a matter of course if the person was only convicted of a felony–other than a statutorily defined “violent felony,” see Wyo. Stat. Ann. § 6-1-104(a)(xii)–and the person maintains a clean record for five (5) years after completing his or her sentence. This would be five (5) years sooner than the person would otherwise be eligible for an expungement to restore his or her civil rights pursuant to Wyo. Stat. Ann. § 7-13-1502, which requires at least ten (10) years to have passed since the person has completed his or her sentence.

SEA No. 0094 has not been without controversy from both ends of the political spectrum. As WyoFile reported, the Wyoming Coalition Against Domestic Violence and Sexual Assault (WCDVSA) opposed passage of SEA No. 0094 (then Senate File No. SF0120) during testimony given to the House Judiciary Committee because of the perceived risks of returning firearms or firearm rights to potentially violent individuals. However, the law received some criticism from Second Amendment advocates as well because it would, for the first time, codify the federal prohibition on possession or use of firearms or ammunition by felons–violent or nonviolent–into Wyoming state law.

Sen. Eric Barlow (R-Gillette) told WyoFile that creating this revocation of firearm rights was a necessary antecedent to restoring these rights through state law. “If we don’t do that, we can’t directly restore [that right].”

Setting aside WCDVSA’s concerns, how well founded are Sen. Barlow’s remarks about the necessity of stripping a civil right in order to restore it? In my opinion, Sen. Barlow has it right according to federal caselaw in the Tenth Circuit, which covers Wyoming.

Federal law, as I’ve discussed elsewhere on this blog, trumps state law where the two sets of laws conflict and this is especially true for firearm rights. Under federal law, any person convicted of a crime having a maximum penalty of imprisonment for a term exceeding one year (i.e., a felony) cannot possess, purchase, transfer, sell, or use firearms, ammunition, or certain explosive devices. See 18 U.S.C. § 922(g)(1). In other words, whatever Wyoming’s laws say, a person convicted of a felony–violent or nonviolent–cannot possess guns and loses their Second Amendment rights pursuant to federal law. And, even after the U.S. Supreme Court’s big Bruen decision last year (more on that here and here), the federal law barring felons of any degree of violence from possessing firearms should pass constitutional muster. See Bruen, 142 S. Ct. 2111, 2162 (Kavanaugh, J., concurring) (quoting Heller, 544 U.S. at 626-627 and McDonald, 561 U.S. at 786); see also United States v. Willis, No. 22-cr-00186-RMR, 2022 U.S. Dist. LEXIS 212618, at *3 (D. Colo. Nov. 23, 2022) (citing to and collecting cases).

However, this same set of federal laws also provides the following (clumsy) passage regarding restoration of civil rights:

(20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(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.

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.

18 U.S.C. § 921(a)(20) (current through March 2023)

Let’s break down the important bit here. If a person has been convicted of a felony, under the law of the jurisdiction (here, Wyoming law), but the person has had his or her civil rights restored by that jurisdiction, then the federal prohibition does not apply to that person for that conviction. Here’s the relevant statutory language pulled out in a single coherent-ish sentence:

Any conviction for which a person has had civil rights restored shall not be considered a conviction for purposes of [the federal law barring felons from possessing firearms].

18 U.S.C. § 921(a)(20)

Federal caselaw has been itself kind of hard to process on the civil rights restoration clause in § 921(a)(20). However, it is relatively clear on two points. First, the word “restored” in § 921(a)(20) requires that the civil rights at issue must have been lost, then returned. Second, the civil rights at issue in § 921(a)(20) do not include a person’s Second Amendment rights to keep and bear firearms.

On this first point, a unanimous U.S. Supreme Court held, in an opinion written by Associate Justice Ruth Bader Ginsburg, “the § 921(a)(20) exemption provision does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation.” Logan v. United States, 552 U.S. 23, 26, 128 S. Ct. 475, 479 (2007). Thus, § 921(a)(20) “sets out postconviction events–expungement, set aside, pardon, or restoration of civil rights–that extend to an offender a measure of forgiveness, relieving him from some or all of the consequences of his conviction.” Id. You can read the full Logan decision here:

On this second point, the Logan decision also referred to the general understanding of other federal courts that the civil rights referred to in § 921(a)(20) do not include a person’s firearm rights. See Logan, 552 U.S. at 28, 128 S. Ct. at 480 (“While § 921(a)(20) does not define the term ‘civil rights,’ courts have held, and petitioner agrees, that the civil rights relevant under the above-quoted provision are the rights to vote, hold office, and serve on a jury.”). However, the Tenth Circuit, which has authority over Wyoming, takes a different approach to the civil rights that must be restored to qualify for the exemption expressed in § 921(a)(20). See United States v. Jones, 530 F. App’x 747, 751 (10th Cir. 2013) (collecting cases).

Tenth Circuit law requires that “a defendant must show that his rights to vote, serve on a jury, hold public office and possess firearms have all been restored.”  United States v. Warner, 535 F. Supp. 3d 1113, 1116 (D.N.M. 2021) (quoting United States v. Baer, 235 F.3d 561, 563 (10th Cir. 2000)); see also United States v. Flower, 29 F.3d 530, 536 (10th Cir. 1994) (“[W]e have held that the rights to vote, serve on a jury, and hold public office, as well as the right to possess firearms, must all be restored under 921(a)(20) before a prior conviction may be excluded on the basis of restoration of civil rights . . . .”) (citing United States v. Maines, 20 F.3d 1102, 1104 (10th Cir. 1994)).

So, turning back to Sen. Barlow’s justification for SEA No. 0094’s new revocation of the firearm rights of nonviolent felons–that the Wyoming Legislature cannot restore what it has not revoked–he is half right and half wrong. Federal caselaw demands revocation before restoration can occur in accordance with § 921(a)(20). See Logan, 552 U.S. at 26, 128 S. Ct. at 479. And, according to federal caselaw binding upon Wyoming — Tenth Circuit caselaw — the “civil rights” that must be revoked and subsequently restored include the right to possess firearms. See Flower, 29 F.3d at 536. Good job, Sen. Barlow!

This new law, in relevant part, will read:

All other rights a person has lost pursuant to W.S. 6‑10‑106 shall be restored five (5) years after the person has completed their sentence, including applicable periods of probation or parole. A person shall only be eligible for restoration of their rights under this subsection if the person has not been convicted of any other felony other than convictions arising out of the same occurrence or related course of events for which restoration of rights is to be certified. The date on which all rights are restored under this subsection shall be noted on a certificate issued by the department which shall be the same certificate issued under subsections (b) and (c) of this section if the certificate is issued on or after July 1, 2023, or a separate certificate issued upon receipt of a written request on a form prescribed by the department for a person eligible for restoration of rights under this subsection prior to July 1, 2023. A conviction for a new felony upon the issuance of any certificate under this section shall render the certificate void.

Wyo. Stat. Ann. § 7-13-105(f) (effective July 1, 2023), available at https://wyoleg.gov/Legislation/2023/SF0120

Starting July 1, 2023, my firm and I will be ready to help qualifying individuals get their rights back.