2013-0513, Greg DuPont v. Nashua Police Department (consolidated with 2014-0017, Gregory DuPont v. Peter McDonough & a.)

orally, for respondent City of Nashua. Stephen M. Bennett, corporation counsel, of Nashua, on the brief and

non - attorney representative, by brief and orally, for the p etitioner. Penny S. Dean, of Concord, by brief and orally, and Jay Edward Simkin,

2014 - 017 No s. 2013 - 513 Hillsborough - southern judicial district 9 Circuit C ourt – Nashua District Division th

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

Lobrano notified the petitioner that he was revoking the petitioner’s armed under federal law, from possessing firearms. Accordingly, on June p. 2 29, 2010, aware of the 1998 conviction and determined that i t disqualified the petitioner, Sometime prior to June 29, 2010, Sergeant Lobrano of DOS became

guard license. Hampshire Department of Safety (DOS) issued the petitioner an armed security pistol or revolver, and t hat license was renewed in p. 2 2012. In 2009, the New In 2007, the City’s chief of police issued the petitioner a license to carry a

firearms. the petitioner could apply to his licensing authority for a license to carry The FLRB accordingly determined that, notwithstanding the 1998 conviction, his right to possess a firearm therefore is fully restored in the Commonwealth.” the petitioner was “a suitable person to possess a license to carry firearms, and review, the Massachusetts Firearm Licensing Review Board (FLRB) found that 1997) (amended 1998, p. 2 2006). In 2005, upon the petitioner’s petition for Ann. ch. 269 § 10(a) (West S upp. 1997) (amended 2006, 2014), (h) (West Supp. (amended 1998, 2002, 2003, 2004, 2008, 2010, 2011, 2014), Mass. Gen. Laws Supp. 1997) (amended 1998, 1999, 2010, 2014), 131 (West Supp. 1997) (amended 1998, 2000, 2002, 2003, 2004, 2010, 2011, 2014), 129C (West predated them), Mass. Gen. Laws Ann. ch. 140 §§ 129B (West Supp. 1997) 400 (Mass. App. Ct. 2003) (applying 1998 amendments where conviction firearms laws. See Dupont v. Chief of Police of Pepperell, 786 N.E.2d 396, 398 carry a firearm, at least as of the 1998 amendments to the Massachusetts conviction rendered him ineligible, under Massachusetts law, to possess or maximum prison sentence of two and a half years. Thus, the petitioner’s 1998 1998 conviction). That offense wa s a misdemeanor that carrie d a potential Massachusetts of operating a motor vehicle under the influence of liqu or (the supported in the record. In 199 8, the petitioner was convicted in The following facts are taken from the trial courts’ orders or are

request for an armed security guard license. We reverse and remand. Christopher B. Casko, and John J. Barthelmes, challenging the denial of his brought against the responde nts Peter McDonough, Sean Haggerty, (Nicolosi, J.) denying his motion for preliminary inju n ctive relief in a proceeding to carry a loaded pistol or revolver; and ( p. 2 2) an order of the Superio r Court the responde nt City of Nashua (City), through its chief of police, of his license appeal s: (1) an order of the Circuit Court (Leary, J.) affirming the revocation by HICKS, J. In these consolidated cases, the petiti oner, Gregory DuP ont,

McDonough, Christopher B. Casko, John J. Barthelmes, and Sean Haggerty. attorney general, on the memorandum of law and orally), for respondent s Peter Joseph A. Fo ster, attorney general (Rebecca L. Woodard, assistant p. 3 3

carry. On March 28, 201 p. 3 3, Nashua Police Chief John Seusing revoked the Curio and Relics license, but that he should also revoke his state license to he s hould not only recomm end that the ATF deny the petitioner his federal applied and his state license to carry. Moushegian advised the police chief that disqualified the petitioner from both the federal license for which he had petitioner’s federal application, determined that the 1998 conviction Nashua Police Lieutenant Michael Moushegian, who reviewed the

two prior background checks on the petitio ner, i s not explained in the record. discovered the 1998 conviction previously, despite having conducted at least 201 p. 3 3 and, in doing so, learned of the 1998 conviction. Why the City had not Nashua Police D epartment conducted a background check on the petitioner in conduct background checks on federal license applicants. Accordingly, the License. By apparent agreement with the ATF, local police departments of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics In February or March 2013, the petitioner applied to the Federal Bureau

case was non - suited. The petitioner agreed to the terms of the offer (the 2011 settlement) and the

5. If you agree, please verify same by signing below.

basi s to revoke or deny such license in the future. the Influence from Lowell District Court Docket #9811CR10 p. 3 32A as a 4. The Department agrees not to use the conviction for Operating Under

the Department of Safety related to this matter. p. 3 3. You agree to waive any claim for damages due to lost wages against

agreement to me. secu rity guard license upon your signing and returning the 2. In exchange, the Department of S afety will reissue your armed

Voluntary Nonsuit with Prejudice of the case. Court. To achieve such, I will file an Assented to Motion for examiner’s decision pending in the Hillsborough South S uperior 1. You will agree to the dismissal of your appeal of the hearings

offered the petitioner the following settlement: their cross - motions for summary judgment, DOS’s attorney, responde nt Casko, superior court. On March 9, 2011, w hile the parties were awaiting decision on upheld it. The petitioner then appealed the hearings examiner’s decision to the The petitioner appealed Lobrano’s decision to a hearings examiner, who

unarmed security guard license. security guard license. On the same day, Lobrano issued the petitioner an p. 4 4

application of the law to the facts de novo. Cf. id. at 50 p. 4 4. suspension by the d epartment of m otor v ehicles). We review the trial court’s (review of supe rior court decision on appeal from an administra tive license Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 503 (2003) factual findings, provided there is evidence in the record to support them. Cf. omitted). In our review of the trial court’s decision, we defer to the court’s Town of Alexandria, 150 N.H. 679, 681 (2004) (quotation and bra ckets determination whether the petitioner is entitled to a license.” Silverstein v. contemplates that the [trial] court will hear evidence and make its own W e have held, with resp ect to such an appeal, “that the statute

and duties conferred upon the former . . . district courts”). (providing, in part, that “[t]he circuit court shall have the jurisdiction, powers, pursuant to RSA 159:6 - c. See RSA 159:6 - c (201 p. 4 4); RSA 490 - F:3 (Supp. 2014) Bleiler, 155 N.H. at 702. That decision may be appealed to the circ uit court an improper purpose or to the licensee ’s status as an unsuitable person.” 155 N.H. 693 (2007), that “‘just cause’ refers to a licensee’s use of a weapon for cause.” RSA 159:6 - b, I (2014). We held in Bleiler v. Chief, Dover Police Dep ’ t, revolver issued to any person pursuant to RSA 159:6 to be . . . revoked for just that “[t]he issuing authority may order a license to carry a loaded pistol or court orders the petitioner appeals. RSA 159:6 - b, I, provides, in pertinent part, We first consider the applicable standards for review ing each of the trial

proceeding s in Massachusetts.” full faith and credit to the provisions of the public acts, records and judicial FLRB’s decision restoring his right to possess firearms; and (6) failing to “give § § 921(a)(20) et seq.; (5) disregarding the findings and conclusions of the was bound by the 2011 settlement; ( p. 4 4) mis interpreting 18 U.S.C. DOS’s decision to rescind the 2011 settlement; (3) failing to find that the City upholding Chief Seusing’s revocation of his license to carry; (2) upholding the On appeal, the petitioner argues that the trial courts erred in: (1)

this court. denial of his motion for preliminary injunctive relief, the petitioner appealed to court to bring forward and enforce the 2011 settlement agreement. Following based upon the 1998 convi ction. The petitioner filed a motion in superior The superior court found it implicit in Haggerty’s decision that denial was petitioner on July 8, 2013, that his application had been conditionally denied. license. New Hampshire State Police Sergeant Sean Haggerty notified the In June 2013, the petitioner applied to renew his armed security guard

he appealed to this court. circuit court, and, following that court’s affirmance of Chief Seusing’s decision, petitioner’s license to carry. The petitioner appealed t he revocation to the p. 5 5

proceedings were held. Any conviction which has been expunged, in accordance with the law of the jurisdiction in which th e What constitutes a conviction of such a crime shall be determined

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

.. .

one year” does not include – The term “crime punishable by imprisonment for a term exceeding

§ 921(a)(20), however, provides, in pertinent part: would appear that the petitioner falls under this prohibition. 1 8 U.S.C. year” to possess any firearm. 18 U.S.C. § 922(g)(1) (2012). Without more, it in any court of, a crime punishable by imprisonment for a term exceeding one Under federal law, it is unlawful for any person “who has been convicted

petitioner. begin by examining the relevant federal statutes and their application to the addre ss the petitioner’s first, second, and fourth arguments together, and we agreement was unenforceable as violative of federal law. Accordingly, we likelihood of success on the merits because it appeared that the settlement agreement, the trial court concluded that the petitioner had failed to show a preliminary injunctive relief in the proceeding to enforce the settlement cannot possess a firearm.” Similarly, with respect to the petitioner’s motion for follow under the Supremacy Clause of the U.S. Constitution, [the petitioner] revolver” because, “[u]nder appl icable federal law, which New Hampshire must petitioner could not “be deemed suitable to possess a license to carry a pistol or revocation of the petitioner’s license to carry, the trial court reasoned that the federal law gov erning firearm s possession. In affirming Chief Seusing’s Both of the trial courts’ decisions involved, in part, an interpretation of

(2001) (explaining unsustainable exercise of discretion standard). clearly erroneous findings of fact.” Id.; State v. Lambert, 147 N.H. 29 p. 5 5, 29 p. 6 6 injunction absent an error of law, [unsustainable exercise] of d iscretion, or will uphold the decision of the trial court with regard to the issuance of an v. City of Nashua, 130 N.H. 11, 14 (1987) (quotation and ellipsis omitted). “We of each case and controlled by established princi ples of equity.” Uni F irst Corp. discretion of the Court exercised upon a consideration of all the circumstances the merits.” Id. “[T] he granting of an injunction is a matter within the sound injunction must show,” among o ther things, “that it would likely succ e ed on of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). “[A] party seeking an status quo pending a final determination of the case on the merits.” N.H. Dep’t “A preliminary injunction is a provisional remedy that preserves the 6

been expunged or set aside nor has he been pardoned.” The petitioner does The circuit court found that the petitioner’s 1998 conviction “has not

jurisdiction.” Beecham v. United States, 511 U.S. 3 p. 6 68, 371 (1994). purposes of § 921(a)(20)] . . . is governed by the law of the convicting Thus, the determination of “whether a person has had civil rights restored [for is, despite a prior conviction, sufficiently trustworthy to possess firearms.” Id. to accommodate a state’s judgment that a particular person or class of pers ons new legislation the ‘Firearms Owners’ Protection Act [FOPA],’ Congress sought prosecution for firearms possession.” McGrath, 60 F.3d at 1009. “Calling its determine which convicted persons should be subject to or exempt from federal which crimes constitute a predicate offense under the statute, and thereby to Dickerson ’s federalization of a felon’s status by allowing state law to define 100 Stat. 449 (1986). “Section 921(a)(20) was expressly crafted to overrule superseded by statute, Firearms Owners’ Protection Act, Pub. L. No. 99 - 308, see Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111 - 12 (1983), not st ate law.” McGrath v. United States, 60 F.3d 1005, 1009 (2d Cir. 1995); a predicate offense under the Gun Control Act of 1968 was a matter of federal, in response to a 1983 Supreme Court decision which held that the definition of purpose in enacting § 921(a)(20). “The exemption at issue was passed in 1986 The Second Circuit Court of Appeals has concisely s tat ed Congress’ s

aff’d, 133 S. Ct. 17 p. 6 69 (2013). statutory scheme.” Pelk e y v. Dan’s City Used Cars, 163 N.H. 483, 487 (2012), do not read words or phrases in isolation, but in the context of the entire construe that language according to its plain and ordinary meani ng.” Id. “We statute, we begin with the language of the statute itself, and, if possible, of Health & Human Servs., 166 N.H. 358, 364 (2014). “When interpreting a interpret it in accordance with federal p olicy and precedent. Dube v. N.H. Dep’t Because the meaning of § 921(a)(20) is a question of federal law, we

h is appeal. civil rights restored.” 18 U.S.C. § 921(a)(20). This contention forms the crux of expunged, or set aside or for which a person has been pardoned or has had the petitioner contends that the 1998 conviction is one that “has been that offense does not fall within the exclusion of § 921(a)(20)(B). Nevertheless, carried a potential maximum prison sentence of two and a half years. Thus, Although classified as a misdemeanor, the petitioner’s 1998 conviction

18 U.S.C. § 921(a)(20) (2012) (e mphasis added).

not ship, transport, po ssess, or receive fi rearms. r estoration of civil rights expressly provides that the person may purposes of this chapter, unless such pardon, expungement, or civil rights restored shall not be considered a conviction for or set aside or for which a person has been pardoned or has had p. 7 7

§ 921(a)(20) to the so - called “core” civil rights of voting, office holding, and jury Some federal circuits, including the First Circuit, appear to have limited

do not mandate slavish devotion to the three identified rights.” “include,” the petitioner argues that “Cassidy and its progeny, correctly read, jury.” Cassidy, 899 F.2d at 549 (emphasis added). Emphasizing the word right to vote, the right to seek and hold public office and the right to serve on a encompassed in the term “civil rights,” as used in § 921(a)(20), “include the v. Cassidy, 899 F.2d 543 (6th Cir. 1990), which held that the rights The petitioner notes that the seminal case on this issue is U nited States

and did not, resolve what rights are “civil rights” for purposes of § 921(a)(20). the petitioner in Logan conceded this issue, the Court was not called upon to, office, and serve on a jury.” Logan, 552 U.S. at 28 (emphasis added). Because rights relevant under the above - quoted provision are the rights to vote, hold the term ‘civil rights,’ courts have held, and petitioner agrees, that the civil th e petitioner. The Logan Court noted that “[w]hile § 921(a)(20) does not define rights of voting, office holding, and jury service] is mere dicta.” We agree with petitioner, on the other hand, contends that Logan ’s “passing reference [to the to vote, hold office and serve on a jury.’” (Quoting Logan, 552 U.S. at 28). The term ‘civil rights’, in the context of 18 U.S.C. § 921(a)(20), referred to ‘the rights The City contends that the Supreme Court in Logan “determined that the

inquiry in turn. right alone sufficient to come within that statute’s exemption. We address each the term “civil rights” as used in that section; and (3) if so, is restoration of that and serve on a jury; (2) if not, is the right to keep and bear arms included in contemplated by § 921(a)(20) limited to the rights to vote, hold public office, question contains three subsidiary inquiries: (1) are th e civil rights restoration of civil rights within the meaning of 18 U.S.C. § 921(a)(20)(B).” That of [the petitioner’s] constitutional right to possess a firearm is considered a question devolves to whether the FLRB’s restoration under Massachusetts law 1998 conviction and restored to him.” According to the petitioner, “[t]he rights” and that he “had that civil right. . . taken away from him upon his and bear arms is a subs et [of] and necessarily included [with] in [the term] civil The petitioner challenges both rulings, arguing that “[t]he right to keep

petitioner is not entitled to the exception under 1 p. 8 8 U.S.C. § 921(a)(20)(B).” the opportunity to have them ‘restored.’” The court therefore found that “the that because “the petitioner never lost any of these rights,. . . [he] never had hold public office, and serve on a jury. It concluded, also relying upon Logan, accepted” that the civil rights to which § 921(a)(20) refers are the rights to vote, constitutional, not civil, right.” The superior court found it to be “ge nerally right as a result of his conviction [,] for the right to carry a gun is a v. United States, 55 2 U.S. 23 (200 p. 7 7), that the petitioner “has not lost any civil not challenge these findings. The circuit court als o found, relying upon Logan 8

at 59 5. In McDonald v. Chicago, 561 U.S. 742 (2010), the Court held that “the Second Amendment “conferred an individual right to keep and bear arms.” I d. Amendment. Heller, 554 U.S. at 635. In so holding, the Court found that the operable for the purpose of immediate self - defense” violated the Second home . . . [and] its prohibition against rendering any lawful firearm in the home Court held t hat the District of Columbia’s “ban on handgun possession in the In District of Columbia v. Heller, 554 U.S. 570 (200 p. 8 8), the Supreme

States Supreme Court cases dealing with that guarantee. the United States Constitution, and, in particular, relies upon two United to the right to keep and bear a rms guaranteed by the Second Amendment to individual ownership or possession of weapons”). Rather, the petitioner looks and holding that “[p]rovisions like art. 17 were not directed to guaranteeing people, the aggregate of citizens; the right is related to the common defense” that “the declared right [in Article 17] to keep and bear arms is that of the Commonwealth v. Davis, 343 N.E.2d p. 8 847, 848 - 49 (Mass. 1976) (concluding Massachusetts Constitution for a private citizen to keep and bear arms”); that “[t]here is no right under art. 17 of the Declara tion of Rights of the of Shelburne v. Moyer, 453 N.E.2d 461, 4 64 (Mass. App. Ct. 1983) (recognizing [under] Massachusetts law”), aff’d, 985 F.2d 552 (1st Cir. 1993); Chief of Police Mass. 1991) (concluding that “possessio n of a firearm is not a civil right . . . preclude that argument. See United States v. Nazzaro, 778 F. Supp. 1, 2 (D. under Massachusetts law, and, in any event, relevant case law appears to The petitioner does not argue that firearm possession is a civil right

appears to be inconsistent with that reasoning. rights, to the exclusion of other rights typically stripped from convicted felons, by convicted felon s). Limiting the applicable rights to the so - call ed “core” civil firearm. S ee, e.g., RSA 159:3 (2014) (criminalizi ng the possession of firearms O ne of the rights typically lost by felons, however, is the right to possess a rights required to be restored are those rights typically lost upon a conviction. (2007). We agree with the reasonin g that Congress logically intended that the added), abrogated on other grounds by Logan v. United States, 552 U.S. 23 office.” United States v. Indelicato, 97 F.3d 627, 630 (1st Cir. 1996) (emphasis by pardons, namely, the right to vote, to serve on a jury and to hold public the core cluster of ‘citizen’ rights that are typically lost by felon s and restored among the circuits,” including the First Circuit, “is that Congress had in mind Congress did not specify which civil right s it had in mind, the plurality view We find instructive the First Circuit’s observation that “[a]lthough

1 p. 9 99 7) (identifying the Seventh and Eighth Circuits). trigger section 921(a)(20).” United States v. Estrella, 104 F.3d 3, p. 8 8 (1st Cir. “treat [] firearms privileges as one of the civil rights t hat must be restored to settled, however, and the First Circuit itself has noted that other circuits Cassidy, but changing the word “include” to “comprise”). The question is not service. See, e.g., United States v. Caron, 77 F.3d 1, 2 (1st Cir. 1996) (citing 9

firearms.” United States v. Valerio, 441 F.3d 837, 842 ( p. 9 9th Cir. 2006). more relevant to a felon’s future dangerousness than the right to possess has recogniz ed that “[b] y contrast to the right to vot e, no civil right could be unlawful activity.” Cassidy, 899 F.2d at 549. In this light, the Ninth Circuit efforts against firearms owners that have a demonstrated potential for serious § 921(a)(20) reflects “the general i ntent of Congress to redirect enforcement Another perspective is suggested by the Sixth Circuit’s observation that

rights”). have been restored, or, as some cases would have it, how many of those core question” inst ead of “quibbling over what rights irrelevant to that question rights to keep and bear arms should be restored . . . , logically, should be the present danger with a weapon going forward, and whether that individual’s (opining that “whether a person previously convicted of an offense constitutes a State, p. 9 996 N.E.2d 10 57, 1077 (Ill. 2013) (K a rmeier, J., writing separately) right to possess firearms – from the trustworthiness calculus. Cf. Coram v. trustworthiness, but exclude the restoration of the very right at issue – the C ongress intended to credit the restoration of “core rights” as indicative of person’s trustworthiness to possess a firearm.” We find it u nlikely th at are simply surrogates for an underlying state determination/vouching for a Thus, as the petitioner puts it: “The right [s] to vote, hold office and sit on a jury to possess firearms (unless that right is withheld).” Es trella, 104 F.3d at 7. civic responsibilities, the state vouches for the trustworthiness of that person restored’ as a touchstone: the notion that by reinvesting a person with core Circuit has recognized as “the rationa le behind Congress’ use of ‘civil rights More relevant to interpret ing the statute before us is what the First

civil rights, such as the right to bear arms or vote in elections”). consequences of being branded a criminal: deprivation of otherwise protected . . . [which] can include not only fines and imprisonment, but all the attendant Congress’s Commerc e Clause power “may be subjected to criminal sanctions 2600 (2012) (not ing that “[a]n individual who disobeys” a law passed under civil right. See Nat. Fedn. of Indep. Business v. Sebelius, 132 S. Ct. 2566, unrelated context, to the loss of the right to bear arms as the deprivation of a Heller and McDonald). In addition, the Supreme Court has re ferred, in an individual right to possess a firearm,” a basis that no longer stands in light of restoration of his state firearms ‘rights’” on the basis “that there is no argument that “a convicted felon cannot have a restoration of rights without a F.3d 5 p. 9 94, 597 (6th Cir. 2012); cf. Cassidy, 899 F.2d at 549 n.12 (rejecting the possession ban . . . might infringe a civil right.” United States v. Sanford, 707 The Sixth Circuit has opined that Heller “suggests that a handgun

U.S. at 7 50. Second Amendment right is fully applicable to the States.” McDonald, 561 p. 10 10

U.S.C. § 924(e)(1) (2012). The case presented the following question: “Does the of sentence enhancement under the Armed Career Criminal Act (ACCA), 18 the context of determining whether a conviction could be counted for purposes In Logan, t he Supreme Court considered the § 921(a)(20) exemption in

look to the Court’s holding on that issue. retention and restoration of civil rights in the context of § 921(a)(20), we first § 921(a)(20) exemption. Because the Supreme Court has addressed the along with retention of the three core civil rights, is enough to trigger the must consider, then, is whether restoration of the right to possess firearms, Thus, the foregoing cases are, on that point, distinguishable. The question we In the instant case, however, the petitioner never lost his core civil rights.

restored, while his right to hold public office had not). 281 (noting that the defendant ’ s rights to vot e and serve on a jury had been only the defendant’s right to vote had been restored); Molina, 484 Fed. Appx. at violent, the three [core] civil rights”); Valerio, 441 F.3d at 842 (observing that id. (finding that “Texas does not restore to any felon, whether violent or non defendant’s “core” civil rights had been lost and not substantial ly restored. See import whatsoever.” Thomas, 991 F.2d at 214. In each of these cases, the purposes of § 921(a)(20), the felon’s isolated right to possess a firearm is of no restoration of essentially all civil rights of the convicted felon as defined for T he se cases generally follow the reasoning that “[i]n the absence of the

firearm must be restored under [18 U.S.C.] § 921(a)(20)”). reasonable person on fair notice that more than just his right to possess a vagueness argument, that “the fact ‘civil rights’ is plural would alone put a 284 ( p. 10 10th Cir. 2012) (following Valerio, and noting, in response to a void for similar conclusions. See, e.g., United States v. Molina, 484 Fed. Appx. 276, v. Thomas, 991 F.2d 206, 2 14 - 15 (5th Cir. 1993). Other circuits have reached more than simply the single, narrow right to possess a firearm.” United States rights,” stated that “‘civil rights,’ as used in § 921(a)(20), must mean much right to possess firearms is the functional equivalent of restoring his civil rejecting the contention that “Texas’ s failure to deny [a non - violent felon] the § 921(a)(20) ’s exemption. Id. at 842 - 43. Similarly, t he Fifth Circuit, in defendant’s “right to possess firearms. . . [was] not enough” to fall under relevance of the right, the c ourt found that New Mexico ’s restoration of the § 921(a)(20) ’s exemption. In Valerio, for instance, despite having note d the restoration or retention of firearm rights is, without more, sufficient to trigger C ourts generally have not been r eceptive to the argument that

§ 921(a)(20) ex empti on. determine whether restoration of that right alone brings a conviction within the keep and bear arms is a civil right within the statute’s ambit. We must now limite d to the three “core” civil rights and that the Second Amendment right to We conclude that the “civil rights” contemplated by § 921(a)(20) are not p. 11 11

Id. language, however, a requirement that there be a ‘full’ restoration of rights.” rights.” Cassidy, 899 F.2d at 549. The court “d[id] not read into the statutory Congress envisioned a restoration of more than a de minimis quantity of civil demonstrated potential for serious unlawful activity, [we are confident] that Congress to redirect enforcement efforts against firearms owners that have a forth an oft - cited standard, stating that “based on the general intent of the petitioner’s 1998 conviction within § 921(a)(20)’s exemption. Cassidy set restoration of one civil right – t he right to keep and bear arms – in fact brings We turn now to t he ultimate question before us: whether the loss and

that Logan does not exclude the petitioner from § 921(a)(20)’s exemption. has had one civil right “restored” in the Logan sense. Accordingly, we conclude keep and bear arms is a civil right for purposes of § 921(a)(20), the petitioner is fully restored in the Commonwealth.” G iven our conclusion that the right to possess a license to carry firearms, and his right to possess a firearm therefore noted, the FLRB specifically found that the petitione r was “a suitable person to id., from Massachusetts through the FLRB ’s determination. As previously The petitioner here, however, did receive a “status - altering dispensation,”

government.” Id. at 32. He receives no status - altering dispensation, no tok en of forgiveness from the The Court reasoned that “a defendant who retains rights is simply left alone. dispensation” did not come within the exemption of § 921(a)(20). Id. at 26. status, post [-] conviction, remained in all respects unaltered by any state held that “an offender who retained civil rights at all times, and whose legal an offender who lost no civil rights.” Id. at 36 (emphasis added). The Court Logan held that “the words ‘civil rights restored’ do not cover the case of

rights were the rights to vote, hold office, and serve on a jury. Id. at 28. did not decide the issue because the petitioner had agreed that th e relevant retained those rights. See id. at 29. However, as we previously noted, Logan that section’s exemption because he, like the petitioner in Logan, at all times to § 921(a)(20) to the three core civil rights, it would bar the petitioner from com pels that result. If Logan had definitively limited the “civil rights” relevant exception under 18 U.S.C. § 921(a)(20)(B).” We do not agree that Logan opportunity to have them ‘restored’” and, therefore, was “not entitled to the petitioner never lost any of [the core civil] rights, . . . [he] never had the Relying upon Logan, the superior court here ruled that because “the

Supreme Court, however, ruled to the contrary. Id. at 36. functionally equivalent t o ri ghts revoked but later restored.” I d. at 29. The had argue d in the District Court a nd on appeal that “[r]ights retained . . . are deprived the offender of civil rights?” Logan, 552 U.S. at 26. T he petitioner therefore remove from ACCA’s reach, state - court convictions that at no time ‘civil ri ghts restored’ exemption contained in § 921(a)(20) encompass, and p. 12 12

Keeney, 241 F.3d 1040, 1044 (8th Cir. 2001). In particular, the court in Enos United States v. Brailey, 408 F.3d 609, 613 (9th Cir. 2005); United States v. rights, sufficient to bring a prior conviction within the exemption. See, e.g., declined to find restoration of gun rights, along with retention of the core civil domestic violence misdemeanants, see 18 U.S.C. § 921(a)(33)(B)(ii) (20 p. 12 12), have We acknowledge that courts applying the § 921(a)(33)(B)(ii) exception for

tha n any other. restorati on of firearm rights – vouches for that trustworthiness more directly withheld).” Estrella, 104 F.3d at 7. The gesture of forgiveness here – explicit trustworthiness of that person to possess firearms (unless that right is whether the state, by its “gesture of forgiveness,” has “vouche[d] for the McGrath, 60 F.3d at 1007. We also again note that the ulti mate question is

exemption from the firearms bar. of rehabilitation or an affirmative gesture of goodwill that merited subsequent forgiveness should be credited as an acknowledgment restoration of civil rights. The t heory was no doubt that such a partial forgiveness, by means of pardon, expungement, o r jurisdiction extended a subsequent gesture of forgiveness, or The FOPA amendment . . . exempted felons to whom the convicting

Looking to Con g ress ’s intent, w e note that:

restored for pur poses of § 921(a)(20)? We hold that he has. arms was lost and expressly restored, ha s the petitioner had his civil rights three “core” c ivil rights were taken away, but the civil right to keep and bear The question before us i s even further at tenuated: where none of the

(applying 18 U.S.C. § 921(a)(33)(B)(ii)). sufficient. United States v. Wegr zyn, 305 F.3d 593, 596 (6th Cir. 2002) that loss and resto ration of a single civil right – there, the right to vote – was to 18 U.S.C. § 921(a)(20) and applicable to domestic violence misdemeanants, appears to have held, with respect to an exemption provision worded similarly away, the same answer would prevail.” Caron, 77 F.3d at 6. The Sixth Circuit the question whether, when one civil right is restored but two were never taken rights had been restored under § 921(a)(20)). The court “[left un til] another day office restored, while right to serve on a jury was never suspended, his civil (concluding, post - Logan, that where defendant had rights to vote and hold see also Buchmeier v. United States, 581 F.3d 561, 56 4 - 6 5 (7 th Cir. 2009) having ‘had civil rights restored’ within the meaning of” § 921(a)(20). Id. at 2; fact that one civil right was never lost does not preve nt an individual from 1. The court held that “at least where some civil rights are restored . . . , the post - conviction, while the third had never been taken away. Caron, 77 F.3d at two of the three core civil rights rest ored by operation of law at some point In Caron, the First Circuit addressed a case in which a defendant had p. 13 13

DALIANIS, C.J.