So, I won a (non-violent) felon in possession case...

[RmeJu]

This was at the MN court of appeals. I'm the attorney, btw, not the defendant.

Obligatory warning: If you're a non-violent felon in MN, you should really talk to a lawyer before picking up a gun based on what you read in this internet post!

I took a pro bono appellate case through the MN state appellate public defenders office at the beginning of last year, and recently won. The main issue wasn't 2A related, but part of it was. My guy's secondary conviction was for the state felon in possession statute, but his prior wasn't violent. The case came out of Pine County. I thought I'd share the public details for those who are interested.

The MN Supreme Court recently left open the door to a challenge to the state law for non-violent felons, so I thought I'd give it a shot to see if I could win by saying that the felon dispossession law violated my guy's 2A rights. For you legal eagles who are interested in seeing the briefing, I've attached my opening brief. The 2A stuff starts on p.18 (pdf p.25)

In response to the constitutional argument, the prosecution pretty much folded. They actually came back and argued that my guy should never have been prosecuted in the first place, because a different state law restored his gun rights when his sentence was up, and that his conviction was a mistake. I took this as sort of a compliment regarding my 2A argument, figuring they would have fought it if they thought they could win. The state law in question restores all of a felon's civil rights upon expiration of the sentence (including any probation, etc.), except for the gun rights of violent felons.

I couldn't make this argument because it had been waived for other reasons at trial, in consultation with the trial attorney (I wasn't the trial attorney, btw, and the case law on this point was a bit hazy anyway) but hey, I couldn't stop the prosecutor from saying it.

Naturally, we were fine with this position on our side, but with the proviso that the court of appeals actually agreed with the prosecutor's reading of that law... the question had never been squarely decided, and after all, the logical extension of this reasoning would be to severely narrow the otherwise-lifetime ban on non-violent felons. Under this interpretation, the "lifetime" ban would simply be reduced to a ban for the duration of the sentence (again, including probation, etc.).

The court of appeals agreed, and they published the case (meaning it sets precedent). Personally I viewed this as a better result than getting the law struck down, since it basically means the MN legislature voluntarily chose not to violate the constitution in the first place. I've attached the decision here, in case anyone wants to read it. The pertinent piece is short, and starts on p.8.

[farmerj]

Congrats......


In a huge way.

[Mn01r6]

they published the case (meaning it sets precedent)

wondering if you could opine about this a little bit more since a lot of people around here like to take trial court findings and unpublished opinions as the "law of the land" - can you distinguish how much "binding" precedent from mere precedent matters?

Thanks for your 2A work and for fighting the good fight!

[RmeJu]

wondering if you could opine about this a little bit more since a lot of people around here like to take trial court findings and unpublished opinions as the "law of the land" - can you distinguish how much "binding" precedent from mere precedent matters?

Sure. There's a couple of points on that. Minnesota court of appeals opinions can be either "published" or "unpublished." Published opinions are binding on trial courts, unpublished opinions are not. The reasoning in an unpublished opinion may, of course, persuade the trial court judge to follow it, especially if there's several unpublished opinions going the same way and/or there's no contrary case law and/or the opinion is well thought out. Don't be your freedom on it though. MN Supreme Court cases are all published, and bind all other courts except the SC itself.

A determined trial judge can sometimes find some creative way to wriggle out of following a published case, but judges don't like being reversed (it's embarrassing), so there is a check, and many judges aren't looking to do any wriggling anyway: if the law says X, then that's what they do.

A published case can be a powerful arrow in the quiver, but in the law, it's wise never to assume that you're going to win just because you have a good case.

For example, in Minnesota, we legally define some crimes as "crimes of violence," even though your particular offense was not accompanied by any violence at all. One example is that, here, basically all drug possession (except small amount of marijuana) is considered a violent crime...even if it was just some kid who got caught in the college dorm--lifetime ban for him. This is how the MN court system has been denying a lot of the post-Heller 2A constitutional challenges. The prior felony was for drugs, and the legislature says almost all drug possession crimes are "violent," and the courts say the 2A doesn't apply to "violent" criminals.

Hopefully, that answers your question. If not, just let me know.

Thanks for your 2A work and for fighting the good fight!

Thanks! It felt good doing something good, even if it was just a small step in the right direction.

[lizard55033]

The state law in question restores all of a felon's civil rights upon expiration of the sentence (including any probation, etc.), except for the gun rights of violent felons.

This would mean that the individual charge will drop from a Felony; to a Gross Misdemeanor then once Probation, fees, and restitution are fulfilled.

[David Gross]

So, you did incredibly well. You will find that often your best and most rewarding work happens on pro-bono cases.

[FJ540]

RmeJu, If you happen to be available around 11:30 Wed morning and are in the Bloomington area - 98th and 35W, 98 Pounds Buffet to be precise. I'd like to buy you lunch! If this week doesn't work, maybe next month will. I'll keep my offer open until you cash in on it.

viewtopic.php?f=17&t=53799

"Felon in possession" has been a sticky point for me (sadly), as I've come into contact with several guys who've done what they can to re-enter society on the right terms, but it's given me the shivers thinking about having them around my weapons (a personal liability issue). I've come to the conclusion that free men should not be at the mercy of their aggressors regardless of their history. If they're dangerous to innocents, they should be locked up. If they're not, then they too have the right to defend themselves just as I do. Your taking on this case was a most honorable act, and I thank you for doing it.