Judges: MARK PRYOR, Attorney General
Filed Date: 2/28/2000
Status: Precedential
Modified Date: 7/5/2016
The Honorable Jerry Don Ramey Prosecuting Attorney Fifteenth Judicial District P.O. Box 381 Dardanelle, Arkansas 72834
Dear Mr. Ramey:
I am writing in response to your request for an opinion on whether a person who has been convicted of a felony involving violence towards a cohabitant can carry a firearm if the felony was reduced to a misdemeanor sixteen (16) years later with the same underlying facts.
You have recited the following:
(a) On June 27, 1983 an individual pleads guilty in Gibson County, Tennessee to the felony offense of Aggravated Assault. The individual received a sentence of two (2) years' probation. The facts of the charge centered around an altercation between the individual and a live-in girlfriend.
(b) On August 22, 1996 a court order was filed in Gibson County, Tennessee restoring the individual to the rights and privileges of full citizenship together with all of the benefits accruing therefrom in accordance with Tennessee Code Annotated, Section
40-29-102 . As part of the order the words "public records of this case expunged" are crossed out.(c) The individual filed to be elected to the position of constable of an Arkansas township and was subsequently elected to begin service on January 1, 1999.
(d) On January 29, 1999 an Order was filed in Humboldt, Tennessee directing that the guilty plea regarding the June 27, 1983 conviction for aggravated assault be set aside and held for naught. It further orders that the individual is guilty of disorderly conduct and sentenced to eleven (11) months and twenty-nine (29) days, with the sentence suspended based on good conduct.
You state that you do not question the filing for, or the holding of the office of constable under the facts above. Your question is whether the individual can legally carry a firearm.
RESPONSE
It is my opinion that federal law prohibits the individual you describe from carrying a firearm. The application of Arkansas firearm law to the facts you describe is unclear. In Arkansas, we have no general "restoration of rights" statute,1 nor any procedural mechanism by which an individual can have a felony conviction reduced to a misdemeanor under the facts you describe. I am thus uncertain how an Arkansas court would interpret the effect of the Tennessee order under Arkansas law. In any event, however, because federal law prohibits the possession of a firearm based even on the more recent misdemeanor conviction, it is unnecessary to analyze the applicability of Arkansas law to the previous felony conviction.
In 1996, the United States Congress passed an amendment to existing firearms law, which disqualifies any person convicted of a "misdemeanor crime of domestic violence" from possessing in or affecting commerce, any firearm. See
The misdemeanor of which the individual was convicted in 1999 (disorderly conduct), is a misdemeanor under the laws of Tennessee. See Tennessee Code Annotated, §
(a) A person commits an offense who, in a public place and with intent to cause public annoyance or alarm:
(1) Engages in fighting or in violent or threatening behavior;
(2) Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard or other emergency; or
(3) Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.
(b) A person also violates this section who makes unreasonable noise which prevents others from carrying on lawful activities.
Tennessee Code Annotated §
The disorderly conduct statute itself does not refer to or contain as an element a domestic relationship. This is not necessary for purposes of
The Tennessee charging documents in this particular case, which I have reviewed, reflect that the conduct underlying the "disorderly conduct" conviction involved the use or attempted use of physical force. In addition, the court documents reflect that it was perpetrated against a victim included within the definition of "misdemeanor crime of domestic violence" in
It is therefore my opinion that federal law prohibits the individual you describe from carrying a firearm. He has been convicted of a "misdemeanor crime of domestic violence" for purposes of
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh