Gun Rights Restoration After a Felony in Virginia, Part II: Petition the Circuit Court
July 13th, 2015
***Check out the new Frequently Asked Questions page for gun rights restorations.***
A felony conviction is a life-changing event. Among the many consequences of a felony conviction is that the individual automatically loses their right to possess a firearm. Fortunately, Virginia law provides a mechanism for convicted felons to have their gun rights restored.
This article is Part II of a three-part series that provides a general overview of the process of gun rights restoration in Virginia.
Part I discusses the restoration of civil rights by the Governor of Virginia.
Part II discusses the petition to restore gun rights that is filed in circuit court.
Part III will discuss a few special circumstances and how Virginia law applies.
Virginia Code §18.2-308.2 makes it a felony for an individual to possess a firearm after a felony conviction. Section C of that statute also sets forth the process to have gun rights restored.
The first step in the process is to apply to the Governor of Virginia for the restoration of civil rights (see Part I). After the Governor restores the individual’s civil rights, the second step in the process is to petition the circuit court to restore the individual’s gun rights.
Here are a few notes about the petition process. Along the way, I include a few comments on how I handle the process for my clients.
Where is the petition filed? Residents vs. Non-residents.
For a resident of Virginia, the petition is filed in the circuit court for the city or county where the individual resides. For example, if you live in Fairfax County, your petition should be filed in the circuit court for Fairfax County. Simple enough.
For a non-resident of Virginia (i.e., they live in a different state), the petition is filed in the circuit court where the individual was last convicted of a felony. For example, if you were convicted of a felony in Henrico County but you now live in North Carolina, your petition should be filed in the circuit court for Henrico County.
(Note: This is a recent change to the restoration process. Before July 1, 2015, non-residents could not have their gun rights restored by ANY Virginia circuit court. Thankfully, the General Assembly fixed this obvious flaw in 2015.)
For my clients, I draft and file the petition. I ask my clients to provide certain documentation, but they never need to worry about the actual petition. Depending on the facts of the case, I decide how the petition should be worded and what evidence should be incorporated or attached. Once the petition is finalized, I file it with the appropriate circuit court and serve it on the Commonwealth’s Attorney.
Who is the “opposing party” of the petition?
The petitioner is required to mail a copy of the petition to the local Commonwealth’s Attorney. The local Commonwealth’s Attorney’s office will represent the Commonwealth as the “opposing party” to the petition.
For my clients, I notify the Commonwealth's Attorney at the very beginning that I represent my client on their petition. From then on, the Commonwealth is aware that I am the attorney for that case. If the Commonwealth’s Attorney needs to speak about the case, they will only contact my office. They will never contact my client directly. If the Commonwealth files any pleadings or notices on the case, they automatically send a copy to my office. The client never needs to worry about missed phone calls or delayed mail from the court or from the Commonwealth's Attorney.
Will the Commonwealth Attorney oppose the petition?
For felony gun rights restoration, it is very common for the Commonwealth’s Attorney to actively oppose the petition. However, each case is unique. It is possible that the Commonwealth’s Attorney may not be in complete opposition. And occasionally, the Commonwealth’s Attorney will actually agree with the petition.
At a minimum, it is safe to assume that the Commonwealth’s Attorney will not sit idly on the sidelines throughout the process. They will certainly take an active role in the process and at the hearing.
After I file a client's petition with the court, a crucial part of the process is communicating with the Commonwealth’s Attorney’s office before the hearing. The overwhelming majority of Commonwealth’s Attorneys are cordial and professional. A productive exchange of phone calls and emails can be a tremendous benefit to my client. By maintaining open and professional communication with the Commonwealth, I am able to better serve my clients in streamlining their case and focusing on the important issues as we prepare for the hearing.
Occasionally, a Commonwealth’s Attorney may not be very responsive, or they may be unprofessional. It is rare, but it does happen. Even then, I can use the communications to better prepare for the hearing.
The standard for granting the permit and the factors the court will consider.
The statute states that “the court may” grant the petition “in its discretion and for good cause shown.”
It cannot be overemphasized that the court has incredibly broad discretion and that the standard is extremely vague. The statute states that the court “may” grant the petition; it does not use the word “shall.” Furthermore, unlike other petitions which require the court to review specific factors, Code §18.2-308.2 does not list any specific factors for the court to consider. It only allows that the court may grant the petition for “good cause shown.”
What is good cause? How does a petitioner show the judge good cause? Should the petitioner focus on their clean criminal record after the felony? Should they focus on their employment? Should the petitioner bring in friends or family members to talk about their character? How much should the petitioner discuss the old felony conviction?
All of this underscores the need for an experienced attorney to present your evidence and arguments to the court. The rules of evidence and civil procedure will govern your case. The presentation of evidence in court is a highly technical exercise. Whether the evidence is witness testimony or written documents, it is more than simply showing up to court and telling your side of the story. Presenting arguments is more than merely expecting the judge to reach your desired conclusion. You should rely on an experienced attorney to present the evidence to the court in a clear and concise fashion and to make the appropriate arguments that explain how the evidence supports your petition.
If you were convicted of a felony and would like to have your and gun rights restored, call the office for a free consultation.
You have paid your debt to society. You have put your past behind you. There is no reason this should follow you around any longer.
During the consultation, we will discuss the details of your specific situation and the best course of action to have your rights restored.
The attorney’s fees for gun rights petitions are always fixed fees, and flexible payment options may be available for your case.
Remember that although the office is located in Virginia Beach, my practice extends across all of Virginia. I can handle your case whether you live in Accomack County, Roanoke, Alexandria, or Danville. (For most cases, I do not charge increased fees for travel costs. If I have to charge more because of the location of your case, I will explain the difference in pricing up front.)
Feel free to call the office at (757) 333-7529. Alternatively, feel free to use the Contact Page to submit an inquiry through this website.
After-hours and weekend appointments: Let’s face it; most people cannot take off work in the middle of the week between 9-5. If you need an appointment after normal business hours or on a weekend, I understand. The best option is to use the Contact Page to schedule a telephone appointment. Otherwise, call the office or leave a voicemail with your information: (757) 333-7529.
Categories: Gun Rights Restoration