Gun Rights Restoration in Virginia After a Felony, Part III: 5 Special Circumstances
July 16th, 2015
This is the last article of a three-part series that provides a general overview of the process of gun rights restoration in Virginia. Specifically, this article will review a few special circumstances and how Virginia law applies.
If you are interested in having your gun rights restored after a felony, I encourage you to read the first two articles in this series. To read about the restoration of civil rights by the Governor, see Part I. To read about the petition to restore gun rights that is filed in the circuit court, see Part II.
With that background in mind, what follows is a brief discussion of a few special circumstances and how Virginia law applies.
1) Where to file the petition in circuit court — Residents vs. Non-residents
As mentioned in Part II, residents and non-residents are treated differently as far as where the petition should be filed. For residents of Virginia, the petition should be filed in the circuit court for the city or county where you live. For non-residents of Virginia, the petition should be filed in the circuit court where you were last convicted.
This is a very recent change to the law. Prior to July1, 2015, non-residents could not have their gun rights restored by any Virginia circuit court. This was an obvious mistake in the wording of the statute. Thankfully, the General Assembly fixed this mistake in 2015.
This recent change is important for at least two reasons.
First, if you filed a petition that was denied because you were a non-resident, you should probably file another petition. You do not need to wait for any specific amount of time in this situation. As long as you meet all of the other requirements, you can file a second petition immediately.
Second, many judges and Commonwealth’s Attorneys are not yet aware of this change in the law. Petitions to restore gun rights are becoming more common. (This is a good thing.) In my opinion, however, these petitions are still not “regular cases” on the courts’ dockets. I predict that it will take quite some time for this new change to become widely known. This is yet another reason to make sure you rely on an experienced and qualified attorney to present your case. You need an attorney that knows the latest developments of this area of the law, and your attorney needs to be able to explain to the judge exactly where these new changes can be found.
Unfortunately, I think it is possible that at least a few non-resident petitions may be denied during the next few months because the judges and attorneys may not be aware of this new change. Do not let that happen to your petition!
2) Application to restore civil rights — Unpaid fines, costs, fees, or restitution
This is another very recent change to the process. Prior to June of 2015, the Governor would not restore civil rights unless the applicant had paid all of their fines, court costs, fees, or restitution. This proved to be a significant obstacle for many people. A felony conviction can bring about large amounts of fines and costs — sometimes well into the tens of thousands of dollars or more.
In June of 2015, the Governor announced that this was no longer a criteria for having civil rights restored. Even if you still have unpaid fines, costs, or restitution, you can still apply to have your civil rights restored. (Importantly, you must still meet the other criteria (see Part I).)
It should be noted that the wording of this new policy only specifically mentions “court costs and fees.” The obvious question arises: does this include unpaid fines and restitution?
When this new policy was announced, I was assisting a client with a related issue. I called the restoration of rights office for clarification, and a representative confirmed that the new policy also includes unpaid fines and restitution. For now, I think that is an accurate summary of the new policy.
If you were previously denied a civil rights restoration because of unpaid fines or costs, you may need to reapply using the revised application. See the restoration of rights website for more information or call the office for a consultation.
3) Out of state felony convictions
If you were convicted of a felony in a different state, you must have your gun rights restored in that state. If the other state restores your gun rights, you do not need to also have your gun rights restored in Virginia.
This is another very recent change to the law. Previously, even if your gun rights were restored by the other state, you were still required to have your gun rights restored in Virginia. With the new change, the other state’s restoration should be sufficient.
VERY IMPORTANT WARNING: If you were convicted of a felony in another state and had your gun rights restored by that state, you should have your situation reviewed by an experienced attorney before you attempt to purchase or possess a firearm! This change in the law is very new, and it significantly altered the law on possession of firearms after a felony conviction. It would be very wise to have an attorney review the documentation from the other state to make certain that there are no problems with the form or wording of the gun rights restoration. If the other state’s restoration order is not sufficient, or if it does not completely restore ALL of your gun rights (without any conditions), it is very likely that you could be charged with violating Code §18.2-308.2. At a minimum that is a Class 6 felony. It is VERY likely that it would include a mandatory minimum sentence of two years or five years in prison. Again, if this situation applies to you, it is strongly recommended that you have an attorney review your specific situation. The choices are clear: call an attorney to be safe vs. risk a mandatory minimum of five years in prison?
4) Other gun rights disabilities
It should be noted that the process for restoring gun rights after a felony does not fix other problems that may impact gun rights.
For example, if an individual was convicted of a felony, but they were also convicted of misdemeanor assault and battery on a family member, their gun rights are revoked by federal law. Even if a Virginia court restored their gun rights after the felony conviction, they would still be barred from possessing or purchasing a firearm under federal law because of the prior conviction for domestic violence.
The same analysis would apply to other gun rights disabilities (e.g., protective orders, involuntary commitments, etc.).
Again, the process of restoring gun rights under Code §18.2-308.2 only applies to felony convictions in Virginia circuit courts.
As always, if you have any questions about whether you are prohibited from possessing firearms, you should contact an attorney to review your situation.
5) Timing for filing a second petition if the first is denied
If the circuit court denies a petition to restore gun rights, how long should you wait until you file another petition?
The quintessential legal answer: it depends.
Technically, there is no specific time limit on when you can file a petition after a denial. But that does not mean that you should file another petition immediately! Far from it!
There are numerous factors that should be considered when deciding when to file another petition. Why was the first petition denied? Did the judge deny the petition on the merits? Was there a procedural or jurisdictional defect with the first petition? Will the second petition be heard in a different jurisdiction? How has the petitioner’s situation changed since the first petition? Did the judge include anything in a written order? Etc., etc., etc.
Each of these questions would likely impact the decision on when to file a second petition. This is yet another example of why it is crucial to rely on an experienced attorney to prepare your case. If you file too soon after a denial, you may be inviting another denial from the very beginning. Talk to an attorney about the circumstances of the first petition. Ask your attorney recommend a good timeline to file a second petition so as to maximize your chances of success at the earliest possible time.
Obviously these are only a few of the special circumstances that might apply to a gun rights restoration. Each case is unique. Each individual is unique. You should find an attorney that can evaluate your specific situation for any special circumstances. With those special circumstances identified, your attorney should craft a legal strategy that is specifically tailored to your situation.
If you were convicted of a felony and would like to have your civil rights 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 a telephone 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