Court allows some convicts to own guns

Copyright © 2014 Albuquerque Journal

Successful completion of a deferred sentence allows a person convicted of a criminal felony offense to own guns, the New Mexico Supreme Court said in a case decided Thursday.

“I think it has broad significance for New Mexico on both the federal and state sides,” said attorney and former state Supreme Court Justice Paul Kennedy, who represents James Oliver Reese in the case decided Thursday. “It really clarifies the law for people in this position and clarifies that these people cannot be prosecuted anymore.”

A deferred sentence requires someone to complete certain conditions, like probation, after which the conviction will be dismissed.

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The opinion by Justice Richard C. Bosson for a unanimous court said the state Legislature set up deferred sentences as a way to offer clemency. As a result, a defendant who satisfies the conditions of deferment has criminal charges dismissed, “automatically restor(ing) a convicted felon’s civil rights by operation of law.”

Federal and state statutes are deeply intertwined in the area of gun ownership, with federal law saying a person “convicted in any court” of a felony may not possess a firearm.

The question in Reese’s case was whether he was a felon.

Reese, in 1992, entered a no contest plea in 2nd District Court in Bernalillo County to a single felony of tampering with evidence. The district court deferred sentencing and placed him on probation for 18 months. He completed the terms of his probation, and the charge was dismissed.

More than a decade later, amid what the court called “a maelstrom of domestic strife” involving current and former wives and a girlfriend, U.S. Bureau of Alcohol, Tobacco and Firearms agents obtained warrants to search his home in Milan, N.M. They took over 30 firearms and ammunition and charged him in a 24-count federal indictment related to the procurement of firearms and his prior felony conviction.

Reese contended he didn’t have a prior felony because it had been dismissed, but he entered a conditional plea to a single charge while reserving his right to take the case to the next level – the 10th Circuit Court of Appeals in Denver.

The 10th Circuit said that to decide Reese’s case, it needed to know how the state Supreme Court interpreted New Mexico law, and that the New Mexico court’s decision would decide the case.

The federal court asked the question: If a defendant completes a deferred sentence for a felony, are the individual’s rights automatically restored without a pardon or certificate from the governor?

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The Supreme Court said yes.

Kennedy said he believes the Reese opinion will mean fewer prosecutions by the U.S. Attorney’s Office of people charged with being a felon in possession of a firearm, though clearly not all prosecutions involve defendants with deferred sentences.

The U.S. Attorney’s Office was not available for comment.

“The other impact is people who have completed (a deferred sentence) can go get a gun,” Kennedy said. Before the opinion, he said, even if they’d been cleared they couldn’t buy a firearm because they were unable to meet federal clearances.

Steve McCue, the federal public defender for New Mexico, agreed the case could have an impact, though he could not estimate how many felon-in-possession cases his office has handled that might be affected by the ruling.

“It is difficult,” he said, “because federal and state law both apply in this area.”

Ironically, Kennedy noted, Reese joined the U.S. Navy after finishing his probation. The Navy deployed him to the Persian Gulf on a destroyer in charge of missiles – only to return to New Mexico and be told he could not own or possess firearms.

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