Virginia Lawyers Weekly VA Lawyers Weekly
Where petitioner was convicted of a sex crime that requires him to permanently register as a sex offender, the requirement precludes the restoration of his firearm rights.
Background
After a plea-based conviction of taking incident liberties with a child, petitioner “complied with the terms of his sentence and had his rights to vote, become a notary public, serve on a jury, and hold public office restored by Gov. Terence R. McAuliffe on Aug. 15, 2016.
“However, because of his conviction and the danger he poses to the community, the General Assembly requires Petitioner to permanently register as a sex offender. Petitioner petitioned to have his firearm rights restored October 30, 2020. This Court heard the Petition on December 11, 2020, and took the matter under advisement.”
Relevant law
“After a conviction, a felon may later seek the removal and/or restoration of certain political disabilities and rights. The governor may restore rights that do not involve ‘an inherent danger to public safety,’ such as the right to vote, hold public office, or serve on a jury. … However, because of its risk to public safety, the restoration of firearm rights raises unique policy and procedural considerations. As such, the General Assembly has specifically granted the power to restore those rights to the circuit courts. …
“According to the statute, the Court may only restore a felon’s firearm rights if he first has his other civil rights restored and then demonstrates good cause. … Further, the Court has full discretion in deciding whether to restore a felon’s firearm rights. …
“While neither the statute nor caselaw have explicitly defined what constitutes good cause, the Court must consider local public safety concerns. … Moreover, this Court’s precedent has developed a set of non-exclusive factors for reviewing firearm rights restoration petitions. … The factors include: “‘(1) The nature of the crimes for which the Petitioner stands convicted; (2) Whether the crimes involved the use of a firearm; (3) How long ago the crimes were committed; (4) Was the Petitioner punished for his misconduct; (5) Since his release from incarceration, has the Petitioner led a law-abiding life; (6) What efforts has the Petitioner made that are indicative of rehabilitation; (7) Is the Petitioner seeking restoration for a lawful purpose.’ …
Analysis
“In this case, the Petitioner failed to demonstrate sufficient good cause to override the dangers he poses as a registered sex offender. Petitioner submitted very little persuasive evidence in support of the factors outlined above. Moreover, the policy considerations underlying his conviction and the resulting punishment undermine his good cause arguments and demonstrate his risk to public safety.
“Petitioner offered no evidence in support of the factors in his petition and provided only scant evidence at the hearing. As to factors two through seven, his conviction occurred 22 years ago in 1998, but Petitioner was already 33 years old at that time.
“Petitioner claims he fulfilled the obligations of his sentence and that a firearm was not used during the crime. Petitioner’s proof of rehabilitation is his 20 years of employment as an IT engineer and lack of criminal convictions since his previous conviction. As to his lawful purpose for seeking restoration, Petitioner stated during the hearing that he would like the right restored so he could defend his home given the current state of affairs, to fulfill his ‘civic duty … to provide defense of the law,’ and to help him progress on his philosophical and spiritual journey of rehabilitation.
“Yet, the nature of the crime for which Petitioner was convicted and the accompanying punishment raise the most serious concern. … Petitioner admitted during the hearing that Taking Indecent Liberties with a Child is a serious offense. In fact, the General Assembly has categorized it as a Tier III offense under the Sex Offender and Crimes Against Minors Registry Act[.] …
“Because of his conviction, Petitioner is required to register with the Sex Offender and Crimes Against Minors Registry[.] … Moreover, he must be photographed by local law-enforcement every two years and must ‘verify his registration information with State Police’ every three months ‘for life.’ …
“Furthermore, unlike individuals convicted of Tier I and Tier II offenses, Petitioner may never petition to be removed from the Sex Offender Registry[.] …
“The stringent registration requirements and lifetime ban on petitioning for removal from the Sex Offender Registry manifest the General Assembly’s intent to label Petitioner a danger to public safety. … Petitioner’s continued supervision by the Commonwealth indicates to this Court that Petitioner still cannot be entrusted with firearm rights.”
Conclusion
“It has been 22 years since Petitioner was convicted of Taking Indecent Liberties with a Child. However, the General Assembly requires that Petitioner remain on the Sex Offender Registry for the rest of his life to alert the public of his potential risk to the community.
“Given the nature and ongoing requirements of his conviction, which stem from his potential danger to the community, Petitioner has failed to demonstrate good cause that outweighs the threat to public safety that firearm rights restoration inherently raises.”
Petition denied.
Stoddart v. Commonwealth, Case No. CL-2020-17011, Jan. 8, 2021, Fairfax Cir. Ct. (Ortiz). Paul Mickelsen, Lyle Burnham II for the parties. VLW 021-8-007, 14 pp.
