New Castle County - Civil Division                       February 4, 2003                

Re: Effect of Governor's Pardon on the Ownership of Firearms

Dear Lieutenant Governor Carney:

You have asked two questions concerning the right to possess firearms by a person receiving an unconditional pardon of a criminal offense under State law:

1) Does an otherwise unconditional pardon of a criminal offense, as a matter of Delaware law, restore the pardoned person's lawful ability to possess deadly weapons, with respect to offenses that would render such persons "persons prohibited" for purposes of Section 1448(a)(1), 1448(a)(3) and 1448(a)(7) of Title 11, Delaware Code?

2) Subsequent to an unconditional pardon granted in accordance with Delaware law, does the conviction remain a "crime punishable by imprisonment for a term exceeding one year" for purposes of Title 18, Section 921(a)(20) of the United States Code?

We conclude that an unconditional pardon under Delaware law restores the right to possess firearms that would otherwise be prohibited by 11 Del. C. § 1448(a)(1), (3) and (7). We believe that the question of whether a Delaware conviction pardoned unconditionally by the Governor is a "crime punishable by imprisonment for a term exceeding one year" under 18 U.S.C. § 920(a)(20) is more appropriately determined by the federal courts. However, recognizing that the interpretation of Section 920(a)(20) requires an analysis of the legal effect of a pardon in the jurisdiction where the conviction occurred, we will discuss the legal effect of an unconditional pardon under Delaware law.

The Delaware Constitution grants the Governor authority to pardon a convicted criminal offender. Del. Const., Act VII § 1.⁽¹⁾ Pardons or reprieves for more than six months require written recommendations approved by the Board of Pardons upon full hearing. Id.

Under Delaware law, "a pardon removes all legal punishments and disabilities attached to a conviction." State ex rel. Wier v. Peterson, 369 A.2d 1076, 1081 (Del. 1976) (emphasis added). In Wier v. Peterson, the Court had to determine the eligibility of a person convicted of an infamous crime, but later pardoned, to hold elective county office. Id. at 1080. Article II, § 21 of the Delaware Constitution expressly disqualifies persons convicted of an infamous crime from holding "any office of trust, honor or profit under this State."⁽²⁾ The Court in Wier v. Peterson found Article II § 21 to be an eligibility for public office provision that looks forward toward the character of the person in his future actions rather than a penal provision that looks back to punish a previously occurring conviction. Wier v. Peterson, 369 A.2d at 1081.

The Delaware Supreme Court confirmed that a pardon removes the disabilities imposed as punishment for a criminal conviction in State v. Skinner, 632 A.2d 82 (Del. 1993). The Court in Skinner defined a pardon as:

[A]n executive action that mitigates or sets aside punishment for a crime. It is an act of grace governing power which mitigates the punishment the law demands for the offense and restores the rights and privileges forfeited on account of the offense.

Id. at 84, quoting Black's Law Dictionary 1113 (6^th ed. 1990).

In Skinner, the Court held that a pardon does not expunge a criminal record under a statute that expressly limits expungement to cases in which there has been an "acquittal, nolle prosequi or other dismissal."⁽³⁾ Id. The pardon does not remove the fact of or the guilt for the underlying criminal offense in the face of an unambiguous statute to the contrary. Id.

Section 1448 of Title 18 of the Delaware Code prohibits persons convicted of specified criminal offenses from procuring or possessing a deadly weapon⁽⁴⁾ or ammunition for a firearm within the State.⁽⁵⁾ These "persons prohibited" include those convicted of felonies; crimes of violence involving physical injury to another; possession, use or sale of controlled substances; and, misdemeanor domestic violence. A violation of this statue resulting from possession of a firearm or ammunition carries criminal punishment of up to 8 years in prison. 11 Del.C. § 1448(c); 11 Del.C. § 4205(b)(4).

In State v. Robinson, 251 A.2d 552 (Del. 1969), the Court discussed the legislative history of the statute in the course of addressing certified questions:

The General Assembly has stated that the prior commission of any felony is sufficient to make illegal the possession of a firearm, unless special permission is granted by the Board of Pardons.

* * *

As this Court has often stated, the wisdom of a statute is a matter solely for the consideration of the General Assembly. It has seen fit to impose upon any and all felons, regardless of type, the disability § 470⁽⁶⁾ unless and until removed by the Board of Pardons.

Id. at 555.

This language in Robinson strongly suggests that the General Assembly intended to grant the Board of Pardons discretion to remove the restrictions on procuring and possessing firearms against those "persons prohibited" under Section 1448. Such an interpretation squares with the reasoning in Skinner and Wier that a pardon removes the penal consequences of a conviction. It is also compatible with the right to bear arms under Article I, § 20⁽⁷⁾ of the Delaware Constitution. Therefore, we conclude that an unconditional pardon under Delaware law restores the right to purchase and possess firearms by persons prohibited under 14 Del. C. § 1448(a)(1), (3) and (7), subject to applicable regulations.⁽⁸⁾

Having concluded that an unconditional pardon restores the right of a person prohibited under 14 Del. C. §§ 1448(a)(1), (3) and (7) to purchase and possess a firearm in accordance with

the law, we turn to the legal effect of an unconditional pardon under Delaware law for purposes of interpreting 18 U.S.C. § 921(a)(20). Under 18 U.S.C. § 922(a)(1) a person "who has been convicted in any court of a crime punishable for a term exceeding one year" is prohibited from possessing any firearm "shipped or transported in interstate commerce." Section 921 (a)(20) is an amendment to the federal gun control laws which excludes from the term "crime punishable by imprisonment for a term exceeding one year" in Section 922 (g)(1) "any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored. . . unless such pardon, expungement or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms." 18 U.S.C. 921(a)(20) (emphasis added).⁽⁹⁾

The consequence of Section 921(a)(20) is to provide legal effect under the federal gun control laws to the state statutes determining the eligibility of a felon to possess a firearm in the jurisdiction in which the conviction occurred. U.S. v. Thomas, 991 F.2d 206, 209 (5^th Cir. 1993). While the federal courts look to state law to consider whether civil rights have been restored after conviction under Section 921(a)(20), the federal courts determine whether any restrictions placed on the right to possess firearms by the state subjects the person to the federal restrictions against the possession of firearms under Section 922(g)(1). Accordingly, we limit our discussion of this to the legal effect of a pardon under Delaware law and defer to the appropriate federal enforcing authorities and reviewing courts to determine the applicability of Section 921(a)(20) and 922(g)(1) on a case by case basis.

The federal courts have not addressed directly the issue of the effect of a State pardon on Section 922(g). In U.S. v. Richardson, 168 F.3d 836 (5^th Cir. 1999), the Court had to determine whether a conviction under state law which was later pardoned was a "crime punishable by imprisonment for a term exceeding one year" under Section 922(g)(1) prohibiting possession of a firearm shipped or transported in interstate commerce. The State of Louisiana issued a pardon to a convicted felon that restricted the felon's right to possess firearms until ten years after completion of the sentence for the crime Id. at 839. Since the pardon expressly restricted the right to possess a firearm, the state conviction served as an underlying offense to establish criminal liability under Section 922(g)(1). We note, however, that an unconditional pardon under Delaware law would have no similar restriction and may cause a different outcome under federal law.

In Beecham v. United States, 511 U.S. 368 (1994) (summarizing the procedural history of Jones v. United States, 993 F.2d 1134 (4^th Cir. 1993)), the United States Government conceded that State convictions subsequently pardoned by the State in which the crime was prosecuted could not serve as predicate felonies for purposes of 18 U.S.C. § 922(g)(1).⁽¹⁰⁾ Because the Government conceded the point on appeal in that case, the courts have not had the opportunity to rule on the issue.

The Third Circuit in U.S. v. Essig, 10 F3d 968 (3d Cir. 1993) addressed the question of what constitutes a "restoration of civil rights" under Section 921(a)(20). That Court reasoned [O]nce a core civil right⁽¹¹⁾ has been lost . . . § 921(a)(20) should be interpreted to require a restoration of civil rights that has the same practical effect as a pardon or expungement of the record." Although "civil rights" are not defined in Section 921(a)(20), the federal courts consistently examine the core civil rights, i.e., the right to vote, serve on a jury and to seek and hold public office. Essig, 10 F3d at 975. In Essig a conviction under Pennsylvania law punishable by more than one year, which was not pardoned, disqualified a person from serving on a jury, therefore the exclusion in Section 921(a)(20) from the gun possession prohibition imposed by Section 922(g)(1) did not apply. Id. at 976.

Under Delaware law, a pardon restores the right to vote: "Any person who is disqualified as a voter because of a conviction of a crime deemed by law a felony shall have such disqualification removed upon pardon." Del. Const. Art. 5, § 2. Similarly, a pardon restores an offender's right to serve on a jury: "All persons are qualified for jury service except those . . . convicted felons who have not had their civil rights restored." 10 Del. C. § 4509(b)(6).

The Delaware Constitution provides that "[n]o person who shall have been convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State." Del. Const. Art. II § 21. This disability is not removed by a gubernatorial pardon. State ex. rel. Weir v. Peterson, 369 A.2d 1076 (Del. 1976).

Although "embezzlement of the public money, bribery [and] perjury" have statutory meaning, the term "infamous crime" is neither defined by statute nor intuitively obvious. The term encompasses at least crimen falsi under Delaware law. Dorsey v. City of Dover Board of Elections, 1994 WL 146012 (Del. Super.). The term also includes other felonies such as grand larceny and felonious sodomy. See Fonville v. McLaughlin et al., 270 A.2d 529 (Del. 1970); Wier, supra. However, not every felony is an "infamous crime," and "the totality of the circumstances in each case must be examined before a determination may be made that a specific felony is infamous." Wier, 369 A.2d at 1079.

The Court in Wier eloquently articulated the purpose of the Delaware constitutional restriction on holding office:

To fully understand the operation of Art. II, s 21, it is necessary to examine its purpose. In our view, it is essentially a character provision, mandating that all candidates for State office possess high moral qualities. It is not a provision designed to punish an offender. While conviction of an infamous crime does not imply than an offender is incapable of functioning as a respected and productive member of society, it is irreversible evidence that the offender does not possess the requisite character for public office. It is important to emphasize that we are not concerned here with the standard of compassion which should govern daily interpersonal relationships. We deal, rather, with a norm established by our Constitution for those who seek to govern us. Without question, it is a demanding norm.

The question of the effect of a post-conviction restoration of civil rights and the effect of a pardon-while related-are analytically distinguishable. In Delaware, a restoration of civil rights is a statutory procedure⁽¹²⁾ that effects a certain consequence. A pardon is a constitutional provision that forgives-although it does not forget-the crime. State v. Robinson, supra. Whether the constitutional restriction on holding public office in Delaware presents a full restoration of civil rights concerning the federal enforcement of 18 U.S.C. §§ 921(a)(20) and 922(g)(1) is a matter for the appropriate federal enforcing authorities and reviewing courts to decide in a particular set of factual circumstances.

To summarize our conclusions, an unconditional pardon in Delaware restores the right of a person prohibited by 11 Del. C. § 1448(a)(1)(3)(7) to possess a firearm. An unconditional pardon does not expressly restrict a persons right to possess firearms. While an unconditional pardon in Delaware restores the right to vote and serve on a jury, a conviction for embezzlement, bribery, perjury or other infamous crimes precludes a person's right to hold public election office. The purpose of this restriction is to establish a character requirement for holding public office rather than imposing a punishment for a criminal conviction. The effect of this constitutional restriction against holding public office on the enforcement of 18 U.S.C. § 921(a)(20) and 922(a)(1) is a determination for the appropriate federal enforcement authorities and reviewing courts on a case by case basis.

If you have any questions, please do not hesitate to contact our office.

Very truly yours,

Lawrence W. Lewis
Deputy Attorney General

APPROVED

Malcolm S. Cobin
State Solicitor

1. "The Governor shall have power to remit fines and forfeitures and to grant reprieves, commutations of sentence and pardons, except in cases of impeachment." Delaware Constitution of 1897, Art. VII § 1.

2. "No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crimes, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State." Delaware Constitution of 1897, Art. II § 21.

3. Section 4372 of Title 11 of the Delaware Code reads in pertinent part:

"(a) If a person is charged with the commission of a crime and

"(1) Is acquitted; or

"(2) A nolle prosequi is taken, or the charge is otherwise dismissed, the person may file a petition setting forth the relevant facts and requesting expungement of the police records, and the court records relating to the charge. . . .

"(c) A copy of the petition shall be served on the Attorney General, who may file an objection or answer to the petition within 30 days after it is served on the Attorney General."

4. "Deadly weapon" is defined to include not only firearms but also bombs, knives, slingshots, bicycle chains, "or any dangerous instrument." 11 Del.C. § 222(5).

5. Section 1448 of Title 11 of the Delaware Code reads in pertinent part:

"(a) Except as otherwise provided herein, the following persons are prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm within the State:

• "Any person having been convicted in this State or elsewhere of a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence; . . .

"(3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms are defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16; . . .

"(7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. . . ."

6. Section 470 is the predecessor to the current Section 1448, which was codified in 1971.

7. "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use." Article I, § 20 is broader than the protection afforded by the Second Amendment of the United States Constitution in that the Delaware provision expressly confers a right to possess firearms rather than preventing congressional infringement of that right.

8. To the extent that Attorney General's Opinion 92-CO06 (Feb. 10, 1992) suggests that a pardon of a convicted felon does not restore the right to possess a firearm under 11 Del.C. § 1448, that part of the Opinion is rescinded.

9. "Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, . . ." Reiter v. Sonotone Corp. et al., 442 U.S. 330, 339 (1979).

10. "If the felony on which the federal firearms disability is based was a state offense, then the law of the convicting state determines the status of the defendant's conviction for federal purposes." Respondents Brief on Writ of Certiorari, Beecham v. United States, United States Supreme Court, No. 93-445, *7 (1994 WL 96876).

11. This Office notes that the adjective "core" in "core civil rights restore" in both United States v. Thomas and Essig is a judicial addition to the statute. While "civil rights" may be ambiguous in the context of Section 921(a)(20) and requiring modification, the term "pardon" has not been shown to be ambiguous and is not modified. The United States Supreme Court has held that when a statute is plain on its face, further statutory construction is not appropriate. Barnhart v. Sigmon Coal Co., Inc. 534 U.S. 438, 450 (2002).

12. "[T]he Board [of Pardons] may make a final order of discharge and issue a certificate of discharge to the person; . . . Such discharge, and the discharge of a person who has served person's term of imprisonment, shall have the effect of restoring all civil rights lost by operation of law upon commitment." 11Del.C. § 4347(i).