Tuesday, December 31, 2013

Action Alert: Virginia Bills SB510- Senator Barbara Favola AND HB48- Delegate Marcus Simon to Restrict (Retroactively) Virginians Convicted of Misdemeanors from Possessing or Transporting Firearms


Update January 10, 2014: 

Companion Bill SB510 has the same issue as I notified you all of below for the House version. 


Original Post:

Today I’m going to post about HB48 patroned by Delegate-Elect Simon. Former Delegate Jim Scott proposed the exact same bill in 2013 HB1410, it failed. 

HB48 proposes:
§ 18.2-308.1:6. Possession of firearms following certain criminal convictions; penalty. 

A. Any person who knowingly and intentionally possesses or transports any firearm, or who knowingly and intentionally possesses, transports, or carries about his person any weapon described in subsection A of § 18.2-308, within a five-year period following his conviction for (i) stalking in violation of § 18.2-60.3, (ii) sexual battery in violation of § 18.2-67.4, (iii) assault and battery of a family or household member in violation of § 18.2-57.2 that results in serious bodily injury, or (iv) any offense substantially similar to clause (i), (ii), or (iii) in the laws of any other state or of the United States is guilty of a Class 6 felony. 

B. The provisions of subsection C of § 18.2-308.2 regarding petitioning a circuit court for a permit to possess, transport, or carry a firearm shall apply, mutatis mutandis, to a person subject to the prohibitions of this section. 

I understand that the intent of Delegate Elect Simon’s 2014 HB48 as it was with Delegate Scott’s version is to align with Federal law, but as with all States their laws and penalties can’t always coincide with Federal mandates. 

I had 4 concerns with the 2013 version and I have the same four concerns with this 2014 carbon-copy.

1-      Sexual Battery is a misdemeanor in Virginia and this bill proposes a felony punishment. We can’t create restrictions against certain citizens who have a misdemeanor conviction that threaten a new felony!

There was supposed to be a “re-draft” of the 2013 version that would have made it a new misdemeanor crime instead of a felony for those were previously convicted of Sexual Battery (for this very reason) but the redraft was never posted nor voted on by the Sub-committee.

If HB48 moves forward during the 2014 session the same amendment would be needed.

2-     There is no start date of July 1, 2014 for this bill if it becomes law. This bill would be retroactive for citizens who were convicted 4 years, 11 months ago or less instead of being applied to those convicted after this coming July. If they are currently gun owners and hunters they will be unknowingly committing a felony because we know the Commonwealth will not notify them ahead of time of the change in law.

By not having a start date this bill is a violation of ex post facto. 

An ex post facto law (Latin for "from after the action" or "after the fact"), also called a retroactive law, is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.  

In the United States, the Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution. The states are prohibited from passing ex post facto laws by clause 1 of Article I, Section 10. This is one of the relatively few restrictions that the United States Constitution made to both the power of the federal and state governments before the Fourteenth Amendment. 

There was supposed to be a “re-draft” of the 2013 version with an amendment adding a start date of July 1st (for this very reason) but the re-draft was never posted nor voted on by the sub-committee.

If HB48 moves forward during the 2014 session the same amendment would be needed.

3-     Either during or after the 5 year time frame (I can not determine which it is per the bill text) a citizen will have to file a petition, hire an attorney and go through the courts to restore their right to own firearms.

By requiring a petition to be filed we are not only wasting the courts time but we are wasting the financial costs to the state, plus the citizens costs for an attorney and to miss work to appear in front of a judge.

If they have not been convicted of a new crime in that 5 year time frame why doesn’t the state just automatically return their rights on the 5th anniversary? The citizen submits a form on or around the 5th anniversary of their conviction and the VSP does a check to confirm no new charges are pending or convictions occurred.

4-      In Virginia anyone convicted of a felony can apply to get their voting rights and gun rights returned through a free process, the Restoration of Rights by the Governor.

In Virginia misdemeanor offenses do not result in a citizen losing their voting rights or gun rights. Why? Because misdemeanor convictions are not supposed to destroy someone’s ability to reenter society and to become a productive citizen. A misdemeanor is supposed to be a minor “blimp”, a petty offense it is not supposed to create a lifetime filled with repercussions, restrictions and rights being revoked.

But this bill is proposing that it should.

Requiring a Virginian who was convicted of misdemeanor sexual battery to pay for an attorney to represent them in court for the right to own or transport a firearm for the first 5 years after their conviction when the Commonwealth  does NOT require felons to pay money or go to court for the same right not only seems excessive to me but perhaps some sort of violation as they are being required to submit to a more stringent process which includes coming up with hundreds or thousands of dollars and yet their conviction was a misdemeanor.

2014 HB48 has numerous issues as its predecessor did and I hope these 4 issues I’ve highlighted here today will be addressed early on by the House Courts of Justice Committee members.

If you find one or more of these points concerning as well then I suggest you Email or call your one State Delegate and your one State Senator asking them to propose the needed amendments to HB48!

Mary Devoy