A “CATCH-22” AND SECOND AMENDMENT RIGHTS

The Septuagenarian Speaks – Published May 26, 2021, Siskiyou Daily News

I started writing this column seven months ago, while listening to the Senate Judiciary Committee’s U.S. Supreme Court confirmation hearing for Amy Coney Barrett.  I focused on Democrat Illinois Sen. Durbin questioning her about District of Columbia vs. Heller, the landmark 2008 US Supreme Court decision holding that the Second Amendment protects an individual’s right to keep and bear arms for traditional lawful purposes, such as self-defense within the home. At about the same time a friend told me how she had lost her Second Amendment right.  She had been caught up in a Catch-22, a draconian California law that should be changed.

I didn’t submit the story at the time, because I didn’t want to inadvertently interfere with her efforts to solve her problem.  California Penal Code section 29800 is commonly known as the “Felon with a Firearm” law.  It is a lifetime ban on possessing or purchasing a firearm by anyone convicted of a felony.  A lifetime ban.  You may ask, what’s wrong with that?  A fair question.  If you choose to commit the crime, then you should face the consequences, right?  “Commit the crime, do the time.” 

Let me tell you about my friend.  Living in Ventura, her mother was fourteen years old when my friend was born, and there wasn’t a dad in the picture.  She recalls attending her mother’s high school graduation when she was four years old.  Starting with marijuana, she got into drugs at an early age.  The marijuana morphed into methamphetamine.  She became involved with a motorcycle group and ultimately wound up in Etna, where she fell in with a group of people in the drug scene.  In October of 2001, twenty years ago, she was arrested in Siskiyou County with a small quantity of methamphetamine in her backpack, and did some jail time.  Her crime was California Health and Safety Code section 11377(a), Possession of Methamphetamine, which at the time was a straight felony.  In California, crimes punishable by incarceration are either felonies or misdemeanors, but some, which are called “wobblers,” can be punished as either a misdemeanor or felony, depending, among other things, on how it is charged by the district attorney.  At the time of her arrest, Health and Safety Code section 11377(a) was punishable only as a felony.  Since then, the law has been changed, and the crime is now only a misdemeanor.

After her arrest, she was allowed to participate in a specialized court program, known in Siskiyou County as “Summit,” designed to rehabilitate drug offenders.  The program’s rules, prescribed by state law, required her to plead guilty to the felony methamphetamine charge, and participate in an intensive treatment program that required her to periodically appear in “drug court,” where she would tell the judge how she was doing and answer the judge’s questions.  The incentive was that her case would be dismissed upon successful completion.  During this time, and specifically on March 23, 2002, she made the personal commitment that, in her words, “Enough was enough, no more pretending.”  She turned away from the people and lifestyle engaged in the drug scene, and took control of her life.  I had the pleasure of presiding over her drug court case on May 14, 2004, the day she graduated from the program.  On that date, she had been clean and sober two years and two months.  I congratulated her and dismissed the case against her.  That was eighteen years ago.  She has now been clean and sober for almost twenty years.  She has a good job in a successful business on Miner Street, and chances are you interact with her regularly.  She has taken courses at COS, obtained a degree in drug and alcohol counselling, and has sponsored fifteen young women.  She appreciates the people who helped her along the way, specifically giving credit to Probation Officer Jennifer Villani, and Frank Barrett and Molly McGowan of the Sheriff’s Department.

Seven years ago, she inherited two firearms, a .22 pistol and a .22 rifle, which she used for plinking and shooting squirrels.  Because her criminal case had been dismissed in her drug court proceeding, it didn’t occur to her she was breaking the law by having them in her possession.  But in April of last year, her Scott Valley house burned down, and the firefighters successfully retrieved the guns.  She had previously tried to purchase a firearm from a gun shop, but was declined because the DOJ background check showed her to be a felon.  She got rid of the .22s, and hired a lawyer to petition the court to try to remove the felony conviction from her record, even though her felony conviction had already been dismissed in 2002. She faces an uphill battle under the current status of the California law.  The way the law is written, it doesn’t matter that her case was dismissed, or that her crime is no longer a felony, or that she has been a law-abiding citizen and an inspiration to others for twenty years.

Her case isn’t alone.  Back in the seventies, possession or use of marijuana was a straight felony.  If you took one puff on a joint, you were a felon.  Now recreational use of marijuana isn’t illegal.  It’s not even an infraction, less of a crime than a parking ticket.  I personally know people in our community, solid citizens probably also known to many of you, who in their youth got busted for smoking a joint.  Under existing California law, they are still felons, and have been deprived of certain of their constitutional rights, including the Second Amendment right to keep and bear arms.  They can’t serve on a civil grand jury, and until recently, were ineligible to serve on a trial jury.

Last September my friend’s attorney, while cautioning her that success was far from certain, petitioned the Siskiyou County Superior Court for an order nunc pro tunc to reduce her 2002 conviction to a misdemeanor, and then to dismiss it.  Nunc pro tunc is Latin legal jargon meaning “now for then.”   Nunc pro tunc applies when the court wants its order to be effective as of a date in the past, a conundrum in this case because in 2002 possession of methamphetamine could only be a felony. Judge Karen Dixon granted the petition, and the Superior Court issued its order last November reducing the felony to a misdemeanor, then dismissing it.  But the court order is not enough, because to acquire a firearm she needs approval from a California bureaucracy, the Department of Justice.  After obtaining the court judgment my friend has applied several times to the DOJ, but her applications have been rejected, because she didn’t pass the background check. After her most recent rejection, she applied to the DOJ to obtain a copy of her California Criminal History Information, essentially a rap sheet, which she received just recently.  The printout has an entry dated November 18, 2020: “DISPO: REDUCED TO MISD AND DISM PER 1203.4 PC.”  This entry reflects Judge Dixon’s order.  She will apply once again to the DOJ, attaching the criminal history printout.  Will she succeed this time?  Will her Second Amendment Right be restored to her?  I’ll let you know the outcome, but don’t hold your breath.  What needs to happen is that the state legislature should amend or repeal a bad law.  Don’t hold your breath on that either.

Bob Kaster
Yreka California

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