A recent decision from the Arizona Court of Appeals has made it possible for some out-of-state felons to restore their firearm rights in Arizona. See media report here. For the first time, the Court of Appeals held that Arizona courts have the power to evaluate and make determinations with respect to out-of-state convictions when determining whether to restore firearms rights for a person now living in Arizona. See State v. Gahary, Case No. 2 CA-CR 2021-0042 (Ariz. Court of Appeals August 23, 2021).
Below is a brief summary of how to restore firearm rights in Arizona with a discussion of the Gahary case at the end.
How to restore firearm rights in Arizona
In Arizona, where firearm rights are restricted based on state court criminal convictions, restoring those rights depends on the type of crime committed. See Ariz. Revised Stat. § 13-910(A). In brief, there are four classifications:
- Dangerous offenses – dangerous felony crimes
- Serious offenses – felony crimes but not “dangerous” as defined by Arizona law (see below); an example would be murder that does not involve a “deadly weapon”
- Non-serious offenses – generally, felony crimes are defined as any crime for which a sentence of more than a year can be imposed; many crimes are felonies by this definition, but may not be “serious”
- Misdemeanor domestic violence – a “misdemeanor” crime is generally one where the prison sentence that can be imposed is less than a year
Arizona statutes define a “dangerous offense” as an offense involving “the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.” See Ariz.R.Stat. § 13-105(13).
What is the process for restoring firearm rights?
There are two methods of seeking to have firearm rights restored in Arizona: a petition for a “set-aside” and a petition for restoration of firearms rights. A “petition” is a written filing with an Arizona court asking the court to make a determination and issue an order restoring firearm rights.
Which type of petition should be filed depends on how the underlying crime is classified. Neither type of petition can be filed for convictions for a “dangerous offense.” Such convictions result in a lifetime ban on firearm rights. Obtaining a pardon from the Governor is the only method of restoring firearm rights if you have been convicted of a dangerous offense.
For persons convicted of a “serious offense,” the only type of petition that can be filed is a petition for restoration of their firearms rights after the passage of ten years from the completion of sentencing.
For persons convicted of non-serious offenses, there are two options. First, immediately after sentencing is completed – including any term of incarceration or probation – the person can immediately file for a set-aside. Alternatively, a petition for restoration of firearms rights can be filed two years after the completion of sentencing.
For persons convicted of misdemeanor domestic violence, the only method of restoring firearm rights is to ask the court for a set aside order that restores firearm rights.
With either type of petition, the ultimate decision will be made by an Arizona judge based on his or her discretion. The statute specifically states that “[t]he restoration of the right to possess a firearm is at the discretion of the judicial officer.” Ariz. Rev. Stat. § 13-910(B). Generally, the Arizona State’s Attorney will file a response to a petition for set-aside or for firearm rights restoration stating whether the State objects or does not object to granting the petition. Usually, if requested, the court will hold a hearing on the petition.
The Gahary case
As noted above, in the Gahary case, the Arizona Court of Appeals held – for the first time – that Ariz. Rev. Stat. §13-910 empowers Arizona trial courts to consider whether felony convictions from other states merit restoration of firearm rights of persons living in Arizona.
In Gahary, the petitioner – Jacques Gahary – filed a petition with an Arizona trial court to restore his right to own, possess and/or carry a firearm. Before moving to Arizona, Gahary had pled guilty to attempted criminal possession of a weapon in the third degree in New York in 1982. Gahary received a $500 fine for the offense and Gahary paid the fine. In addition, in 1994, Gahary was convicted of “Gifts to Public Servants” in New Jersey. For that crime, he was sentenced to two years of probation and received a $125 fine. Gahary served his probation and paid his fine.
In 1996, Gahary moved to Arizona. In February 2021, Gahary sought to have his firearm rights restored. However, in March 2021, the Arizona trial court denied Gahary’s petition claiming that, since the felony convictions were in New York and New Jersey, an Arizona state court was “without the authority to grant such relief under the Arizona Revised Statutes.” The Arizona state prosecutors filed papers supporting the trial court’s decision arguing that an Arizona court “has no jurisdiction to restore civil rights lost from a foreign-state conviction.”
Gahary appealed and the Arizona Court of Appeals disagreed with the trial court. The Court of Appeals held that the “plain language” of Section 13-910 authorizes the trial court to consider Gahary’s restoration petition. The court noted that the statute explicitly permits the “judicial officer” to exercise discretion in restoring firearm rights and unambiguously makes the statute applicable to offenses committed in another state. The court concluded:
“Section 13-910 plainly provides trial courts with authority to consider whether felony convictions from other states merit restoration of firearm rights in Arizona …”
For these reasons, the trial court’s ruling decision was reversed and the case was returned to the trial court for further proceedings.
This is new law in Arizona and should be considered a tremendous victory for firearm rights proponents in Arizona. The Gahary decision makes it possible for felons with out-of-state convictions to have their firearm rights restored in Arizona.
Find A Firearm Rights Attorney Today
If a conviction or something else in your past is inhibiting your ability to own and carry a firearm, you may benefit from the help of an experienced firearm rights-focused attorney. FirearmRights.net can help you find attorneys in your area that can provide advice and legal counsel. This website has been developed by firearm rights attorneys with extensive experience in protecting firearm rights. Our goal is to support the firearm community by restoring the rights of people who deserve them.
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