Episode 21: What To Do When… When Your Gun Rights Have Been Taken with Scott Cardani and Will Smith.
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Episode 21: What To Do When… When Your Gun Rights Have Been Taken with Scott Cardani and Will Smith.
Welcome to What To Do When….A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss What to do When, and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 00:27
Alright, here we go. Welcome back to another What To Do When… A Dummies Guide To The Legal Verse.
Will Smith III 00:33
What are we talking about today, Scott?
Scott Cardani 00:35
Well, we’re going to talk about what to do when your gun rights have been taken.
Will Smith III 00:38
Okay… In Virginia, what I mean, When are your gun rights taken from you?
Scott Cardani 00:43
You know, there’s again, or we’re gonna be real general in this podcast, because this is a very, very nuanced kind of place in the law. But basically, we’re talking about felonies. And as you know, they’re state felonies. And they’re federal felonies, there’s violent felonies, there’s non violent felonies. So that’s part of the equation. If you, you’ve had a mental health issue, likely your gun rights are restored, I’ll come back to that. Protective orders, If you’re under a protective order, you don’t have the right to possess a gun. If you’re here illegally, in the United States, you can’t possess a gun set to Yep. I didn’t know about this one. I forgot about this one, actually, I think is a dishonorable discharge. If you’ve been dishonorably discharged, you have, you do not have the right to bear arms. But the big one we see and a big one, I wanted to kind of key on a little bit as mental health issues, because I think people really misunderstand this there. This was kind of added to the law over the last few years. And it is really, really broad. Yeah, so and most people don’t understand it. And I’ll give a quick example, in this is, well, let me back up a little bit. I don’t want to jump over real quick. But what we’re trying to talk to you about is there are many avenues to get your gun rights back. And you have to know what it is you are convicted of, or what your issues are, before you walk into that store and try to purchase a gun.
Will Smith III 02:14
We Talked about this in earlier podcasts, I mean, what kind of what kind of issues you’re going to run into when you try to walk into that store, when you’re when your rights have been? What when your rights have been taken from you?
Scott Cardani 02:24
Or, if you don’t even know your rights have been taken, that’s a big one. And that’s kind of why we want to focus on this a little bit and reiterate some of the stuff because you know, a lot of people don’t realize that give you an example you get you have an alcohol or drug product problem, and you get TKO’d some weekend because temporarily restrained in a mental health facility is what I’m talking about. But if you get put away for that weekend, and you think no big deal, you come out and try to purchase a firearm, guess what you can’t. And I’ve had so many clients, or the other side of this is when they had a civil restoration by the governor. It doesn’t always include the gun rights. And some people thought I had my voting rights restored, they run into a gun store to get a gun and all sudden they find out. Oops, right. And remember picking up the gun to look at it in the store. You possessed a firearm. That’s right.
Will Smith III 03:19
And Scott stuff that you’re talking about that the governor has the right when you are convicted of a felony, you lose your civil rights. And so those civil rights are gonna be your right to vote right to serve on a jury, right to serve an office become a notary public. And then lastly, you know, have your right to, to possess a firearm. And so when your rights are restored by the governor, the governor has the sole discretion in this state to restore the civil rights of the citizens of the Commonwealth of Virginia. However, when he restores us civil rights, the one thing that is going to be left out almost every single time is your right to possess or transport or own a firearm. And so that’s the one thing so when your rights are restored, that’s great. But realize that that doesn’t mean that you can now go out and try to purchase or possess a firearm.
Scott Cardani 04:05
And I have had that very case where my guy was such a model citizen, and it broke my heart. He had, he was probably 60 or 70 years old. And you know, he had trouble when he was 18 years old, had a couple felonies, but he lived a model life from there on and finally got his rights restored. He waited even a few years, five or six years after that, and then decided they were traveling across country and doing smart and he decided to get a gun and lo and behold, what he thought happened had not happened. And he was facing the charge.
Will Smith III 04:36
Right. And that yeah, we I mean, we see. I mean, it feels like it’s almost every week now where somebody goes to green tarp or to Cabela’s or wherever it is they’re going and they you know, thought that they are their rights had been restored. And maybe it’s like in the case of your client, you know, had been restored years before but still didn’t have that one right restored and so now he’s looking at a felony charge.
Scott Cardani 04:55
Yeah, it’s really serious and you know, and the thing is it kind of snowballs now you have a felon You know, you have another felony conviction. So you know, you’re, it’s really hard to get your rights restored. One of the things I’ve learned in this process and if you do get that can charge of purchasing a firearm, make sure you come talk to somebody and talk about during the time before your trial trying to get your rights restored. A lot of people don’t do that. That’s a big thing we do here at Critzer Cardani is we try to get your rights restored before you can go to court. And then you say, Judge, you didn’t realize that his rights are restored to buy that gun now and judges are often looking at pretty positively.
Will Smith III 05:29
Yeah, I mean, it’s kind of a enlink cases, also, when people lose their driver’s license. One thing that you try to do every time there’s a driver, like someone driving on a suspended driver’s license, get that license back. You know, you come back before the judge with your license, in this case, come back before the judge with your rights restored, the judge is going to look at it a little bit differently than if you just do nothing at all.
Scott Cardani 05:46
Absolutely. So look, what we’re trying to say here is that just because you’ve lost your rights, doesn’t mean you can’t get them restored. And every case is different. But I’m telling you, if you’ve had any trouble in your life, don’t just go try to buy a handgun, or a firearm, check it out first. But do your due diligence, do your due diligence. There’s ways that we can help you get them back, if it’s possible. There are some people who would, for whatever reason, like a violent felony, it really amps up the the ladder, so to speak, to get it. If you have federal charges, you have to go to federal court to get your rights restored. And so people need to know that. But the point is, you can do it. And if that’s a big deal to you, which you know, your Second Amendment right, for some people is a big deal. It’s a big deal to me. So, you know, you’ve got to realize that you can do that. So, well. What do you do when somebody comes to you to get their rights restored?
Will Smith III 06:40
Well, first thing I ask, you know, is, what their what they were convicted of when it was and what they were convicted of, because that’s going to determine really what our steps are moving forward. Additionally, you know, if somebody has been committed for, you know, mental health issue, or deemed incompetent or insane at the time of an offense, or wherever the case may be acquitted for reasons of insanity. You know, that’s going to change, ultimately, where you file that petition. From there also, you know, I asked for them to do a I’d get a background check from the state police to because that’s going to be the number one place to go to make sure that you know, for for a fact that you weren’t convicted of a felony or you were convicted of a non violent felony or or a violent felony, for that matter.
Scott Cardani 07:18
Does the state police have the mental health check on there?
Will Smith III 07:22
That’s a great question. Scott. I’m not sure if you asked me because you know the answer.
Scott Cardani 07:25
I don’t know the answer to that. I think they have that information, because the state police are who checks it. So I do believe it’s marked on your transcript. I don’t really, I haven’t read the transcript, really to see where it is. But I’m pretty sure it’s on there. Because what you do when you walk into a gun store, the first thing they do is send your information off to the state police to see if you qualify. So they’re the only they’re the bearers of information. So I’m guessing if you go get a record, check from them that would have that.
Will Smith III 07:49
Right. And that mean, as far as the, you know, incapacitated, or involuntary commitments, or all the things that you know, like that, that stuff, I believe, is is reported by the state to the state police. And so that’s going to be on the record as well.
Scott Cardani 08:02
Yeah, it will be in the registry for sure.
Will Smith III 08:04
But then you have your two different types of petitions. Because if you’re looking at a reason for, you know, mental health issue, or that was the reason that you’ve lost your right to possess, or transport or own a firearm. Then you’re going to file that in the general district court. Yes, sir. And then if it’s a felony, or you know, you’ve had your rights restored by the governor said, I guess I got ahead of myself. But that’s always the second or third question we’ll have you had your civil rights restored by the governor, because he’s the only person in the entire state is going to be able to restore your state rights. For federal, you know, conviction that we’re looking at, well, we then we got to make sure we get our rights restored to the federal courts too. But then, you know, going from there, if it’s a circuit petition, or if it’s a circuit petition, based on the denial and the general district court, you know, what you’re going to do is file with the court. Show them that you’ve had your civil rights restored. Then ask the judge, you know, to give you your rights back, and if you’ve been a good enough citizen over a long enough period of time, and you’ve done everything you’re supposed to do, in my experience, at least, and you know, that handling these types of matters, you know, the judges are going to give you rights back. Not in every case, but in if you’ve if you’ve done everything that they’ve asked you to do, in almost every case that I’ve had, actually every case that I have had, so far, the judge has been restoring those rights.
Scott Cardani 09:17
Yeah, and I think it’s jurisdictional obviously, if the jurisdiction has a lot more gun violence, who’s gonna be a little harder. But still, it’s your constitutional right, remember that. Even though you lost it, you have the right to try to get it back. And I think most judges look at it that way. They look at this as important right? And like Will said behavior behavior behavior. You know, if you violated your parole six times or things like that, that’s going to that’s going to hurt your chances to get your, your gun rights restored. So if you have a mishap, obviously, the best thing you can do is live a clean life from there on and, and time is important. I mean, if you get a conviction 2020 And you’re trying to get your rights restored and 2022 it’s probably gonna be pretty slim chance of that happening. So have any chance of getting it done. So, you know, you need a good five or 10 years of good behavior showing that you’re involved in the community that this was a mistake in your life. That’s what they’re looking at. Yeah, Judge I made a mistake. And I’ve corrected that mistake, I’m living a good life. Now I’m, you know, I’m productive, you know, you know, one of the good thing is be really involved in the community, you know, get somewhere where you can give back, you know, and show the judge haven’t given back for 10 years judge, I’ve been working with the boys and girls home, you know, or whatever it is, that’s really important. And it really does show that you’ve changed your stripes so to speak, and they don’t have to worry about you the the biggest thing that judges weighing is, are you ready to last them? Is it worth the risk to give it back to you? Are you in solid enough ground to get them back? So that’s what I that’s what they’re looking at, I think it’s really important that you have a history of, you know, I don’t care where it is, but just being involved and doing stuff, having a good life raising good kids do and all that kind of stuff, you know, those those are things that judge looks at. Then the reason you want your rights restored is also important. You know, self defense by itself is probably not the best one. Sure, quite frankly, you know, it’s it’s a right and you should have that right to self defense. I’m not arguing that I’m just saying, you know, hunting, you know, protection, those kinds of things, home protection, those kind of things are a little better. But a shooting, target shooting is a good one, you know, if you like it, a lot of people like to shoot guns. So there’s nothing wrong with that I like to shoot guns, I don’t have a problem with that. And I want to say something I probably shouldn’t say because it’s in the middle of nowhere. But remember, bullets don’t explode by themselves. And bullets in and of themselves are not dangerous. But having ammunition if you’re a convicted felon, or that some of these things can be just as dangerous. So be careful that people like to make bullets bad. I mean, I think I could throw a 12 gauge shell across this room as hard as I could. And the likelihood of it exploding is zero. Yeah. But people don’t understand that people think bullets are bad, because guns are bad. Because we know that there are inanimate objects, I guess people are bad. So remember that, folks, I mean, let’s get a little bit of a grip on life and keep trucking. But I want to talk and emphasize a couple of things here as we close number one. Most likely, if you’ve been a good productive citizen, you can get your rights restored, even if it’s a pretty bad felony. And that’s really positive for a lot of people, they sometimes you feel like your life’s over that you blew it with a felony when you’re 18 years old. And you know, you never have a chance. But man, you have a chance and even more now. So I think that anytime in history, the right to get yourself back and you know, get your civil rights restored, and get your firearms rights restored are really open. So and then the biggest thing you can do is come talk to a lawyer really, don’t try to do this on your own. There are steps, there’s little processes, there’s things to know things not to know. And as Will said, You gotta be in the right court versus the wrong court. So many people file in the wrong court and they get denied, and they can’t figure out why they got denied. Really, they were just in the wrong place.
Will Smith III 12:58
I can’t tell you how many of those I’ve seen too.
Scott Cardani 13:02
And I want to close with one thing. I think this mental health piece is one we see the most when people get convicted. Because they don’t realize that those if you were under any kind of psychological care, you probably should hedge your bets that your rights. You don’t have a gun right anymore. Correct. That’s kind of how it’s going in society right now. So I would hedge your bets against that. And again, but that’s actually usually an easier petition, then because it’s in the general district court. Courts are pretty lenient, especially if you had a breakdown when you were 19 years old, and you’re sure you’ve gotten healthy and you’ve lived a good, you know, five, even five years. And that is pretty good cycle of time to show that.
Will Smith III 13:44
Well, people Yeah, that become like medication compliant and they become, you know, they level out and they things become a lot more stable than Yeah. Because those are the ones that you always read about in the news were such and such, you know, was deemed incompetent or was temporarily, you know, had temporary detention order. And next thing you know, he’s out, buying a firearm slipping through the cracks and night. But I think that that’s happening a lot, lot less now. And you need to make sure you know that you are eligible before you go in and try to do these things because that’s when you’re setting yourself up for further criminal liability.
Scott Cardani 14:15
Absolutely. So here’s what our point is. You likely can get your gun rights restored time, and the right attorney makes a difference. So come see us at Critzer Cardani. We’ll help you and we’ll do everything we can to get your rights restored. Thank you.
Will Smith III 14:30
Be sure to see us next time on what to do when and be sure to also like and subscribe.
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