Gun Rights

California Says Residents With Vacated Out-of-State Convictions May Not Own Guns

A federal lawsuit says the state is violating the Second Amendment by refusing to recognize the restoration of firearm rights by courts in other states.


California DOJ

While serving in the U.S. Navy more than three decades ago, Chad Linton pleaded guilty to driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony, in Island County, Washington. More than four decades ago, when he was 18, Paul Stewart was found guilty of first-degree burglary, a felony, after hopping a fence and stealing tools from an unlocked telephone company truck in Yuma County, Arizona. In both cases, the felony convictions were eventually vacated, and both men's firearm rights were restored.

But not according to the state of California, where Linton and Stewart have long led law-abiding lives. The California Department of Justice (DOJ) maintains that their vacated felony convictions forever disqualify them from buying or possessing guns. Last week Linton and Stewart, joined by the Firearms Policy Coalition and three other gun rights groups, filed a federal lawsuit in San Francisco, arguing that California's policy violates the Second Amendment, the Full Faith and Credit Clause, and the Privileges and Immunities Clause.

California law, like federal law, prohibits people with felony convictions from owning firearms. On its face, that provision does not apply to people like Linton and Stewart, since their felony records have been vacated and therefore no longer exist as far the courts of conviction are concerned. Yet the California DOJ has told them that the state does not recognize those legal facts.

Both men, after thinking they had cleared up the matter, have attempted to buy firearms, only to be told that they are not legally allowed to do so in California. In Linton's case, the DOJ's Bureau of Firearms sent agents to his home in San Bernardino County last April and confiscated several guns he had legally purchased (or so he thought) after passing background checks. The complaint says the agents, after seeing Washington court documents showing that Linton's conviction had been vacated and his firearm rights restored, thought his guns should be returned, but they were overruled by Deputy Attorney General Robert Wilson.

According to the complaint, Wilson told Linton's attorney, Adam Richards, during a telephone conversation in September that Linton's only remedy would be a presidential pardon—an odd suggestion, not only because his conviction had been vacated but because the president does not have the power to pardon state crimes. "During our call," Richards said in a December 4 letter to Wilson that is included as an exhibit in the lawsuit, "you stated that the only measure that would restore [Linton's] rights, according to your Department, is a presidential pardon. As I informed you during our conversation, I strongly disagree with the Department's position as I believe it to be arbitrary and capricious for several reasons."

Richards rejected Wilson's argument that California need not take into account the actions of courts in other states. "Your position that Washington orders have no authority over California is irrelevant and misses the crux of the issue," he wrote. "Washington courts are not seeking to modify a California order or case. Instead, the question of whether Mr. Linton was convicted of a felony resides with the jurisdiction in which the conviction allegedly occurred. Mr. Linton has no record in the State of California and now, effectively, has no record in the State of Washington."

The lawsuit says the DOJ's insistence that Linton and Stewart should still be treated as felons under California law represents "a total and permanent deprivation of their fundamental, individual right to keep and bear arms and ammunition, as guaranteed by the Second Amendment." Linton et al. argue that the policy "cannot be justified, and therefore fail[s] to satisfy any level or mode of scrutiny at all, let alone the heightened scrutiny that is required to deprive individuals of such fundamental rights."

The complaint says the policy also violates the Full Faith and Credit Clause, which "requires each State to recognize and give effect to valid judgments rendered by the courts of its sister States," and the Privileges and Immunities Clause, which "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Although California itself has a process for restoring the gun rights of people with in-state felony convictions when they are downgraded to misdemeanors, "California refuses to honor the comparable process utilized by other states."

The lawsuit portrays California's treatment of Linton and Stewart as part of a general hostility toward gun ownership. "In their zeal to prohibit as many citizens from owning firearms as possible," it says, California officials are "ignor[ing] the judgments and pronouncements of the courts of other states….The State has no constitutionally permissible interest in depriving individuals of their right to own, possess, and bear firearms for all lawful purposes, including self-defense in their homes, when any underlying convictions were remote, non-violent in nature, and adjudged to have been vacated or set aside in those other jurisdictions."