The Volokh Conspiracy
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Mark McCloskey, Pardoned for Brandishing Guns at Protesters, Can't Get the Guns Back
From today's Missouri Court of Appeals decision in McCloskey v. State, written by Judge James M. Dowd and joined by Judges John P. Torbitzky and Michael S. Wright:
This appeal arises out of a petition for replevin in which appellant Mark McCloskey sought the return of two firearms that police had seized pursuant to search warrants in connection with a June 28, 2020, incident in which McCloskey and his spouse exhibited the firearms as a group of protesters passed by their home. They were charged with felony unlawful use of a weapon punishable by up to four years in prison. McCloskey and the State reached a plea agreement whereby McCloskey pleaded guilty to misdemeanor fourth-degree assault and forfeited ownership and possession in the two firearms in exchange for the State dismissing the felony charge….
Soon after, the governor pardoned McCloskey and he filed against the State, the Sheriff, and the Mayor (Respondents) his underlying petition for replevin of the weapons in which he claimed the governor's pardon gave him the right to their immediate return….
While we agree that the pardon restored all of his rights forfeited by the conviction and removed any legal disqualification, disadvantage, or impediment, Missouri law is unequivocal that a gubernatorial pardon obliterates the fact of the conviction, not the fact of guilt. Thus, McCloskey's guilty plea, for which he obtained the benefit of the State dismissing a felony charge punishable by jail time, survived the pardon and importantly, with respect to the issue at hand in this replevin action, triggered the guns' forfeiture. Therefore, since McCloskey's guilt remains, it follows that he is not entitled to the return of the weapons….
In his first point, McCloskey argues that the trial court erred because his right to possession and ownership of those guns was reinstated by the pardon which by its terms "restore[d] all rights of citizenship forfeited by said conviction and remove[d] any legal disqualification, impediment, or other legal disadvantage …." We disagree because the scope of the pardon ends at the obliteration of the conviction.
We are guided by the principles set forth in Guastello v. Dep't of Liquor Control (Mo. 1976), where the Missouri Supreme Court examined the effect of a gubernatorial pardon on Guastello's conviction for selling liquor on a Sunday to which he had pleaded guilty. The department denied Guastello's application for another liquor license based on the statute's mandate that no person convicted of a liquor law violation could receive a liquor license.
The Guastello Court exhaustively examined three different approaches by courts across the country to the issue of the effect of a pardon and adopted the view that while a pardon obliterates the fact of the conviction, the guilt remains. "Under this view, if disqualification is based solely on the fact of conviction the eligibility of the offender is restored. On the other hand, if good character (requiring an absence of guilt) is a necessary qualification, the offender is not automatically once again qualified—merely as a result of the pardon." Because Guastello's conviction was obliterated by the pardon, and the statute only disqualified those who had a conviction, the Court held that the denial of the license was unauthorized. Thus, in defining the scope of a gubernatorial pardon in this way; the Supreme Court drew a critical distinction between the pardoned conviction and the underlying guilt which we find to be dispositive here.
In Bill v. Boyer (Mo. banc 2016), Hill pleaded guilty to and was convicted of felony forgery. He was discharged from probation pursuant to section 549.111.2 which provided that those discharged from probation were "restored all the rights and privileges of citizenship." { Hill argued that "his statutory restoration of rights is legally equivalent to a governor's pardon and had the effect of negating the fact of his prior conviction."} The sheriff had denied Hill's application for a concealed carry gun permit under section 571.101.2(3) which prohibited granting such permits to those who had pleaded guilty to or been convicted of a crime punishable by imprisonment for a term exceeding one year. In ruling against Hill, the Supreme Court reiterated its Guastello holding that while the statute may have "obliterated" the fact of his prior conviction, it did not obliterate his guilty plea or the fact of his guilt….
In Fay v. Stephenson (Mo. App. W.D. 2018), the court also relied on Guastello in finding Fay, who was pardoned several years after he had pleaded guilty to three felonies, was nevertheless ineligible to run for associate circuit judge under section 115.306.1's dictate that "[n]o person shall qualify as a candidate for elective public office … who has been found guilty of or pled guilty to a felony …." Again, the pardon extinguished the fact of his convictions, but not the fact of his guilt by way of his guilty pleas.
We find the foregoing authorities to be applicable here and dispositive. The law recognizes the difference between a conviction and guilt. Here, McCloskey pleaded guilty to misdemeanor assault and voluntarily forfeited his firearms in exchange for the State dismissing a felony charge punishable by imprisonment. Thus, his inability to recover his firearms is not a legal disqualification, impediment, or other legal disadvantage that is a consequence of his conviction. Rather, the permanent forfeiture is a consequence of his guilt. And because only the conviction is obliterated by the pardon and McCloskey's guilt remains, we find that the governor's pardon does not entitle him to possession of his forfeited firearms….
Lastly, McCloskey asserts he should have been allowed to try to the fact finder whether his firearms had been unconstitutionally seized in violation of the Second Amendment and further that their seizure was illegal in violation of his right to self-defense in conjunction with the castle doctrine. While McCloskey's brief presents those interesting issues, none of them are before us. Instead, those issues could have been raised at the trial of the underlying charges had McCloskey not chosen to plead guilty to a lesser charge in exchange for surrendering the firearms at issue here…. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional lights that occurred prior to the entry of the guilty plea." …
UPDATE: I originally wrote that this opinion was from the Missouri Supreme Court; I've corrected the error (thanks to Jason Marks for pointing it out).
