Opinion
No. 1:03-cr-223
March 2, 2004
MEMORANDUM AND ORDER
Defendant Sharon Shropshire is the subject of a one-count indictment charging her with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). She has moved [Court File No. 13] to dismiss the indictment. Her claim is that on September 25, 2003, the date on which she is alleged to have violated § 922(g)(1), she was not, under Tennessee law, disqualified from possessing a firearm.
Defendant was convicted in 1975 in state court for feloniously selling a Schedule III controlled substance. Defendant received an eight-year suspended sentence conditioned upon her good behavior under parole supervision. It is conceded that she successfully completed that eight-year term. Since the defendant was convicted of this particular felony prior to a change of Tennessee law in 1981, she was not thereby rendered "infamous." As the Tennessee Supreme Court has pointed out in Gaskin v. Collins, 661 S.W.2d 865 (Tenn. 1983), when Shropshire completed her probation supervision, her former "rights, privileges and immunities [were] restored." 661 S.W.2d at 866; see Harris v. United States, 793 F. Supp. 754, 755 (M.D. Tenn. 1992).
Pursuant to 18 U.S.C. § 921(a)(20) there is not a prior "conviction" under 18 U.S.C. § 922(g)(1) if under state law the defendant's rights have been restored ". . . unless such . . . restoration of civil rights expressly provides that the person may not . . . possess . . . firearms." (Emphasis supplied). This is the so-called "unless" clause. Here the defendant's rights were restored by operation of law when she completed her eight-year probationary term. The government points out, however, that since 1996 under TENN. CODE ANN. § 39-17-1351, the defendant may not be issued a handgun permit because of her 1975 drug conviction. Therefore, under Car on v. United States, 524 U.S. 308 (1998), the "unless" clause is activated; and defendant may not possess a handgun under federal law.
It does seem clear that TENN. CODE ANN. § 37-17-135 1(j)(3) would prevent the defendant from obtaining a state handgun carry permit, even though she previously had her "full rights of citizenship restored." Because of this restriction, the "unless" clause applies. Defendant has been convicted of a "crime punishable by imprisonment for a term exceeding one year" and is thus a person who is prohibited from possessing a firearm under 18 U.S.C. § 922(g)(1). Car on v. United States, 524 U.S. 308 (1998); United States v. Campbell, 256 F.3d 381, 392 (6th Cir. 2001); United States v. Driscoll, 970 F.2d 1472, 1480-1481; United States v. Cassidy, 899 F.2d 543, 550 (6th Cir. 1990); United States v. Williams, 134 F. Supp.2d 851, 852-53 (E.D. Mich. 2001), aff'd, United States v. Williams, No. 02-1663, 2003 WL 22171520 (6th Cir. Sept. 18, 2003). See United States v. White, 808 F. Supp. 586, 590 n. 6 (M.D. Tenn. 1992).
This case was abrogated by the Sixth Circuit on other grounds. Hampton v. United States, 191 F.3d 695 (6th Cir. 1999).
Defendant argues, however, that TENN. CODE ANN. § 37-17-1351(j)(3) is unconstitutional as applied to her under the Ex Post Facto Clause of the United States Constitution. She points out that it was not until 1996 that her right to possess a firearm was affected by this state statute. This subject was discussed by the Sixth Circuit in United States v. Campbell, 256 F.3d 381 (6th Cir. 2001), in connection with a similar fact pattern posed by Michigan law. The Court of Appeals observed that the Michigan courts have held that a Michigan statute somewhat akin to § 37-17-1351 was not an infliction of further punishment on those who had prior felony convictions, but was instead an effort to protect the public. Campbell, 256 F.3d at 393-394. It was also pointed out that the defendant in that case was not being sanctioned for any act prior to the enactment of the Michigan statute; rather, what was being sanctioned was the defendant's recent act of possessing the firearm. Id.; see People v. Tice, 558 N.W.2d 245, 246-47 (Mich.Ct.App. 1997). The Sixth Circuit in Campbell actually rested its decision on another ground. However, the court did observe that it did "find this reasoning persuasive." Campbell, 256 F.3d at 393.
Similarly, in the case at bar, Ms. Shropshire is indicted for unlawfully possessing a firearm on September 25, 2003. She had been a prohibited person at least since 1996 and the enactment of Tenn. Code Ann. § 37-17-1351(j)(3). The enactment of the state statute did not provide criminal sanctions for anything that she had done prior to 1996. Instead, the statute was merely an exercise of the state's police power to make her ineligible to possess a firearm. It is not an ex post facto law.
The government also argues that the defendant never had the right under Tennessee law to carry a firearm "with the intent to go armed" under various statutes in effect since 1869. While this may be true, these statutes applied to everyone in Tennessee, and they did not proscribe mere possession. Thus for a few years after the termination of her state probation it was legally permissible for defendant to merely possess a firearm.
The defendant's motion to dismiss the indictment is DENIED.
SO ORDERED.