In these consolidated cases, the petitioner, Gregory DuPont, appeals: (1) an order of the Circuit Court {Leary, J.) affirming the revocation by the respondent City of Nashua (City), through its chief of police, of his license to carry a loaded pistol or revolver; and (2) an order of the Superior Court {Nicolosi, J.) denying his motion for preliminary injunctive relief in a proceeding brought against the respondents Peter McDonough, Sean Haggerty, Christopher B. Casko, and John J. Barthelmes, challenging the denial of his request for an armed security guard license. We reverse and remand.
The following facts are taken from the trial courts’ orders or are supported in the record. In 1998, the petitioner was convicted in Massachusetts of operating a motor vehicle under the influence of liquor (the 1998 conviction). That offense was a misdemeanor that carried a potential maximum prison sentence of two and a half years. Thus, the petitioner’s 1998 conviction rendered him ineligible, under Massachusetts law, to possess or carry a firearm, at least as of the 1998 amendments to the' Massachusetts firearms laws. See Dupont v. Chief of Police of Pepperell,
Sometime prior to June 29, 2010, Sergeant Lobrano of DOS became aware of the 1998 conviction and determined that it disqualified the petitioner, under federal law, from possessing firearms. Accordingly, on June 29, 2010, Lobrano notified the petitioner that he was revoking the petitioner’s armed security guard license. On the same day, Lobrano issued the petitioner an unarmed security guard license.
The petitioner appealed Lobrano’s decision to a hearings examiner, who upheld it. The petitioner then appealed the hearings examiner’s decision to the superior court. On March 9, 2011, while the parties were awaiting decision on their cross-motions for summary judgment, DOS’s attorney, respondent Casko, offered the petitioner the following settlement:
1. You will agree to the dismissal of your appeal of the hearings examiner’s decision pending in the Hillsborough South Superior Court. To achieve such, I will file an Assented to Motion for Voluntary Nonsuit with Prejudice of the case.
2. In exchange, the Department of Safety will reissue your armed security guard license upon your signing and returning the agreement to me.
3. You agree to waive any claim for damages due to lost wages against the Department of Safety related to this matter.
4. The Department agrees not to use the conviction for Operating Under the Influence from Lowell District Court Docket #9811CR1032A as a basis to revoke or deny such license in the future.
5. If you agree, please verify same by signing below.
The petitioner agreed to the terms of the offer (the 2011 settlement) and the case was non-suited.
In February or March 2013, the petitioner applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License. By apparent agreement with the ATF, local police departments conduct background checks on federal license applicants. Accordingly, the Nashua Police Department conducted a background check on the petitioner in 2013 and, in doing so, learned of the 1998 conviction. Why the City had not discovered the 1998 conviction previously, despite having conducted at least two prior background checks on the petitioner, is not explained in the record.
In June 2013, the petitioner applied to renew his armed security guard license. New Hampshire State Police Sergeant Sean Haggerty notified the petitioner on July 8, 2013, that his application had been conditionally denied. The superior court found it implicit in Haggerty’s decision that denial was based upon the 1998 conviction. The petitioner filed a motion in superior court to bring forward and enforce the 2011 settlement agreement. Following denial of his motion for preliminary injunctive relief, the petitioner appealed to this court.
On appeal, the petitioner argues that the trial courts erred in: (1) upholding Chief Seusing’s revocation of his license to carry; (2) upholding the DOS’s decision to rescind the 2011 settlement; (3) failing to find that the City was bound by the 2011 settlement; (4) misinterpreting 18 U.S.C. §§ 921(a)(20) et seq.; (5) disregarding the findings and conclusions of the FLRB’s decision restoring his right to possess- firearms; and (6) failing to “give full faith and credit to the provisions of the public acts, records and judicial proceedings in Massachusetts.”
We first consider the applicable standards for reviewing each of the trial court orders the petitioner appeals. RSA 159:6-b, I, provides, in pertinent part, that “[t]he issuing authority may order a license to carry a loaded pistol or revolver issued to any person pursuant to RSA 159:6 to be ... revoked for just cause.” RSA 159:6-b, I (2014). We held in Bleiler v. Chief, Dover Police Dep’t,
We have held, with respect to such an appeal, “that the statute contemplates that the [trial] court will hear evidence and make its own determination whether the petitioner is entitled to a license.” Silverstein v.
“A preliminary injunction is a provisional remedy that preserves the status quo pending a final determination of the case on the merits.” N.H. Dep’t of Envtl. Servs. v. Mottolo,
Both of the trial courts’ decisions involved, in part, an interpretation of federal law governing firearms possession. In affirming Chief Seusing’s revocation of the petitioner’s license to carry, the trial court reasoned that the petitioner could not “be deemed suitable to possess a license to carry a pistol or revolver” because, “[u]nder applicable federal law, which New Hampshire must follow under the Supremacy Clause of the U.S. Constitution, [the petitioner] cannot possess a firearm.” Similarly, with respect to the petitioner’s motion for preliminary injunctive relief in the proceeding to enforce the settlement agreement, the trial court concluded that the petitioner had failed to show a likelihood of success on the merits because it appeared that the settlement agreement was unenforceable as violative of federal law. Accordingly, we address the petitioner’s first, second, and fourth arguments together, and we begin by examining the relevant federal statutes and their application to the petitioner.
Under federal law, it is unlawful for any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess any firearm. 18 U.S.C. § 922(g)(1) (2012). Without more, it would appear that the petitioner falls under this prohibition. 18 U.S.C. § 921(a)(20), however, provides, in pertinent part:
The term “crime punishable by imprisonment for a term exceeding one year” does not include —
*435 (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
18 U.S.C. § 921(a)(20) (2012) (emphasis added).
Although classified as a misdemeanor, the petitioner’s 1998 conviction carried a potential maximum prison sentence of two and a half years. Thus, that offense does not fall within the exclusion of § 921(a)(20)(B). Nevertheless, the petitioner contends that the 1998 conviction is one that “has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(20). This contention forms the crux of his appeal.
Because the meaning of § 921(a)(20) is a question of federal law, we interpret it in accordance with federal policy and precedent. Dube v. N.H. Dep’t of Health & Human Servs.,
The Second Circuit Court of Appeals has concisely stated Congress’s purpose in enacting § 921(a)(20). “The exemption at issue was passed in 1986 in response to a 1983 Supreme Court decision which held that the definition of a predicate offense under the Gun Control Act of 1968 was a matter of federal, not state law.” McGrath v. United States,
The circuit court found that the petitioner’s 1998 conviction “has not been expunged or set aside nor has he been pardoned.”. The petitioner does not challenge these findings. The circuit court also found, relying upon Logan v. United States,
The petitioner challenges both rulings, arguing that “[t]he right to keep and bear arms is a subset [of] and necessarily included [with]in [the term] civil rights” and that he “had that civil right... taken away from him upon his 1998 conviction and restored to him.” According to the petitioner, “[t]he question devolves to whether the FLRB’s restoration under Massachusetts law of [the petitioner’s] constitutional right to possess a firearm is considered a restoration of civil rights within the meaning of 18 U.S.C. § 921(a)(20)(B).” That question contains three subsidiary inquiries: (1) are the civil rights contemplated by § 921(a)(20) limited to the rights to vote, hold public office, and serve on a jury; (2) if not, is the right to keep and bear arms included in the term “civil rights” as used in that section; and (3) if so, is restoration of that right alone sufficient to come within that statute’s exemption. We address each inquiry in turn.
The City contends that the Supreme Court in Logan “determined that the term ‘civil rights’, in the context of 18 U.S.C. § 921(a)(20), referred to ‘the rights to vote, hold office and serve on a jury.’ ” (Quoting Logan,
The petitioner notes that the seminal case on this issue is United States v. Cassidy,
Some federal circuits, including the First Circuit, appear to have limited § 921(a)(20) to the so-called “core” civil rights of voting, office holding, and jury service. See, e.g., United States v. Caron,
We find instructive the First Circuit’s observation that “[a]lthough Congress did not specify which civil rights it had in mind, the plurality view among the circuits,” including the First Circuit, “is that Congress had in mind the core cluster of ‘citizen’ rights that are typically lost by felons and restored by pardons, namely, the right to vote, to serve on a jury and to hold public office.” United States v. Indelicato,
The petitioner does not argue that firearm possession is a civil right under Massachusetts law, and, in any event, relevant case law appears to preclude that argument. See United States v. Nazzaro,
In District of Columbia v. Heller,
The Sixth Circuit has opined that Heller “suggests that a handgun possession ban . . . might infringe a civil right.” United States v. Sanford,
More relevant to interpreting the statute before us is what the First Circuit has recognized as “the rationale behind Congress’ use of‘civil rights restored’ as a touchstone: the notion that by reinvesting a person with core civic responsibilities, the state vouches for the trustworthiness of that person to possess firearms (unless that right is withheld).” Estrella,
Another perspective is suggested by the Sixth Circuit’s observation that § 921(a)(20) reflects “the general intent of Congress to redirect enforcement efforts against firearms owners that have a demonstrated potential for serious unlawful activity.” Cassidy,
We conclude that the “civil rights” contemplated by § 921(a)(20) are not limited to the three “core” civil rights and that the Second Amendment right to keep and bear arms is a civil right within the statute’s ambit. We must now determine whether restoration of that right alone brings a conviction within the § 921(a)(20) exemption.
Courts generally have not been receptive to the argument that restoration or retention of firearm rights is, without more, sufficient to trigger § 921(a)(20)’s exemption. In Valerio, for instance, despite having noted the relevance of the right, the court found that New Mexico’s restoration of the defendant’s “right to possess firearms .. . [was] not enough” to fall under § 921(a)(20)’s exemption. Id. at 842-43. Similarly, the Fifth Circuit, in rejecting the contention that “Texas’s failure to deny [a non-violent felon] the right to possess firearms is the functional equivalent of restoring his civil rights,” stated that “ ‘civil rights,’ as used in § 921(a)(20), must mean much more than simply the single, narrow right to possess a firearm.” United States v. Thomas,
These cases generally follow the reasoning that “[i]n the absence of the restoration of essentially all civil rights of the convicted felon as defined for purposes of § 921(a)(20), the felon’s isolated right to possess a firearm is of
In the instant case, however, the petitioner never lost his core civil rights. Thus, the foregoing cases are, on that point, distinguishable. The question we must consider, then, is whether restoration of the right to possess firearms, along with retention of the three core civil rights, is enough to trigger the § 921(a)(20) exemption. Because the Supreme Court has addressed the retention and restoration of civil rights in the context of § 921(a)(20), we first look to the Court’s holding on that issue.
In Logan, the Supreme Court considered the § 921(a)(20) exemption in the context of determining whether a conviction could be counted for purposes of sentence enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) (2012). The case presented the following question: “Does the ‘civil rights restored’ exemption contained in § 921(a)(20) encompass, and therefore remove from ACCA’s reach, state-court convictions that at no time deprived the offender of civil rights?” Logan,
Relying upon Logan, the superior court here ruled that because “the petitioner never lost any of [the core civil] rights, . . . [he] never had the opportunity to have them ‘restored’ ” and, therefore, was “not entitled to the exception under 18 U.S.C. § 921(a)(20)(B).” We do not agree that Logan compels that result. If Logan had definitively limited the “civil rights” relevant to § 921(a)(20) to the three core civil rights, it would bar the petitioner from that section’s exemption because he, like the petitioner in Logan, at all times retained those rights. See id. at 29. However, as we previously noted, Logan did not decide the issue because the petitioner had agreed that the relevant rights were the rights to vote, hold office, and serve on a jury. Id. at 28.
Logan held that “the words ‘civil rights restored’ do not cover the case of an offender who lost no civil rights.” Id. at 36 (emphasis added). The Court held that “an offender who retained civil rights at all times, and whose legal status, post[-]conviction, remained in all respects unaltered by
The petitioner here, however, did receive a “status-altering dispensation,” id., from Massachusetts through the FLRB’s determination. As previously noted, the FLRB specifically found that the petitioner was “a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth.” Given our conclusion that the right to keep and bear arms is a civil right for purposes of § 921(a)(20), the petitioner has had one civil right “restored” in the Logan sense. Accordingly, we conclude that Logan does not exclude the petitioner from § 921(a)(20)’s exemption.
We turn now to the ultimate question before us: whether the loss and restoration of one civil right — the right to keep and bear arms — in fact brings the petitioner’s 1998 conviction within § 921(a)(20)’s exemption. Cassidy set forth an oft-cited standard, stating that “based on the general intent of Congress to redirect enforcement efforts against firearms owners that have a demonstrated potential for serious unlawful activity, [we are confident] that Congress envisioned a restoration of more than a de minimis quantity of civil rights.” Cassidy,
In Caron, the First Circuit addressed a case in which a defendant had two of the three core civil rights restored by operation of law at some point post-conviction, while the third had never been taken away. Caron,
Looking to Congress’s intent, we note that:
The FOPA amendment . . . exempted felons to whom the convicting jurisdiction extended a subsequent gesture of forgiveness, or partial forgiveness, by means of pardon, expungement, or restoration of civil rights. The theory was no doubt that such a subsequent forgiveness should be credited as an acknowledgment of rehabilitation or an affirmative gesture of goodwill that merited exemption from the firearms bar.
McGrath,
We acknowledge that courts applying the § 921(a)(33)(B)(ii) exception for domestic violence misdemeanants, see 18 U.S.C. § 921(a)(33)(B)(ii) (2012), have declined to find restoration of gun rights, along with retention of the core civil rights, sufficient to bring a prior conviction within the exemption. See, e.g., United States v. Brailey,
We decline to follow those cases. We conclude that our interpretation of § 921(a) better fulfills Congress’s purpose of “deferring] to a State’s dispensation relieving an offender from disabling effects of a conviction.” Logan,
Reversed and remanded.