New Rule Allows Arizona Judges To Decide Gun Rights For Out of State Felons
By Howard Fischer
Capitol Media Services
PHOENIX -- A felony conviction in another state does not preclude someone now living in Arizona from getting the right to own a gun, the state Court of Appeals has ruled.
In a new ruling, the judges concluded that state courts do have the power to restore an individual's right to possess or carry a firearm, regardless of where a prior conviction occurred.
But Judge Karl Eppich, writing for the unanimous three-judge panel, said that does not make it automatic. He said there are limits, depending on the underlying conviction.
And, regardless of all that, it ultimately is up to a trial judge to decide whether to remove the legal impediment to having a weapon, not only in this case but in all similar cases.
The ruling involves Jacques Gahary, a Pima County resident who, according to court records, pleaded guilty in 1982 in New York to a charge of third-degree attempted criminal possession of a weapon. Gahary said he paid the $500 fine.
A second conviction occurred in New Jersey in 1994 under that state's "Gifts to Public Servants'' law. At that time he was placed on probation for two years and fined $125.
Gahary claimed he satisfied the terms of his sentence and, in 1996, moved to Arizona.
Earlier this year he asked Pima County Superior Court Judge Kyle Bryson to restore his rights to possess a weapon. But Bryson concluded his authority did not extend to granting relief from crimes committed in other states.
That led to this appeal and, according to Eppich, this precedent-setting ruling on an issue that has never come up before. And the way Eppich and the other appellate judges see it, there is no such restriction on Arizona trial judges.
He said the law is clear.
At one extreme, Eppich said, are people who are convicted of what are classified as "dangerous offenses'' under Arizona law -- or any offense in another state that, had it occurred here, would have been in the same category -- have no legal right to seek to have their rights restored.
A second category involves those who are convicted of "serious offenses,'' here or elsewhere.
They cannot seek to restore their rights for at least 10 years after their cases have been "absolutely discharged,'' meaning after all fines are paid and all periods of probation have ended.
But Eppich said those convicted of "any other felony offense'' can seek to regain their rights two years from date of absolute discharge. Gahary contends -- and prosecutors do not dispute -- that his convictions fall into that last category.
Put simply, the judge said, Arizona law contemplates exactly the kind of relief that Gahary is seeking.
What happens now is Gahary gets to go back to trial court to convince the judge he should be allowed to possess and carry a weapon. But Eppich said that is far from automatic.
"As both Gahary and the state acknowledge, it is in the trial court's discretion on remand to determine whether to grant the motion on the merits,'' the appellate judge said.