United States v. Wiley Block Tait , 202 F.3d 1320 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 99-11825
Non-Argument Calendar
_______________________
D.C. Docket No. 99-00012-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
WILEY BLOCK TAIT,
Defendant-Appellee.
_______________________
Appeal from the United States District Court
for the Southern District of Alabama
_______________________
(February 4, 2000)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
WILSON, Circuit Judge:
A federal grand jury returned a two-count indictment against Wiley Block
Tait in January, 1999. The indictments arose from a 1997 incident wherein Tait
possessed a pistol. Count One charged Tait with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922 (g)(1). Count Two charged Tait with
possessing a firearm in a gun-free school zone in violation of 18 U.S.C. §
922(q)(2)(A).
Tait filed a motion to dismiss both counts, claiming that exceptions to both §
922(g)(1) and § 922(q)(2)(A) made his possession of the pistol legal. The district
court granted Tait’s motion to dismiss both counts, based on the court’s
interpretation and application of relevant statutes. The government appeals the
district court’s dismissal. This court reviews de novo dismissals based on statutory
interpretation. Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1139 (11th
Cir. 1992).
We affirm.
BACKGROUND
At the time of Tait’s alleged violations, Tait had three prior felony
convictions in the state of Michigan: a 1958 conviction for the crime of Utter &
Publish; a 1962 conviction for Attempted Larceny from a Motor Vehicle; and a
1968 conviction for Enter Without Breaking. Each conviction was punishable by
imprisonment for a term exceeding one year. In March, 1997, the Escambia
County, Alabama Sheriff’s Department issued Tait a pistol license. On November
3, 1997, the Atmore, Alabama Police Department arrested Tait after he allegedly
placed a fully-loaded gun against a student’s neck while on Escambia County High
School property. The two-count indictment against Tait followed.
DISCUSSION
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Count One: Violation of § 922(g)(1)
The grand jury’s first count against Tait charges a violation of 18 U.S.C. §
922(g)(1). This section makes it “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 a firearm in or affecting commerce or to receive a firearm which has
been shipped or transported in interstate commerce. 18 U.S.C. § 922(g)(1). Tait’s
felony record, consisting of three separate crimes each punishable by more than
one year imprisonment, brings him within the ambit of the § 922(g)(1) prohibition
against possessing firearms. However, § 922(g)(1) has a pertinent exception.
Section 921(a)(20) provides:
What constitutes a conviction of [a crime punishable by imprisonment for a
term exceeding one year] 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).
The first sentence of § 921(a)(20) makes clear that Michigan law – the state
of Tait’s convictions – dictates whether Tait’s felonies constitute convictions under
§ 922(g)(1). The second sentence of § 921(a)(20) provides the exception to §
922(g)(1): a conviction will not count as a conviction for purposes of § 922(g)(1)
if, inter alia, the state of conviction (Michigan) restores civil rights to the person
previously convicted. Tait argues that he did not violate § 922(g)(1) because his
civil rights were restored under Michigan law.
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The district court determined that Michigan does restore civil rights to
persons previously convicted, and that Tait’s civil rights were so restored. The
district court was without the benefit of a recent Sixth Circuit case, Hampton v.
United States, 191 F.3d 695 (6th Cir. 1999) when it rendered its decision in this
case.1 Hampton unequivocally confirms the district court’s conclusion that
Michigan restores all civil rights to convicted felons. The Hampton court
determined that Michigan restores civil rights by operation of law (as opposed to
granting certificates or otherwise memorializing the restoration). See id. at 702.
Hampton relied on United States v. Bolton, 32 F. Supp. 2d 461 (S.D. Texas 1999),
in reaching its decision. The Bolton court held:
[T]his Court finds that Michigan law provides for the automatic
reinstatement of all civil rights of convicted felons following release from
custody and completion of probation. Thus, once [the defendant] completed
his sentence . . ., all or essentially all of [his] civil rights – namely, his right
to vote, to hold public office, and to serve on a jury – were “restored
automatically by the force of the very [Michigan] laws that suspend[ed]
them.”
United States v. Bolton, 32 F. Supp. 2d at 465 (quoting United States v. Dahms,
938 F.2d 131, 134 (9th Cir. 1991)).
Thus, under Hampton, Tait’s civil rights were restored. This conclusion
does not, however, automatically qualify Tait for the exemption in § 921(a)(20).
Section 921(a)(20) contains an “unless” clause: the restoration of civil rights
exempts a convicted felon from the prohibition against possessing a firearm
1
The state of Michigan is part of the Sixth Circuit. Thus Hampton v. United States is controlling
on this issue until and unless the Michigan Supreme Court rules otherwise. See Hampton, 191 F.3d
at 702.
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“unless such . . . restoration of civil rights expressly provides that the person may
not . . . possess . . . firearms.” 18 U.S.C. § 921(a)(20). The Supreme Court
discussed this “unless” clause at length in Caron v. United States, 524 U.S. 308,
118 S.Ct. 2007 (1998). Caron involved a Massachusetts statute which prohibited
felons from possessing handguns, but which did not prohibit felons from
possessing rifles. The issue in Caron was whether the state prohibition against
felons possessing some weapons, but not all, triggered the unless clause. See id. at
2011. The Court held that the prohibition did trigger the unless clause. The Court
essentially held the unless clause is “all-or-nothing;” either state law triggers the
clause by banning felons from possessing some firearms, or state law does not
trigger the clause because the state does not ban felons from possessing any
firearms. See id. Since Massachusetts had deemed felons unfit to possess some
weapons, the statutory unless clause had been triggered (and therefore felons in
Massachusetts do not qualify for the § 921(a)(20) exception). If Massachusetts had
remained silent on the issue, the unless clause would not have been triggered.
Michigan, like Massachusetts, grants restoration of civil rights by operation
of law. As such, Tait received no written restoration of civil rights which could
have expressed any limitations on those rights. Rather, these limitations would
also be found in Michigan law. The government contends that section 750.224f of
the Michigan Code provides the limitation in Tait’s case. The section prohibits
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persons convicted of “specified felonies” from possessing firearms.2 Mich. Comp.
Laws § 750.224f (1999). A “specified felony” is a felony in which:
An element of that felony is the use, attempted use, or threatened use of
physical force against the person or property of another, or that by its nature,
involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.
Mich. Comp. Laws § 750.224f(6)(I).
The government contends that one of Tait’s crimes, Attempted Larceny from
a Motor Vehicle, should be considered a specified felony.3 The district court found
that Tait’s attempted larceny from a motor vehicle conviction did not qualify as a
specified felony. Whether attempted larceny from a motor vehicle is a specified
felony turns on whether the crime involves a substantial risk of physical force, or
the use, attempted use, or threatened use of physical force as an element of the
crime. The district court, finding no Michigan law which defines physical force,
determined that “a logical interpretation of the larceny from motor vehicles statute
would be that physical force is not required.”4 Absent an element of physical
2
Section 750.224f contains exceptions, as well as its own restoration conditions, which are not
relevant to this appeal.
3
Specified felonies also include felonies which specifically involve controlled substances,
firearms, or explosives, as well as the felonies of burglary of an occupied dwelling, breaking and
entering an occupied dwelling, and arson. See Mich. Comp. Laws § 750.224f(6)(ii)-(v). The district
court aptly concluded that by separating out burglary of an occupied dwelling and breaking and
entering an occupied dwelling, Michigan legislators intended that burglary of a non-occupied
dwelling and breaking and entering of a non-occupied dwelling should not themselves be considered
specified felonies. Hence, attempted larceny from a motor vehicle (being akin to burglary or
breaking and entering of a non-occupied dwelling) likewise would not be a specified felony.
4
The Michigan statute defining larceny at the time of Tait’s conviction in 1962 provided:
Any person who shall commit the offense of larceny by stealing or unlawfully removing or
taking any wheel, tire, radio, heater or clock in or on any motor vehicle, house trailer, trailer
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force, larceny from motor vehicles would not be a specified felony. Consequently,
the conviction would not trigger the unless clause under Caron, and the restoration
of Tait’s civil rights would qualify for the § 921(a)(20) exception. Therefore, we
hold that Tait’s civil rights were unreservedly restored to him by operation of
Michigan law, and Tait was not subject to prosecution under 18 U.S.C. §
922(g)(1). The district court properly dismissed Count One of the indictment
against Tait.
Count Two: Violation of § 922(q)(2)(A)
The grand jury’s second count against Tait charges him with a violation of
18 U.S.C. § 922(q)(2)(A) (the “Gun-Free School Zone Act”). The section states,
“It shall be unlawful for any individual knowingly to possess a firearm that has
moved in or that otherwise affects interstate or foreign commerce at a place that the
individual knows, or has reasonable cause to believe, is a school zone.” 18 U.S.C.
§ 922(q)(2)(A). Tait was on high school property, an obvious “school zone,” at the
time of his alleged criminal conduct. However, as with § 922(g)(1), an exception
or semi-trailer, shall be guilty of a felony, punishable by a fine not to exceed $1,000.00, or
by imprisonment in the state prison not more than 5 years.
Any person who shall enter or break into any motor vehicle, house trailer, trailer or
semi-trailer, for the purpose of stealing or unlawfully removing therefrom any goods,
chattels or property of the value of not less than $5000.00, or who shall break or enter into
any motor vehicle, house trailer, trailer or semi-trailer, for the purpose of stealing or
unlawfully removing therefrom any goods, chattels or property regardless of the value
thereof if in so doing such person breaks, tears, cuts or otherwise damages any part of such
motor vehicle, house trailer, trailer or semi-trailer, shall be guilty of a felony, punishable by
a fine not to exceed $1,000.00, or by imprisonment in the state prison not more than 5 years.
Mich. Comp. Laws § 750.356a (1968).
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to the firearms prohibition of § 922(q)(2)(A) applies. Section 922(q)(2)(B)(ii)
provides:
Subparagraph (A) does not apply to the possession of a firearm . . . if the
individual possessing the firearm is licensed to do so by the State in which
the school zone is located or a political subdivision of the State, and the law
of the State or political subdivision requires that, before an individual
obtains such a license, the law enforcement authorities of the State or
political subdivision verify that the individual is qualified under law to
receive the license. . . .
18 U.S.C. § 922(q)(2)(B)(ii).
The Gun-Free School Zone Act dictates that Tait violated federal law via
possessing a handgun in a school zone unless Tait was licensed by Alabama, and
either Alabama or Escambia County verified that Tait was qualified to receive the
license.5 As Tait did possess a handgun in a school zone, and Tait was licensed in
Alabama, the issue boils down to whether Alabama or Escambia County
adequately verified that Tait was qualified to receive the license.
Alabama’s licensing requirements are lenient:
The sheriff of a county may, upon application of any person residing in that
county, issue a qualified or unlimited license to such person to carry a pistol
. . . if it appears that the applicant has good reason to fear injury to his
person or property or has any other proper reason for carrying a pistol, and
that he is a suitable person to be so licensed.
Ala. Code § 13A-11-75 (1975). The government argues that Tait’s license is void
for purposes of § 922(q)(2)(B)(ii) for two reasons: first, because Alabama’s
requirements for verifying an applicants’ qualifications are too relaxed to ever
5
Tait argued to the district court and on appeal that the Gun-Free School Zone Act is
unconstitutional under United States v. Lopez, 514 U.S. 549 (1995). The district court determined
that it “need not reach the constitutionality issue because Tait’s permit removes him from the reach
of § 922(q).” This court declines to entertain Tait’s constitutional argument for the same reason.
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qualify their licensees for § 922(q)(2)(B)(ii) protections; and second, because Tait
was not a suitable person to be licensed under Alabama law. According to the
government, these licensing deficiencies resulted in Tait receiving a void license
which did not qualify for the exception in § 922(q)(2)(B)(ii).
The government first argues that Alabama licenses never qualify for the
exception in § 922(q)(2)(B)(ii) because Alabama does not require its licensing
agents to conduct background checks on firearms license applicants. The §
922(q)(2)(B)(ii) exception only applies if “. . . the law of the State . . . requires that
. . . [the sheriff] verify that the individual is qualified under law to receive the
license.” 18 U.S.C. § 922(q)(2)(B)(ii). By its basic terms, the statute merely
requires that the Alabama sheriff ensured that Tait was qualified under Alabama
law to receive the license. While the Alabama law is extremely lenient, it is
nonetheless the only pertinent law. Alabama has chosen its laws, and these are the
laws which determine whether the federal statute’s exception applies. See Caron v.
United States, 524 U.S. 308, 118 S.Ct. at 2011-12.6 Alabama is free to set forth its
own licensing requirements, and Congress chose to defer to those licensing
requirements when it established “qualified under law” as its criterion for the
6
The Caron court noted, in the context of a discussion of § 922(g), that state laws provide the
source of law for determining restoration issues, as well as for determining whether a former felon
is too dangerous to possess a firearm. In other words, federal law uses state findings to determine
whether the federal law has been violated. See Caron, 524 U.S. 308, 118 S.Ct. at 2011-12.
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exception to the Gun-Free School Zone Act. Therefore the government’s first
argument with respect to § 922(q)(2)(B)(ii) is rejected.7
The government next argues that Tait failed to qualify for an Alabama
license, even under Alabama’s lax standards, because Tait was not a suitable
licensee. The government maintains that Tait was not suitable based on Alabama
Code section 13A-11-72(a), which provides: “No person who has been convicted
in this state or elsewhere of committing or attempting to commit a crime of
violence shall own a pistol or have one in his . . . possession or under his . . .
control.” Ala. Code § 13A-11-72(a) (1975). The government’s argument fails due
to a recent Eleventh Circuit opinion, United States v. Fowler, 11th Cir., 1999, ___
F.3d ___ (No. 99-6105, Dec. 17, 1999). The Fowler court held, “Without an
express limitation on the certificate restoring civil and political rights. . ., under
Alabama law the restoration of civil and political rights restores the firearm rights
limited by § 13A-11-72(a).” Id.
The government tries to distinguish Fowler on two bases: first, that the
defendant in Fowler received a written pardon restoring his civil rights (whereas
7
The government argues that Alabama’s licensing requirements are so relaxed that they will
always fail to qualify their licensees for the § 922(q)(2)(B)(ii) exception. The government maintains
that Congress envisioned a background check when drafting the exception. This would require
states to check for prior felonies before issuing firearms licenses. If the state failed to do so, their
licenses would be valid for state purposes, but the licensees would not garner the § 922(q)(2)(B)(ii)
protections. While the government’s argument is persuasive, it misses the point. Tait’s civil rights
were fully restored by operation of Michigan law; hence, even if Alabama had conducted a
background check, Tait would have qualified for the license so long as Alabama allowed former
felons to possess firearms. Whether Tait qualified for a license under Alabama laws is discussed
later in this opinion. Having determined that Alabama’s licensing procedure is not relevant to this
appeal, we decline to decide whether, in general, Alabama’s licensing procedure qualifies its
licensees for § 922(q)(2)(B)(ii) protections.
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Tait’s civil rights were restored via operation of Michigan law); and second, that
the Fowler case involved the interpretation of § 922(g) rather than § 922(q). Both
distinctions are irrelevant. First, the Supreme Court held in Caron, “Massachusetts
restored petitioner’s civil rights by operation of law rather than by pardon or the
like. This fact makes no difference.” Caron, 524 U.S. 308, 118 S.Ct. at 2011.
The critical issue is whether civil rights were restored unconditionally – not how
the civil rights were restored. Tait’s civil rights were restored, without reservation;
thus Tait is entitled to the same protections as any other person without state-
imposed limitations on his civil rights – including the protections of the §
922(q)(2)(B)(ii) exception.
As for the government’s second point, the fact that this court was evaluating
§ 922(g) rather than § 922(q) in Fowler is entirely irrelevant. Utilizing Fowler’s
line of reasoning, this court holds that Tait’s firearms rights were restored for
purposes of exceptions to § 922(g) as well as § 922(q). Fowler held that a felon’s
right to firearms was completely restored for purposes of removing § 13A-11-72(a)
limitations. Fowler, ___ F.3d at ___. Tait’s suitability for firearms licensing was
equally restored. To hold otherwise would be non-congruous with Fowler. We
therefore hold that the district court properly dismissed Count Two of the
indictment against Tait.
CONCLUSION
Wiley Block Tait, a former felon, possessed a firearm in a gun-free school
zone. Under some circumstances, these facts would have subjected Tait to
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prosecution under 18 U.S.C. § 922. However, Tait violated neither 18 U.S.C. §
922(g)(1) nor 18 U.S.C. § 922(q)(2)(A) in this instance, because both sections have
exceptions which legalized Tait’s possession. Therefore, the district court’s order
is
AFFIRMED.
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