A man convicted of sexual intercourse without consent and another convicted of theft are seeking court orders restoring their gun rights.
The two petitions, filed by attorney Timothy Baldwin of Billings Legal in Yellowstone County, are requesting verification from the district court that the civil rights of Kenneth Dean Keierleber and Timothy Boyd Plummer were fully restored after they successfully completed their sentences.
Keierleber was convicted of a 2005 theft charge in Yellowstone County and received a six-year deferred sentence. His charges were dismissed in 2009.
Plummer was convicted of a 2002 charge for sexual intercourse without consent in Blaine County. He was sentenced to 10 years with the Montana Department of Corrections, with six years suspended. Plummer successfully completed his sentence and was discharged.
The two men fall into a very specific category. According to a House bill passed during the 2013 Montana Legislature, people convicted of felonies that did not include use of a weapon and who have done their time and been released from state supervision may have their gun rights restored. The law does not apply to those seeking a concealed carry license.
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While state law is clear on this point, federal agencies don't automatically acknowledge a former Montana felon's right to carry a gun.
"Some people with a felony conviction will have no problem purchasing a gun after their sentence is discharged," Baldwin said. "Some are denied the right to buy a gun."
Baldwin is seeking the petition as a legal clarification more than anything else. He said there is no formal document or process from the courts to restore gun rights, so it could lead to the federal government arresting someone with a felony conviction for felon in possession of a firearm.
The two petitions are before Judge Mary Jane Knisely and Judge Ingrid Gustafson and were filed within a week of each other. Gustafson said Wednesday she has not yet reviewed the case but rarely sees requests for confirmation of civil rights.
Baldwin said he doesn't know of any other Montana attorneys attempting this.
Baldwin sits on the board of the Montana Shooting Sports Association, an affiliate of the National Rifle Association, the Citizens Committee for the Right to Keep and Bear Arms, and the Second Amendment Foundation and is associated with Gun Owners of America.
Montana Shooting Sports Association Board President Gary Marbut said his organization lobbied for the 2013 bill restoring rights to some felons but that the federal government still makes it very difficult to be removed from the "Brady List." The Brady List tracks felony convictions across the United States in addition to domestic violence convictions, Marbut said.
"If you've got $50,000 to spend on legal fees, it's still like pulling teeth to get your name off the list," Marbut said. "If you've got less than $1,000 to spend, you have less than a 10 percent chance of getting your rights back."
The Brady List is controlled by ATF, and there is a process for being removed from the list, Marbut said. However, it was never funded by the U.S. Congress, and the Supreme Court has held that the ATF and the FBI do not need to remove people from the list if Congress does not fund that process, Marbut said.
Marbut said he has seen people with a state felony conviction get their names removed from the Brady List in order to purchase a weapon, but the federal agencies have no obligation to remove people from the list.
ATF Denver Field Division Public Information Officer Lisa Meiman said if the state decides to restore gun rights, the federal government recognizes the restoration of rights. If the person was convicted of a federal charge, under current law, they have to seek a presidential pardon to restore their gun rights. Meiman did confirm, however, that the ATF no longer restores gun rights.
Former president of the Montana Bar Mark Parker said this was an area of law his firm has looked into fleshing out an argument for the return of gun rights, but the law is largely untested. He said it isn't completely clear how the federal government treats state law on this matter.
Baldwin has filed two other petitions in other counties in Montana on top of the two filed in Yellowstone County. On his firm's website, he advertises gun rights as a section of law he is involved in and said he gets call from people convicted of all sorts of crimes, including DUIs and misdemeanor domestic violence charges. He said he is working on more petitions.
Marbut said Montana's sentencing policy is four pronged and includes the expectation for rehabilitation.
"If these former felons are really rehabilitated, why should they have less rights than anyone else?" Marbut said.