Should a felony deferred judgment trigger loss of gun rights?

So this past Saturday I took a firearms safety class (required to obtain a concealed carry permit, which fyi allows one to legally conceal and carry not just a firearm but also a taser or brass knuckles or a big knife) – it was taught by Brian Forney of Dynamic Firearms Instruction, who did an excellent job of making the five-hour long class interesting. About half of the class time was spent discussing firearms and firearms safety; the other half was spent on an overview of Iowa’s firearm related laws, which was a good refresher for me and which reminded me that there are a few firearm related issues that I would like to address in the coming legislative term (assuming I’m re-elected). One of those issues is set out below, and I’d appreciate any input, positive or negative – e.g., do you agree there’s a problem with the current law, and if so, does what I’m suggesting to fix it make sense?

QUESTION: Should a defendant granted a deferred judgment for a felony offense be considered a “convicted felon” for 2nd Amendment purposes?

In State of Iowa v. Den Kon Tong the IA Supreme Court held (pursuant to a fairly convoluted statutory analysis) that when the IA legislature passed a bill making it illegal for a person “convicted of a felony offense” to possess a firearm (Iowa’s “felon in possession” statute, 724.26), the legislature actually intended to also make it illegal for a person granted a deferred judgment for a felony offense to possess a firearm. Even though the legislature sure didn’t say that.  Go figure. So ever since Den Kon Tong was decided in 2011, a defendant granted a felony deferred judgment is a convicted felon as far as Iowa gun law is concerned. And since under the federal Brady Act each individual state (i.e., “jurisdiction”) gets to decide what constitutes a felony “conviction” for purposes of federal firearms law, the Den Kon Tong ruling means that an Iowa felony deferred judgment triggers both a state and federal firearm disability (See Section 20 of the Brady Act’s definition section).

IMHO, the Court’s ruling in Den Kon Tong is just…wrong. I think the Court’s statutory analysis is technically incorrect (for complicated reasons that I could explain in detail, but won’t, to avoid making this even longer than it is), but I also feel strongly that the ruling is wrong on a more fundamental “that’s just not fair” level – since the whole point of a felony deferred judgment is to allow a (usually) first time offender charged with a non-forcible felony to avoid a felony conviction. The defendant pleads guilty to the felony offense, but the judge defers – puts off – sentencing the defendant, and after a period of probation (1-3 years), and assuming the defendant hasn’t screwed up, the case is expunged (closed and removed from public access) without a judgment of conviction ever being entered. So if asked (before or after the case has been expunged) by an employer or anyone else, the defendant can truthfully state that s/he has never been convicted of a felony, and is not a convicted felon.

That’s what lawyers and judges and probation officers have always told defendants and it’s a correct interpretation of the law – or it was, until the Court decided that the rules are different when it comes to guns, and that people who have been granted felony deferred judgments are somehow supposed to realize that as far as their 2nd Amendment rights are concerned – and only as far as their 2nd Amendment rights are concerned (for example, voting is still legal) – they are convicted felons. Even though no one told them, and even though some of these defendants probably would have taken their chances at trial if they had been aware that the result of their guilty plea was a (possibly permanent) firearm disability.

I don’t believe that this result is what the legislature intended when it passed 724.26, and thus I’m proposing that the legislature make this clear by amending Iowa Code section 724.25 to add a new subsection, as follows: “(3) The entry of a deferred judgment for a felony offense does not constitute a conviction for purposes of 724.26.” Simple and unambiguous – two good things when it comes to drafting criminal laws. And it’s not going to put anyone at risk or make Iowa a more dangerous place to live, because obviously the judge or probation officer can always make “no guns” a condition of any defendant’s probation. Although hopefully any such condition will only be imposed in cases where there’s evidence suggesting that the defendant poses a threat to the community if allowed access to guns – since without such evidence, a non-felon really should be allowed to exercise his/her 2nd Amendment rights, so long as s/he does it responsibly.

All this proposed amendment does is clarify the legislature’s intent that Iowa Code section 724.26 applies only to a convicted felon, and thus does not apply to a person who has been granted a deferred judgment, aka the opportunity to avoid becoming a convicted felon. This adjustment to Iowa law appears to me to be fair and reasonable, and since a firearm restriction can still be imposed as a condition of probation if it’s merited, it doesn’t make Iowa a more dangerous place to live. Please let me know if you agree, or not.

And if you haven’t already done so, please don’t forget to vote – you can vote early five days a week (and I think Saturday as well) at the Clinton County Auditor’s Office, or you can vote at the polls on November 6th.  Thanks!

About Representative Mary Wolfe

Part time attorney; full time State Representative for Iowa House District 98 (East Clinton County)
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4 Responses to Should a felony deferred judgment trigger loss of gun rights?

  1. Andrew says:

    You are absolutely correct, though I’d go even further and remove non-violent, white-collar crimes from the prohibitions that have to do with acts of violence.

  2. chad kriegermeier says:

    Just when I have given up on politicians something that makes perfect sense comes out and there is a little glimmer of hope. (I agree)

  3. Joseph Usario says:

    In this age, there are so many crimes which now constitute a “felony” which have nothing to do with a threat to the physical safety of the public. In “the before time”, there weren’t very many felons running around because most felonies resulted in a execution -problem solved; that is how they dealt with violent criminals.

    They were not these present theoretical or victimless crimes for which so many thousands of things now might result in a felony conviction. In principle, you are technically guilty of a felony for simply having a prescription pill which fell from auntie’s purse on the floor of your car last week while driving within 1000 feet of a school today. If you were to walk into school to pick up Sissy after chess-club and happen to have a .22 cartridge fall from your coat pocket -same deal. It is completely outrageous and would be anathema to the founders of the country and real scholars of law, justice, and the rights of man.

  4. Kindra says:

    I agree 100% with what you said. I am currently trying to figure out if I would be allowed to get my carrying license. I have a deferred judgment on a felony that I received in Iowa, and have completed my probation. I now live in Washington state and I was wondering how I can find out what the laws are here. Are you sending this to anyone or trying to get votes on it? Thanks


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