OAH Docket No. 4-2000-14708-2

 

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF NATURAL RESOURCES

 

 

 

In the Matter of the Appeal from the Notice of Seizure and Intent to Forfeit Firearm No. 366451

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

 

 

Administrative Law Judge Bruce H. Johnson conducted a hearing in this contested case proceeding beginning at 1:00 p.m. on Friday, June 21, 2002, at the Office of Administrative Hearings, Room 714, Government Services Center, 320 West 2^nd Street, Duluth, Minnesota. 

           

Conservation Officer Frank Rezac represented the Department of Natural Resources (the Department) at the hearing.  Kenneth Fawcett, Jr., 4208 West 6^th Street, Duluth, Minnesota 55807, appeared at the hearing on his own behalf.  Neither party was represented by an attorney.  The record closed on July 1, 2002, when the deadline for the parties to file written arguments expired.

 

NOTICE

This Report is a recommendation, not a final decision.  The Commissioner of the Minnesota Department of Natural Resources will make the final decision after reviewing the administrative record.  The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions and Recommendation.  Under Minnesota law,[1] the Commissioner may not make his final decision until after the parties have had access to this report for at least five days.  During that time, the Commissioner must give each party adversely affected by this report an opportunity to file exceptions and present argument to him.  Parties should contact the office of Allen Garber, Commissioner, Minnesota Department of Natural Resources, 500 Lafayette Road, St. Paul, Minnesota 55155, to find out how to file exceptions or present argument.

 

 

THE ISSUES

 

(1)               Whether Mr. Fawcett possessed the firearm in question in violation of Minnesota law; and

(2)               Whether the owner of the firearm’s lack of knowledge of the alleged possession is a defense to forfeiture.

Based upon the record in this matter, the Administrative Law Judge (ALJ) makes the following:

FINDINGS OF FACT

1.                  On January 6, 1989, Kenneth Fawcett, Jr. (Mr. Fawcett), entered a plea of guilty to a charge of burglary in the first degree in St. Louis County District Court, and a judgment of conviction was entered on that plea.  The Court sentenced Mr. Fawcett to a term of incarceration of twenty-six months.  But the court stayed imposition of that sentence, and Mr. Fawcett was placed on probation for a period of five years.[2]

2.                  On July 19, 1994, the Court discharged Mr. Fawcett from probation and restored all of his civil rights “with the exception of your right to ship, transport, possess or receive a firearm until 10 years have elapsed since restoration of civil rights and during that time you have not been convicted of any other crimes of violence.”[3]

3.                  Mr. Fawcett interpreted the exception described in Finding of Fact No. 2 to mean that he was prohibited from shipping, transporting, possessing or receiving a firearm for 10 years after the date of his original conviction on January 6, 1989.[4]

4.                  On November 10, 2001, Mr. Fawcett borrowed his father’s Remington Model 742 .308 rifle, No. 366451, and went deer hunting with his girlfriend in an area off County Road 47 near Alborn.[5]  Mr. Fawcett’s father was unaware that his son had borrowed the rifle and was in possession of it.[6]

5.                  Conservation Officer Frank Rezac was on routine patrol in the Alborn area on November 10, 2001.  He had previously received information that Mr. Fawcett might be attempting to hunt in that area.  At about 11:30 a.m. he saw a red Ford pickup truck that was registered to Mr. Fawcett.  After watching the truck for a while, Officer Rezac saw Mr. Fawcett riding an ATV toward the truck.  Mr. Fawcett was alone at the time, and there was a gun case attached to the ATV.  After searching the gun case with Mr. Fawcett’s permission, Officer Rezac discovered a Remington Model 742 .308 rifle, No. 366451.  While Officer Rezac was present, Mr. Fawcett also stated that he had shot a deer on the previous Thursday.[7]

6.                  Mr. Fawcett subsequently entered a plea of guilty in St. Louis County District Court to a gross misdemeanor charge of possessing a firearm in violation of state law,[8] and a judgment of conviction was entered on that plea.

7.                  These Findings are based on all of the evidence in the record.  Citations to portions of the record are not intended to be exclusive references.

8.                 The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.

 

            Based upon these Findings of Fact, the ALJ makes the following:

 

CONCLUSIONS

 

1.                  Minnesota law[9] gives the ALJ and the Commissioner authority to conduct this proceeding, to consider the issues raised here, and to make findings, conclusions, and recommendations and orders, as appropriate.

2.                  The Department gave proper and timely notice of the hearing, and it has also fulfilled all procedural requirements of law and rule so that this matter is properly before the Administrative Law Judge.

3.                  Minnesota law provides that “[a]n enforcement officer must seize . . . firearms possessed in violation of state or federal law or court order.”[10]

4.                  Minnesota Statutes, section 609.165, provides that:

Subdivision 1.  Restoration. When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.

 

Subd. 1a. Certain convicted felons ineligible to possess firearms. The order of discharge must provide that a person who has been convicted of a crime of violence, as defined in section 624.712, subdivision 5, is not entitled to ship, transport, possess, or receive a firearm until ten years have elapsed since the person was restored to civil rights and during that time the person was not convicted of any other crime of violence. Any person who has received such a discharge and who thereafter has received a relief of disability under United States Code, title 18, section 925, shall not be subject to the restrictions of this subdivision.

5.                  Under Minnesota law, burglary in the first degree is a crime of violence.[11]  So, Mr. Fawcett’s conviction of that crime on January 6, 1989, was a conviction for a crime of violence.

6.                  Mr. Fawcett possessed a firearm within 10 years of July 19, 1994—the day when he was discharged from probation and his civil rights were restored.  His possession of his father’s Remington Model 742 .308 rifle was therefore in violation of state law, the rifle was subject to seizure and forfeiture by the Department under Minnesota Statutes, section 97A.223, subdivision 1(a)(1).

7.                  Even though Mr. Fawcett’s father may have had no knowledge of his son’s possession of the rifle, lack of knowledge by the owner is not a legal defense to forfeiture and does not affect the validity of the forfeiture.[12]

8.                  The Administrative Law Judge adopts as Conclusions any Findings, which are more appropriately described as Conclusions.

9.                  The bases and reasons for these Conclusions are those expressed in the Memorandum that follows, and the ALJ incorporates that Memorandum into these conclusions.

Based upon these Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

The Administrative Law Judge recommends that the Commissioner AFFIRM the validity of the seizure and forfeiture of the Remington Model 742 .308 rifle, No. 366451, and DISMISS Mr. Fawcett’s appeal.

 

 

Dated this 8th day of July, 2002.

 

 

/s/ Bruce H. Johnson

BRUCE H. JOHNSON

Administrative Law Judge

 

Reported:            Taped; 1 tape

                           No transcript prepared  

 

 

 

NOTICE

 

            Under Minnesota law,[13] the Commissioner must serve his final decision upon each party and the Administrative Law Judge by first-class mail.

 

MEMORANDUM

There was no genuine dispute about the material facts in this matter.  Mr. Fawcett was convicted of a crime of violence in 1989.  In 1994, he was released from his probationary sentence for that offense, and his civil rights were restored.  In 2001, he entered a guilty plea and admitted to possessing a firearm before the tenth anniversary of the restoration of his civil rights.  That violated Minnesota law and made his possession of his father’s rifle illegal.  Mr. Fawcett indicated that he misunderstood when the ten years expired.  He believed that the ten-year period was supposed to begin on the date of his conviction, which was January 6, 1989, so that it would have been legal for him to possess the rife in November 2001.  As evidence of confusing language, he submitted a copy of his current probation agreement, which language that he believes is clearer on the issue of firearm possession than his previous release from probation.[14]  The problem is that the legislature drafted Minnesota Statutes, section 609.165, in terms of an absolute liability statute, leaving no room for a defense of honest mistake.  The same problem arises with the defense to forfeiture that Mr. Fawcett’s father had no knowledge that his son had borrowed the rifle, and he had possession of it.  In a different forfeiture statute that only applies to using a firearm to violate game laws, the legislature expressly provided that seizure was discretionary and that lack of knowledge by the owner could be a defense:

Subdivision 1.  Property subject to seizure and confiscation. (a) An enforcement officer may seize:

(1) wild animals, wild rice, and other aquatic vegetation taken, bought, sold, transported, or possessed in violation of the game and fish laws or chapter 84 or 84D; and

(2) firearms, bows and arrows, nets, boats, lines, poles, fishing rods and tackle, lights, lanterns, snares, traps, spears, dark houses, fish houses, and wild rice harvesting equipment that are used with the owner's knowledge to unlawfully take or transport wild animals, wild rice, or other aquatic vegetation and that have a value under $1,000 are subject to this section.[15]  [Emphasis supplied.]

But the legislature chose not to put language like that in Minnesota Statutes, section 97A.223, subdivision 1(a)(1), which is the statute that applies here.  Here, seizure is mandatory, and the owner’s lack of knowledge is not a defense.  So the fact that Mr. Fawcett’s father had no knowledge that Mr. Fawcett was in possession of the rifle cannot prevent the forfeiture.  Neither administrative law judges nor commissioners can make law.  They can only enforce the laws in the way that the legislature makes them.

At the hearing Mr. Fawcett’s father testified that the rifle in question had been given to him by his own father and had significant sentimental value.  If the Commissioner agrees with the recommendation to forfeit the rifle, Mr. Fawcett’s father indicated a strong desire to purchase it at the Department’s auction.  Since this appears to be a case involving an innocent owner, it would be helpful if the Department, in its final decision, could provide the family with information about how Mr. Fawcett, Sr., might attempt to purchase the firearm at auction.

B. H. J.