April 27, 2010
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Karl Hadrits Conservation Officer |
Marshall Jarvela Street Address Redacted |
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James Jarvela Street Address Redacted Crosby, MN 56441 |
Re: In the Matter of the Appeal of the Notice of Seizure and Intent to Forfeit Firearm, CF No. 366052 & 366053
OAH 3-2000-21209-2
Dear Officer Hadrits, Mr. Marshall Jarvela, and Mr. James Jarvela:
I write to confirm the agreement of the parties that the telephone conference we started today will be reconvened at 2:00 p.m. on May 3, 2010. At that time, please call 1-866-767-9127 and use passcode “5251952.” The parties agreed to reconvene the conference call so that they could exchange any documents they wish to offer into the record. Please send me a copy of anything you send each other, so that we can all look at the documents at the same time during the conference call.
During the conference call today, the parties agreed that the prehearing conference would serve as the evidentiary record and that my recommendation to the DNR would be based on the facts as determined on that record. We also had a brief discussion of the legal issue presented in the case. A DNR enforcement officer is required to seize firearms possessed in violation of state or federal law or court order.[1] It appears the main issue is whether federal law, as opposed to state law, precludes Marshall Jarvela from possessing a firearm. It may be helpful for the parties to know exactly what the federal law provides. Under federal law, it is unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to possess in or affecting commerce any firearm or ammunition.[2] A “misdemeanor crime of domestic violence” is defined to mean an offense that is a misdemeanor under Federal, State, or Tribal law, and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.[3]
In addition, a person shall not be considered to have been convicted of such an offense unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and in the case of a prosecution for an offense for which the person was entitled to a jury trial, either the case was tried by a jury or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.[4] Finally, a person shall not be considered to have been convicted of such an offense if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored, unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.[5]
I look forward to talking with you all next Monday.
Sincerely,
s/Kathleen D. Sheehy
KATHLEEN D. SHEEHY
Administrative Law Judge
Telephone 651/361-7848
Cc: Patricia M. Watts, DNR
Docket Coordinator