Can a person with a felony or domestic violence misdemeanor conviction be appointed as a peace officer in New York?

Plain-English summary

The Deputy Commissioner of the Division of Criminal Justice Services (DCJS), which certifies peace officers after they complete required training, asked the AG how the federal Gun Control Act interacts with New York's peace officer appointment rules for two specific kinds of convictions: State felonies and misdemeanor crimes of domestic violence.

The AG's answer separates several layers.

State eligibility baseline. Under Public Officers Law § 3-b, the State law requirements to be a peace officer are minimal: U.S. citizenship, State residency, and the right to vote. Election Law § 5-106(2) disqualifies a felon under sentence from voting, so a felon currently serving a sentence cannot be appointed. After the sentence is complete, the right to vote is restored automatically (Civil Rights Law § 79, Election Law § 5-106), and the analysis shifts to whether the person can lawfully possess a firearm.

Felons and the federal Gun Control Act. 18 USC § 922(g) generally bars a person convicted of a crime punishable by more than one year of imprisonment from possessing a firearm that has traveled in interstate commerce (which essentially means all firearms after Scarborough v United States, 431 US 563 (1977)). Two exceptions matter.

First, the government-employment exception. 18 USC § 925(a)(1) exempts firearms "issued for the use of . . . any State or any department, agency, or political subdivision thereof." A felon who is appointed to a peace officer position by a government employer that issues him the firearm is covered. Federal courts have applied this in Hyland v Fukuda, 580 F2d 977 (9th Cir 1978) and United States v Kozerski, 518 F Supp 1082 (DNH 1981).

Second, the civil-rights-restored exception. 18 USC § 921(20) (and § 921(a)(33) for domestic violence misdemeanors) provides that a conviction is not counted if it has been expunged or set aside, or if the person has had civil rights restored. Under McGrath v United States, 60 F3d 1005 (2d Cir 1995), "core civil rights" means the right to vote, to hold public office, and to serve as a juror. A New York felon automatically regains the right to vote and to hold public office after completing the sentence, but the right to serve as a juror requires a Certificate of Relief from Disabilities under Correction Law § 701. Once that certificate issues, all three core rights are restored within the meaning of the federal statute, and absent a State firearm bar, the felon may possess a firearm under federal law.

State firearm bar. A peace officer may need a separate firearm license under Penal Law § 400.00. § 400.00 bars licensure of a person convicted "anywhere of a felony." A Certificate of Relief from Disabilities can remove the statutory bar under Hines v Kelly, 222 AD2d 277 (1st Dept 1995). But even after the bar is removed, the licensing officer has broad discretion to refuse the license for "lack of good moral character" or "good cause" (Correction Law § 701(3) preserves that discretion).

Domestic violence misdemeanors. The 1996 amendments to the Gun Control Act (18 USC § 922(g)(9)) make it unlawful for a person convicted of a "misdemeanor crime of domestic violence" to possess a firearm shipped or affecting interstate commerce. Two important features distinguish this from the felon analysis. First, the government-employment exception in § 925(a)(1) does not apply here. Second, the civil-rights-restoration exception in § 921(a)(33) only works "if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense." In New York, a misdemeanor conviction does not strip the core civil rights (Civil Rights Law § 79; Public Officers Law § 30; People v Ahearn, 196 NY 221 (1909)). The Second Circuit's McGrath logic (a state's failure to divest rights is not a "restoration") suggests that a New York domestic violence misdemeanant has no easy path to civil-rights-restoration relief. The AG noted that the Treasury Secretary can grant individual relief under 18 USC § 925(c), but Congress had defunded the program (Pub L 105-61).

Appointing authority discretion. Even if a candidate is legally eligible, the appointing authority retains discretion under Civil Service Law § 50(4)(d) to consider prior convictions, subject to Correction Law § 752: a conviction by itself cannot disqualify an applicant unless there is a direct relationship to the position or the appointment would create an unreasonable risk to property or public safety.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why was the AG even asked this in 1998?

The 1996 federal domestic violence amendments to the Gun Control Act were brand new and they did not include the government-employment exception that had long allowed law enforcement personnel to keep their service weapons after a felony in federal terms. DCJS had to figure out how the new federal ban interacted with State peace-officer appointments. The AG opinion is the State's interpretation of the layered analysis.

What is a Certificate of Relief from Disabilities and why does it matter?

A Certificate of Relief from Disabilities, issued under Correction Law § 701, removes statutory and licensing bars that automatically follow a criminal conviction. For purposes of the federal Gun Control Act felony analysis, it is the way a New York felon restores the right to serve as a juror, which under McGrath is one of the three core civil rights. Once the certificate issues and the felon has also automatically regained voting and public-office rights, the federal civil-rights-restoration exception applies.

Why does the government-employment exception help felons but not domestic violence misdemeanants?

Congress wrote the original Gun Control Act (1968) with an exception for government-issued firearms. When Congress added the 1996 domestic violence amendments, it did not extend the exception. The AG's analysis takes Congress at its word: peace officers convicted of a domestic violence misdemeanor cannot rely on the government-employment exception, even though felons convicted of crimes punishable by more than one year can.

Does a New York misdemeanor strip civil rights?

No. New York's Civil Rights Law § 79 strips core civil rights only on felony conviction. A misdemeanor conviction (with one narrow exception under Public Officers Law § 30 for an officer whose oath is violated by the conviction) does not affect voting, jury service, or holding public office. That is what makes the domestic violence analysis difficult: there is nothing to "restore" because nothing was lost.

What does this mean for an appointing authority looking at a candidate with a domestic violence misdemeanor?

The candidate likely cannot lawfully possess a firearm under federal law unless he obtained Treasury Secretary relief (which is not currently funded). For peace officer positions that involve carrying a firearm, that essentially rules the candidate out. For peace officer positions that do not require firearm possession, the federal ban may not bar the appointment, but Correction Law § 752 and Civil Service Law § 50(4)(d) still allow the appointing authority to weigh the conviction.

Can an appointing authority deny a person with a criminal record solely because of the conviction?

Not under Correction Law § 752. The denial has to rest on (1) a direct relationship between the prior offense and the position sought, or (2) an unreasonable risk to property or public safety from the appointment. Courts have given appointing authorities significant deference in applying these tests where the position involves law enforcement.

Background and statutory framework

State eligibility. Public Officers Law § 3-b sets out the minimum eligibility requirements for peace officer appointment: U.S. citizenship, State residency, right to vote. Election Law § 5-106 ties voting rights to felony sentence status. Criminal Procedure Law § 2.10 is the master list of peace officers in New York.

Civil rights forfeiture and restoration. Civil Rights Law § 79 strips core civil rights from a felon under sentence. Election Law § 5-106(2) and Civil Rights Law § 79 automatically restore voting and public-office rights on completion of sentence. Judiciary Law § 510 bars felons from serving as jurors; Correction Law § 701 lets a court issue a Certificate of Relief from Disabilities to remove statutory bars, including juror eligibility.

Firearm licensure. Penal Law § 400.00 governs firearm licenses generally. A peace officer's authority to possess a firearm may flow from peace-officer status (Penal Law § 265.20(a)(1)(c); Criminal Procedure Law § 2.10) or may require a separate § 400.00 license, depending on the category of peace officer.

Federal Gun Control Act. 18 USC § 922(g) prohibits firearm possession by enumerated categories of prohibited persons. § 925(a)(1) provides the government-employment exception. § 921(20) provides the civil-rights-restoration exception for felonies. § 921(a)(33) (added 1996) defines "misdemeanor crime of domestic violence" and includes a narrower restoration exception conditioned on the underlying jurisdiction actually divesting civil rights.

Discretion in appointment. Civil Service Law § 50(4)(d) authorizes consideration of prior convictions in appointment decisions. Correction Law § 752 limits that discretion: denial must be tied to direct relationship to the job or unreasonable risk.

Citations

• Civil Rights Law § 79 (civil rights forfeiture upon felony conviction).
• Civil Service Law § 50(4)(d) (consideration of prior convictions).
• Correction Law §§ 30, 700(1)(a), 701, 701(3), 752 (Certificates of Relief from Disabilities; limits on conviction-based denial).
• Criminal Procedure Law § 2.10 (list of peace officers).
• Election Law § 5-106 (voting rights and felony status).
• Judiciary Law § 510 (juror eligibility).
• Penal Law § 10.00(5) (felony definition); § 265.20(a)(1)(c) (peace officer firearm authority); § 400.00 (firearm licensure).
• Public Officers Law § 3-b (peace officer eligibility); § 30 (forfeiture of office on misdemeanor violating oath).
• 18 USC §§ 921(20), 921(a)(33), 922(g), 922(g)(9), 925(a)(1), 925(c) (federal Gun Control Act).
• Scarborough v United States, 431 US 563 (1977) (minimal interstate-commerce nexus).
• McGrath v United States, 60 F3d 1005 (2d Cir 1995) (core civil rights for restoration analysis).
• Hines v Kelly, 222 AD2d 277 (1st Dept 1995) (Certificate of Relief from Disabilities removes automatic bar to firearm license; broad discretion still applies).
• Hyland v Fukuda, 580 F2d 977 (9th Cir 1978); United States v Kozerski, 518 F Supp 1082 (DNH 1981) (government-employment exception).
• Matter of Duffy v Ward, 81 NY2d 127 (1993) (Public Officers Law § 30 forfeiture).
• Matter of Golimowski v Bellamy, 668 NYS2d 968 (4th Dept 1997) (appointing authority discretion on convictions).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/98-F8_pw.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and the linked PDF is authoritative.

CIVIL RIGHTS LAW § 79; CIVIL SERVICE LAW § 50(4)(d); CORRECTION
LAW §§ 30, 700(1)(a), 701(3), 752; CRIMINAL PROCEDURE LAW § 2.10;
ELECTION LAW § 5-106; JUDICIARY LAW § 510; PENAL LAW §§ 10.00(5),
265.20(a)(1)(c), 400.00; PUBLIC OFFICERS LAW §§ 3-b, 30;
PUB L 90-351, TITLE VII §§ 1201-1203; PUB L 105-61 (111 Stat
1277); 18 USC §§ 921, et seq.; 18 USCA § 922(g); 18 USCA § 925.

Analysis of whether persons convicted of State felonies or
misdemeanor crimes of domestic violence may be appointed as peace
officers or whether their convictions preclude such appointments
because they are prohibited from possessing firearms under the
federal Gun Control Act and/or State law.

July 30, 1998

Hon. Kenneth J. Connolly
Deputy Commissioner
Division of Criminal Justice Services
Executive Park Tower
Stuyvesant Plaza
Albany, New York 12203-3764

Formal Opinion
No. 98-F8

Dear Mr. Connolly:

You have requested a formal opinion as to whether
individuals convicted of either felonies or misdemeanor crimes of
domestic violence may be appointed as peace officers. You have
asked that we consider whether their convictions preclude such
appointment by virtue of the provisions of the federal Gun
Control Act (GCA), 18 USC §§ 921, et seq. The Division of
Criminal Justice Services certifies peace officers upon
successful completion of the training required by law. Criminal
Procedure Law § 2.30.

The only State statutory requirements for appointment as a
peace officer are that an individual be a United States citizen,
a State resident, and possess the right to vote. Public Officers
Law § 3-b. A felon under sentence would be disqualified from
appointment because he/she does not possess the right to vote.
Election Law § 5-106(2). Accordingly, the question narrows to
whether an individual convicted of a felony, who has completed
his/her sentence, or an individual convicted of a misdemeanor
crime of domestic violence, may possess a firearm.

We will first consider whether a felon may possess a firearm
under the federal GCA. We will then consider whether a person
convicted of a misdemeanor crime of domestic violence may possess
a firearm under that federal Act. Finally, we will discuss the
discretion of appointing authorities regarding the appointment of
peace officers.

I. THE POSSESSION OF FIREARMS BY STATE FELONS UNDER THE FEDERAL
GUN CONTROL ACT

The GCA provides, in pertinent part, as follows:

It shall be unlawful for any person . . . who
has been convicted in any court of a crime
punishable by imprisonment for a term
exceeding one year . . . to ship or transport
in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or
ammunition; or to receive any firearm or
ammunition which has been shipped or
transported in interstate or foreign
commerce. 18 USCA § 922(g).

However, "[t]he provisions of this chapter . . . shall not
apply with respect to the transportation, shipment, receipt,
possession, or importation of any firearm or ammunition imported
for, sold or shipped to, or issued for the use of, the
United States or any department or agency thereof or any State or
any department, agency, or political subdivision thereof."
18 USCA § 925(a)(1).

In New York, Criminal Procedure Law § 2.10 provides an
exclusive list of persons designated as "peace officers." Many
of the peace officers on this list are employed by the State and
local governments and, therefore, the firearms they are issued by
their employers would be "for the use of . . . the State or any
department, agency or political subdivision thereof," thus
falling within the statutory exception. 18 USCA § 925(a)(1).
Accordingly, these peace officers come within the exception from
the federal prohibitions on possessing a firearm. See, Hyland v
Fukuda, 580 F2d 977, 979 (9th Cir 1978); United States v
Kozerski, 518 F Supp 1082, 1090-91 (DNH 1981), affd, 740 F2d 952
(1st Cir), cert denied, 469 US 842 (1984).

Other peace officers are employed privately and, therefore,
are not covered by the governmental employment exception
contained in the GCA. For this class of peace officer, we must
determine whether, in its reference to crimes punishable by
imprisonment for a term exceeding one year, the GCA applies to
individuals convicted of felonies.

As a preliminary matter, under the GCA persons convicted of
a covered crime are only prohibited from shipping, transporting,
possessing, or receiving firearms or ammunition that have been
shipped or transported "in interstate or foreign commerce" or
possessed "in or affecting commerce." 18 USCA § 922(g). In
Scarborough v United States, 431 US 563 (1977), the Supreme Court
of the United States held that proof that the possessed firearm
previously traveled in interstate commerce was sufficient to
satisfy the statutorily required nexus between the possession of
the firearm by the convicted felon and interstate commerce. The
Court found "no indication that Congress intended to require any
more than the minimal nexus that the firearm have [sic] been, at
some time, in interstate commerce." Scarborough, 431 US at 575.
Based on Scarborough, courts have held that manufacture of
firearms or ammunition outside of the state or previous travel in
interstate commerce is sufficient to satisfy the commerce
requirement. See, United States v Sanders, 35 F3d 61 (2d Cir),
cert denied, 513 US 994 (1994); United States v Carter, 981 F2d
645 (2d Cir 1992), cert denied, 507 US 1023 (1993); United States
v Ray, 41 F3d 1504 (4th Cir 1994).

Whether an individual with a conviction falls within the
prohibitions of the GCA depends upon the "law of the jurisdiction
in which the proceedings were held." 18 USCA § 921(20).
Therefore, we should look to the law of the jurisdiction in which
the conviction occurred for guidance regarding the designation of
crimes with terms of imprisonment exceeding one year. For
purposes of this opinion, we will limit our analysis to persons
convicted under New York law.

Under New York law a felony is defined as "an offense for
which a sentence to a term of imprisonment in excess of one year
may be imposed." Penal Law § 10.00(5). Thus, as a general
matter, under the GCA a New York felon may not possess a firearm
if the required nexus to interstate commerce is present.

However, under the GCA, "[a]ny 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 USCA § 921(20). Under this statute, the "civil
rights restored" must include at least the right to vote, to hold
public office, and to serve as a juror. See, McGrath v
United States, 60 F3d 1005, 1007 (2d Cir 1995), cert denied,
516 US 1121 (1996). These have been described as the core civil
rights for purposes of the GCA. Id. Additionally, for the
exception to apply, the person must not be prohibited under any
State statutory provision from shipping, transporting, possessing
or receiving firearms. 18 USCA § 921(20).

A. The Core Civil Rights

In New York, an individual convicted of a felony, who has
been sentenced to imprisonment in a State correctional facility
for a term less than for life or for an indeterminate term having
a minimum of one day and a maximum of natural life, forfeits all
of his/her civil rights, including, inter alia, the right to
vote, to hold public office, and to serve as a juror. Civil
Rights Law § 79.

The right to vote and to hold public office are
automatically restored to New York felons upon the completion of
their sentences, including all parole. Election Law § 5-106(2);
Civil Rights Law § 79. Such automatic restoration is sufficient
to constitute a restoration of these rights within the meaning of
the GCA. See, McGrath v United States, supra, at 1008. However,
New York felons are statutorily prohibited from serving as
jurors. Judiciary Law § 510. This statutory bar may be removed
by obtaining a Certificate of Relief from Disabilities issued
pursuant to Correction Law § 701. See, 1991 Op Atty Gen 10 ("In
our view, the language defining the relief granted by these
certificates is sufficiently broad to include the right of a
felon to serve as a juror . . ."). "A certificate of relief from
disabilities may be granted as provided in this article to
relieve an eligible offender of any forfeiture or disability, or
remove any bar to his employment, automatically imposed by law by
reason of his conviction of the crime or offense specified
therein." Correction Law § 701. A Certificate of Relief from
Disabilities, removing the statutory bar to serve as a juror, is
sufficient to restore that right within the meaning of the GCA.
See, McGrath v United States, supra, at 1008.

Accordingly, under the GCA, a State felon whose conviction
has been expunged or set aside, or who has been pardoned or has
had his/her civil rights restored, including the right to serve
as a juror pursuant to a Certificate of Relief from Disabilities,
may possess a firearm under the GCA, absent any State prohibition
preventing the possession of firearms.

B. Firearms Licenses Under State Law

Under the GCA, a felon may not possess a firearm if he/she
is prohibited, under any State statutory provision, from
shipping, transporting, possessing or receiving firearms.
18 USCA § 921(20).

Some peace officers are authorized to possess firearms by
virtue of their peace officer status. Penal Law
§ 265.20(a)(1)(c); Criminal Procedure Law § 2.10. However,
others must obtain firearms licenses under Penal Law § 400.00
prior to possessing, repairing or disposing of firearms.
Criminal Procedure Law § 2.10.

Penal Law § 400.00 governs the licensing of firearms in
New York. Under Penal Law § 400.00, individuals convicted
"anywhere of a felony" may not be issued a firearms license.
Under decisional law, this disability may be removed if an
individual obtains a Certificate of Relief from Disabilities
pursuant to Correction Law § 701. See, Hines v Kelly, 222 AD2d
277, 278 (1st Dept 1995) (Certificate of Relief from Disabilities
sufficient to remove automatic bar to licensure), lv denied,
87 NY2d 810 (1996); People v Flook, 164 Misc 2d 284, 285
(NY County Ct 1995); 1975 Op Atty Gen 306; 1971 Op Atty Gen 8.
But see, Matter of Alarie, 168 Misc 2d 329, 330 (NY County
Ct 1996) (declining to follow dicta in People v Flook, supra,
that a Certificate of Relief from Disabilities may remove the
statutory bar to apply for or receive a firearms license).

Although a Certificate of Relief from Disabilities might
remove an absolute statutory bar to licensure, the licensing
officer is still vested with broad discretion to deny a felon a
firearms license. A Certificate of Relief from Disabilities does
not prevent "any judicial, administrative, licensing or other
body, board or authority from relying upon the conviction
specified therein as the basis for the exercise of its
discretionary power to suspend, revoke, refuse to issue or refuse
to renew any license, permit or other authority or privilege."
Correction Law § 701(3) (emphasis added). See, Hines v Kelly,
supra, at 278 (although Certificate of Relief from Disabilities
might remove the automatic bar to licensure, it did not "prevent
respondent from relying on the convictions in the exercise of his
statutory discretion to deny a license for 'lack of good moral
character' or 'good cause'"). Therefore, under both the GCA and
State law, a State felon may be appointed as a peace officer,
where such appointment requires the issuance of a firearms
license, if he/she is issued a Certificate of Relief from
Disabilities and the licensing officer grants a firearms license
under Penal Law § 400.00.

II. THE POSSESSION OF FIREARMS BY PERSONS CONVICTED OF
MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE UNDER THE FEDERAL
GUN CONTROL ACT

The 1996 amendments to the GCA (the "domestic violence
amendments") provide, in pertinent part, as follows:

It shall be unlawful for any person--
(9) who has been convicted in any court
of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign
commerce, or possess in or affecting
commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has
been shipped or transported in interstate or
foreign commerce. 18 USCA § 922(g)(9).

A "misdemeanor crime of domestic violence" means an offense
that:

(A) . . . (i) is a misdemeanor under Federal
or State law; and
(ii) 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.

(B) . . . (ii) A person shall not be
considered to have been convicted of such an
offense for purposes of this chapter 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 (if
the law of the applicable jurisdiction
provides for the loss of civil rights under
such an offense) unless the pardon,
expungement, or restoration of civil rights
expressly provides that the person may not
ship, transport, possess, or receive
firearms. 18 USCA § 921(a)(33).

As stated above, the GCA, including the domestic violence
amendments, applies only to firearms or ammunition that have been
shipped or transported "in interstate or foreign commerce" or
possessed "in or affecting commerce." 18 USCA § 922(g).

The domestic violence amendments do not contain the
exception for those engaged in governmental employment as
discussed above with respect to crimes punishable for a term in
prison of more than one year. The statutory language regarding
the issuance of firearms for the use of the "United States or any
department or agency thereof or any State or any department,
agency, or political subdivision thereof" is not made applicable
to convictions of misdemeanor crimes of domestic violence.
18 USCA § 925(a)(1).

However, the domestic violence amendments do exempt persons
convicted of misdemeanor crimes of domestic violence who have had
their civil rights restored from the provisions of the GCA.
Under the statute, whether a person's civil rights can be
"restored" depends upon whether the person ever lost any civil
rights as a result of the subject conviction. This seems clear
from the parenthetical language "(if the law of the applicable
jurisdiction provides for the loss of civil rights under such an
offense)." 18 USCA § 921(a)(33). For this purpose, federal
courts consider the core civil rights to be the right to vote, to
serve on a jury, and to hold public office. See, McGrath v
United States, supra, at 1007.

The question is whether State law "provides for the loss of
civil rights under such an offense." 18 USCA § 921(a)(33). For
purposes of this opinion, we will limit our analysis to persons
convicted under New York law. Under New York law, a person
convicted of a misdemeanor does not forfeit these core civil
rights. See, Civil Rights Law § 79; Public Officers Law § 30;
People v Ahearn, 196 NY 221, 232 (1909).

In McGrath v United States, the United States Court of
Appeals for the Second Circuit held that a state's failure to
divest felons of their civil rights does not qualify as a
"restoration" under the federal statute. McGrath v
United States, supra, at 1008. In McGrath, the court was
interpreting a similar provision of the GCA, 18 USCA
§ 921(a)(20), which provides, in pertinent part:

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.

Although the court was sympathetic to the potential for injustice
created by the restoration language, it noted that "the role of
the court is to give effect to the legislation Congress has
passed, not to legislation it might pass, if it further studied
the question." McGrath v United States, supra, at 1009.

The domestic violence amendments, including the
parenthetical language within the exemption provisions of these
amendments, were enacted subsequent to McGrath. Therefore, a
logical inference can be made that Congress, upon further study
of the question, intended to make it clear that persons convicted
of misdemeanor crimes of domestic violence would not have their
civil rights "restored" if they had never been lost, by inserting
the parenthetical language in 18 USCA § 921(a)(33), providing
that a

person shall not be considered to have been
convicted of such an offense for purposes of
this chapter 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 (if the law of the
applicable jurisdiction provides for the loss
of civil rights under such an offense).
18 USCA § 921(a)(33)(emphasis added).

Moreover, the legislative history of these amendments states that
because the
[l]oss of these [core civil] rights generally
does not flow from a misdemeanor conviction,
[the] language [on civil rights
restoration] is probably irrelevant to most,
if not all, of those offenders covered .
[by] the new ban. 142 Cong Rec S11877-78
(September 30, 1996) (statement of
Sen. McCain).

In further support of this proposition, in United States v
Smith, No. CR 96-2140 (ND Iowa July 14, 1997), the United States
District Court for the Northern District of Iowa recently held
that:

[s]ection 921(a)(33)(B)(ii) specifically
provides that the restoration of civil rights
exception applies only where the "applicable
jurisdiction provides for the loss of civil
rights under such an offense". Thus, where a
defendant's civil rights are not affected by
the conviction . . . the defendant cannot
have his civil rights restored for purposes
of section 921(a)(33)(B)(ii).

See also, National Association of Government Employees, Inc. v
Barrett, 968 F Supp 1564, 1575 (ND Ga 1997) ("the fact that
states' laws differ, with some failing to divest a misdemeanant
of his or her civil rights such that they cannot be restored,
does not render . . . [the domestic violence amendments]
unconstitutional").

We note that an individual convicted of a misdemeanor crime
of domestic violence may apply to the Secretary of the Treasury
for relief from the disabilities imposed by the GCA. Such relief
may be granted if it is satisfactorily established "that the
circumstances regarding the disability, and the applicant's
record and reputation, are such that the applicant will not be
likely to act in a manner dangerous to public safety and that the
granting of the relief would not be contrary to the public
interest." 18 USCA § 925(c).

Therefore, a person convicted in New York of a misdemeanor
crime of domestic violence may not be issued a firearm under the
GCA unless the conviction has been expunged or set aside, or is
an offense for which the person has been pardoned or unless the
person has received, upon an application to the Secretary of the
Treasury, relief from federal firearms disabilities.

III. DISCRETION OF APPOINTING AUTHORITIES

Although certain persons convicted of either State felonies
or misdemeanor crimes of domestic violence may be issued
firearms, the appointing authority can still use its discretion
in appointing peace officers and may take into account an
applicant's prior convictions. Civil Service Law § 50(4)(d);
Matter of Golimowski v Bellamy, __ AD2d __, 668 NYS2d
968 (4th Dept 1997); Matter of Frederick v Civil Service
Commission, 175 AD2d 428 (3d Dept 1991). However, the appointing
authority may not deny an application for employment solely

by reason of the applicant's having been
previously convicted of one or more criminal
offenses, or by reason of finding of lack of
"good moral character" when such finding is
based upon the fact that the applicant has
previously been convicted of one or more
criminal offenses, unless:
(1) there is a direct relationship between
one or more of the previous criminal offenses
and the specific license or employment
sought; or
(2) the issuance of the license or the
granting of the employment would involve an
unreasonable risk to property or to the
safety or welfare of specific individuals or
the general public. Correction Law § 752.

Therefore, State, local governments and other employers of
peace officers may exercise some discretion in making employment
decisions regarding persons convicted of criminal offenses.

Very truly yours,

DENNIS C. VACCO
Attorney General