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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gabrielle v. State, Dept. of Public Safety (05/18/2007) sp-6125
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JOSEPH R. GABRIELLE, | ) |
| ) Supreme Court No. S- 11490 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-7244 CI |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF PUBLIC | ) |
| SAFETY, | ) |
| Appellee. | ) No. 6125 - May 18, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Wayne Anthony Ross, Ross &
Miner, P.C., Anchorage, for Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
PER CURIAM.
Joseph R. Gabrielle appeals the Alaska Department of
Public Safetys refusal to renew his permit to carry a concealed
handgun as well as the departments decision to revoke his
existing permit. The department concluded that Gabrielle was
ineligible for a permit because he was convicted of a felony in
1983 and Alaska law forbids a felon to carry a concealed handgun.
Gabrielle, who received a gubernatorial pardon in 1993, argues
that he is entitled to a permit because the plain language of the
licensing statute does not prohibit a felon from obtaining a
permit, and because he has an affirmative defense to criminal
liability. Because the legislature intended to bar felons from
obtaining concealed handgun permits, and because it would be
futile to issue Gabrielle a permit to carry a concealed handgun
that would not give him the right to carry a concealed handgun
beyond that which is available to all citizens, we affirm the
departments decision.
We have considered each of appellants arguments and
points on appeal. The record fully supports the Memorandum
Decision on Appeal entered by Superior Court Judge Sharon L.
Gleason, which we adopt as the opinion of this court. It is set
forth below.1
APPENDIX
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
JOSEPH R. GABRIELLE, Appellant.
vs.
STATE OF ALASKA, DEPARTMENT OF PUBLIC SAFETY, Appellee.
Case No. 3AN-03-07244 CI
MEMORANDUM DECISION ON APPEAL
This is an appeal from a decision of the Department of
Public Safety (DPS), which revoked Mr. Gabrielles concealed
handgun permit and refused to renew it. For the reasons set
forth below, the decision of the Department is AFFIRMED.
Facts and Proceedings
In January 2003, the Alaska State Troopers Division of
DPS revoked Mr. Gabrielles concealed handgun permit and refused
to renew the permit because Mr. Gabrielle had been convicted of
two felonies in the early 1980s. The State Troopers took this
action even though Mr. Gabrielle had received a pardon from
Governor Hickel for the felony convictions in October 1993. Mr.
Gabrielle appealed the Troopers decision to the Commissioner of
the Department of Public Safety in February 2003. On March 7,
2003, the Commissioner issued a letter denying that
administrative appeal, and indicated that based on DPSs
interpretation of the applicable statutes, specifically AS
11.61.200(a)(12) and (g), pardoned felons were precluded from
obtaining handgun permits. The Commissioners letter indicated
that it is a final administrative decision and that Mr. Gabrielle
could seek judicial review of this decision under AS 44.62.560-
44.62.570 within 30 days of receipt of this letter. The record
reflects that Mr. Gabrielle received the letter on March 12,
2003.
On March 22, 2003, Mr. Gabrielle submitted a request
for reconsideration to the Commissioner of DPS. On April 29,
2003, the Deputy Commissioner summarily denied the request,
indicating that there is no process for administrative
reconsideration of denial of an appeal.
On May 5, 2003, Mr. Gabrielle filed this appeal.
1. Is Mr. Gabrielle eligible to own or possess a handgun
under the laws of this state?
Alaska Statute 18.65.705 lists several requirements for
a person to be qualified to receive and hold a permit to carry a
concealed handgun. The parties dispute whether Mr. Gabrielle
meets one of those requirements whether he is eligible to own or
possess a handgun under the laws of this state and under federal
law.2 The State argues that Mr. Gabrielle is not eligible under
either state or federal law to possess a handgun, and this
statutory subsection therefore precludes the issuance of the
permit to Mr. Gabrielle.
The state and federal statutes regulating possession
and ownership of handguns do not involve substantial agency
expertise. Accordingly, in construing these statutes in this
administrative appeal, this court will apply its independent
judgment in determining their meaning, adopting the rule that is
most persuasive in light of precedent, reason, and policy.3
Turning first to state law, the State argues that
pursuant to AS 11.61.200(a)(12), Mr. Gabrielle is precluded from
possessing a handgun. This statute provides that a person
commits the crime of misconduct involving weapons in the third
degree if the person knowingly possesses a firearm that is
concealed on the person after having been convicted of a felony .
. . .
The parties dispute whether AS 11.61.200(g), which
establishes an affirmative defense to this statutory provision,
operates to allow Mr. Gabrielle to possess a handgun. AS
11.61.200(g) provides:
It is an affirmative defense to a prosecution
under (a)(12) of this section that
(1) either
(A) the defendant convicted of the prior
offense on which the action is based received
a pardon for that conviction;
(B) the underlying conviction upon which the
action is based has been set aside under AS
12.55.085 or as a result of post-conviction
proceedings; or
(C) a period of ten years or more has elapsed
between the date of the defendants
unconditional discharge on the prior offense
. . . and the date of the violation of
(a)(12) of this section, and the prior
conviction . . . did not result from a
violation of AS 11.41. . . ; and
(2) at the time of possession, the defendant
was
(A) in the defendants dwelling or on land
owned or leased by the defendant appurtenant
to the dwelling; or
(B) actually engaged in lawful hunting,
fishing, trapping, or other lawful outdoor
activity that necessarily involves the
carrying of a weapon for personal protection.
(Emphasis added).
Mr. Gabrielle asserts that as a result of his pardon,
he has an affirmative defense to a prosecution under (a)(12), and
is thus eligible to possess a concealed handgun under state law.
The State argues that the affirmative defense in subsection (g)
requires not only that Mr. Gabrielle receive a pardon or qualify
under either of the other two components of subsection (g)(1),
but that he must also meet the requirements of subsection (g)(2),
which limits the places where the concealed handgun may be
possessed as a precondition to this affirmative defense. In
response to this argument, Mr. Gabrielle asserts that subsection
(2) of the statute only modifies subsection (1)(C), and is not an
additional requirement for a person who has been pardoned who
falls within subsection (1)(A).
The States reading is consistent with fundamental
principles of statutory construction. To be entitled to the
affirmative defense under AS 11.61.200(g), a criminal defendant
would need to establish at least one of the components of
subsection (1) and one of the components of subsection (2).
The State then notes that AS 11.61.220(b)(1) and (2)
permits all citizens to carry a concealed weapon in the same two
circumstances specified in AS 11.61.200(g)(2).[4] Therefore, as
the State correctly notes, the net result of the statutory scheme
is that a pardoned felon can only carry a concealed handgun in
those situations where an ordinary citizen would be able to carry
a concealed handgun without a permit.
Under the statutory scheme, a pardoned felon could be
prosecuted under AS 11.61.200(a)(12) for misconduct involving
weapons in the third degree if the individual possessed a
concealed firearm at any place other than the two statutory
exceptions set out in AS 11.61.200(g)(2)(A) and (B). And, unlike
a prosecution under AS 11.61.220(a)(1) for fifth degree
misconduct, it would not be a valid affirmative defense to a
prosecution for violation of AS 11.61.200(a)(12) that the
individual was the holder of a valid permit to carry a concealed
handgun.5
And yet, as a pardoned felon, Mr. Gabrielle is eligible
to own or possess a concealed handgun in at least some locations
within the state within his dwelling and while hunting and
undertaking other specified outdoor activities. Moreover, as a
pardoned felon, he cannot be prosecuted for violation of AS
11.61.200(a)(1) for knowingly possessing a firearm capable of
being concealed.6
Harmonizing these different statutory provisions is a
somewhat tortured process from any perspective. But resolution
of these provisions is best determined, in this courts view, by
assessing the consequences of issuing a concealed handgun permit
to Mr. Gabrielle. Under the statutory scheme, possession of such
a permit would constitute an affirmative defense to one of the
bases for misconduct involving weapons in the fifth degree.
Under AS 11.61.220(a)(1), a person commits the crime of
misconduct involving weapons in the fifth degree if the person
knowingly possesses a deadly weapon . . . that is concealed on
the person. Under AS 11.61.220(b)(3), it is an affirmative
defense to the prosecution for that crime that the person was the
holder of a valid permit to carry a concealed handgun. However,
possession of the permit would not constitute a valid affirmative
defense to a prosecution for misconduct involving weapons in the
third degree based on a pardoned felons knowing possession of a
concealed firearm under AS 11.61.200(a)(12). And, as the State
correctly notes, a pardoned felon has the same affirmative
defenses as any other citizen to prosecution for weapons
violations if, at the time of possession, the defendant was at
his dwelling or actually engaged in lawful hunting, fishing,
trapping, or other lawful outdoor activity that necessarily
involved the carrying of a weapon for personal protection. In
effect, the fifth degree misconduct weapons charge is a lesser-
included offense to the third degree charge for pardoned felons,
but the affirmative defense of a permit is not available to
pardoned felons in a prosecution under the third degree charge.
Accordingly, issuance of a concealed handgun permit to
Mr. Gabrielle would serve no lawful purpose since such a permit
could not serve as an affirmative defense to a prosecution under
AS 11.61.200(a)(12). Therefore, the court finds that Mr.
Gabrielle should not be considered eligible to own or possess a
handgun under the laws of this state.7 Since such eligibility is
one of the necessary qualifications for issuance of a concealed
handgun permit,8 DPSs revocation of the permit and denial of the
permit renewal was appropriate. Moreover, such a result is
consistent with the legislative history regarding the concealed
handgun permitting laws.9
2. Mr. Gabrielle is not precluded from owning and
possessing a handgun
under federal law.
The State also asserts that Mr. Gabrielle cannot be
issued a concealed carry permit because he is ineligible to own
and possess a handgun under federal law. 18 U.S.C. 922(g)(1)
provides in pertinent part:
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.
However, 18 U.S.C. 921 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.
(Emphasis added.) Mr. Gabrielles pardon did not expressly provide
that he could not possess firearms. Therefore, federal law is
not a bar to Mr. Gabrielles permit eligibility.
The State asserts that two federal cases have held that
this exception does not permit the carrying of handguns if state
law forbids it.10 But neither Brown nor Caron were pardoned. Mr.
Gabrielle references United States v. Laskie,11 which held that
Mr. Laskies prior conviction could not be used as a predicated
conviction under 18 U.S.C. 922(g)(1) because Mr. Laskie had been
honorably discharged and that discharge did not include a
prohibition of firearm possession. Further, in United States v.
Gallaher,12 the Ninth Circuit held:
Under our decisions in Laskie and
Herron, a criminal defendant cannot
be charged with a federal crime
after receiving a certificate
restoring his civil rights that
contains no express warning that he
cannot possess firearms in spite of
the restoration of his civil rights
or that his state conviction may
constitute an element of a crime if
he is found in possession of a
weapon.
Following this case law, Mr. Gabrielle is not subject to the
prohibition under 18 U.S.C. 922(g)(1) since he received a pardon
for his convictions and his pardon did not contain an express
warning that he cannot possess firearms.
3. Conclusion
Because this court concludes that Mr. Gabrielle was not
eligible to own or possess a handgun under the laws of this
state, the decision of the Department of Public Safety is
AFFIRMED.
DATED this 22 day of April 2004.
/s/ Sharon L. Gleason
SHARON L. GLEASON
Superior Court Judge
_______________________________
1 We have edited the superior courts decision to conform
to our technical rules.
2 AS 18.65.705(2).
3 Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227,
1231 (Alaska 2003) (citation omitted).
4 [This reference is to a prior version of AS 11.61.220.
Following both the departments revocation and the superior courts
decision, the statute was amended in ways not relevant here.]
5 See former AS 11.61.220(b)(3).
6 See AS 11.61.200(b)(1)(A).
7 AS 18.65.705(2).
8 See AS 18.65.705.
9 See Sen. Green, Sponsor Statement for Senate Bill 141,
20th Leg., 1st Sess. (April 23, 1997) (noting the bill was
intended to make clear that no felon, even a non-violent felon,
would ever be able to apply for a concealed carry permit).
10 See Caron v. United States, 524 U.S. 308 (1998); United
States v. Brown, 69 F. Supp. 2d 925 (E.D. Mich. 1999).
11 258 F.3d 1047, 1052-53 (9th Cir. 2001).
12 275 F.3d 784, 792 (9th Cir. 2001).
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