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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

Gabrielle v. State, Dept. of Public Safety (05/18/2007) sp-6125, 158 P3d 813

     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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