Greg Dupont v. Nashua Police Department et al.

Gesture of Forgiveness Entitles Plaintiff to Obtain License to Carry
New Hampshire Supreme Court, Nos. 2013-513 and 2014-017
Thursday, February 26, 2015

In this case, the New Hampshire Supreme Court interpreted an important exemption to the federal Firearms Owners’ Protection Act (FOPA).

In 1998, the plaintiff, Greg Dupont, was convicted in Massachusetts of a misdemeanor with a maximum potential sentence of 2.5 years, making him ineligible to possess or carry a firearm. However, in 2005, Dupont petitioned the Massachusetts Firearms Licensing Review Board (FLRB), which, after deeming him “suitable,” restored upon him his right to possess/carry a firearm.

Subsequently, in 2007, Dupont obtained a license to carry a pistol or revolver from the Nashua Police Department. Two years later, he obtained an armed security license from the NH Department of Safety (DOS). Somehow, the DOS did not become aware of the 1998 conviction until 2010, at which time it revoked Dupont’s armed security license. Litigation ensued, but the DOS and Dupont were able to reach a settlement agreement, pursuant to which Dupont was reissued his armed security license.

But his 1998 conviction came back to haunt him again in 2013, when Dupont applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License. The Nashua Police Department conducted a background check on behalf of the ATF, discovered Dupont’s prior conviction, and, as a result, recommended denial of the Curios and Relics license and revoked Dupont’s state license to carry. When Dupont then sought renewal of his armed guard license, he was also denied based on the 1998 conviction. Dupont appealed these denials, which came before the NH Supreme Court as one consolidated case.

The Court was tasked with interpreting a provision in the federal Firearms Owners’ Protection Act (FOPA),which makes it unlawful for a person “convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess a firearm. However, and at the center of the Court’s inquiry, is an exemption, stating that any conviction that has been “expunged or set aside for which a person has been pardoned or has had civil rights restored shall not be considered a conviction.”

The Court agreed with the lower court’s decision that Dupont’s prior conviction had not been expunged, set aside, or pardoned. However, the Court disagreed with the lower court’s determination that the right to possess and carry firearms was not one of the civil rights that could be “restored” under the FOPA exemption. The NH Supreme Court determined that the “restored” civil rights Congress referred to include all rights that an individual loses upon conviction—including the right to possess and carry firearms—and are not limited to just the three “core” civil rights: voting, holding public office, and serving on a jury. As a result, Dupont did have a civil right restored when the Massachusetts FLRB deemed him suitable to possess a license to carry in 2005.

The ultimate question before Court then was whether the loss and restoration of this one right was enough to bring Dupont within the FOPA exemption. The Court held in the affirmative, looking at congressional history, which articulated an intent by Congress to exempt “felons to whom the convicting jurisdiction extended a subsequent gesture of forgiveness, or partial forgiveness,” in the form of an “acknowledgement of rehabilitation or an affirmative gesture of goodwill that merited exemption from the firearms bar.” Because the FLRB’s determination in 2005 constituted a gesture of “forgiveness” based on a ruling that Dupont was sufficiently trustworthy to obtain a license to carry, Dupont fell within the FOPA exemption and could not be prohibited from possessing firearms.