Posted on 10/30/2009 8:57:09 AM PDT by marktwain
On September 24, former state Representative Beverly Masek was sentenced in federal court for conspiracy to commit bribery at the federal courthouse in Anchorage.
Masek admitted to accepting about $4,000 in bribes from Bill Allen, the former CEO of Veco. She also admitted to introducing legislation that would raise oil taxes, then pulling her bill after wringing a cash payment out of Allen—a bit of arm-twisting on a man who was famous for dumping cash into Alaska politics long before an FBI undercover investigation began to uncover Juneau’s Corrupt Bastards Club.
U.S. District Judge Ralph Beistline gave Masek, a Republican from Willow, six months in prison. That’s 12 months shy of the minimum in the federal guideline, and the second-to-lightest sentence so far for any convicted Bastard’s Club member (South Anchorage Senator John Cowdery got six months of house arrest).
But the felony conviction also does something else. It takes away Masek’s gun rights, likely forever.
This is a woman convicted of a non-violent offense. A woman who grew up in the Interior village of Anvik and who finished the Iditarod four times. Now she’s a member of the tiny club of Alaska politicians who got caught in the FBI dragnet. She’s also in a much larger club: the growing number of people whose Second Amendment rights have been extinguished by a government that has no intention of giving them back.
“The tragic thing is, under state law you can possess a firearm as long as it can’t be concealed, so you can have a long rifle or shotgun,” says federal public defender Richard Curtner, the attorney who represented Masek and had to explain this part of the law to her. “Having a firearm in rural Alaska is a necessity, not just for food, but for protection when you are traveling in the field.”
This isn’t the first time a state law and a federal law collided. In Alaska, a person can’t toss a rock without having it land on some spot where state and federal laws don’t match—fisheries management, marijuana prohibitions, subsistence rights, and an education law that proposes closing schools based on student test scores.
The federal gun law could use an Alaska exception, Curtner says.
“But people convicted of crimes don’t have any lobby. There are all kinds of exceptions written into law for banks and for corporations, but when you’ve done something wrong in your past, there’s no lobbyist for that,” he says.
The federal government has a process for reinstating civil rights. In the case of gun rights, a felon who has paid their debt to society or been exonerated by a presidential pardon, can file an application for reinstatement of rights with the Bureau of Alcohol Tobacco Firearms and Explosives. The bureau’s agents process the application, performing a background check to make certain the applicant qualifies.
But ATF agents don’t do those background checks anymore, and haven’t for the last 17 years. That’s according to a form letter ATF sends to anyone who inquires about reinstatement of rights. The letter calls Second Amendment rights “federal firearms privileges” and says that ever since 1992, Congress has used the bureau’s annual budget appropriation to prohibit the ATF from spending money to “investigate or act upon” any restoration of rights application. The letter also says the convict may seek a presidential pardon, and gives the address of the Pardon Attorney’s Office at the U.S. Department of Justice. Couple that with a federal law that created strict point-of-sale background checks for firearms, and you have some tall legal hurdles to leap.
And even though the federal public defenders occasionally represent clients seeking certain kinds of post-conviction relief, Curtner says helping a client reinstate their gun rights would be outside his office’s ability to help.
“It’s kind of beyond our representation, and I don’t know that anywhere in the country there is a case where (a public defender) has pursued this.”
In the Lower 48, this issue might stand out as a mostly philosophical debate over Second Amendment rights, modern interpretations of the U.S. Constitution, or the hypothetical threat of a hostile government crackdown.
In rural Alaska, barring past felons from possessing a gun has specific real-world implications, ones that aren’t just theoretical.
“Every village has a felon, at least one,” says Winfred Olanna, who works as a village public safety officer in Brevig Mission, an Inupiaq village of about 375 people on the Seward Peninsula. Olanna says he doesn’t know enough about federal firearms prohibitions to talk about them. But as a VPSO, he’s tasked with knowing everyone in Brevig, including everyone who returns from prison.
“My stepbrother, he’s a felon, so he can’t have any firearms in his home—no rifles, no shotguns,” Olanna says.
The nearest probation officer to Brevig Mission is based in Nome, a 65-mile airplane ride from the village. Olanna checks in on every person on probation in the village. He’s even responsible for keeping people them up-to-date with drug testing, when it’s required. “It’s part of our job description to work with the P.O.s, because they hardly could come to every village twice a month for every felon,” Olanna says.
Olanna’s also taken his brother-in-law hunting. After all, there’s more work to a hunt than the split-second it takes to shoot a caribou or bearded seal—piloting the boat, spotting animals, field dressing and packing the meat—there’s work a hunter can do without holding a gun.
“There’s plenty to do,” Olanna says, “He just can’t carry a firearm—and we’re all just happy that he is following his probation. He’s happy because his probation ends next year.”
Conversations about gun rights in rural Alaska inevitably lead one place. Is there a “don’t ask, don’t tell” policy when it comes to enforcing these laws? Olanna says there isn’t in Brevig Mission.
One Alaska State Trooper, with experience as a VPSO oversight officer, says troopers are never encouraged to let anyone slide. “I have not practiced any kind of selective enforcement like that, and I’ve never been asked to. In fact, just the opposite,” says Trooper Terrence Shanigan.
Shanigan, who is 38, grew up in rural Alaska, in the Bristol Bay villages of Pilot Point and Ugashik. He remembers being one of the excited village kids who would run, not walk, to the airstrip when a state trooper landed at Ugashik.
“I only knew him as ‘trooper’ but it was always exciting when he came to town,” he says, adding troopers were plied with coffee and akutaq. He says a successful state trooper or VPSO must insert themselves into the community, making a point to attend potlatches and community events such as planning meetings.
Troopers are charged with enforcing state laws, and that’s where their focus is. Shanigan current patrols the Parks Highway from Talkeetna north to Cantwell. When he worked as a VPSO oversight officer, he was sometimes assigned to villages with only on-and-off VPSO coverage, where he made frequent visits even though he couldn’t be there every day. He’s trained in wildlife enforcement, so he knows how to prosecute hunting and fishing violations.
Shanigan says it’s possible that a trooper might come into contact with a felon on probation—someone the state law doesn’t allow to be armed—without the information on-hand to charge that person with a probation violation.
“When you go down to the river, well, everybody is packing firearms,” Shanigan says, but the trooper may not know who on the river has had their rights revoked until he is back at the office, running names through databases. “Now someone with that knowledge might say, ‘Hey, that trooper let somebody go’—but that’s not really what they saw,” he says.
Cops can be suspicious for all kinds of reasons, Shanigan says, but they have to be careful to not trounce on anyone’s rights. “You have to make decisions based on what you know to be true,” he says.
All of the competing state and federal regulations are further complicated by something called the National Instant Criminal background Check System. NICS, as it’s informally known, is the background check licensed gun dealers use to see if federal gun control laws allow a particular customer to purchase a gun. And the NICS system has flagged people who have their rights restored in their home state.
Anchorage attorney and gun rights activist Wayne Anthony Ross has represented people attempting to earn their gun rights back. Ross says the reason NICS flags all Alaska felons is fallout from a U.S. Supreme Court ruling called Caron v. U.S. The case was decided in 1993, and requires that a person have all gun rights restored before the federal government recognizes any of their gun rights. The FBI applies this “all-or-nothing” approach to managing NICS.
Alaska law allows for restoration of most, but not all, of a felon’s gun rights. A state felon cannot have a concealed weapon, Ross says, unless the felon wears the weapon on private property. (His interpretation differs slightly from that of Curtner, who tells clients they can’t own a “concealable” weapon.)
A state felon is also prohibited from receiving Alaska’s concealed weapons permit. The permit itself is an odd-duck. It’s no longer required in order to carry a concealed weapon in Alaska. Yet the state continues to offer them because gun rights activists want the right to carry in other states where Alaska has reciprocal agreements.
“The problem is that this Supreme Court case that says if there is any state prohibition on having firearms, no matter how minimal, then you can’t own a firearm at all,” Ross says. “So a guy who feeds his family through subsistence, and has paid his debt to society, isn’t able to do that.”
Ross believes changing state law can solve the NICS problem for some felons. He’s even drafted model legislation, but it hasn’t been introduced despite his efforts to recruit a legislator to sponsor it. “I’ve got clients who have received pardons. There is one guy who has received a presidential pardon and others are people who have completed their probation. So we have multiple classes of people who are affected by this,” he says.
In a letter to state Senator Charlie Huggins, Ross identified two clients by their initials and related their stories. One was convicted in 1970, becoming a felon at age 19 after being caught with hallucinogenic drugs, Ross wrote. “He has worked, hunted and fished his entire life. He only learned recently, when he applied for purchase of a new firearm, tat he is now suddenly prohibited form owning firearms, despite having been granted a suspended imposition of sentence more than 30 years ago.”
Ross’s second example was a man convicted of felony assault in 1992 and granted a full pardon by Governor Frank Murkowski in 2006. The man was a search and rescue pilot who wanted to carry a weapon while performing his job.
Federal gun laws are strongest when applied to felons in possession of weapons, or people accused of using a gun while committing a felony crime. A drug dealer or repeat violent offender can have up to five years added to their sentence if they have a gun in their home. Newsrooms often get press releases from the U.S. Attorneys office touting new indictments and sentences related to such charges.
“We use our discretion when applying the law,” Assistant U.S. Attorney Frank Russo says. “Usually we are applying the law at the request of the local community.”
The implication is there won’t be hordes of FBI or ATF agents flying around Alaska and rappelling into hunting camps to check IDs and round up gun owners. But defense attorneys aren’t really satisfied with that.
“A client might know that it’s very unlikely that they would be charged (for being a felon in possession),” Curtner says. “But I can’t tell my people that, to trust the government not to charge you. I can only advise the client on the law, and the law in this case says you can’t own a weapon.”
So that’s what Curtner told Beverly Masek, and every other nonviolent offender he’s represented who was found guilty. “We talked about it, and it’s one of those things that’s ‘what are you going to do?’” Curtner says. “There is just no getting around it.”
As far as I’m concerned, if you’ve served all your time (including probation), then you get all your rights back upon release.
I wonder if governors can grant pardons for federal felons? In Virginia there's a pretty regular pardon process which will get one the franchise. I don't know how it affects gun rights.
On the third hand, You know, selling your office IS a serious offense for crying out loud. I think half a year in the pokey for this kind of thing is a slap on the wrist. The answer is not to lighten the punishment to to restore a sense of honor to public service and to throw guys like Rangel into jail for minimum 5 years -- MINIMUM.
In Dante, guys like Blagoyevich (sp?) are in the Inferno. WHy are we lightening up on this is a representative democracy. Pollies ought to be scared into lower GI crisis state by the very thought of extortion or bribery.
The reality is that there really is a don’t-ask-don’t-tell practice on this subject in Alaska. No trooper will ever say that they would not enforce this, but if you’re in the woods with a hunting rifle with all your proper hunting licenses and tags, nobody is going to check and see if you are legal to carry a gun.
As the article says; troopers become part of these small communities. If a trooper charged someone in this instance when they were subsistence hunting, that trooper w/never have a ‘friend’ in Alaska again. That is not a good place to be in this land.
If you can’t deal with the consequences, don’t do the crime. Suck it up buttercups! If there was real government tyranny going on here I would have sympathy. There isn’t any here, and I don’t feel sorry for anyone.
People should default to state law and buy/carry firearms regardless of what federal law says. Neither the feds nor the state have the authority to prevent a free citizen from being armed per the constitution.
Anyone not incarcerated should have all firearm rights restored along with all other rights of citizenship.
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