In response to Gazette article: Iowa Supreme Court: Lying about felony record on gun form no crime
I represented Mr. Downey at the district court level, and made several arguments on his behalf, one of which the Iowa Supreme Court addressed and found in my client’s favor, which was dispositive of the appeal, so they didn’t address the other issues. But it doesn’t tell the entire story. One of my arguments was that even IF you assume he lied, which the defense never granted, he could not be prosecuted because the question on the form was illegal and improper. It never should have been asked.
My client did not lie. He has never conceded to lying on that form. First of all, the question is not what the press (and others, such as the sheriff) have reported. It is a double barreled, compound, confusing, vague, and ambiguous question, as testified to by two University of Iowa professors, Evan Fales and Alice Davison, experts in logical reasoning and linguistics. My client was misled into believing that the question was asking about convictions regarding firearms or explosives. He has no convictions regarding firearms or explosives, nor has he been convicted of any crime involving any form of violence whatsoever.
The question was as follows: “Have you ever been convicted in any court of a felony, or any other crime involving a firearm or explosives for which the court could have sentenced you to imprisonment for more than one year, even if you received a shorter sentence including probation?”
When the sheriff’s deputy called my client on the phone and asked in a different way not on the form, whether he had been convicted of a felony, he answered yes (OWI back in 2003). Instead of simply denying his application, they chose to arrest him and charge him with a felony.
The form was illegal, and went beyond what was authorized by the Iowa legislature. The law is not vague or ambiguous at all. It is very clear. That is what the Iowa Supreme Court held. The law says that the form shall require only items relating to identity, and it specifically lists what those items are. My client complied with the statute. Under the statute, it is the sheriff’s duty to take the identifying information and run a criminal background check to see whether the person is authorized to acquire a firearm. But the Department of Public Safety went beyond that which the legislature authorized, and asked unauthorized questions, and did so in an unclear manner. It is well-known that compound questions are legally objectionable for several reasons, and the illegal question on that questionnaire was compound and confusing. When the question was asked in a non-compound straightforward way, my client answered correctly.
This is the law as written:
724.17 Application for annual permit to acquire — criminal history check required. The application for an annual permit to acquire pistols or revolvers may be made to the sheriff of the county of the applicant’s residence and shall be on a form prescribed and published by the commissioner of public safety. The application shall require only the full name of the applicant, the driver’s license or nonoperator’s identification card number of the applicant, the residence of the applicant, and the date and place of birth of the applicant. The applicant shall also display an identification card that bears a distinguishing number assigned to the cardholder, the full name, date of birth, sex, residence address, and brief description and colored photograph of the cardholder, or other identification as specified by rule of the department of public safety. The sheriff shall conduct a criminal history check concerning each applicant by obtaining criminal history data from the department of public safety which shall include an inquiry of the national instant criminal background check system maintained by the federal bureau of investigation or any successor agency. A person who makes what the person knows to be a false statement of material fact on an application submitted under this section or who submits what the person knows to be any materially falsified or forged documentation in connection with such an application commits a class “D” felony.
Some are trying to give the impression that this ruling will impede the performance of the sheriff’s duties and allow unauthorized persons to acquire weapons, but that is not true. The law requires the sheriff to perform a background check. If the background check shows the individual has a felony conviction, the permit to acquire is denied. Hence the legislative purpose is accomplished. There was testimony at trial that it did not matter how my client answered the questionnaire, because the background check was going to be performed, as required by the statute, and the decision was going to be made based on the results of that background check, as it was in this case. So the law that the legislature wrote works perfectly. The executive branch of government does not get to re-write the law.