Reversal: Man seeking to restore gun rights can proceed in state court

A man seeking to restore his right to possess a firearm following his conviction for battery against his wife can proceed with his restoration proceedings in state court after the Court of Appeals of Indiana overturned a finding that the man needed to take his case to federal court.

In Dax A. Bunch v. State of Indiana, 21A-CR-2278, appellant-defendant Dax A. Bunch pleaded guilty to Class B misdemeanor battery after he was charged in 2007 with holding down his then-wife, choking her and poking her in the eye. In exchange for his guilty plea, the state dropped charges of Class D felony domestic violence and Class D felony intimidation.

After his guilty plea, Bunch learned via letter that he had lost his right to possess a firearm. Thus, in December 2020, Bunch filed a petition to restore his firearm rights pursuant to Indiana Code § 35-47-4-7.

But the Owen Circuit Court denied the petition, finding Bunch’s “gun privileges if revoked were revoked as a result of Federal law. This Court does not have the authority or jurisdiction to Order Federal authorities to Restore [Bunch’s] gun privileges. [Bunch] must seek relief in the Federal Courts.”

In a footnote, the Court of Appeals said it was unclear from the record whether Bunch’s gun rights had been revoked as a matter of federal or state law.

On appeal, Bunch argued the trial court misinterpreted the law in finding that it could not restore his firearm privileges pursuant to I.C. 35-47-4-7, which provides that “a person who has been convicted of a crime of domestic violence may not possess a firearm.” Subsection (b) of the statute allows domestic violence offenders to petition to restore their gun rights after five years.

Similarly, under federal law, 18 U.S.C.A. 922(g) prohibits a person convicted of a misdemeanor crime of domestic violence from possessing a firearm or ammunition. But federal law also provides for the restoration of those rights if the person’s civil rights have been restored in the underlying jurisdiction — here, in Indiana.

“The State argued below, and the trial court appears to have agreed, that Indiana Code section 35-47-4-7 did not apply to Bunch because he pled guilty to and was convicted of Class B misdemeanor battery, rather than the charged offense of Class D felony domestic battery,” COA Chief Judge Cale Bradford wrote in a Wednesday opinion. “Indiana Code section 35-47-4-7(a), however, does not say that a person convicted of domestic battery cannot possess a firearm, but rather that those convicted of a crime of domestic violence cannot possession a firearm. This distinction is important and cannot go unnoticed.”

The appellate court ultimately determined Bunch’s conviction qualified as “a crime of domestic violence” because it involved the “use of physical force” under I.C. 35-31.5-2-78, Indiana’s statutory definition of “crime of domestic violence” when his petition was filed. The court further noted the physical force was “used against his then-wife, who unquestionably qualified as a family or household member.”

Thus, “Because we conclude that the proper venue for Bunch’s request was the trial court regardless of whether his federal or state right to possess a firearm (or both) was revoked and that Bunch’s conviction qualified as a crime of domestic violence, we further conclude that Indiana Code section 35-47-4-7 applied,” Bradford wrote. “Thus, to the extent that Bunch’s right to possess a firearm was revoked, Bunch appropriately relied on Indiana Code section 35-47-4-7(b) in his attempt to have his right to possess a firearm restored.”

But the state also presented an alternative argument against Bunch’s appeal: Even if the trial court was the correct venue, the denial of the petition was still proper.

“However,” Bradford wrote, “given that the trial court made no findings on whether restoration of Bunch’s right to possess a firearm was proper pursuant to the factors listed in Indiana Code section 35-47-4-7(b), we cannot merely agree with the State on this assertion. Rather, we must remand the matter to the trial court for further proceedings, during which the trial court may consider the merits of Bunch’s petition.”