Mississippi Advisory Opinions October 24, 1985: AGO 000006713 (October 24, 1985)

AGO 000006713.

Dear Mr. Horton:

Attorney General Edwin Lloyd Pittman has received your

attached hereto. Under the Mississippi Constitution of 1890, Article 5, 124 allows for a pardon by the Governor. If such a pardon is granted, it absolves the party from all legal consequences of crime and conviction, both direct and collateral. Ex Parte Crisler, 159 Miss. 247, 132 So. 103 (1931). Thus, if there was a full pardon by the Governor, the provisions of Miss. Code Ann. 97-37-5 (1972, as amended) would not apply to such a person. This, however, would not in and of itself absolve such a person from liability under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App. 1201-1203. As set forth in 18 U.S.C. App. 1203 (2), exempted is: . . .any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm. [Emphasis added]. Thus, if the pardon does not expressly allow for the possession of a firearm, under Federal law such a person may not carry a weapon in any capacity. This provision must be granted prior to such possession. See, United States v. Dameron, 460 F. 2d 294 (5th Cir., 1972). This provision may, however, also be exempted by action of the Secretary of the Treasury pursuant to 18 U.S.C. 925(c). (3)As to your third question, the Mississippi Constitution of 1890, Article 12, 253 states: The legislature may, by a two-thirds vote of both houses, of all members elected, restore the right of suffrage to any person disqualified by reason of crime; but the reasons there for shall be spread upon the journals, and the vote shall be by yeas and nays. Honorable Jerry Horton October 24, 1985 Page 3 However, this has never been construed to act in the same manner

as a pardon. Therefore, the remaining disabilities inherent to a felony conviction would remain. If he has been pardoned by the Governor, as set forth above, all of the disabilities would be removed. Miss. Code Ann. 19-25-3 (1972, as amended) sets forth the requirements for the office of Sheriff as: (1)That the person not be a defaulter to the state, county, municipality or the United States; and (2)That the person be a qualified elector. There is no requirement that the Sheriff be able to bear arms as there is in the definition of law enforcement officer in Miss. Code Ann. 45-6-3 (1972, as amended). In fact, there is a specific exemption from that definition for elected officials. Therefore, it is the opinion of this office that if such person is a qualified elector by action of the Governor or the Legislature, unless there is some specific statutory restriction on the particular office sought, such person may be a candidate for and elected to such office. However, as set forth above, this may not of itself allow the possession of firearms. Very truly yours, EDWIN LLOYD PITTMAN, ATTORNEY GENERAL By: Donald G. Barlow Special Assistant Attorney General DGB/mw Enclosure