Expunged???

WestKentucky · Mar 26, 2020

I was reading an article in The Tennessean and came across a few things that hit me in a wrong way... photos at gun shops naming customers and basic descriptions of what they were buying...but the photo I will post here struck me as odd and I don’t fully understand what the legal yardstick will say.
Under federal and state laws, a person cannot possess a firearm once they have been convicted of a felony. This ban is permanent and is applicable for the remainder of the convicted felons life. The article mentions expungement of the record, but simply expunging the record does not seem to alter the legal status of firearm possession. I do know that there are ways to seek reinstatement if certain rights, but I was not aware that firearm rights were eligible to be reinstated once they were revoked for conviction. Am I wrong in my understanding that the letter of the law is pretty clear in that once the line is crossed to being a convicted felon then your days of legal firearms ownership are done? What legally would allow a felon to regain firearms rights? Pardon for the crime? Expungement? Either way you look at it there is only 1 answer on the 4473 and that is a disqualifying answer... have you ever been convicted and the answer is truthfully yes for felons, no matter if the matter was handled in some other way after the fact, it is still a disqualifier per my understanding.

Mousegun · Mar 26, 2020

The Tennessean has been a problem child for gun owners for a long time.

edwardware · Mar 26, 2020

Journalisming at its finest; the ignorant whinging is palpable.

Expunge: verb, erase or remove completely.

And there's no chance that anyone was just going to drop into the County Courthouse and get that bothersome old felony expunged on the way to the gun shop, Kung Flu or not. It's rare and time-consuming.

We have decided via our legal system that there are a class of persons who shall be denied their God given civil rights, on the basis of their behavior, for the good of the rest of us. We call them felons. We might do a pretty poor job of deciding who, but the underlying principle is sound.

bdickens · Mar 26, 2020

However, I'll bet it would be just peachy to let them vote...

herrwalther · Mar 26, 2020

Federal felonies are not eligible for rights restoration as far as I know. The program to restore firearm rights at the federal level has been defunded for many years now. The only other way to expunge a federal charge is a presidential pardon. States can restore firearm rights at their level, and every state will have their own requirements for the process. I found an attorney blog with some information related specifically to Tennessee law.

https://www.nashvilletnlaw.com/restoration-of-firearm-rights-in-tennessee/

TLDR version
"Unfortunately, Tennessee law makes it very difficult to regain firearm rights. A person convicted of a crime in Tennessee must obtain a pardon from the governor and fulfill other criteria. A person convicted in another state seeking to possess a firearm must satisfy the same requirements in the state of conviction."

9mmepiphany · Mar 27, 2020

WestKentucky said:
Either way you look at it there is only 1 answer on the 4473 and that is a disqualifying answer... have you ever been convicted and the answer is truthfully yes for felons, no matter if the matter was handled in some other way after the fact, it is still a disqualifier per my understanding.

If someone's conviction for a felony is expunged it is as if it had never occurred...it is the simple definition of the verb expunge

If that crime/charge is expunged, then there would have been no conviction and you would not be disqualified from purchasing a firearm...as you could truthfully answer in the negative on the 4473

Frank Ettin · Mar 27, 2020

See 18 USC 921(a)(20):

...What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms....

RickD427 · Mar 27, 2020

9mmepiphany said:
If someone's conviction for a felony is expunged it is as if it had never occurred...it is the simple definition of the verb expunge

If that crime/charge is expunged, then there would have been no conviction and you would not be disqualified from purchasing a firearm...as you could truthfully answer in the negative on the 4473

The above statement simply is not true. It's important to consider the legal meaning of terms, not what we may think they mean in common usage.

Frank was good enough to post the relevant federal statute concerning state law expungements. Since it appears that you are from Northern California, let's look at the California expungement statute to see what it provides with regard to the restoration of firearms rights. The statute is found in California's Penal Code at section 1203.4(a). Here is the text:

(a) (1) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. The probationer shall be informed, in his or her probation papers, of this right and privilege and his or her right, if any, to petition for a certificate of rehabilitation and pardon. The probationer may make the application and change of plea in person or by attorney, or by the probation officer authorized in writing. However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery Commission.

(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

(3) Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.

(4) This subdivision shall apply to all applications for relief under this section which are filed on or after November 23, 1970.

Look's like we're outta luck. A person who obtains a California expungement of their felony conviction remains a prohibited person with respect to firearms laws. The slate is not wiped clean. Don't be lying on the Form 4473.

Carl N. Brown · Mar 27, 2020

Back to OP #1. The prospect of a convicted Tennessee felon on a buying spree in response to COVID19 stopping by a judge to get a felony expunged, and that going on to the TICS and NICS databases in time to approve a gun sale at an FFL is about as likely as having a solar AND lunar eclipse on the same day (or night). I knew there was a reason I never subscribed to The Tennessean

1. Tennessee state level disqualifiers for gun rights (under TICS) are not necessarily federal level disqualifiers (under NICS). They can include things like (a) being listed as a suspect or (b) arrested for having the same name as a wanted person; for some reason. being cleared by investigarion is not retained: get and keep your own copy of the court disposition of your case.*

2. Tennessee you must (at least) go before a judge and start a process to restore gun rights. That is something a gun owner would do almost immediately after conviction on a minor non-violent felony or certain misdemeanors to get their gun rights restored (and their guns released).

3. Over 80% of Tennessee criminals acquire their weapons grey or black market (eg fences, burglars, drug dealers, thieves, friends or family who are often criminals themselves, etc.) and their background check is the color of your money. Couple of Knoxville cops told the paper there that maybe 1 in 5 street crimials owns a gun, those that did own guns got their guns illegally in the first place, and a proposed gun law did not have their support. Why feed bootlegging?

___________
*. With the feds rewarding states and cities for flooding the NICS with old records, this will get worse at the federal level too.
.

bearcreek · Mar 27, 2020

WestKentucky said:
Either way you look at it there is only 1 answer on the 4473 and that is a disqualifying answer... have you ever been convicted and the answer is truthfully yes for felons, no matter if the matter was handled in some other way after the fact, it is still a disqualifier per my understanding.

Frank quoted the relevant law.

Frank Ettin said:
See 18 USC 921(a)(20):

Basically, if the former felon has had their record expunged or pardoned and the pardon or expungement did not specifically say that they still could not possess firearms, they are legally authorized to lie about question 1 on the 4473.

danez71 · Mar 27, 2020

This is interesting stuff. So if I'm reading right....

If you're convicted federally and get expunged then youre ok to buy a gun. You can answer 'No' to the 4473 about being convicted.

If you're convicted by State law like CA or TN for example and get expunged then you still need to do extra court work before you can have a gun again. At this point (being expunged but not doing additional court work) you'd have to answer yes to being convicted.

Essentially, 'expunged' has a federal definition and a state definition.

Assuming the above it basically correct...

If you were convicted federally and it was expunged, would it be correct for you to answer No to the convicted question in CA and TN (for example) since it was federal jurisdiction?

Note: Even though there is only 1 question mark in my post above, the whole post is really a question as I'm not sure if the premise of my understanding is right.

Speedo66 · Mar 27, 2020

In NY, an application must be made through the probation dept. After an investigation, they will determine whether or not to recommend it to a judge. The judge must then make a determination as to whether or not he or she will restore rights.

They can also restore only certain rights removed by a felony conviction. In NY, it's mostly made to be able to hold employment positions which bar a felony conviction. Some judges will specifically bar restoring firearms privileges. Applications for restoration made at time of sentence can restore more privileges than those made later.

RickD427 · Mar 27, 2020

danez71 said:
This is interesting stuff. So if I'm reading right....

If you're convicted federally and get expunged then youre ok to buy a gun. You can answer 'No' to the 4473 about being convicted.

If you're convicted by State law like CA or TN for example and get expunged then you still need to do extra court work before you can have a gun again. At this point (being expunged but not doing additional court work) you'd have to answer yes to being convicted.

Essentially, 'expunged' has a federal definition and a state definition.

Assuming the above it basically correct...

If you were convicted federally and it was expunged, would it be correct for you to answer No to the convicted question in CA and TN (for example) since it was federal jurisdiction?

Note: Even though there is only 1 question mark in my post above, the whole post is really a question as I'm not sure if the premise of my understanding is right.

Not quite correct.

The key is the is provision from 18 USC 921 that Frank quoted above. If the relevant expungement statute contains a provision restricting firearms access, then the federal prohibition remains in effect (in addition to any state law prohibitions).

Your posting seems to assume that a federal felony conviction can be expunged. Please note that there is no generally applying federal statute allowing expungement of felony conviction. There is some case law allowing courts to expunge convictions where there was a specific error made in the conviction, but none that extends that authority to allow expungement based on rehabilitation. That point was made clear when Randall Cunningham (The first U.S. Fighter Pilot Ace of the Vietnam War) sought to have his felony conviction expunged so that his firearms rights could be restored. The only federal expungement statute (18 USC 3706) applies to folks convicted of specified drug charges and who were under 21 at the time of the offense. That statute does not contain a firearms restriction.

Expunged???

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