- Pennsylvania's revised expungement law. A step in the right direction.
- Updates on proposed expungement laws in New York. There may be competing bills.
- Untangling the waiting period mess in Utah's expungement law. Changes made in 2007 created problems in 2008.
Tuesday, December 23, 2008
Saturday, December 13, 2008
Firearm Rights Restoration After Domestic Violence Convictions Part II
The topic of restoring firearm rights after a misdemeanor conviction of domestic violence will probably be an ongoing topic for a few years as the courts sort out the difference between the plain language of the Lautenberg Amendment and the bizarre interpretations given by U.S. Department of Justice (DOJ), Bureau of Alcohol, Tobacco and Firearms (BATF), and various state courts and agencies.
A client of ours wanted to purchase a firearm in CA after having a misdemeanor conviction for Domestic Violence in Washington vacated. He also had his firearm rights restored by a WA court using WA's firearm restoration statute. We contacted the California Department of Justice's Bureau of Firearms to see if the client would be eligible to own a firearm in CA. Having not have faced that fact pattern before, the CA DOJ referred me to the National Crime Information Center (NCIC).
The NCIC is a division of the DOJ that screens applicants for firearm ownership. Most states require that the NCIC clear a person before the state will allow the person to purchase or possess a firearm. The legal analyst I spoke with gave me a surprising interpretation that is so bizarre that I have yet to formulate a response.
He said that a state government "cannot restore what it did not take away." Meaning, that despite the plain language of the Lauthenberg Amendment, which says that expungement, vacating, or setting aside a conviction will restore firearm rights— and, despite what seemed to be the previous position of the feds, that a state could restore firearm rights if the expungement remedy clearly stated rights were restored, the feds were now saying the rights can only be restored by the state if the state also took them away for the misdemeanor domestic violence.
This interpretation seems very strained and illogical. We will do some analysis on it soon, but I wanted to throw this out there to let other people start attacking it and incorporating it into any state legislation.
-Mathew Higbee
A client of ours wanted to purchase a firearm in CA after having a misdemeanor conviction for Domestic Violence in Washington vacated. He also had his firearm rights restored by a WA court using WA's firearm restoration statute. We contacted the California Department of Justice's Bureau of Firearms to see if the client would be eligible to own a firearm in CA. Having not have faced that fact pattern before, the CA DOJ referred me to the National Crime Information Center (NCIC).
The NCIC is a division of the DOJ that screens applicants for firearm ownership. Most states require that the NCIC clear a person before the state will allow the person to purchase or possess a firearm. The legal analyst I spoke with gave me a surprising interpretation that is so bizarre that I have yet to formulate a response.
He said that a state government "cannot restore what it did not take away." Meaning, that despite the plain language of the Lauthenberg Amendment, which says that expungement, vacating, or setting aside a conviction will restore firearm rights— and, despite what seemed to be the previous position of the feds, that a state could restore firearm rights if the expungement remedy clearly stated rights were restored, the feds were now saying the rights can only be restored by the state if the state also took them away for the misdemeanor domestic violence.
This interpretation seems very strained and illogical. We will do some analysis on it soon, but I wanted to throw this out there to let other people start attacking it and incorporating it into any state legislation.
-Mathew Higbee
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