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Post subject: Expunged Dv charge firearm
Post Posted: Wed Dec 11, 2013 11:29 pm
Hello I just wanted to ask this question I have been searching for weeks for an answer. I had a felony dv charge in ca 13 years ago. I have since had it reduced and dismissed thru the expung process. Before I retained an attorney I asked if this process would restore my firearm rights. The answer was yes. Because the federal ban only applies to misde conviction not felony. And once it was reduced I was no.longer a felon. Has anybodyanybody felt with this that can offer some advice?
Thanks
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Thu Dec 12, 2013 2:27 am
cribabi:

Welcome Aboard!

There's a sticky at http://forums.buckeyefirearms.org/viewtopic.php?f=6&t=10097 that you might want to have a look at. Not mandatory, and possibly sleep-inducing, but you may learn a bit about who's here, and how the board works. Or at least help the economy in coffee-bean growing countries....

The Lautenberg Amendment does make a DV conviction a roadblock for LAC's, regardless of he conviction's age. However, a Felony DV conviction will have the same effect.

IAC, with a sealed record, you should be OK. Hopefully somebody else who actually knows (IANAL) will turn up with more detail.

Regards,

Stu

(Why write a quick note when you can write a novel?)

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Post subject: Re: Expunged Dv charge firearm
Post Posted: Thu Dec 12, 2013 6:05 am
cribabi wrote:
Hello I just wanted to ask this question I have been searching for weeks for an answer. I had a felony dv charge in ca 13 years ago. I have since had it reduced and dismissed thru the expung process. Before I retained an attorney I asked if this process would restore my firearm rights. The answer was yes. Because the federal ban only applies to misde conviction not felony. And once it was reduced I was no.longer a felon. Has anybodyanybody felt with this that can offer some advice?
Thanks

Have you received a Presidential pardon?

If not, you're still subject to the federal prohibition. See 18 USC 925 (c) for details of the unavailable process for relief.

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Post subject: Re: Expunged Dv charge firearm
Post Posted: Wed Dec 18, 2013 9:30 am
If you had your DV charge expunged then you should be fine. The Gun Control Act states that if the conviction has been expunged, pardoned, or set aside that the person is NOT considered convicted for purposes of the Gun Control Act. However, expect to be delayed when you attempt to purchase a gun. I would get copies of the expungement order from the court, and send in a voluntary appeal file to the FBI. This will allow them to research your case and give you a UPIN, that will prevent you from being denied or delayed.
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Wed Dec 18, 2013 11:19 am
wheeler2823 wrote:
If you had your DV charge expunged then you should be fine. The Gun Control Act states that if the conviction has been expunged, pardoned, or set aside that the person is NOT considered convicted for purposes of the Gun Control Act.

Do you have a cite for that?

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Post subject: Re: Expunged Dv charge firearm
Post Posted: Wed Dec 18, 2013 11:39 am
I sure do.

Title 18 USC 921
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

I know this section well. It is the section that caused the problems with Ohio Restoration Of Firearms Rights. We changed the law to account for the problem with House Bill 54.

Also, the President cannot pardon a state level charge. Only the Governor of the state where the crime occurred can do that. The President can only pardon Federal crimes.
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Wed Dec 18, 2013 11:45 am
wheeler2823 wrote:
I sure do.

Thanks for the quick response.

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Post subject: Re: Expunged Dv charge firearm
Post Posted: Wed Dec 18, 2013 11:50 am
No problem, happy to share!
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Wed Dec 18, 2013 1:46 pm
wheeler2823 wrote:
I sure do.

Title 18 USC 921
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

See: State v. Hendren (2005), 9th Dist. No. 22464, 2005-Ohio-2814, http://statecasefiles.justia.com/docume ... o-2814.pdf. In that case, Mr. Hendren was convicted of 7 counts of violations of R.C. § 2923.13. The appeals court made the following ruling:

“In his argument in support of his assignment of error, Mr. Hendren argues only that his prior conviction was placed under seal by a court, and therefore essentially could not be used against him to convict him of the instant charge. Mr. Hendren invokes R.C. 2953.33, which governs the sealing of records. However, Mr. Hendren does not present any authority that provides that sealing of records under R.C. 2953.33 also applies to relieve a defendant of a disability imposed pursuant to R.C. 2923.13. See, e.g., State v. Conwell (Apr. 12, 2000), 9th Dist. No. 19482, at *17, fn. 3.***Thus, a defendant seeking to be relieved of a disability must do so pursuant to the procedure set forth in R.C. 2923.14. This statute section provides that a defendant seeking to remove a disability is to apply to the court of common pleas in the county in which the defendant resides. R.C. 2923.14(A).*** Mr. Hendren has failed to demonstrate that he followed this procedure.*** The judgment of the Summit County Court of Common Pleas is affirmed.” See also http://www.ohioattorneygeneral.gov/Ohio ... fa0656.pdf (See last paragraph of the second page).

According to the 9th District and the Attorney General of Ohio, Ohio's records sealing statute does not overcome the prohibitions of R.C. § 2923.13, and therefore, the state restoration via records sealing "expressly provides that the person may not ship, transport, possess, or receive firearms," thus invoking the federal prohibitions.

This may not matter for the original poster because he said that the DV charge was reduced to a misdemeanor. However, if Sub HB 203 becomes law, even misdemeanor DV convictions would create a state and federal firearms disability. See line 1691-1693 of Sub HB 203 and 18 USC § 922(g)(9).

My comment should not be considered legal advice; it is general discussion of Ohio law. Anyone in these circumstances should consult with an attorney.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Thu Dec 19, 2013 1:11 am
Liberty wrote:
wheeler2823 wrote:
I sure do.

Title 18 USC 921
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

See: State v. Hendren (2005), 9th Dist. No. 22464, 2005-Ohio-2814, http://statecasefiles.justia.com/docume ... o-2814.pdf. In that case, Mr. Hendren was convicted of 7 counts of violations of R.C. § 2923.13. The appeals court made the following ruling:

“In his argument in support of his assignment of error, Mr. Hendren argues only that his prior conviction was placed under seal by a court, and therefore essentially could not be used against him to convict him of the instant charge. Mr. Hendren invokes R.C. 2953.33, which governs the sealing of records. However, Mr. Hendren does not present any authority that provides that sealing of records under R.C. 2953.33 also applies to relieve a defendant of a disability imposed pursuant to R.C. 2923.13. See, e.g., State v. Conwell (Apr. 12, 2000), 9th Dist. No. 19482, at *17, fn. 3.***Thus, a defendant seeking to be relieved of a disability must do so pursuant to the procedure set forth in R.C. 2923.14. This statute section provides that a defendant seeking to remove a disability is to apply to the court of common pleas in the county in which the defendant resides. R.C. 2923.14(A).*** Mr. Hendren has failed to demonstrate that he followed this procedure.*** The judgment of the Summit County Court of Common Pleas is affirmed.” See also http://www.ohioattorneygeneral.gov/Ohio ... fa0656.pdf (See last paragraph of the second page).

According to the 9th District and the Attorney General of Ohio, Ohio's records sealing statute does not overcome the prohibitions of R.C. § 2923.13, and therefore, the state restoration via records sealing "expressly provides that the person may not ship, transport, possess, or receive firearms," thus invoking the federal prohibitions.

This may not matter for the original poster because he said that the DV charge was reduced to a misdemeanor. However, if Sub HB 203 becomes law, even misdemeanor DV convictions would create a state and federal firearms disability. See line 1691-1693 of Sub HB 203 and 18 USC § 922(g)(9).

My comment should not be considered legal advice; it is general discussion of Ohio law. Anyone in these circumstances should consult with an attorney.

I think he needs to determine what California expungements do based upon his original message.

-- Mike
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Sun Dec 22, 2013 5:21 am
Liberty wrote:
According to the 9th District and the Attorney General of Ohio, Ohio's records sealing statute does not overcome the prohibitions of R.C. § 2923.13, and therefore, the state restoration via records sealing "expressly provides that the person may not ship, transport, possess, or receive firearms," thus invoking the federal prohibitions.

This may not matter for the original poster because he said that the DV charge was reduced to a misdemeanor. However, if Sub HB 203 becomes law, even misdemeanor DV convictions would create a state and federal firearms disability. See line 1691-1693 of Sub HB 203 and 18 USC § 922(g)(9).

My comment should not be considered legal advice; it is general discussion of Ohio law. Anyone in these circumstances should consult with an attorney.

Let's address this issue in a logical progression:

  • 18 U.S.C. § 922(g)(9) places one under federal disability for having "been convicted in any court of a misdemeanor crime of domestic violence."
  • However, 18 U.S.C. § 921(a)(33)(B)(ii) states that the "person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged[.]"
  • Therefore, if a conviction for a misdemeanor crime of domestic violence has been expunged, it is not unlawful to possess a firearm under 18 U.S.C. § 922(g).
  • The proposed R.C. 2923.13(A)(5) under Sub. H.B. 203 places one under Ohio disability if "[i]t would be unlawful under 18 U.S.C. 922(g) or any other federal law *** to possess a firearm[.]"
  • Note that the foregoing provision does not refer to specific disabling factors under 18 U.S.C. § 922(g), but rather, refers to whether it would be "unlawful" under 18 U.S.C. § 922(g), which automatically incorporates the federal exception in 18 U.S.C. § 921(a)(33)(B)(ii).
  • Therefore if a possession of a firearm is not unlawful under 18 U.S.C. § 922(g), it will not be unlawful under the proposed R.C. 2923.13(A)(5).

Given the foregoing, under the proposed provisions of Sub. H.B. 203, the OP will be in good shape with an expunged California misdemeanor domestic violence conviction. However, it will be a rare Ohioan who has such good fortune. An Ohio first-degree misdemeanor offense of domestic violence [R.C. 2919.25(A)] cannot be expunged. R.C. 2953.36(C).
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Tue Dec 24, 2013 10:21 am
Werz wrote:
Liberty wrote:
According to the 9th District and the Attorney General of Ohio, Ohio's records sealing statute does not overcome the prohibitions of R.C. § 2923.13, and therefore, the state restoration via records sealing "expressly provides that the person may not ship, transport, possess, or receive firearms," thus invoking the federal prohibitions.

This may not matter for the original poster because he said that the DV charge was reduced to a misdemeanor. However, if Sub HB 203 becomes law, even misdemeanor DV convictions would create a state and federal firearms disability. See line 1691-1693 of Sub HB 203 and 18 USC § 922(g)(9).

My comment should not be considered legal advice; it is general discussion of Ohio law. Anyone in these circumstances should consult with an attorney.

Let's address this issue in a logical progression:

  • 18 U.S.C. § 922(g)(9) places one under federal disability for having "been convicted in any court of a misdemeanor crime of domestic violence."
  • However, 18 U.S.C. § 921(a)(33)(B)(ii) states that the "person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged[.]"
  • Therefore, if a conviction for a misdemeanor crime of domestic violence has been expunged, it is not unlawful to possess a firearm under 18 U.S.C. § 922(g).
  • The proposed R.C. 2923.13(A)(5) under Sub. H.B. 203 places one under Ohio disability if "t would be unlawful under 18 U.S.C. 922(g) or any other federal law *** to possess a firearm[.]"
  • Note that the foregoing provision does not refer to specific disabling factors under 18 U.S.C. § 922(g), but rather, refers to whether it would be "unlawful" under 18 U.S.C. § 922(g), which automatically incorporates the federal exception in 18 U.S.C. § 921(a)(33)(B)(ii).
  • Therefore if a possession of a firearm is not unlawful under 18 U.S.C. § 922(g), it will not be unlawful under the proposed R.C. 2923.13(A)(5).

Given the foregoing, under the proposed provisions of Sub. H.B. 203, the OP will be in good shape with an expunged California misdemeanor domestic violence conviction. However, it will be a rare Ohioan who has such good fortune. An Ohio first-degree misdemeanor offense of domestic violence [R.C. 2919.25(A)] cannot be expunged. R.C. 2953.36(C).

That is how I would rule if I were a judge. However, when it comes to ruling on violations of statutes that prohibit firearms possession by "bad people" the courts have usually found ways to rule against the "bad people." I think it is equally possible that a court of appeals and even the supreme court to rule that the Ohio legislature intended to incorporate the disabling factors listed in federal law into Ohio's prohibition statute. Also, if the "expungement" is functionally a record sealing, the [i]State v. Hendren
standard would require relief under R.C. 2923.14 before one could possess in Ohio.

The problem is that Sub HB 203 would just add ambiguity to the law. Who wants to be the test case? It would be like flipping a coin and if it is heads you were just exercising your 2nd Amendment rights and if it is tails your life is over.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Tue Dec 24, 2013 2:55 pm
Liberty wrote:
Werz wrote:
Under the proposed provisions of Sub. H.B. 203, the OP will be in good shape with an expunged California misdemeanor domestic violence conviction. However, it will be a rare Ohioan who has such good fortune. An Ohio first-degree misdemeanor offense of domestic violence [R.C. 2919.25(A)] cannot be expunged. R.C. 2953.36(C).

That is how I would rule if I were a judge. However, when it comes to ruling on violations of statutes that prohibit firearms possession by "bad people" the courts have usually found ways to rule against the "bad people." I think it is equally possible that a court of appeals and even the supreme court to rule that the Ohio legislature intended to incorporate the disabling factors listed in federal law into Ohio's prohibition statute. Also, if the "expungement" is functionally a record sealing, the State v. Hendren standard would require relief under R.C. 2923.14 before one could possess in Ohio.

Generally, Ohio appellate courts interpret the law rather logically; most complaints about those interpretations relate to the complainant's ideology, not logic. While there are departures from logic, they are actually somewhat rare.

The phrase "it would be unlawful" will require an analysis of the law as interpreted by courts with appropriate jurisdiction. Ohio courts would need to interpret the federal law under federal precedent, just as federal courts interpret Ohio law under Ohio precedent. An Ohio appellate court would have no choice but to consider 18 U.S.C. § 921(a)(20) and (a)(33)(B)(ii) and the precedent under Cassidy. As to whether a "sealing of the record" under R.C. 2953.31 et seq. is equivalent to "expungement" under the federal law, they need only look to the equal treatment of both under R.C. 2923.125(D)(5); it would make sense that sealing of the record is equivalent to expungement for the purpose firearm disability if the two are equivalent for the purpose of issuing a concealed handgun license.

Also note that Hendren is applicable only to disability under Ohio law, specifically R.C. 2923.13. Under the Revised Code, Ohio law has never recognized sealing/expungement as a restoration of firearm rights. Federal law does, and does so explicitly.

Edit: For what it's worth, I have already prepared a memorandum, objecting to the currently proposed modifications of R.C. 2923.13 and similar references in other code sections. I know that memorandum has been reviewed by at least one legislative aide, who apparently did not consider it a relevant issue, and it has also been transmitted to the directorate of another statewide firearm association. Regardless of concerns that my arguments could defeat the beneficial provisions of Sub. H.B 203, these are matters which I take seriously, and if necessary, I will present my concerns directly to the Ohio Senate.
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Post subject: Re: Expunged Dv charge firearm
Post Posted: Fri Dec 27, 2013 12:01 pm
It is my understanding that expungement under Cal. Penal Code 1203.4 is not a true 'expungement' in that it 'dismisses' the charge, but leaves behind in many cases some restrictions such as sex offender registration, or other penalties or restrictions where applicable. It does work as a state restoration of firearms rights, but I have not determined to what extent there are limitations thereon. Both of these are important questions, because in order to restore rights, the 'expungement' must both entirely eliminate the DV case, and also fully restore the persons right to own any and all firearms in California.

My understanding is that the federal government does not recognize an expungement as restorative of any rights if such expungement has any restrictions or conditions left upon the person whose charge is expunged.

This is one of the reasons we recently had to restructure Ohio rights restoration, in order to ensure that all rights were restored so as the feds would accept it. There's been a lot of good analysis above, but it all comes down to the effect of the California law upon the defendant's rights in the eyes of the feds. In Ohio, this person would be eligible for a CHL. Federally, he may or may not still have a misdemeanor or felony conviction of domestic violence (either of which is a permanent firearms ban). The feds' view on the topic is as incredibly broad as it is selectively prosecuted.

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Post subject: Re: Expunged Dv charge firearm
Post Posted: Fri Dec 27, 2013 7:21 pm
Username wrote:
It is my understanding that expungement under Cal. Penal Code 1203.4 is not a true 'expungement' in that it 'dismisses' the charge, but leaves behind in many cases some restrictions such as sex offender registration, or other penalties or restrictions where applicable. It does work as a state restoration of firearms rights, but I have not determined to what extent there are limitations thereon. Both of these are important questions, because in order to restore rights, the 'expungement' must both entirely eliminate the DV case, and also fully restore the persons right to own any and all firearms in California.

My understanding is that the federal government does not recognize an expungement as restorative of any rights if such expungement has any restrictions or conditions left upon the person whose charge is expunged.

This is one of the reasons we recently had to restructure Ohio rights restoration, in order to ensure that all rights were restored so as the feds would accept it. There's been a lot of good analysis above, but it all comes down to the effect of the California law upon the defendant's rights in the eyes of the feds. In Ohio, this person would be eligible for a CHL. Federally, he may or may not still have a misdemeanor or felony conviction of domestic violence (either of which is a permanent firearms ban). The feds' view on the topic is as incredibly broad as it is selectively prosecuted.

There are a few points here which need expansion:

  • A true "expungement" does not "dismiss" the original charge. An expungement, such as the one available under R.C. 2953.37 (for pre-SB17 violations of R.C. 2923.16 based upon acts which are no longer unlawful) will result in the destruction, deletion and erasure of all records of conviction, but it does not vacate the judgment of conviction. There are reasons that you cannot put toothpaste back in the tube.
  • Federal recognition of "restoration of rights" is, at best, inconsistent. It varies not only by state law, but also by the interpretation of the various federal appellate circuits, depending on whether the restoration is by operation of law or by a physical certification, and depending on whether a deprivation of firearms rights can be reserved in state law, or whether it must be specifically designated in the written certification. See United States v. Chenowith, 459 F.3d 635 (5th Cir. 2006); contra, United States v. Cassidy, 899 F.2d 543 (6th Cir. 1990), both interpreting convictions and final releases under Ohio law. Therefore, two people may have the same convictions and final releases under Ohio law, and whether or not their firearms rights have been restored may depend on the federal appellate circuit where they commit their alleged violation of 18 U.S.C. § 922(g).

The bottom line is that I vehemently object to Sub. H.B. 203 grafting federal law onto Ohio's firearm disability statute in the form of proposed R.C. 2923.13(A)(5). I firmly believe that provision to be Pandora's Box. Unfortunately, it appears that the Ohio General Assembly, and perhaps Ohio's foremost firearms associations, are ignoring Zeus's warnings.
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