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Post subject: State and federal disabilities
Post Posted: Fri Jan 01, 2016 9:38 am
Hey everyone! I have a couple issues I'm hoping someone may have some insight on. 5 years ago I was convicted of a 4th degree felony, (attempted failure to comply with a police officer). Since that time I've been fully discharged from all sanctions imposed and restored my civil rights pursuant to ORC 2961.01. (Right to vote, hold office, and serve on a jury). Now my issues are two fold, first, as I see it I don't believe I'm under any STATE disability judging by the wording in 2923.13 and the nature of my offense. Secondly i dont believe im under any FEDERAL disability because in USC 921 (a) (20) it states that one of the exemptions to " a crime punishable by a term of more than 12 months" is if the state has restored the person's civil rights. As I see it I should be good to go but would like to know if anyone on here has any insight or thoughts on my conclusion. Thanks!
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Post subject: Re: State and federal disabilities
Post Posted: Sat Jan 02, 2016 2:49 am
mreed85:

Welcome Aboard!

There's a sticky at http://forums.buckeyefirearms.org/viewtopic.php?f=6&t=10097 that might be worth a look for general info on who's here, and how this board works. It's not mandatory, and may be sleep inducing. But you'll find out who the little dog in my avatar is :D....

I can't give you a solid answer on your question, but somebody here should be able to. If a felony conviction isn't DV or an assault on a Police Officer, you should be able to get it sealed, which may fix any State-level issues. I'm not sure about the Federal level....

(IANAL)

You can't get stuff expunged anymore, but you may be able to get that sealed - call the Clerk of Courts where the conviction was obtained, and see if they can help you with sealing. I'm not sure if that'll work, but the phone call ought to be free :D....

I have to ask, and you're not obliged to answer (or be too specific), but how the heck can you be charged with attempting a failure to comply? I must have slept through that chapter doing OPOTA way back when :mrgreen: ....

(I'm a mostly-retired rent-a-cop, among other things. In 2004, when I had to get a CHL, I tried to use my OPOTA certificate, but it seems that 1968 was too old. WAY too old....)

(OPOTA = Ohio Police Officer's Training Academy.)

Regards,

Stu

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

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Location: Youngstown OH
Post subject: Re: State and federal disabilities
Post Posted: Sat Jan 02, 2016 5:59 pm
Hey Stu, first of all thanks for the reply. I'm just trying to get some other opinions and get my ducks in a row. As for my charge it was originally F3 and got reduced to the F4 as "attempted" I'm not sure how that works into the statue but I was not complaining at the time. Anyhow I believe that I'm not under any state disability because of the wording in 2923.13?
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Joined: Thu Dec 31, 2015 4:28 pm
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Location: Holmes county, oh
Post subject: Re: State and federal disabilities
Post Posted: Sat Jan 02, 2016 10:00 pm
The instructions on Form 4473 (federal firearms transfer form) may answer your question. See: https://www.atf.gov/file/61446/download. Read the last paragraph in the first column that continues to the second column on page 4.

"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: State and federal disabilities
Post Posted: Sun Jan 03, 2016 1:51 am
Liberty:

Thanks! I should buy more guns so I'd see that form more often :mrgreen: ....

(I wonder if my wife would go along with that....)

Anybody else remember when you didn't need a 4473? Or when it was just a page or so?

Saw a cartoon the other day that pointed out the background checking requirements to buy a firearm v.s. those needed to become President....

Regards,

Stu

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

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Post subject: Re: State and federal disabilities
Post Posted: Wed Feb 24, 2016 2:44 am
mreed85 wrote:
Hey everyone! I have a couple issues I'm hoping someone may have some insight on. 5 years ago I was convicted of a 4th degree felony, (attempted failure to comply with a police officer). Since that time I've been fully discharged from all sanctions imposed and restored my civil rights pursuant to ORC 2961.01. (Right to vote, hold office, and serve on a jury). Now my issues are two fold, first, as I see it I don't believe I'm under any STATE disability judging by the wording in 2923.13 and the nature of my offense. Secondly i dont believe im under any FEDERAL disability because in USC 921 (a) (20) it states that one of the exemptions to " a crime punishable by a term of more than 12 months" is if the state has restored the person's civil rights. As I see it I should be good to go but would like to know if anyone on here has any insight or thoughts on my conclusion. Thanks!


2961.01 has nothing to do with firearms. You need to relieve the disability under 2923.14.

You are correct that you will not violare 2923.13 (unless case law lumps in Failure to Comply as violence) but you will violate 18 USC 922(g).

"The right man in the wrong place can make all the difference in the world."







Any informaton provided does not establish an attorney-client relationship.
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Post subject: Re: State and federal disabilities
Post Posted: Wed Feb 24, 2016 12:35 pm
Subsection (g) of 18 USC § 922 does not apply to someone who has had their rights restored pursuant to R.C. §§ 2961.01 and 2967.16 and by R.C. § 2923.14. If restoration of the citizenship rights (i.e right to vote, serve on a jury and hold public office) were not also restored (Ohio restores these under R.C. §§ 2961.01 and 2967.16), then 18 USC § 922(g) would apply. See: 18 USC § 921(a)(20) and U.S. v. Cassidy (6th Cir. 1990), 899 F.2d 543 (http://openjurist.org/899/f2d/543/unite ... -v-cassidy).

"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: State and federal disabilities
Post Posted: Wed Feb 24, 2016 2:09 pm
Liberty wrote:


Read all of Cassidy, in particular the final paragraph....

Quote:
Applying our construction of the statute to Defendant Cassidy, we find that [550] Cassidy did have a "restoration of civil rights" as contemplated by 18 U.S.C. § 921(a)(20) because, after his release from prison, the rights to vote, to serve on a jury and to seek and hold public office were restored to him. We also find, however, that because he was expressly restricted under state law from possessing a firearm, he has been convicted of a "crime punishable by imprisonment for a term exceeding one year" for purposes of 18 U.S.C. § 921(a)(20). Accordingly, the judgment of the district court with respect to the dismissal of all three counts of the indictment is REVERSED, and the case is REMANDED for further proceedings not inconsistent with this opinion.


Reading it on Lexis doesn't reveal a significant pedigree.

"The right man in the wrong place can make all the difference in the world."







Any informaton provided does not establish an attorney-client relationship.
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Post subject: Re: State and federal disabilities
Post Posted: Wed Feb 24, 2016 3:09 pm
Cassidy lost because he was expressly prohibited from possessing firearms pursuant to R.C. § 2923.13 and did not obtain relief under R.C. § 2923.14. Those who are convicted of non-violent or non-drug felonies in Ohio are not prohibited under R.C. § 2923.13, and once they have completed their sentence and are granted a final release, R.C. §§ 2961.01 and 2967.16 invokes 18 USC § 921(a)(20) and operates to exempt them from 18 USC § 922(g).

Every few months we go over this. To find the answer to this question you really only need to look at the instructions on ATF Form 4473 as I indicated a few posts above. They are based upon the reasoning in Cassidy and a whole slew of subsequent cases.

"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: State and federal disabilities
Post Posted: Sun Mar 06, 2016 4:16 pm
R.C. 2921.331, Failure to Comply with Order or Signal of Police Officer:
***
(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person's motor vehicle to a stop.
***
(C) ***
(5) (a) A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt: ***
(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.

R.C. 2901.01, General Provisions Definitions:
(A)(9)"Offense of violence" means any of the following: ***
(c) An offense, other than a traffic offense, under an existing or former municipal ordinance or law of this or any other state or the United States, committed purposely or knowingly, and involving physical harm to persons or a risk of serious physical harm to persons;
(d) A conspiracy or attempt to commit, or complicity in committing, any offense under division (A)(9)(a), (b), or (c) of this section.

R.C. 2923.13, Having Weapons while under Disability:
(A) Unless relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply: ***
(2) The person is under indictment for or has been convicted of any felony offense of violence[.]
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