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10th Circuit rules against Wyoming
Story here.
Reduced to a nutshell: federal law says a conviction does not count if it has been "expunged," or firearm rights have been restored. Under Wyoming law (and that of a lot of other States), a misdemeanor domestic violence conviction can be "expunged," with a ruling say that it is so, even tho the record is not physically destroyed and can be used, if the person offends again, to enhance the sentence.
Is that "expunged" or not? Wyoming argues it is -- the purpose was to let state law control the question of whether a person is convicted, and here's a state court order saying the record is "expunged," using the very word of the statute. ATF argued, and the 10th Circuit agreed, that something isn't "expunged" if it's still sitting in court or government files and has future legal effect.
I wasn't involved in the case, but thought the key would be to look at what expungement schemes looked like in 1986, when the Firearm Owners' Protection Act, which inserted the expungement language, was adopted. My memory is foggy, but as I recall there was the federal Youth Corrections Act, which I think did destroy records, and some early State laws. Congress was acting against the background of that legislation ... what did it provide?
Hat tips to Jim Kindred and Dan Gifford...
Comments
This is very interesting. ON the Petition for Expungement in California, PC 1203.4 and 1203.4a, it says something like "Will not restore gun rights".
How do the Feds look at that? If CA expunges a record and NICS is doing the checks...how do they decide?
Posted by: DJk at August 29, 2008 10:53 AM
Ca expungment law 1023.4 does not restore gun rights for misdemeanors in certain catagories for 10 years unless you give a waiver.
However it does not meet atf standards either as the prior offense can be used for penalty enhancments. I believe the ATF ruled that in 2005. They are slowley going after every state statute and apply their rulings retro-activily.
Most expungement laws and pardons in the states forgive but don't forget. Now with even more court precedent they will continue the attack against states rights.
Posted by: Greg at August 29, 2008 12:15 PM
With one or two exceptions (written, strangely, by Judge Seymour, IIRC) the Tenth Circuit sucks on gun cases.
Posted by: Letalis Maximus, Esq. at August 29, 2008 02:21 PM
It appears that; the states in question as well as the feds want to have their cake and eat it too.
A conviction is either expunged (done away with, forgiven and forgotten) or it isn't. Neither the state not the fed can or should have it both ways.
Posted by: W. W Woodward at August 30, 2008 04:26 PM