Advice on Domestic Violence Expungement
The Lautenberg Amendment to the Violence Against Women Act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor or felony domestic violence (DV), or who is under a restraining (protection) order for domestic abuse. The Amendment also makes it unlawful to knowingly sell or give a firearm or ammunition to person convicted of domestic violence. To restore your gun rights, we recommend the leading expungement law firm, RecordGone.com They specialize in expungement and have successfully the gun rights for hundreds of people across the states. 877-573-7273
This Lautenberg Amendment has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001). The case involved a challenge to the constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal law which prohibits the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child. The Emerson case does not address the portion of the Lautenberg Amendment involving conviction for misdemeanor domestic violence. It was initially overturned in 1999 for being unconstitutional, but that case was reversed upon appeal in 2001.
In a challenge over the ability of states to grant firearms to those who have had their DV case expunged, a federal appeals court in Denver has ruled against Wyoming.
A three-judge panel of the 10th U.S. Circuit Court of Appeals on Tuesday ruled that the procedure spelled out in Wyoming law fails to expunge the criminal record of people convicted of domestic violence. The BATF objected to a provision of the Wyoming law that specified that an "expunged" conviction would be kept by the state Division of Criminal Investigation and could be used to enhance penalties for future domestic violence convictions. The BATF said that conviction records weren't truly expunged if they were kept on the books for any purpose.
More court challenges are underway that attack not only the retroactive application of the ban, but also the denial of firearm rights after a person has had their conviction expunged. Supporters of the Second Amendment are optimistic that gun rights can be restored and that this ban will be at least partially over-turned.
Common sense tells us that a person convicted of a felony is probably more dangerous, and probably more likely to re-offend, than a person convicted of a misdemeanor. However, in Arizona a person convicted of multiple serious felonies can eventually restore his or her gun rights after being released from prison or probation, whereas a person convicted of just one misdemeanor will forever lose his or her right to possess a gun—if that misdemeanor involves a conviction for domestic violence.
Sound unfair? It gets much worse.
Under federal law, a person convicted of a “misdemeanor crime of domestic violence” forever loses the right to posses a gun, unless he gets a pardon, gets his conviction expunged or set aside, or gets his civil rights (including his firearm rights) restored. This law was added to the United States Code in 1996 as an amendment to the Gun Control Act of 1968. It was Congress’ response to the political furor over domestic violence and in the wake of the O.J. Simpson trials.
Adding to the unfairness of the amendment was the fact that it was applied retroactively. So all those people who took a plea bargain and accepted an agreed upon sentence suddenly had a large penalty added to their bargain— they lost their gun rights. Opponents of the amendment have filed a Supreme Court challenge to the retroactive application on grounds that the ban is punitive and therefore violates the Constitution’s prohibition on ex post facto laws. The Supreme Court is likely to rule on the case in 2009.
Believe it or not, it gets worse.
Many states, like Arizona, have procedures to set aside a conviction, which the amendment said would lift the firearm prohibition. However, the US Justice Department (DOJ), the federal agency that provides firearm eligibility reports, ignored the plain language of the amendment and applied its own definition “set aside.” Under that definition, Arizona’s setting aside law is insufficient because it does not expressly restore a person’s gun rights.
Everyone convicted of a felony in AZ lose their gun rights. However, Arizona law provides a way for convicted felons to have those rights restored. Once a felon meets a waiting period, they can petition the court that convicted them to restore their rights. The DA is given an opportunity to object and the judge has discretion whether or not to restore the rights. However, the law specifies that the court only has authority to restore rights in felony cases. So, AZ residents who have a conviction for a “misdemeanor crime of domestic violence” have no way of removing the federal prohibition.
There is a fathomable reason for this paradox in Arizona. Under Arizona law, a person convicted of a misdemeanor, whatever it may be, does not lose any civil rights, including the right to possess a gun. However, a person convicted of a felony does. Therefore, the Arizona legislature understandably never felt the need to provide a way for misdemeanants to restore their civil rights/gun rights (because you can’t restore something that was never lost in the first place).
Unfortunately, the Arizona legislature apparently did not anticipate the Lautenberg Amendment or the DOJ’s narrow interpretation of setting aside. The legislature has not responded with a revised with law that addresses the federal amendment.
Without the ability to restore their firearm rights under Arizona law, Arizonians who have a conviction for a “misdemeanor crime of domestic violence” are forever barred from possessing a firearm because of the federal prohibition.
While deterring DV is a good public policy, permanently depriving constitutional rights for what in many cases is nothing more shoving or pushing during a heated argument with a spouse or girlfriend is excessive— especially if there is no judicial remedy to address the unjust results of such a drastic policy.
The permanent loss of gun rights means more than just the loss of the opportunity to hunt or protect a person’s life and home. Many jobs that are common career paths for people who may have once had trouble with the law require the ability to carry a firearm. Security guard, law enforcement and the armed forces are just a few entry-level jobs that require the ability of an applicant to carry a firearm.
It is time for the Arizona legislature to fix this problem.
Arizona lawmakers can fix this problem by simply expanding the court’s current authority to restore a felon’s gun rights to those who commit misdemeanor offenses for domestic violence. This is necessary in order for these deserving people to be immune from federal prosecution and thereby have their gun rights truly restored. Such a move is good public policy and it will fix the many injustices associated with this federal law that is being applied unfairly and retroactively.