Misdemeanor record expungement required prior to firearm purchase?


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commited a crime
July 26, 2009, 08:07 AM
Does anyone know if expungement is necessary prior to purchasing a firearm with a misdemeanor?

I'm not otherwise inelligible to purchase/possess a firearm with my record being what it is (not a violent crime, etc.) However I'm not sure whether a firearm purchase is possible/legal without expungement?

I live in California, not sure whether that makes any difference.

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scottaschultz
July 26, 2009, 08:23 AM
I am not a lawyer so don't take my word for it, but from what I understand, only a felony or a domestic violence misdemeanor conviction will prevent you from purchasing a firearm.

You need to check with a local dealer or police/sheriff dept on that one.

Scott

maroast
July 26, 2009, 10:51 AM
I don't know the deal with CA (not a lawyer, but I dont think it matters). I have a misdemeanor on my record from a few years back when I was a little more 'wild'....nothing violent (a public intoxication charge).

I have purchased many pistols and rifles since then... I even got my a Texas CHL. I have not had this thing expunged yet...so I have to put it on all of my employment applications...and my professional licensure application. It has never caused me any problems. Hope that helps.

.....so what did you do? We are talking about CA...so you probably looked at a bird wrong and got thrown in the pen...

natman
July 26, 2009, 11:41 AM
IIRC, it takes a felony or a misdemeanor domestic violence conviction.

However, to be sure, California allows you to take a "test run" to see if you would pass the real thing.

http://ag.ca.gov/firearms/pfecfaqs.php

hvengel
July 26, 2009, 01:22 PM
The federal law says nothing about a felony conviction. It says if you can be sentenced to a year or more for the offense you are prohibited. If it was possible for you to get a year for what you were convicted of then you are a prohibited person even if it was a misdemeanor. I think in California that only felonies carry a one year or longer sentence. But you need to check to see if it is possible for you to get a year or more for the specific thing you were convicted of.

Also California has a list of misdemeanors that are disqualifying for a 10 year period. I think these all involve some form of violence so they probably do not apply to you. But you should check the code to make sure.

Zoogster
July 26, 2009, 05:14 PM
The federal law says nothing about a felony conviction. It says if you can be sentenced to a year or more for the offense you are prohibited.

Actualy under federal law if it is classified as a misdemeanor by state law then it needs to be punishable by up to at least 2 years to disqualify.
One year if not classified as a misdemeanor by the state or is a felony.

Federal the only misdemeanor is something considered domestic violence.



Many states on the other hand do make you a prohibited person for a list of misdemeanors. Some permanently and some for a specified length of time.
It varies by each individual state.

Since you are in California you need to look up whether the offense makes you a prohibited person under state law.
Also if you have any form of probation and a term of probation is no firearms then you are a prohibited person, no different than a felon.

http://www.ag.ca.gov/firearms/forms/pdf/prohibcatmisd.pdf (attorney General site)
Firearm prohibitions for misdemeanor violations of the offenses listed below are generally for ten years from the date of
conviction, but the duration of each prohibition may vary. All statutory references are to the California Penal Code, unless
otherwise indicated.
C Threatening public officers, employees, and school officials ( 71.)
C Threatening certain public officers, appointees, judges, staff or their families with the intent and apparent ability to carry out the
threat ( 76.)
C Intimidating witnesses or victims ( 136.1.)
C Possessing a deadly weapon with the intent to intimidate a witness ( 136.5.)
C Threatening witnesses, victims, or informants ( 140.)
C Attempting to remove or take a firearm from the person or immediate presence of a public or peace officer ( 148(d).)
C Unauthorized possession of a weapon in a courtroom. Courthouse, or court building, or at a public meeting ( 171(b).)
C Bringing into or possessing a loaded firearm within the state capitol, legislative offices, etc. ( 171(c).)
C Taking into or possessing loaded firearms within the Governor’s Mansion or residence of other constitutional officers ( 171(d).)
C Supplying, selling or giving possession of a firearm to a person for participation in criminal street gangs ( 186.28.)
C Assault ( 240, 241.)
C Battery ( 242, 243.)
C Assault with a stun gun or taser weapon ( 244.5.)
C Assault with a deadly weapon other than a firearm, or with force likely to produce great bodily injury ( 245.)
C Assault with a deadly weapon or instrument; by any means likely to produce great bodily injury or with a stun gun or taser on a
school employee engaged in performance of duties ( 245.5 .)
C Discharging a firearm in a grossly negligent manner ( 246.3.)
C Shooting at an unoccupied aircraft, motor vehicle, or uninhabited building or dwelling house ( 247.)
C Inflicting corporal injury on a spouse or significant other ( 273.5.)*
C Wilfully violating a domestic protective order ( 273.6.)
C Drawing, exhibiting, or using deadly weapon other than a firearm ( 417(a)(1) and (a)(2).)
C Inflicting serious bodily injury as a result of brandishing ( 417.6.)
C Making threats to commit a crime which will result in death or great bodily injury to another person ( 422.)
C Bringing into or possessing firearms upon or within public schools and grounds ( 626.9.)
C Stalking ( 646.9.)
C Armed criminal action ( 12023.)
C Possessing a deadly weapon with intent to commit an assault ( 12024.)
C Driver of any vehicle who knowingly permits another person to discharge a firearm from the vehicle or any person who willfully
and maliciously discharges a firearm from a motor vehicle ( 12034(b) or (d).)
C Criminal possession of a firearm ( 12040.)
C Firearms dealer who sells, transfers or gives possession of any firearm to a minor or a handgun to a person under 21 ( 12072(b).)
C Various violations involving sales and transfers of firearms ( 12072(g)(3).)
C Person or corporation who sells any concealable firearm to any minor (former 12100(a).)
C Unauthorized possession/transportation of a machine gun ( 12220.)
C Possession of ammunition designed to penetrate metal or armor ( 12320.)
C Carrying a concealed or loaded firearm or other deadly weapon or wearing a peace officer uniform while picketing ( 12590.)
C Bringing firearm related contraband into juvenile hall ( 871.5 WIC.)
C Bringing firearm related contraband into a youth authority institution ( 1001.5 WIC.)
C Purchase, possession, or receipt of a firearm or deadly weapon by a person receiving in-patient treatment for a mental disorder, or
by a person who has communicated to a licensed psychotherapist a serious threat of physical violence against an identifiable victim
( 8100 WIC.)
C Providing a firearm or deadly weapon to a person described in WIC 8100 or 8103 ( 8101 WIC.)
C Purchase, possession, or receipt of a firearm or deadly weapon by a person who has been adjudicated to be a mentally disordered
sex offender or found to be mentally incompetent to stand trial, or not guilty by reason of insanity, and individuals placed under
conservatorship ( 8103 WIC.)
The following misdemeanor convictions result in a lifetime prohibition:
C Assault with a firearm ( 12021(a)(1), 12001.6(a).)
C Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper ( 246, 12021(a)(1),
12001.6(b).)
C Brandishing a firearm in presence of a peace officer ( 417(c), 12001.6(d), 12021(a)(1).)
C Two or more convictions of 417(a)(2) ( 12021(a)(2).)
* A “misdemeanor crime of domestic violence” ( 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)
Note: The Department of Justice provides this document for informational purposes only. This list may not be inclusive of all
firearms prohibitions. For specific legal advice, please consult with an attorney licensed to practice law in California.

It is a long list. Some of the pettier ones are things such as brandishing a firearm in the presence of a peace officer. Happen to have a firearm in your hand when the police arrive? Lifetime prohibition if charged and convicted.
The assault or battery is also a big one. Any fighting at all, or even raising your hand against someone in the state is a 10 year prohibition. Many people are unaware of the definition of "assault". An Assault is only the threat of violence, like balling up your fist or getting in someone's face, not actualy touching the individual. Any contact is a battery, non-contact is an assault.
For example if someone comes up and says the most vulgar thing to your wife or daughter and you lay a hand on them or even threaten to then you lose your RKBA for at least 10 years.

Many self defense fights also result in charges for both parties, and the courts are left to sort out the details, so even in self defense many become prohibited persons that way.
Get angry with a "witness", or "informant" and it is considered a "threat" even because they are lying about details (perhaps saying you did something you didn't?) Prohibited person.
The same goes for public officers, judges and others on the list. Just getting visibly angry with a list of public employees can cause you to lose your RKBA if they feel threatened.

Little pocket knife on a keychain when you go into a court building? That violates "Unauthorized possession of a weapon in a courtroom. Courthouse, or court building, or at a public meeting ( 171(b).)"
Prohibited person.
So does having a pocket knife at a town hall meeting, or other public meeting.

Or as you see many on here advocate, "assault with a firearm", which can be both a misdemeanor or a felony charge. Taking a gun out if the reason for taking it out is later deemed to have not warranted display of the firearm then you receive a lifetime prohibition on your RKBA.
Suspicious person following you in an alley late at night and you pull out a gun before they attack or threaten you? Lifetime prohibition. Suspicious noise outside and you bring a firearm to investigate and actualy do find a person?
Store clerk in remote liqor store, gas station etc late at night sees suspicious individual walking around casing the place, they approach and appear to be going for a gun and the clerk pulls one? Lifetime prohibited person.
Essentialy if you ever use a firearm before a crime has actualy occured, even if you resonably believe one is about to occur you can receive a lifetime prohibition on your RKBA just for taking out a firearm.
Assault with a firearm is a lifetime prohibition.
Even if a crime is occuring and you pull out a firearm and it is not a crime that allows use of deadly force then it is a lifetime prohibition if charged. See a crime in progress, or even someone being attacked (a misdemeanor battery) and you take out a firearm which results in the ceasing of the attack and the criminal runs away? A good result? Lifetime prohibition if charged for the assault with the firearm. Even if it is you being attacked and you cannot prove a disparity of force, and pulling the firearm and firing no shots stopped the attack you can still recieve a lifetime prohibition on your RKBA.
These assault with a firearm examples are just examples of taking out a firearm, not actualy shooting it which is a whole different crime.

The list looks severe, but many of the statutes can be broken down and applied in really petty scenarios.
It is also not all inclusive. For example I know someone that got into misdemeanor trouble for transporting thier firearm wrong and also recieved a 10 year prohibition on thier RKBA and that is not on that list.

If you do fall into any of those statutes and possess a firearm then you can be charged and convicted of being a prohibited person in possession. The same charge a felon receives for having a firearm.
That is a felony and would of course result in permanent prohibition at the state and federal level.

NavyLCDR
July 26, 2009, 07:42 PM
Actualy under federal law if it is classified as a misdemeanor by state law then it needs to be punishable by up to at least 2 years to disqualify.
One year if not classified as a misdemeanor by the state or is a felony.

Zoogster,

You need to read 18 USC 922 (g)(1).

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Zoogster
July 26, 2009, 08:44 PM
NavyLT there is exemptions given in federal law to your stated definition. I didn't cite it because I didn't know the number off the top of my head.

I will look it up for you:

18 U.S.C. sec. 921
exemptions:

The term ''crime punishable by imprisonment for a term
exceeding one year'' does not include -
(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business
practices, or
(B) any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of two years
or less.
What constitutes a conviction of such a crime shall be determined
in accordance with the law of the jurisdiction in which the
proceedings were held. Any conviction which has been expunged, or
set aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction for purposes
of this chapter, unless such pardon, expungement, or restoration of
civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.

Now let us not confuse the OP of the thread, who does not need federal definition and may be a prohibited person under state law even when not under federal law. If he violates state law as a state prohibited person he receives a felony, and then is prohibited for life both in the state and the entire nation.
So if the state says he is a prohibited person, he is legaly no different than a felon for the duration and excercising his RKBA is a felony crime.
For example some people even when not commiting a crime listed in my above state list get probation for years even for an offense only punishable for less than a year. Meaning an offense punishable by a maximum of mere days in jail can result in years of prohibited status even not on the list. If it is on the above Attorney General site list then 10 years is common, and life given for a few misdemeanors.
So someone can lose thier rights for years even for minor offenses punishable only by a maximum of days in jail.
Excercising those rights as a prohibited person is a felony which would then make them nationaly prohibited for life.

NavyLCDR
July 26, 2009, 09:24 PM
See Zoogster, that's why I said you needed to read it, so you could correct me! Thanks!

commited a crime
July 27, 2009, 02:10 AM
Thank you thank you thank you. I very much appreciate the info.

I'm thinking of sending in an 03FFL Curio & Relic form to see whether I'm otherwise prohibited from a firearms purchase. I figure if the request for the 03FFL license is denied then I know something is not right eligibility wise on my end and I'll have to try to see if I can fix it.

That way, I'm only out the cost of a stamp rather than $10 for the background check were I to attempt to purchase a long gun (or any firearm) through an FFL. Does this sound like an advisable plan?

P.S.
I am surprised at every turn when I mention I have a record and yet people do not berrate me when I do so. (Especially when I simultaneously mention the fact that I am intersted in purchasing firearms.)

Zoogster
July 27, 2009, 02:36 AM
I'm thinking of sending in an 03FFL Curio & Relic form to see whether I'm otherwise prohibited from a firearms purchase.

The thing is even if you are prohibited at the state level it is quite possible to pass background checks at the federal level if there is no violation that makes you prohibited federaly.
Yet possession of a firearm would still be a felony at the state level if you were a prohibited person under California law.
Sometimes the CADOJ may stop the sale and will have you as a prohibited person in thier database, but that is often seperate from the federal database. They may also tell the feds to add you to the federal prohibited database, but they shouldn't.
If you moved to another state you could legaly purchase a firearm even if prohibited under California state law for a misdemeanor which does not prohibit you in another state or federaly. You could be prohibited under CA law for 10 years, but perfectly legal in a state without such restrictions for the misdemeanor within those 10 years.
So my point is it is potentialy possible to obtain an FFL or maybe even purchase a firearm while being a prohibited person at only the state and not the federal level.
Yet doing so would be a felony in the state of California, which would then make you permanently prohibited in the entire nation.

commited a crime
July 27, 2009, 04:55 AM
Yet possession of a firearm would still be a felony at the state level if you were a prohibited person under California law.

I see.

Would a Cert. of Eligibility (COE) be the solution then?--Not to be confused with the Personal Firearms Eligibility check.

Or should I just go through an 01FFL and try to purchase a firearm (which would be a long gun to avoid wasting the $25 on the HSC for a handgun--if the NICS doesn't pass.)

zombienerd
July 27, 2009, 05:08 AM
I would go for the long gun. If it doesn't pass, you're out 10 bucks. If it does, you know you're in the clear, and then you start up the "collection".

You know what your crime was, if it's not listed in that nice long list that Zoogster posted above, I'd say you're good to go.

commited a crime
August 2, 2009, 05:10 PM
Just wanted to say thanks one more time.

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