CA DOJ Denial - Expunged Domestic Violence Conviction

[DazedandConfused]

I was denied a CA DOJ firearms clearance due to a 1993, expunged, misdemeanor domestic violence conviction.

I appealed the decision on the following basis:

I am not prohibited by California law because the conviction is over 10 years old. California Penal Code section 12021(c)(1) excerpt “within 10 years of the conviction”.
I am not prohibited by Federal law because the conviction has been lawfully expunged. Title 18 U.S.C. 921(a)(33)(B)(ii) excerpt. “Also, the law would not apply if the conviction has been expunged”.

DOJ upheld the denial based on a directive they received from ATF. Here http://ag.ca.gov/firearms/infobuls/0405.pdf is a link to the bulletin advising DOJ to uphold the denials however, I have been unable to get my hands on the directive issued by ATF therefore I do not know the basis for their opinion or how/why they are ignoring Title 18 U.S.C. 921(a)(33)(B)(ii).

Any help on this is appreciated. I am hearing that I am not the only one experiencing this.

Thanks
DazedandConfused

 

[Kilrain]

Please see the following.........

Title 18 U.S.C. 922(d)(9)

and

Title 18 U.S.C. 922(g)(9)

See here:

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+18USC922

If you read ALL of Title 18 U.S.C. 921(a)(33)(B)(ii) it says:

(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.(emphasis added by me)

If you read California Penal Code section 1203.4, which covers misdemeanor expungements, the second paragraph reads:

Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Section 12021.

So it seems the logic is:

1. You were convicted of misdemeanor domestic violence(243(e)(1) PC or 273.5 PC)
2. You waited the requisite 10 years by California law(12021(c)(1) PC)
3. You had the conviction expunged by California law(1203.4 PC)
4. Federal law says persons convicted of misdemeanor domestic violence can't receive/purchase/transport interstate/etc firearms(Title 18 U.S.C. 922(d)(9)&(g)(9)
5. Federal law says expungement of the domestic violence conviction will provide relief unless;(Title 18 U.S.C. 921(a)(33)(B)(ii)
6. Expungement expressly provides that the person may not ship, transport, possess, or receive firearms(Title 18 U.S.C. 921(a)(33)(B)(ii)
7. Which California law does(1203.4 PC)

 

[DazedandConfused]

Thank You!

This is the most helpful information I have received to date! Although I do not agree with the legal reasoning, it sounds plausible that this may be their (ATF/DOJ) reasoning for upholding the denial. Does anyone know if the logic stated in the reply by Kilrain is a fact or an opinion? I honestly do not know because they don't give the reasoning, they only reference the MCDV.

I am not a lawyer or a scholar but I do watch Court TV, which I think qualifies me as an expert on all legal matters. Here's my thinking on the response from Kilrain.

Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Section 12021.

It is clear that the California Legislature imposed a 10 year ban and not a lifetime ban (12021(c)(1) PC). It seems logical, correction obvious, to me that the intent of the legislature in 1203.4 was to circumvent possession of firearms before the 10 year prohibition that 12021 imposes elapses, thus the specific reference to 12021. Under California law it is the 10 year period of time that provides relief from the firearms prohibition under 12021 and not 1203.4. Since I am outside of the 10 year prohibition, 1203.4 does not apply to me with respect to possession of a firearm and therefore does not "expressly provide that I may not ship, transport, possess, or receive firearms".

I submit to you that 1203.4(PC) does not ]"expressly provide that a person may not ship, transport, possess, or receive firearms" after the 10 year prohibition has elapsed.

Please Discuss. (Can I say please discuss?)

Thanks
DazedandConfused

 

[legaleagle_45]

SCOTUS heard oral arguments on a somewhat similar issue on October 30, 2007 in a case entitled Logan v US. The transcript of that hearing is somewhat interesting. You may wish to keep track of that case and read the decision when it comes down in a few months....

 

[DazedandConfused]

Appealed the decision with USDOJ NICS

I appealed the decision with USDOJ NICS based on the laws previously mentioned. I just received my receipt acknowledgment from them. Will post the outcome as soon as I receive it.

 

[Jim K]

Does anyone even pretend to understand the intent or thinking (if any) behind any CA legislation? I envision the CA legislature as like the monkey house at the zoo. All legislatures, including Congress, are like that to some extent, but CA is really out there. They seem to just pass a law any time an some weirdo comes up with an idea to make things worse for CA citizens.

Jim

 

[Flyboy]

Jim, I think you understand perfectly. Anything to make it tougher to own guns (legally).