No charges filed. Can I buy a firearm?

[vikesfan78]

Hey y'all, first post here but it's a doozie.

I was arrested for reckless discharge of a firearm in Illinois (D felony). Since a reasonable person would not realize a risk (one in a million ricochet off my backstop flies through ~2000 feet of thick forest, over an implement shed and hits a neighbor standing in his yard a few blocks away, leaving a welt) and I was within my rights to discharge firearms on my property, no charges were filed (circuit clerk search shows no results).

I elected to enter diversion rather than fight the charge in court. I don't have the money to spend on an attorney. The terms of my diversion are that no charge will be filed; "entry and acceptance results in no criminal prosecution brought." My diversion ends in a few months, after which no risk of filed charges exists. Aside from this I've never done anything to upset the law.

I recently moved to a bad area. I would feel much safer if I had a pistol in my house, but with the arrest I am not sure that I can legally obtain one and would like to be 100% sure beforehand. What's the answer?

 

[mbogo]

Check with an attorney. The fee for the consultation will be money well spent.

mbogo

 

[Sebastian the Ibis]

What's the answer?

You should have hired an attorney.

The only way you are going to be 100% sure you can purchase a firearm, is to hire an attorney to review your plea deal. I am sure you signed something when you agreed to enter the diversion program, who knows what that says in it, or what the effect of entering that diversion program will be in a couple of years. You need to have a local criminal defense attorney figure out what you agreed to, if you had done this prior to signing anything he probably could have negotiated a better deal. Now you are stuck with whatever language is in there.

Sorry to be harsh, but hopefully the quandary you find yourself in will set an example for someone in the future who thinks about entering a plea deal without counsel. If you want a 90% sure answer, review all the paperwork you signed (you still have a copy don't you) make sure it doesn't say anything about your inability to have a weapon, then buy whatever gun you want and see if you pass the telephone check at the gun store.

Welcome to the Highroad.

 

[stchman]

From what I understand. If you have not been convicted of a felony, convicted of a misdemeanor of domestic violence, been found to be mentally ill, or have a restraining order against you you can purchase a firearm.

A diversion program is used instead of the person having a conviction on his/her record. Once the diversion program is complete then all charges should be dropped.

I would say after you complete the program successfully then you will be OK. As always consult with a licensed attorney to answer these questions.

 

[mljdeckard]

BASED STRICTLY ON WHAT YOU SAID, I think you should be ok. Choke up a billable hour to an attorney and check with the DOJ to find out for sure.

You know much lawyers cost? More than a little and less than too much.

 

[Mainsail]

D'oh! Read the WHOLE thing (saying to myself).

I'm not a lawyer, but I would think that if you were to just go buy a gun, and honestly answer the questions on the form, the results of the background check would reveal the answer. Another option is to ask the prosecutor who offered you the plea deal; pick up the phone or go visit him or her. It’s not like you’re trying to do something shameful and don’t want to tell them, just ask. They’re public servants, they will answer honestly. The last option is to consult an attorney that specializes in firearms rights.

 

[mechanicworkman]

To the best of my knowlege and like another person said many things can change from state to state and IL is very anti state.But after all is done be sure to spend the money and expunge any arrest records and all things that you can! In alot of states after expungement has been granted by the court you can answer to the effect that the even never happend & if by some chance somethign does show up many states can be held accountable for not getting rid of the files.

This is only general advice more or less from a barracks lawyer(NO FORMAL LAW TRAINING REQUIRED) like they used to say in the Army! But My father was a lawyer for many years and have heard what many people should have done and EXPUNGE ANYTHING AND EVERYTHING that you can its more than worth the money spent.To anythign you cannot some lesson's come at a price!Definitly Get a lawyer like someone said above! You can look up the form online so u know all the questions they will ask on the form.

 

[Tilos]

Whatever the outcome, If you were finger printed at the time, it will "come up".
It may cause a "delay" while the outcome is researched.
I know because it happened to..um, my brother-in-law

 

[folson]

Also not being a lawyer but I am in law enforcement. Please not being a expert just a observation per say! Anyway as Tilos said if you were fingerprinted there's a record on file which will show the disposition. Based on the facts as you stated I would think you would be Ok as no conviction or charges were filed. But again the best thing to do is to seek legal council and insure that no charges are present.

 

[belercous]

After your "diversion" ends go to the courthouse and research your record. (In Madison Co., IL, where I live, it can be done on a computer in a hallway set up for this)
If there is no felony charge, or if there is and it has been dismissed or plead down to a misdemeanor, you are eliglible for a F.O.I.D. and can own/buy guns as you are not a convicted felon.
Sounds like you will have no problem. And you don't need a lawyer for this if you do your own research, which is not much.
And, if the charges were filed and then withdrawn, you should have them expunged (along with anything else you have been charged with but not convicted of). Ask someone in the Court Clerk's office at the courthouse to get the paperwork. It's a little bit of a hassle to go through, but will help how you appear on paper. Even if you don't seek an expungment, you can still get a F.O.I.D. card and buy/own guns.
If charges weren't even filed and you weren't asked to surrender your guns and F.O.I.D. card, you are in the same position as before this happened. You still can own/buy guns.
This is more petty than you think. No biggie.

 

[Aaron2091]

Expunction does not remove the arrest history from your CCH ( computerized criminal history) which is what that little phone call checks when they call. It will make the record inaccessible to the public though. Only law enforcement and the courts will ever be able to see the arrest after an expunction. You will have to check with an attorney though from your particular state to see if that's even a possibility.......so what Mbogo said....

 

[Bubbles]

You are in Illinois. To purchase or own a firearm in Illinois requires you to get a Firearm Owners Identification Card (FOID). A FOID will not be issued to a prohibited person, and if you become one the state should have forced you to surrender it.

So, do you still have your FOID?

 

[ClarkKentAKASuperman]

Would it be considered a crime if the OP just went to a local gun shop and attempted to buy a gun (after the diversion is completed, of course)? If something were to show up that precluded him from buying a firearm, what would happen in that case? Wouldn't the gun shop just say sorry, such and such came up so you will have to clear that up first, or would they call the police and have him arrested? Seems like it should be similar to trying to get your drivers license or some other license whereas if something showed up they would just deny you and tell you why, no harm no foul. Or does the outcome of such an "attempted" purchase really depend on what state one is in?

 

[Cosmoline]

You need counsel on this question. Do NOT assume you are able to purchase. You may be considered a felon under federal law even if you aren't under state law.

 

[mljdeckard]

I would not recommend the "Trial by Fire" method to find out if you are a prohibited person. When you fill out the paperwork, you are signing at the bottom that you are not a prohibited person TO THE BEST OF YOUR KNOWLEDGE. If they do the check and you are denied, a few things could happen. The dealer might just shrug and say; "Sorry man." Or he could be overzealous in covering his butt because he lives in a place where gun people and gun dealers never get the benefit of the doubt, and decide that he needs to report your actions to the authorities, lest he be accused of knowing a prohibited person tried to buy a gun through him and he did nothing about it. Then you will be under scrutiny.

Talk to the DOJ, call a lawyer BEFORE you try to buy.

 

[Six]

Paraphrased from the 4473:
Are you under indictment for a felony or have you ever been convicted of a felony - Yes[ ] No [ ]

If you don't know the answer to that question, you need to talk to a lawyer before you commit a separate felony by making a false statement.

 

[NavyLCDR]

Are you under indictment for a felony or have you ever been convicted of a felony - Yes[ ] No [ ]

I would have to say in the OP's position the answer to that question would be yes:

Indictment:
2. (Law) any formal accusation of crime

What a person does not realize when the take these "diversions" is that they are pleading guilty to the crime. And the "diversion" will not go off the record. Let's say this exact same thing happens again in a year... do you think the subject will be offered another "diversion?" NO. Why? Because they already took one. How did they know? Because the "diversion" stays on the record. It's a guilty plea, plain and simple. Otherwise there would be no "probation" for taking the "diversion."

Of course the prosecutor or the state won't tell you this - they got their "conviction". A defense attorney won't tell you this, because he makes easy money getting this "diversion" and never actually loses the case in court.

First and foremost, get the FOID or see if yours is still valid. Second, get an attorney's opinion as to the answer to the 4473 question above. You lie, even unintentionally, and all bets are off, more than likely.

 

[springmom]

Get a lawyer. My bet is that you'll need to have the record expunged before you can buy a firearm, but get a lawyer to get an answer to the question.

Jan

 

[vikesfan78]

If charges weren't even filed and you weren't asked to surrender your guns and F.O.I.D. card, you are in the same position as before this happened. You still can own/buy guns.
This is more petty than you think. No biggie.

Nailed it, that's exactly what happened. They only took the firearm in question, let me keep the others. I still have my foid. And my coordinator told me that once I finish my diversion I'll be able to have the arrest expunged.

@NavyLT- You're incorrect about that. These things simply don't work that way. See DE JESUS MELENDEZ v. GONZALES for an example of a pretrial diversion agreement that did not require a guilty plea. You can't be tricked into entering a plea for a crime, there is a formal process that must take place. A person may not unknowingly plead guilty to an offense. Sure, the system sucks, but not that bad.

 

[belercous]

You're gold. You haven't been indicted for anything, so you can buy/own guns.

And once the S.O.L. runs out, you can get your gun back. There is no reason for them to hold it after that, it is not possible evidence then and they have no reason to keep it. For them to do so would give you a cause for action to sue them for conversion of property.

And if you have something expunged, even the courts can't see it. It would not be "expunged" if they could. (When I was at the Madison Co., IL D.A.'s office in 2002 we could not see what was expunged) Otherwise, it could prejudice the D.A. against an innocent person for being "harassed" by the police. To allow the courts access to one's history of charges that were dropped or won on acquittal, after a successful petition to expunge would violate the Due Process clause of the Constitution.

And you don't need a lawyer for any of this, unless you want to make a boat payment for him/her.

 

[Art Eatman]

NavyLT, SFAIK, an arrest can be made for severe charges, but an indictment can only result from a Grand Jury decision.

From the OP, no charges were taken to a Grand Jury, so no indictment.