Louisiana Expungements do not allow firearm ownership according to NICS/FBI/DOJ

I plead guilty to a felony and the imposition of the sentence was deferred under Article 893. After completing the required probation and paying fines, the charge was set aside and the prosecution dismissed it under Article 893. Following that, the record was expunged.

Fast forward 10 years.

I've gone round and round with NICS and was successful in receiving a UPIN after various Proceed, Delay, and Denials. The UPIN was granted after sending fingerprints and court documents as requested. Several purchases went through without a problem.

Recently, I was given a proceed during a purchase at an FFL. A day later I got a call saying I was denied and had to return the firearm. Flabbergasted, I requested a reason and appealed. The reason was the same as the original one I got before getting the UPIN. I thought it was just a mistake. A few weeks later, I get a letter stating that an individual convicted of a felony in Louisiana is prohibited under state law from obtaining a Concealed Carry Permit per Louisiana Revised Statute 40:1379.3(C) (10). I knew this, never liked it, but do not see how it restricts ownership (no does my attorney). The letter goes on to state that if a state imposes a partial restriction on an individual's ability to carry or possess one or more types of firearms by a convicted felon, even after basic civil rights have been restored, the individual remains convicted for the purposes of the Gun Control Act. They reference Caron v. United States, 524 US 308 (1998). They state that this prohibition remains valid for cases sentenced under Louisiana Code of Criminal Procedure Article 893, and which have received a set aside, dismissal, and/or expungement.

This is contrary to all other information I have found regarding the intent of Article 893's expungement and restoration of rights:

The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Subparagraph shall have the same effect as an acquittal for purposes of expungement under the provisions of R.S. 44:9 and may occur only once with respect to any person.

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if a state imposes a partial restriction on an individual's ability to carry or possess one or more types of firearms by a convicted felon, even after basic civil rights have been restored, the individual remains convicted for the purposes of the Gun Control Act.

They are saying you not being able to have a CHP means that you remain convicted for the purposes of the gun control act.

I understand what they are saying. The issues here are:

1. There is no Louisiana Law that prevents me from carrying any type of weapon (e.g., handgun) in any location (e.g., outside of home), which was the premise of the referenced case. The CHP is considered a privilege, not a right. The CHP restriction does not inhibit me from carrying a weapon as any other non-CHP holder would.

2. The intention of Article 893 is to restore all rights, including firearm ownership. It plainly states that once the conditions of the probation have been completed, the court may set aside the conviction and dismiss the prosecution. The dismissal of prosecution will have the same effect as an acquittal. Thus, if I have been acquitted or the charge, I have not been convicted except for the exclusion that law states (which applies to any future cases).

There are many many people in Louisiana that this affects, it's not just me. Article 893 and 894 are widely used and often referred to as a way to restore the right to possess and purchase firearms. In fact, the ATF FAQ states that the person is not considered convicted "as long as the pardon, expungement, or restoration does not expressly provide that the person may not ship, transport, possess, or receive firearms." In this state, the expungement process does not state this, in any way.

Additionally, La R.S. 14:95.1 (Possession of firearm or carrying concealed weapon by a person convicted of certain felonies) goes on to state that

It is unlawful for any person who has been convicted ... to possess a firearm or carry a concealed weapon unless to felony conviction has been set aside.

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With all that being said, you got any guns to sell cheap?
Just kidding,
sounds like its a tough way to get stuck and I have heard of this being a problem for awhile... basically as far as Louisiana and gun rights go, you still do not have any...

Sounds like the Feds are fighting back because of our state re wording our constitution regarding gun rights. That's my guess. ******** if you ask me. You're not in jail or on probation so you got my vote.


However, might want to move you're collection to a family members house for a while as "they got ur number" so to speak.

Unless you worry about the ATF (or whatever they're called these days) knocking down your door, you might consider private purchases and keeping everything within the state of Louisiana. I hope things work out for you. I agree with an earlier post, prolly the Feds retaliating against our state constitutional ammendment as of late.

Wonder how this will impact LEO's who got 893/894 with an expungement. if NICS interpretation stands then those officers would be a prohibited now.

also contact the LA NRA rep to see if they have any insight on the matter.

X

Question, how do you answer the questions about felony convictions on the NICS form?

As directed by my attorney, the Clerk of Court, and FBI (until now): Never been convicted. The charge was non-violent offense, does not relate to firearms, or any type of sex offense.

Article 893 orders that the plea and sentence be deferred pending the successful completion of probation and payment of any fines or court costs. After that time, expungements can be requested under the rules of 44:9 which stipulates:

(b) After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.

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All of this was followed to a T. The charge was set aside, prosecution dismissed, and every entity involved granted the expungement request. I am not interested in breaking the law. My plea under Article 893 was entered with the understanding and explanation by the court (and clearly stated in the statute) that all rights would be restored as if the conviction never took place (because it was deferred and subsequently dismissed!).

Although I do not currently own any firearms, while this issue is in my attorney's hands, I have purchased several from FFLs over the years since and was even given the approval to do so by the FBI NICS. That approval from FBI NICS was revoked yesterday based on their interpretation that the state restriction baring 893/894 dismissals of having a CHL also bars anyone from having a firearm at all. Their referenced case deals with a state where rights were re-instated with stipulations on the TYPE of weapon (e.g., handguns not allowed) or the location one is allowed to possess (e.g., in residence only). The lack of a CHL does not inhibit me from owning any firearm categories that one with a CHL could legally obtain nor does it prevent me from openly carrying a weapon anywhere someone without a CHL could carry. The CHL is an extension of ones Constitutional rights, as has been held in various court cases. The fact that it is classified as an extension means that it is optional. Consequently, the lack of such a license does not mean a lack or prohibition of the rights granted in the Constitution.

This interpretation would affect any and everyone that has entered a plea under Article 893 or 894 as Louisiana Revised Statute 40:1379.3(C) (10) does not allow them to obtain a CHL. Again, the text of 44:9 states that a person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section ... [or in Article 893/894]. Neither of those Statutes have any language prohibiting firearm ownership or any other Constitutional Right except:

except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses.

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This has me wondering if something hasn't changed in the past month or so (after i completed my last purchase/transfer). Got me wanting to buy another gun just to see what happens with the NICS check. I have NEVER had ANY problems with purchasing firearms after my expungement. No waiting periods, nothing. Walk in, do the NICS, pay and walk out with my firearm.

just fyi- the CHP isn't a right. its a privilege, and one that is issued entirely at discretion.

like it or not, your past probably lands you in the "if in doubt, toss it out" category.

I'm not interested in having a CHP. You are exactly right that [currently] the CHP isn't a right. It is a privilege; issued entirely at discretion, but not a requirement for anyone in this state to own, possess, or carry a firearm in a manner consistent with the constitutional right's text.

As an update, my attorney notified me today that another person dropped off almost identical paperwork to him from NICS regarding his ineligibility after an 894 DWI and expungement (which is a misdemeanor but prohibited under the CHP rules).

X

It is extremely similar to that with variations on Parish and court.

But it does include the "destroy all records" and "request all submitted records to FBI"?

GunRelated said:

But it does include the "destroy all records" and "request all submitted records to FBI"?

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No...it does not say that. Check with the La Attorney General Opinions. Search "firearm and felon." There are a 5 opinions which go into detail over this question. Article 893 only hides the conviction. Get arrested again, and you will get double billed. You can get convicted as a multiple offender even though you have a 893 conviction.

The police destroy the records....But the court keeps the records for use in double billing.

I think it was around the time of the Antoine Franks trial. There was some issue of expunged records and the NOPD. Thats why they changed the law. --- I think ???


As far as La 14.95.1 - You must wait 10 years after completing sentence.....plus not have another conviction in that 10 year period, and then you are restored your rights. Even the first offender pardon restricts firearm possession for 10 years.

And if you have a felony related to violence....you can't ever own a firearm.

Then again...I'm not an attorney.....But I did stay at a Holiday Inn.
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§95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.

C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.

D. For the purposes of this Section, "firearm" means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

Added by Acts 1975, No. 492, §2. Amended by Acts 1980, No. 279, §1; Acts 1985, No. 947, §1; Acts 1990, No. 328, §1; Acts 1992, No. 403, §1; Acts 1994, 3rd Ex. Sess., No. 28, §1; Acts 1995, No. 987, §1; Acts 2003, No. 674, §1; Acts 2009, No. 154, §1; Acts 2009, No. 160, §1; Acts 2010, No. 815, §1; Acts 2010, No. 942, §1.

I know they dont actually destroy all the records, as the LSP still has mine (and i'm sure other agencies do as well). However, the parish i was convicted in does not, nor does the FBI (at least the NICS people don't). I was asking him that to see how closely his documents were worded to mine. I had mine (part of them) posted here for him to see and they do say 'destroy all records via incineration, and request all submitted records to FBI blah blah'.

GunRelated said:

I know they dont actually destroy all the records, as the LSP still has mine (and i'm sure other agencies do as well). However, the parish i was convicted in does not, nor does the FBI (at least the NICS people don't). I was asking him that to see how closely his documents were worded to mine. I had mine (part of them) posted here for him to see and they do say 'destroy all records via incineration, and request all submitted records to FBI blah blah'.
And, as i have already stated, my research and my numerous experiences with LEOs and other Law Officers have proven to me that i am perfectly legal to own/possess after my expungement.
The numerous experiences/encounters with LEOs were due to so called family trying to have me locked up on bogus 'felon in possession' charges as well as bogus calls for discharging too close to a residence...all because my 40 year old white trash cousin's new boy wanted to hunt near my property where i shoot (and have shot my whole life). Needless to say, they earned a cozy spot on my 'do not ever speak to again' list.

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My point was....The Expungement has nothing to do with it.

If your conviction was a non-violent crime and there was no firearm charge connected with the felony conviction....AND...10 years have passed since you COMPLETED Probation period ( sentence for crime )....AND...you have had no felony convictions in that 10 years...Then you are good to go.

You did not need the expungement. Its nice to have....but has absolutely nothing to do with firearm rights. It means nothing. At the same time...I would not even mention it when discussing the issue with NICS.
That is because....If you had finished your probation...and 10 years had not passed....Even with an expungement...You would not be able to possess a firearm.

The expungement is a non-issue. It has nothing to do with whether or not one can own/possess a firearm. But...It sounds like NICS is focussing on the expungement. Thats the problem IMO.