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

[infringed]

LA RS 14:95.1 refers to persons convicted of certain felonies; those enumerated in R.S. 14:2(B):

B. In this Code, "crime of violence" means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as "crimes of violence":

(1) Solicitation for murder
(2) First degree murder
(3) Second degree murder
(4) Manslaughter
(5) Aggravated battery
(6) Second degree battery
(7) Aggravated assault
(8) Mingling harmful substances
(9) Aggravated rape
(10) Forcible rape
(11) Simple rape
(12) Sexual battery
(13) Second degree sexual battery
(14) Intentional exposure to AIDS virus
(15) Aggravated kidnapping
(16) Second degree kidnapping
(17) Simple kidnapping
(18) Aggravated arson
(19) Aggravated criminal damage to property
(20) Aggravated burglary
(21) Armed robbery
(22) First degree robbery
(23) Simple robbery
(24) Purse snatching
(25) Extortion
(26) Assault by drive-by shooting
(27) Aggravated crime against nature
(28) Carjacking
(29) Illegal use of weapons or dangerous instrumentalities
(30) Terrorism
(31) Aggravated second degree battery
(32) Aggravated assault upon a peace officer with a firearm
(33) Aggravated assault with a firearm
(34) Armed robbery; use of firearm; additional penalty
(35) Second degree robbery
(36) Disarming of a peace officer
(37) Stalking
(38) Second degree cruelty to juveniles
(39) Aggravated flight from an officer
(40) Aggravated incest
(41) Battery of a police officer
(42) Trafficking of children for sexual purposes
(43) Human trafficking
(44) Home invasion

The issue, as it has been explained to me, is not whether the state has determined that persons with Article 893 dismissals and expungements are eligible to purchase or possess firearms. It has been established, at least in my case, that on a state level, I am allowed to do so. The issue is a federal one. The letter states that since Louisiana Revised Statute 40:1379.3(C) (10) restricts persons with Article 893 dismissals and expungements from obtaining a Concealed Carry Permit, they are not eligible per the Gun Control Act.

This is being based on Caron v. United States, 524 U.S. 308 (1998) wherein Caron, a multiple offender with a conviction in Massachusetts where his rights had been restored. The key part of the ruling is that "Massachusetts law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony convictions were more than five years old. Mass. Gen. Laws §§140:123, 140:129B, 140:129C (1996). The law forbade him to possess handguns outside his home or business. See §§140:121, 140:131, 269:10."

Though Massachusetts restricted petitioner’s right to carry a handgun, the District Court considered the restriction irrelevant because his case involved rifles and shotguns. See ibid. The First Circuit reversed, counting the convictions because petitioner remained subject to significant firearms restrictions.

Continued from the Gun Control Act, note Violent Felony:

Three-time violent felons who violate §922(g) face enhanced sentences of at least 15 years’ imprisonment. §924(e)(1). *Violent felony* is defined to include burglary and other crimes creating a serious risk of physical injury. §924(e)(2)(B)(ii). This term includes petitioner’s previous offenses discussed above.

Further down in the case, comes the part the letter states applies to Louisiana:

*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.* §921(a)(20).

The first sentence and the first clause of the second sentence define convictions, pardons, expungements, and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v. United States, 511 U.S. 368, 371 (1994).

Aside from the unless clause, the parties agree Massachusetts law has restored petitioner’s civil rights. As for the unless clause, state law permits him to possess rifles and shotguns but forbids him to possess handguns outside his home or business. The question presented is whether the handgun restriction activates the unless clause, making the convictions count under federal law.

The unless clause is activated if a restoration of civil rights *expressly provides that the person may not … possess … firearms.* 18 U.S.C. § 921(a)(20). Either the restorations forbade possession of *firearms* and the convictions count for all purposes, or they did not and the convictions count not at all. The unless clause looks to the terms of the past restorations alone and does not refer to the weapons at issue in the present case. So if the Massachusetts convictions count for some purposes, they count for all and bar possession of all guns.

The end result of this case is:

In sum, Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this right to law-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner to have any guns.

In the case of Louisiana's restriction on CHP's, the question is whether or not it applies to the ruling in this case. The ruling, as I understand it, is based on a type of weapon and/or the physical location(s) in which a weapon may be possessed having been restricted by the state. Louisiana does not restrict either of these in this case. Beyond whether or not this restrictions meets the precedent set in this case, you have the question of whether 40:1379.3(C) (10) is congruent with the text of Article 893 and R.S. 44:9 Section E. (1) (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.

Key there is the restoration of all rights, shall be treated in all respects as not having been arrested or convicted, and the unless clause. The unless clause does not include an exception for 40:1379.3(C) (10) to disallow nor does 893/894. The intent of 44:9 E (1) (b) and Article 893 is clearly to restore all rights as if the person were never convicted except that the previous conviction could be used to enhance future convictions. The intent is not to further restrict a person in any way: shall be treated in all respects as not having been arrested or convicted.

 

[infringed]

Moreover, the CHP is not a requirement to ship, transport, possess, or receive firearms -- any firearms in any physical location. Hypothetically, if a similar restriction to 40:1379.3(C) (10) was added to hunting licenses, it would still not forbid an individual to ship, transport, possess, or receive firearms, just the activity of hunting.

 

[tim9lives]

LA RS 14:95.1 refers to persons convicted of certain felonies; those enumerated in R.S. 14:2(B):



The issue, as it has been explained to me, is not whether the state has determined that persons with Article 893 dismissals and expungements are eligible to purchase or possess firearms. It has been established, at least in my case, that on a state level, I am allowed to do so. The issue is a federal one. The letter states that since Louisiana Revised Statute 40:1379.3(C) (10) restricts persons with Article 893 dismissals and expungements from obtaining a Concealed Carry Permit, they are not eligible per the Gun Control Act.

This is being based on Caron v. United States, 524 U.S. 308 (1998) wherein Caron, a multiple offender with a conviction in Massachusetts where his rights had been restored. The key part of the ruling is that "Massachusetts law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony convictions were more than five years old. Mass. Gen. Laws §§140:123, 140:129B, 140:129C (1996). The law forbade him to possess handguns outside his home or business. See §§140:121, 140:131, 269:10."



Continued from the Gun Control Act, note Violent Felony:



Further down in the case, comes the part the letter states applies to Louisiana:





The end result of this case is:



In the case of Louisiana's restriction on CHP's, the question is whether or not it applies to the ruling in this case. The ruling, as I understand it, is based on a type of weapon and/or the physical location(s) in which a weapon may be possessed having been restricted by the state. Louisiana does not restrict either of these in this case. Beyond whether or not this restrictions meets the precedent set in this case, you have the question of whether 40:1379.3(C) (10) is congruent with the text of Article 893 and R.S. 44:9 Section E. (1) (b):



Key there is the restoration of all rights, shall be treated in all respects as not having been arrested or convicted, and the unless clause. The unless clause does not include an exception for 40:1379.3(C) (10) to disallow nor does 893/894. The intent of 44:9 E (1) (b) and Article 893 is clearly to restore all rights as if the person were never convicted except that the previous conviction could be used to enhance future convictions. The intent is not to further restrict a person in any way: shall be treated in all respects as not having been arrested or convicted.

The issue, as it has been explained to me, is not whether the state has determined that persons with Article 893 dismissals and expungements are eligible to purchase or possess firearms. It has been established, at least in my case, that on a state level, I am allowed to do so. The issue is a federal one. The letter states that since Louisiana Revised Statute 40:1379.3(C) (10) restricts persons with Article 893 dismissals and expungements from obtaining a Concealed Carry Permit, they are not eligible per the Gun Control Act.

But that should not matter. If you never got the 893....then it would be OK?

That makes no sense.

I'm guessing that the BOZO who reviewed your paperwork glanced over it and when he/she saw 893....they acted. I would not focus on the 893.

Focus on the 10 year time frame without any other convictions. If you are good there...then you should be good to go.

I am not that impressed with the entire NICS process. I don't get the impression that the appeals and the UPIN application process gets reviewed by senior Legal Eagles with years of experience. I may be wrong....But that's my impression.

I would not even focus on the 893 since it has nothing to do with firearm possession in La.

==============

OPINION NUMBER 92320



Honorable Johnny Jackson, Jr.
Councilmember, District "E"
2E09 City Hall
1300 Perdido Street
New Orleans, LA 70112

Dear Mr. Jackson:

This office is in receipt of your inquiry under letter dated April 24, 1992. The opinion request has been assigned to me for research and reply.

We quote the issues as stated in your letter:

(I) Does the expungement of a felony conviction pursuant to LSAC.Cr.P. art. 893 remove the disabilities imposed by LSAR.S. 14:95.1?

(II) May a felony conviction set aside pursuant to LSAC.Cr.P. art. 893 be the basis of a prosecution pursuant to LSAR.S. 14:95.1?

(III) Does the disability imposed by LSAR.S. 14:95.1 preclude a party owning, though not possessing, a firearm?

(IV) Does a permit to possess firearms issued pursuant to LSAR.S. 14:95.1(C)(2) give the permit holder the right to possess firearms statewide or is the possession limited to the parish in which the permit is issued?


ISSUE I


The provisions of LSAC.Cr.P. art. 893 contemplate that the trial court has adjudicated the defendant guilty and pronounced sentence. The statute provides, in pertinent part:



Mr. Johnny Jackson, Jr.
OPINION NUMBER 92320
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"When the imposition of sentence has been suspended by the court for the first conviction only, as authorized by this Article, and the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution and the dismissal of the prosecution shall have the same effect as acquittal, except that said 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"...Art.893(E); (Emphasis added).

The expungement statute is designated as LSAR.S. 44:9 and allows the expungement of felony arrest records only where the felony arrest does not result in a conviction. LSAR.S. 44:9(B) and (C), as amended in 1985 and 1989, provide:

"(B) Any criminal court of record in which there was a nolle prosequi, an acquittal, or dismissal of any offense, whether misdemeanor or felony, shall at the time of discharge of a person from its control, enter an order annulling, cancelling, or rescinding the record of arrest, and disposition, and further ordering the destruction of the arrest record and order of disposition. Upon the entry of such an order the person against whom the arrest has been entered shall be restored to all civil rights lost or suspended by virtue of the arrest, unless otherwise provided in this Section, and shall be treated in all respects as not having been arrested.

(C) (1) Any person who has been arrested for the violation of a state statute which is classified as a felony may make a written motion to the district court for the parish in which he was arrested for expungement of the arrest record if the time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted.

(2) If, after a contradictory hearing with the arresting agency, the court finds that the



Mr. Johnny Jackson, Jr.
OPINION NUMBER 92302
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mover is entitled to the relief sought for any of the above reasons, it shall order all law enforcement agencies to expunge same in accordance herewith. However, the arresting agency may preserve the name and address of the person arrested and the facts of the case for investigative purposes only. (Emphasis added).

As a result of the 1985 and 1989 amendments, it is no longer necessary to join the district attorney in a motion for expungement of a felony arrest, and the court is required to grant relief if there has been a nolle prosequi, an acquittal, or a dismissal. The remaining text of the statute remains unchanged.

Your inquiry raises the issue of whether a judgment of acquittal entered pursuant to LSAC.Cr.P. art. 893 should be treated as an acquittal for purposes of LSAR.S. 44:9(B). This issue has been squarely addressed in the case of State v. Barbin, 510 So.2d 675 (La. App. 4th Cir. 1987.); vacated on other grounds, 514 So.2d 451 (La. 1987). The defendant in Barbin was convicted of a felony offense which was set aside pursuant to LSAC.Cr.P. art. 893. A motion to expunge her record pursuant to LSAR.S. 44:9 was denied by the trial court. The appellate court affirmed, and referring to the former provision of the statute now designated as LSAR.S. 44:9(B), stated:

"Although subsection [R.S. 44:9]C(1)(b) states expungement is available if the '[p]rosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal....' and C.Cr.P. art. 893 E states setting aside and dismissing the prosecution has 'the same effect as acquittal,' the two statutes cannot be read together to allow expungement of a felony conviction.....There is no legislative authorization for expungement of a felony arrest record when the arrestee is convicted or pleads guilty to the charge even if the conviction is later set aside under La. C.Cr.P. Art. 893." 510 So.2d at 678; (Emphasis added).

The court further noted the express legislative prohibition contained in the language of LSAR.S. 44:9(E), which states:



Mr. Johnny Jackson, Jr.
OPINION NUMBER 92320
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"No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure." (Emphasis added).

In response to your first inquiry, a felony arrest record will not be expunged if the felony arrest results in a conviction. This is true even if the conviction is set aside pursuant to LSAC.Cr.P. art. 893. Barbin, supra.


ISSUE II


We answer your second inquiry in the affirmative. The provisions of LSAC.Cr.P. art. 893 state a conviction which is set aside may be considered as a first offense and provide the basis for a subsequent prosecution of the party as a multiple offender, and the conviction shall be considered as a first offense for purposes of laws relating to cumulation of offenses. LSAC.Cr.P. art. 893(E). The Louisiana Supreme Court has cited with approval federal jurisprudence which concluded that a defendant could be prosecuted under the federal firearms act even though the defendant's previous conviction had been set aside pursuant to LSAC.Cr.P. art. 893. See Louisiana State Bar Association v. Porterfield, 550 So.2d 584 (La. 1989), and United States v. Crochet, 788 F.2d 1061 (5th Cir. 1986). Further, we note state court jurisprudence which reflects that a conviction set aside pursuant to LSAC.Cr.P. art. 893 may still serve as the predicate conviction for purposes of the prosecution of a convicted felon for possession of a firearm, a crime defined in LSAR.S. 14:95.1. State v. Jones, 539 So.2d 866 (La. App. 4th Cir. 1989).


ISSUE III


In response to your third inquiry, we direct your attention to the case of State v. Brooks, 496 So.2d 1208 (La. App. 5th Cir. 1986). In Brooks, the court stated the prosecution must prove the following elements of the crime of possession of a firearm by a convicted felon for a conviction under LSAR.S. 14:95.1:

(1) the status of the defendant as a convicted felon, and





Mr. Johnny Jackson, Jr.
OPINION NUMBER 92320
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(2) an instrumentality defined as a firearm, and

(3) physical and/or constructive possession of the firearm by the defendant.

As noted, ownership of a firearm is not an element of the offense. Constructive possession is sufficient to establish the possessory element of the offense. State v. Day, 410 So.2d 741 (La. 1982). Constructive possession is established if the weapon is subjected to the person's dominion and control. State v. Bailey, 511 So.2d 1248 (La. App. 2d Cir. 1987). A defendant's admission of ownership of a firearm, coupled with his admission that he resided in the apartment where the firearm was seized, has been held sufficient to sustain a conviction of possession of a firearm by a convicted felon. State v. Melbert, 546 So.2d 948 (La. App. 3rd Cir. 1989).

LSAR.S. 14:95.1 does not exclude antique firearms and does not require that the firearm possessed by the defendant be operable. The fact that a shotgun was manufactured in the 1800's did not require the government to present evidence that the gun was operable in order to show that it was a "firearm" for purposes of conviction. State v. Hill, 562 So.2d 12 (La. App. 5th Cir. 1990); writ den., 567 So.2d 99 (La. 1990).

Based on the foregoing cited cases, it is our opinion that a convicted felon could successfully be prosecuted for possession of a firearm by virtue of his ownership of a firearm. Of course, the other elements of the crime (i.e., status of the defendant as a convicted felon, and instrumentality defined as a firearm) must be met.


ISSUE IV


In response to your fourth and final inquiry, we note a convicted felon is not allowed under LSAR.S. 14:95.1 to possess a firearm within ten (10) years of completion of sentence, probation , parole or suspension of sentence. Subsection C(2) of this statute provides an exception to this rule when the convicted felon applies for and receives a permit to possess firearms from the sheriff of the parish in which he lives. The issuance of the permit is within the discretion of the sheriff. See Attorney General Opinion Numbers 87371, and 8811, copies of which are attached. Your specific inquiry concerns the territorial boundaries of the permit, if issued. Although no express legislation exists concerning the



Mr. Johnny Jackson, Jr.
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territorial boundaries of a "permit to possess" a firearm, there is statutory authority addressing the issuance of a permit for a concealed weapon, which provides:

"The chief law enforcement officer of a parish shall have the authority to issue a concealed handgun permit to an individual, which permit shall be valid only within the boundaries of the chief law enforcement officer's parish." LSAR.S. 40:1379.1(F); (Emphasis added).

It is a generally accepted axiom that a police officer's power is limited to the jurisdiction in which he is employed, absent express legislative authority. See Attorney General Opinion Number 88116, a copy of which is attached. It is the opinion of this office that any permit to possess firearms issued to a convicted felon who has completed the requirements of LSAR.S. 14:95.1(C)(2) would be valid only within the confines of the parish in which it is issued.

In summary, it is the opinion of this office that a felony conviction set aside pursuant to LSAC.Cr.P. art. 893 may not be expunged of record. A felony conviction set aside pursuant to LSAC.Cr.P. art. 893 may serve as the predicate conviction for a prosecution under LSAR.S. 14:95.1. Ownership of a firearm may constitute constructive possession of a firearm as one element of the crime of possession of a firearm by a convicted felon. Finally, a permit to possess firearms issued to a convicted felon who has completed the requirements of LSAR.S. 14:95.1(C)(2) is valid only within the parish in which it is issued.

We trust this interpretation of the law is helpful to you. The opinions released from this office are advisory in nature. A binding, final determination of these issues would arise only after judicial review. Should you have further questions regarding this matter, please contact our office.

Yours very truly,

RICHARD P. IEYOUB
Attorney General



BY:
Kerry L. Kilpatrick
Assistant Attorney General

RPI/KLK/ams








OPINION NUMBER 92320


SYLLABUS



16 CRIMINAL LAW

47A FIREARMS & FIREWORKS

60 LAW OFFICERS

85A PERMITS


A felony conviction set aside pursuant to LSAC.Cr.P. art. 893 may not be expunged of record. A felony conviction set aside pursuant to LSAC.Cr.P. art. 893 may serve as the predicate conviction for a prosecution instituted under LSAR.S. 14:95.1. Ownership of a firearm may constitute constructive possession of a firearm as one element of the crime of possession of a firearm by a convicted felon. A permit to possess firearms issued to a convicted felon who has completed the requirements of LSAR.S. 14:95.1(C)(2) is valid only within the parish in which it is issued.

Date Received:

Date Released:

Honorable Johnny Jackson, Jr.
Councilmember, District "E"
2E09 City Hall
1300 Perdido Street
New Orleans, LA 70112

Kerry L. Kilpatrick
Assistant Attorney General

 

[infringed]

As far as I've been told, LSAR.S. 14:95.1 does not even apply to all felony convictions. It is applicable to the felonies listed in R.S. 14:2(B), mine falls outside of that list (or anything even remotely close). Again, state eligibility is not the issue here at all.

What is at issue is simply: Does the Gun Control Act prohibit persons where states have determined that that person is not allowed to have a license to carry concealed weapons but can otherwise ship, transport, possess, or receive firearms?

Also, where did you find that opinion?

 

[tim9lives]

Go to Buddy Calwell's website..La Attorney General..there is a link of Opinions.

I entered "Felon firearm" into the search box and clicked the AND box for including both words.

Came back with 5 results. If by accident...you put felony instead of felon....you only get 2 results.

http://www.ag.state.la.us/Opinions.aspx

Good Luck

 

[GunRelated]

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.

Yes, it has been 10 years for me, THIS MONTH. I am talking about previously. The 10 year period had nothing to do with it, the expungement did.

 

[tim9lives]

Yes, it has been 10 years for me, THIS MONTH. I am talking about previously. The 10 year period had nothing to do with it, the expungement did.

I'm fairly sure that a number of years ago...Expungements were as you described. But there was a scandal. It was either politicians or police officers.

I want to say the Antoine Franks case. Maybe not her but I think it was her. In any case...someone who was an NOPD Officer or applying to NOPD had a felony conviction.... and then applied to the NOPD and was accepted. Later...they committed a crime. (This was at least 15 years ago.)

Only then...they found out about the felony conviction. So there was a push to modify the laws regarding expungements. Now...all an expungement does is "hide" the convictions from public view. The conviction can always be used for double billing if arrested and convicted again.

Expungements have no affect on whether one can or cannot possess a firearm. Only a Governor's Pardon will allow a felon to possess a firearm before the 10 year rule.

 

[infringed]

The 10 year rule only applies to the felonies enumerated in La. R.S. 14:95.1. Felonies not enumerated, are not subject to the 10 year rule provided they are not barred by another rule according to multiple opinions, specifically: Opinion Number 09-0215, which states:

Possession of a stolen firearm under La. R.S. 14:69.1 is not an enumerated crime in La. R.S. 14:95.1 and therefore persons convicted of possession of a stolen firearm under La. R.S. 14:69.1 are not prohibited from possessing a firearm or carrying a concealed weapon.

 

[GunRelated]

Well, i can't argue with that. All I can do/say is that the expungement worked for me and that was in '04. In fact, IIRC, i don' t think the expungement actually was signed by the judge until ''06 or '07. My attorney claimed it took so long because of Katrina; supposedly the storm put a delay on all sorts of legal crap according to him but I am not so sure that i believe that wholeheartedly.

 

[tim9lives]

I would send them a reply letter.

If it's now been 10 years..Keep it simple since the 10 year rule covers almost all non violent offenses.
Copy the La RS # below and concentrate the explanation about the 10 year rule. Send that to NICS with an explanation. Ignore any mention of expungement in order to keep it simple.

RS 14:95.1
Make it clear that under La Criminal Code....All of your rights have been restored under the Criminal Code
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.

=======
La RS 14:95.1


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.

 

[GunRelated]

I agree. I also think that whomever denied him the 1st time and any subsequent time is not looking at his case thoroughly. Just because LA doesn't allow a permit, does not mean our RTBA in general after 10 years is null and void. Has to be one of the dumbest things i've heard.

 

[tim9lives]

The 10 year rule only applies to the felonies enumerated in La. R.S. 14:95.1. Felonies not enumerated, are not subject to the 10 year rule provided they are not barred by another rule according to multiple opinions, specifically: Opinion Number 09-0215, which states:

Exactly...and I think there is another act which bars possession if a firearm conviction was in any way connected to the felony conviction.

 

[coance]

This is almost exactly what has happened to me. I did not have an expungment, but a first offender pardon.When i got the pardon I was told by the parole officer I had my firearm rights back but have learned recently that it dont. As stated expungement doesnt count as far as the feds are concerned. My ten years was up in 1997. I got a upin from the nics folks and a CHP from the LA state police. When I got denied I did a appeal and was told exactly the same thing. When I inquired deeper I was told by the LSP CHP people that my permit was no good and they never should have issued it. How the could not catch this after having my info for 3 or 4 months reviewing it to give me the permit and then when I called it took about 5 minutes to find out I shouldnt have one I dont know.At that time I was told that they would be sending me a letter revoking it. That was 3 weeks ago and I have yet to receive the letter. I was talking on the phone emailing with a lady from the LSP chp and then over a week ago she quit answering my emails. Before she stopped talking to me she told me I was legal to possess a firearm just not have a CHP. I have been talking to my representatives and anyone who may listen trying to figure this out. As far as I can tell the LA laws will have to change before we can get our firearm rights back.

 

[GunRelated]

I dont know if i missed the part about you already having your permit in the other thread or what, but that is insane. What a let down. She is right, you shouldn't have gotten it to begin with, but dang, after all that time getting used to it now you are going to feel naked without it.

 

[infringed]

I would like to know the stats on how many LEO's have ever had 893 convictions dismissed, barring them from CHP and (according to the letter I received) now firearms altogether. There is nothing in their application that specifically disallows 893 dismissals as the CHP rules do.

 

[swampjockey]

I was also denied the first time I applied for a CHP. Because of a past conviction, and I do mean past, 32 years to be exact. I had the first offender pardon, conviction set aside and all the rest. The only way to get a CHP after a conviction is to go before the pardon board and hopefully they will rule in your favor. Then, the paperwork goes to Governor Jindal and he can either grant or deny a pardon at his discretion. He gives an average of seven pardons per year. I was blessed enough to have receive one. I am now the proud recipient of a Governor's Pardon and a CHP. God Bless You Governor Jindal.

 

[coance]

Swampjockey you are inspiration. You are the first person I have heard of that actually has gotten a Governors pardon. If I could ask how long did it take to get.

I have hopes that the Louisiana law makers will see that this is hurting alot of people. This is not to mention the revenues that will be lost once people dont go hunting and shooting.

If the state politicians hear from enough people maybe they will move on this and just adjust the laws so that after the ten years, expungement or first offender pardon you can have a CHP . Then the federal law would have no bearing. As I see it all we can do is explain to them what is happening and what our concerns are.

 

[swampjockey]

If I remember correctly, from the time I sent my application to the time I was granted a hearing before the board was ten or eleven months or so. From the hearing to the time I received my pardon in the mail was 9.5 months. A very short time after 32 years. It had never crossed my mind to try to get a pardon because it just seemed so out of reach. It just seems so much sweeter considering the limited amount of pardons granted by our present Governor. There were thirteen of us that went before the board that afternoon and only four were approved by the board. Out of the other three I don't know if any received a pardon.

 

[GunRelated]

If I remember correctly, from the time I sent my application to the time I was granted a hearing before the board was ten or eleven months or so. From the hearing to the time I received my pardon in the mail was 9.5 months. A very short time after 32 years. It had never crossed my mind to try to get a pardon because it just seemed so out of reach. It just seems so much sweeter considering the limited amount of pardons granted by our present Governor. There were thirteen of us that went before the board that afternoon and only four were approved by the board. Out of the other three I don't know if any received a pardon.

My hearing was last April, approved unanimously. Still waiting, and hoping for the best.

 

[tim9lives]

I was also denied the first time I applied for a CHP. Because of a past conviction, and I do mean past, 32 years to be exact. I had the first offender pardon, conviction set aside and all the rest. The only way to get a CHP after a conviction is to go before the pardon board and hopefully they will rule in your favor. Then, the paperwork goes to Governor Jindal and he can either grant or deny a pardon at his discretion. He gives an average of seven pardons per year. I was blessed enough to have receive one. I am now the proud recipient of a Governor's Pardon and a CHP. God Bless You Governor Jindal.

GOOD FOR YOU SWAMPJOCKEY...

FWIW....with La...It's not uncommon for the Legislature to introduce Bills which go back and retroactively void out previous laws on the books.

At least...thats my impression since that is what was done or...at least tried with the 893 expungement rules.
So...I think it is possible that at some future date....they could do away with the 10 year rule. And I have little doubt....some who are currently in the Legislature would love to do this.

I can tell you....Even though I am for legalization of marijuana, I could never vote nor support an "anti 2nd Amendment" Legislator. A few names come to mind.

That said...the only real security for someone with a prior is the Governor's Gold Seal Pardon. Jindal doesn't sign many of these.

The Pardon Board approves them...and they sit waiting for the Gov's signature. So...You are blessed Swampjockey.