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

[Nathan Hale]

I got some info from the state police today. From what they told me the reason this has all come about was because HB1066. What I was told is that while they were figuring out what all it would take to make this law work the ATF and nics were examining Louisiana law. Once they saw 40:1379.3(c)(10) they decided that it was the most restrictive law that LA had so that would be what they used for NICS background checks. From what the state police told me until then they used 14:95.1 ,but from now on the ATF (NICS) would use 40:1379.3 as a guideline for who is prohibited. The Sargent at the state police said they were not given a heads up as to when this would take effect, but knew it was coming. They figured it would possibly effect 10's of thousands of people. All they would say on what or when it may change was that probably nothing would happen until next session if then. They said barring any thing that might happen with constitutionality issues, doesnt seem likely with the new supreme court ruling, that Louisiana law changing would be the only relief that possibly might come.

Thank you. I thought it must have had something to do with HB1066.

 

[infringed]

I too am in this ridiculous situation. It's as if "infringed" has taken a page from my personal book. I am glad to have found such an in depth discussion on this recent development in my life. I felt ostracized and overwhelmed when I first got the response from NICS. Do we need to get a petition started to have the La. laws reviewed and/or discarded as pertains to Louisiana Revised Statute 40:1379.3(C) (10)? As more and more instances of this come to light, it looks like there's a pretty long potential list of signatures...

From what I understand, there are two ways to resolve this issue:

1. Contest the constitutionality of Louisiana Revised Statute 40:1379.3(C) (10) [only this section -- not the entire statute]
2. Legislative change of Louisiana Revised Statute 40:1379.3(C) (10)

Option 1 is potentially a faster method to option 2 since it could be accomplished prior to next session. This would put everyone at the mercy (and interpretation) of the Louisiana Supreme Court. If the argument isn't framed correctly, it could get an unfavorable ruling, just like Caron v. United States. This gets tricky because the state is not limiting the rights of people who's right have been restored (either by law or by process). The Federal Government is. Without a lot of in-depth research in the matter, it is difficult to connect the dots and see the full picture.

To make matters worse, cases that make it to the Supreme Court often center around defendants with seriously tarnished images and lifetimes worth of crime. In Caron v. United States, the defendant was a 3-time felon in a state that limited gun rights. That is being interpreted to include any restriction, right or privilege, on firearms.

Option 2 would not be possible until at least the next legislative session. Properly educating the members of congress as to the ramifications of Louisiana Revised Statute 40:1379.3(C) (10) as it is written would be the first step. Refer back to the three groups of people affected and the varying levels of their legal offenses and/or prosecution:

1. Violent Offenders (subject to R.S. 14:95.1)
2. Non-violent Offenders (not subject to R.S. 14:95.1; may have received R.S. 15:572 (D) First Offender Pardon restoring some or all rights)
3. Non-violent Offenders under Article 893 (may have had conviction set-aside and prosecution dismissed which has the same effect as an acquittal)


Firearm Rights......State Restrictions........Federal Restrictions
=========================================================================
Violent Offenders | Possible after 10 years | Never per Caron v. US and |
..................|.........................| R.S. 40:1379.3(C) (10)....|
-------------------------------------------------------------------------
Non-violent.......| Upon First Offender.....| Never per Caron v. US and |
Offenders.........| Pardon R.S. 15:572 (D)..| R.S. 40:1379.3(C) (10)....|
-------------------------------------------------------------------------
Non-violent 893...| Immediately following...| Never per Caron v. US and |
Offenders.........| conviction being........| R.S. 40:1379.3(C) (10)....|
..................| set-aside and dismissed |...........................|
-------------------------------------------------------------------------

 

[Emperor]

From what I understand, there are two ways to resolve this issue:

1. Contest the constitutionality of Louisiana Revised Statute 40:1379.3(C) (10) [only this section -- not the entire statute]
2. Legislative change of Louisiana Revised Statute 40:1379.3(C) (10)

Option 1 is potentially a faster method to option 2 since it could be accomplished prior to next session. This would put everyone at the mercy (and interpretation) of the Louisiana Supreme Court. If the argument isn't framed correctly, it could get an unfavorable ruling, just like Caron v. United States. This gets tricky because the state is not limiting the rights of people who's right have been restored (either by law or by process). The Federal Government is. Without a lot of in-depth research in the matter, it is difficult to connect the dots and see the full picture.

To make matters worse, cases that make it to the Supreme Court often center around defendants with seriously tarnished images and lifetimes worth of crime. In Caron v. United States, the defendant was a 3-time felon in a state that limited gun rights. That is being interpreted to include any restriction, right or privilege, on firearms.

Option 2 would not be possible until at least the next legislative session. Properly educating the members of congress as to the ramifications of Louisiana Revised Statute 40:1379.3(C) (10) as it is written would be the first step. Refer back to the three groups of people affected and the varying levels of their legal offenses and/or prosecution:

1. Violent Offenders (subject to R.S. 14:95.1)
2. Non-violent Offenders (not subject to R.S. 14:95.1; may have received R.S. 15:572 (D) First Offender Pardon restoring some or all rights)
3. Non-violent Offenders under Article 893 (may have had conviction set-aside and prosecution dismissed which has the same effect as an acquittal)


Firearm Rights......State Restrictions........Federal Restrictions
=========================================================================
Violent Offenders | Possible after 10 years | Never per Caron v. US and |
..................|.........................| R.S. 40:1379.3(C) (10)....|
-------------------------------------------------------------------------
Non-violent.......| Upon First Offender.....| Never per Caron v. US and |
Offenders.........| Pardon R.S. 15:572 (D)..| R.S. 40:1379.3(C) (10)....|
-------------------------------------------------------------------------
Non-violent 893...| Immediately following...| Never per Caron v. US and |
Offenders.........| conviction being........| R.S. 40:1379.3(C) (10)....|
..................| set-aside and dismissed |...........................|
-------------------------------------------------------------------------

I would also correspond with The NRA. If there are 10's of thousands of "law abiding" "Non-threatening" "Less likely to re-offend" gun owners (as was being inferred here), being denied their Right to Bear Arms; then this is right up their alley!

 

[infringed]

I would also correspond with The NRA. If there are 10's of thousands of "law abiding" "Non-threatening" "Less likely to re-offend" gun owners (as was being inferred here), being denied their Right to Bear Arms; then this is right up their alley!

There may or may not be large numbers of people affected. That should not matter. If a law unjustly affects one person it can be (theoretically) declared unconstitutional.

Nevertheless, it is probably difficult to gather such a body of people because many likely don't know they are prohibited. Until a person purchases from an FFL and is denied OR obtained a UPIN, they won't know. Since Louisiana doesn't restrict non-background-checked transfers between residents, this is a likely possibility for many people.

Let's take the 65 year old grandfather who had a felony conviction in 1994 that was set-aside pursuant to Article 893. As far as he is aware, and as the law states, he has all rights and his conviction was set-aside and the dismissal has the same effect as an acquittal. To him, his lawyers, and anyone else (prior to January 2014 or thereabouts), it is perfectly legal for this man to own firearms. Further, he may have all of the firearms he could ever want and won't ever buy any from an FFL. One day he is out hunting with his grandson and inadvertently commits an obscure Federal [felony] crime, while in possession of a firearm. What is the outcome? He's in a pretty tough spot. He's tried as a three-time offender... he could also just be let go because the crime was clearly unintentional. He'd still never know in that case.

Edit: He would be tried as a three-time offender because of the original 893 felony (which is only supposed to matter in cases of repeat offenses) that was set-aside plus the two new ones.

 

[Emperor]

There may or may not be large numbers of people affected. That should not matter. If a law unjustly affects one person it can be (theoretically) declared unconstitutional.

Nevertheless, it is probably difficult to gather such a body of people because many likely don't know they are prohibited. Until a person purchases from an FFL and is denied OR obtained a UPIN, they won't know. Since Louisiana doesn't restrict non-background-checked transfers between residents, this is a likely possibility for many people.

Let's take the 65 year old grandfather who had a felony conviction in 1994 that was set-aside pursuant to Article 893. As far as he is aware, and as the law states, he has all rights and his conviction was set-aside and the dismissal has the same effect as an acquittal. To him, his lawyers, and anyone else (prior to January 2014 or thereabouts), it is perfectly legal for this man to own firearms. Further, he may have all of the firearms he could ever want and won't ever buy any from an FFL. One day he is out hunting with his grandson and inadvertently commits an obscure Federal [felony] crime, while in possession of a firearm. What is the outcome? He's in a pretty tough spot. He's tried as a three-time offender... he could also just be let go because the crime was clearly unintentional. He'd still never know in that case.

Edit: He would be tried as a three-time offender because of the original 893 felony (which is only supposed to matter in cases of repeat offenses) that was set-aside plus the two new ones.

This is all true, but as you contend most won't know (and may never find out), and many won't care. You are in the minority then. I suppose you should be commended for caring about the legality of it, but you got a tough climb ahead.

BTW; what is an obscure felony? If you don't mind?

 

[coance]

10's of thousands was the exact language the Sargent from the LSP Baton Rouge used. I think you are right many will probably never know, but as far as I am concerned it is not noble. It is me not willing to go to prison for.
I think not only would LA RS 40:1379.3(c)(10) have to be removed, but 40:1379.3(C)(6) would need the wording changed. Something like " Not be ineligible to possess a firearm by of state and federal law" . Does this look like how it should read?

 

[infringed]

BTW; what is an obscure felony? If you don't mind?

Maybe some violation of the Federal Wilderness Act.

You are riding an ATV to a new hunting spot. You set out on a sunny day, but it soon starts a torrential downpour and visibility is sub-optimal. Lost from your original path, you run out of gas and leave your ATV to seek rescue. Luckily, a park ranger eventually finds you. After authorities retrieve your vehicle, however, you come to find that you have arguably committed a federal felony. When you strayed from your path, you ended up driving the ATV in federally-protected wilderness area, thus violating the Federal Wilderness Act.

Think that wouldn't happen? Ask Bobby Unser: http://dailysignal.com/2011/03/14/bobby-unser-vs-the-feds/

 

[Nathan Hale]

Thank you Gungrabishere14 for the copy of your letter (post #77.)

Based on your letter, it appears that the Federal Government is taking the position that because a person who pleads guilty under article 893 is ineligible for the privilege of conceal carry in LA, he is still a convicted felon in the eyes of the Feds; thus, he is a "prohibited person" under federal law. This appears to be what the Caron case is saying; I have not yet read it. (Remember, without article 893, those who plead guilty to a felony are felons under LA law.)
I wonder, however, if persons convicted of a DWI will be considered "prohibited persons". Correct me if I am wrong, but a DWI conviction will act to prohibit a person from obtaining a CHP?

In other words, what exactly is making someone a "prohibited person" in LA now; is it the ineligibility for a concealed handgun permit? If so, the cart is before the horse.

The inability to qualify for a privilege, should not result in the denial of a constitutional right.

This is a dangerous precedent.

I'm getting ahead of myself now, but I think there are only 2 ways to deal with this:
a.) overrule Caron,
b.) repeal RS 40:1379.3(c)(10)

There is still that nagging question, Caron is a '98 case; so why all this now, why not then? Did HB1066 change things that much, or was someone at ATF/DOJ asleep at the switch for the past 16 years?

NH

 

[Nathan Hale]

BTW; what is an obscure felony? If you don't mind?

Opening mail not addressed to you.

(edit: Even if it is junk mail.)

 

[infringed]

This appears to be what the Caron case is saying; I have not yet read it.

... [some states] choose to restore civil rights while restricting firearm rights in part. The permissive reading would make these partial restrictions a nullity under federal law, indeed in the egregious cases with the most dangerous weapons. Congress cannot have intended this bizarre result.

The Caron ruling only specifically addresses instances where states restrict the right to

… possess … firearms

It does not go into the nuances between firearm privileges and rights.

Remember, without article 893, those who plead guilty to a felony are felons under LA law.

This is true; however, the Gun Control Act allows for possession when rights are restored (e.g., First Offender Pardon). This is why so many people recently became aware that they are prohibited.

I wonder, however, if persons convicted of a DWI will be considered "prohibited persons". Correct me if I am wrong, but a DWI conviction will act to prohibit a person from obtaining a CHP?

According to my attorney, one of the three other people that have contacted him now were convicted under 894 with a DWI. This may or may not have been a mistaken incident where the individual was caught in a wide net.

In other words, what exactly is making someone a "prohibited person" in LA now; is it the in eligibility for a concealed handgun permit? If so, the cart is before the horse.

According to coance (I have not verified this):

from now on the ATF (NICS) would use 40:1379.3 as a guideline for who is prohibited

The inability to qualify for a privilege, should not result in the denial of a constitutional right.

This is a dangerous precedent.

At this point, the State and Federal Government are just playing point the finger.

a.) overrule Caron,

According to an attorney that dealt with this issue in Alaska (and helped draft the legislative changes), this path did not pan out. Remember, their CHP restriction excluded any pardons (including a Presidential Pardon and Gubernatorial Pardon).

There is still that nagging question, Caron is a '98 case; so why all this now, why not then? Did HB1066 change things that much, or was someone at ATF/DOJ asleep at the switch for the past 16 years?

That pretty much sums it up. The restriction was there before the Caron case.

 

[coance]

From what I was told the feds had always used 14:95.1 in regards to prohibition. When they,the feds, and LSP were figuring out how to make 1066 work with the nics check the feds looked hard at 40:1379.3(c)(10) and decided to start using it in regards to prohibition. That is why the recent change. This all came from a Sargent with the LSP that was responding to a email that I had sent to Governor Jindal's office that was passed off to the LSP for an explanation.

 

[Gungrabishere14]

I think everyone who has ever received a UPIN will get a letter and they will know then. I am moving later this month but have plenty of skin I the game and will continue to fight and spread the word. Sadly I will be unarmed and I was moving to some of the best hunting in the country. Crossbow or compound bow will have to do I suppose. I think we should also look to the media and local reps. As everyone gets these letters or denied the calls will continue to all government people. I was told by Frank at the Supreme Court to work on the atty general and governors office to effect change since they are the executive branch of government. Anyhow I think by the end of the year thru social media and word of mouth all folks who received there rights back under 14.95.1 Wil know they are screwed and all have invested a lot of money like we all have will be very upset. Maybe then we will have the numbers to effect change. Again the state I'm sure doesn't agree with the feds interpretation of the law.

 

[Nathan Hale]

From what I was told the feds had always used 14:95.1 in regards to prohibition. When they,the feds, and LSP were figuring out how to make 1066 work with the nics check the feds looked hard at 40:1379.3(c)(10) and decided to start using it in regards to prohibition. That is why the recent change. This all came from a Sargent with the LSP that was responding to a email that I had sent to Governor Jindal's office that was passed off to the LSP for an explanation.

Thank you. This is interesting, and explains much.

(I did have a feeling that HB1066 had something to do with it.)

 

[Nathan Hale]

I think everyone who has ever received a UPIN will get a letter and they will know then. I am moving later this month but have plenty of skin I the game and will continue to fight and spread the word. Sadly I will be unarmed and I was moving to some of the best hunting in the country. Crossbow or compound bow will have to do I suppose. I think we should also look to the media and local reps. As everyone gets these letters or denied the calls will continue to all government people. I was told by Frank at the Supreme Court to work on the atty general and governors office to effect change since they are the executive branch of government. Anyhow I think by the end of the year thru social media and word of mouth all folks who received there rights back under 14.95.1 Wil know they are screwed and all have invested a lot of money like we all have will be very upset. Maybe then we will have the numbers to effect change. Again the state I'm sure doesn't agree with the feds interpretation of the law.

If the first/second offense DWIs are prohibited, and they get letters, you can bet a lot of people will be finding out (and surprised and angry.)

We shall see.

 

[323MAR]

This reminds me of my first speeding ticket. I pleaded 894 and paid to get it expunged. State Farm still found out and charged me extra for my insurance.
So expungements are pretty worthless after all.

 

[Gungrabishere14]

My rights were restored under 14.95.1 (c) after 10 yrs of not getting in trouble that's who this is effecting so you can imagine how many got thier rights back over the years. This year a LA supreme Court judge cited this in a recent case so them included still think this is the LA law during a case where the felon was only 2 years into his 10 yr waiting period. In another post in the forum another judge said that it was an example that if as person is crime free for 10yrs that the rights should be restored. The state has never stated that this law was not valid it was the Feds interpretation of LA law not LA interpretation of their own laws. So LA will just need to change the ccw law so the feds will have to revert back to 14.95.1 (c) which was the old standard for restoring rights both in LA and under federal law.

 

[BlackBalled]

coance, do you have a copy of the email you mentioned? could you post the body of it here for all to see?

 

[tim9lives]

My rights were restored under 14.95.1 (c) after 10 yrs of not getting in trouble that's who this is effecting so you can imagine how many got thier rights back over the years. This year a LA supreme Court judge cited this in a recent case so them included still think this is the LA law during a case where the felon was only 2 years into his 10 yr waiting period. In another post in the forum another judge said that it was an example that if as person is crime free for 10yrs that the rights should be restored. The state has never stated that this law was not valid it was the Feds interpretation of LA law not LA interpretation of their own laws. So LA will just need to change the ccw law so the feds will have to revert back to 14.95.1 (c) which was the old standard for restoring rights both in LA and under federal law.

I think you are probably mistaken when you say that the La Supreme Court Judges "Think" that this is still the law.

They clearly stated that IT IS the LAW in La. They were very clear.

This is what they said in their recent ruling.

"Further, the law is narrowly tailored in its application to the possession of firearms or the carrying of
concealed weapons for a period of only ten years from the date of completion of
sentence, probation, parole, or suspension of sentence, and to only those convicted
of the enumerated felonies determined by the legislature to be offenses having the
actual or potential danger of harm to other members of the general public." (see note 6 )

(Note 6)--We note that Louisiana’s LSA-R.S. 14:95.1 felon-in-possession law is less restrictive than the
comparable federal law, which encompasses nearly all felonies and has no ten-year cleansing
period. Pursuant to 18 U.S.C.A. § 922.

They went on to say that La laws are in force to protect the general public and then went further to point out that all 3 of the defendants had offended within a very short time after being released from the DOC.
The circumstances at issue in all of the recent State and Federal Supreme Court cases...were cases of very violent offenders who re-offended within a very short period of time after they were released from DOC.

"These three defendants illustrate, rather than show exceptions to, the
principles underlying felon-in-possession laws such as LSA-R.S. 14:95.1, i.e., that
certain convicted felons have demonstrated a dangerous disregard for the law and
present a potential threat of further or future criminal activity and are more likely
than non felons to engage in illegal and violent gun use. These cases demonstrate
that convicted felons are not only at risk to reoffend, but are at risk to reoffend
using firearms."
So..IMO...The La Justices are saying....Yes...We understand that La firearms laws are less restrictive than the federal laws. But...That is OK with us...because we feel that our 10 year rule provides that safety net for protecting the public. And these 3 violators before us who are felons can not prove themselves to our state that they deserve to be restored their firearms rights. Heck...they could not even stay clean for a few years....much less 10 years.

FWIW...I seriously doubt that the ATF is going to bust your door down and arrest you over your possession of a firearm if that is your only violation.

 

[Gungrabishere14]

Yes you are correct but I would not put anything past them and LA needs to send a clear message what the law is so we can once again be legal in thier eyes as I am in the process of moving and there are lots of people who have moved who are getting these letters in other states as well. Obviously the court was clear but I don't want to be the person who has to get arrested and tried although it would be sort of cool to have you name as the case that restored the 10 yrs cleanse which I though us vs dupaquire already did. May not of spelled dupaquire correctly. One other thing say you did get arrested, where would u be tried.? State or federal court?

 

[Gungrabishere14]

Another law is was reading about was Sb 135 which was passed Jan 1st 2014 which was supposed to improved reporting to nics. This may also have something to do and the timing is suspicious as the was told by Frank DeFuko at the LA supreme Court that he started getting calls around the 1st of the year. Maybe they are just denying everyone with either a UPIN or a 10yr cleanse until they can sort out who can or can't legally own a gun. This is exclusively a state issue and based on that article the Supreme Court judges still understand that after 10 yrs under state law your rights are restored so I don't understand why the would try and misconstrued state law send out these letter to us who have waited 10yrs to receive our rights back per state law when LA judges have a totally opposite opinion and have reaffirmed it as recently as a few months ago.