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

[madwabbit]

I certainly see your confusion now. I don't know if this shines light or not, but it seems like this is the step you fellows are missing.




§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 fifteen 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.

C. Except as otherwise specifically provided, this Section shall not apply to the following cases:

(1) 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.

(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.

(3) The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section.

 

[infringed]

Basic civil rights are restored under a First Offender Pardon after the completion of a sentence with the exception of the right to possess a weapon. You have to follow the 10 years cleansing per Louisiana statute 14.95.1 to have rights restored.

This is not entirely accurate. LA R.S. 14:95.1 only applies to "a person convicted of certain felonies." In many cases, a person receiving a First Offender Pardon (R.S. 15:572) "has all rights of citizenship and franchise" on the day the sentence is completed:

D. On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred. This copy shall be filed in the record of the proceedings in which the conviction was obtained. However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.

It is a common misconception that LA R.S. 14:95.1 (or a ten year waiting period) applies to everyone convicted of a felony. That law only applies to the felonies defined within it or LA R.S. 14:2(B).

 

[madwabbit]

You have to follow the 10 years cleansing per Louisiana statute 14.95.1 to have rights restored.

and apply for it per section C....

 

[Ktlatx]

The 10 year cleansing does not require you to apply or a permit. If you wish to have rights restored prior to the 10 year cleansing, then you apply for a permit from the sheriff.

As to the applicable felonies covered by 14.95.1, they are listed within the statute, so it speaks for itself if an individual is restored their rights under said law, their felony is covered by said law.

The majority of people who do not receive their firearms rights back upon receipt of a first offender pardon, do receive them back under 14.95.1.

What the federal government is saying per the letter referenced above is they acknowledge that previously they had made rulings based on Louisiana law, but have now decided - despite NO change to the law to change how they are making rulings.

There is actually an interesting letter from the State Attorney's office to the ATF from March 2014 in which the ATF questioned someone's right to handle explosives as it pertains to 14.95.1.

The state responded back that the handling of explosives required a license, which made it a privilege, not a constitutional right and Louisiana would deny them said license despite 14.95.1 expressly because it was not a constitutional right.

Now...not to sound like I'm into conspiracy theories here...but the timing of that question seems suspect with the timing the denials and reversals began coming down. They are claiming that because you cannot get a conceal carry permit, it bars you from any possession.

If you reread the case law the federal government is using, I do not believe that was the intent of the courts at the time of their ruling.

 

[Ktlatx]

And technically, even those who received their firearms rights back by a First Offender Pardon are no longer covered either, because they too would be denied a conceal carry permit.

The federal government basically saying despite several paths for individuals to be restored to their second amendment rights that the state has laid out, despite the fact that in the past they have agreed with and approved people based on these paths of restoration, they no longer will be doing so...and people who obtained guns legally in the past are, at least under federal law, no longer have the right to possess them.

 

[tim9lives]

I certainly see your confusion now. I don't know if this shines light or not, but it seems like this is the step you fellows are missing.




§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 fifteen 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.

C. Except as otherwise specifically provided, this Section shall not apply to the following cases:

(1) 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.

(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.

(3) The sheriff or superintendent of police, as the case may be, shall immediately notify the Department of Public Safety, in writing, of the issuance of each permit granted under this Section.

I believe that the last 2 have been repealed by HB1260 back in 2010. The sheriff can no longer give someone a pass.
------------
Hazel (HB 1260) Act No. 942
Existing law prohibits persons convicted of certain felony offensesfrom possessing firearms
or carrying concealed weapons.
Existing law further provides for the following exception: Any person who has not been
convicted of any felony for a period of 10 years from the date of completion of sentence,
probation, parole, or suspension of sentence.
Prior law provided for the following exceptions to this prohibition:
(1) Upon completion of sentence, probation, parole, or suspension of sentence, the
convicted felon shall have the right to apply to the sheriff of the parish in which he
resides, or the superintendent of police in the case of Orleans Parish, for a permit to
possess firearms. The felon shall be entitled to possess the firearm upon the issuing
of the permit.
(2) The sheriff or superintendent of police, as the case may be, shall immediately notify
DPS&C, in writing, of the issuance of each permit granted.
New law deletes prior law removing the authorization for law enforcement agencies to issue
permits.
Effective August 15, 2010.
(Amends R.S. 14:95.1(C))

 

[Gungrabishere14]

I think we should all send thier letters back with "COME AND TAKE IT"

 

[coance]

Has anyone heard anything new on this?

 

[Nathan Hale]

Has anyone heard anything new on this?

This issue is known about outside of this forum.
Best to start contacting your state rep and senator in preparation for the next session. The more, the better.
Polite, respectful, coherent is always helpful.

 

[coance]

I have tried to contact them all. I have contacted some. You would really be suprised how unresponsive some of them can be. If you want to do a easy test email all of your reps and senators. Put a few specific questions in there and see how many generic answers you get. Its down right scary some of the people we let make laws. I do have a list of them that I email on a regular basis on this. I also now know some of them that will not get a vote from me.

 

[infringed]

The application for a Concealed Handgun Permit seems to have been modified on 7/23/2014. The current version can be found here: http://www.lsp.org/pdf/chapplication.pdf

Does anyone have a copy of that document prior to the recent modifications?

I do not recall the language relating to violations being worded the way it is now:

You must still list violations that were EXPUNGED, DISMISSED, or SET ASIDE through either Article
893, Article 894, R.S. 40:983, or for which you were PARDONED and you must provide certified
documentation of each arrest with your application.

Given that R.S. 40:1379.3 C. (10) currently prohibits most people matching those criteria, why wouldn't the application state the prohibition? Was that language the same before? If not, has it changed as a precursor to R.S. 40:1379.3 C. (10) being modified?

 

[coance]

I dont recall the exact wording when I did mine in 2012. I do know that I was required to list everything and send in a copy of my first time offender pardon. Wish I had a copy of all the stuff but if I remember right it was all turned in with the application. I am sure someone on here is probably a instructor and knows how it read previously.

 

[BlackBalled]

Now I'm really confused. Am I correct in assuming that I AM eligible to get a CHL even though I had an Article 893 conviction 17 years ago? This is how I interpret the new application form referenced above.

 

[infringed]

Now I'm really confused. Am I correct in assuming that I AM eligible to get a CHL even though I had an Article 893 conviction 17 years ago? This is how I interpret the new application form referenced above.

The law [R.S. 40:1379.3 C. (10)] has not changed, so you would still be ineligible. The application's wording leads you to believe that it is possible to obtain, though.

 

[BlackBalled]

17 years have passed... now what?

R.S. 40:1379.3 C. (10) says I'm eligible (+15 yrs have passed); superseding R.S. 14:95.1 C (which says I'm eligible); R.S. 15:572(B)(1), (D)(1)(2) says I'm "fully pardoned"; ATF Form 4473 states an exception to Questions 11c & 11i "A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year...is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights taken away and later restored AND (2), the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms."

However, the letter I got from NICS says, "The AST has verified the application of an automatic First Offender Pardon granted by the Division of Probation and parole of the Department of Corrections, wherein the individual is restored all rights of citizenship and franchise. However, the First Offender Pardon is not actually a pardon, it is the automatic restoration of rights for first time offenders, but will not restore firearm rights pursuant to Caron v. United States".

How can they say "it's not actually a pardon" when the law itself is: Chapter 5. Reprieve, Pardon, and Parole; Part 1. Reprieve and Pardon, and it goes on to specifically mention the word pardon 11 times as it pertains to the implementation of this statute?

The letter goes on to say, "This restriction from obtaining a concealed carry permit under R.S. 40:1379.3 (C)(10), supersedes the application of R.S. 14:95.1. This partial firearm restriction imparts a full restriction under Caron v. United States".

So...again, I'M FREAKING CONFUSED!

 

[BlackBalled]

Okay, maybe I'm reading 18 U.S.C. 491(a) wrong. The first part of it prohibits me because of Article 893. The second part referencing the 15 year period does not pertain to me because I wasn't convicted for counterfeiting. Right?

 

[infringed]

R.S. 40:1379.3 C. (10) says I'm eligible (+15 yrs have passed)

The 15 year exception only applies to person convicted of 18 U.S.C. 491(a):

However, a person who has been convicted of a violation of 18 U.S.C. 491(a) shall be permitted to qualify for a concealed handgun permit if fifteen or more years has elapsed between the date of application and the successful completion or service of any sentence, deferred adjudication, or period of probation or parole.

I've always wondered who that exception was added for. Is that group of people less criminal than someone else? If so, why is that offense a felony in the first place? In the wording of that exception, the person does not even need to have had their rights restored.

R.S. 15:572(B)(1), (D)(1)(2) says I'm "fully pardoned"; ATF Form 4473 states an exception to Questions 11c & 11i "A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year...is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights taken away and later restored AND (2), the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms."

If the R.S. 40:1379.3 C. (10) prohibition did not exist, you would not be prohibited under federal law. It doesn't matter how they word it; the [full] restoration of rights by an automatic provision of law or procedure, the execution of available relief (i.e., applicable laws that allow restoration but are not pardons), or executive relief (e.g., Gubernatorial or Presidential Pardon) all have the same effect in terms of rights. The language is not ambiguous, it's clear. If all rights are restored without exception, why would the rights granted by the 2nd amendment not be restored. Either the 2nd amendment is a right or it is not.

How can they say "it's not actually a pardon" when the law itself is: Chapter 5. Reprieve, Pardon, and Parole; Part 1. Reprieve and Pardon, and it goes on to specifically mention the word pardon 11 times as it pertains to the implementation of this statute?

Legalese my friend, legalese. You will be prohibited for any reason they can find for as long as they can manage. People always say that even though a law is on the books, no one enforces it, so you don't need to concern yourself with it. That is wrong in every situation of any consequence. If they can, they will.

The letter goes on to say, "This restriction from obtaining a concealed carry permit under R.S. 40:1379.3 (C)(10), supersedes the application of R.S. 14:95.1. This partial firearm restriction imparts a full restriction under Caron v. United States".

That is the DOJ's very broad interpretation of Caron v. United States. They may or may not be correct in their interpretation of what the SCOTUS wanted. If they are correct, then the SCOTUS has effectively determined that any of the various provisions regarding firearms (in terms of ability to obtain -- e.g., CHP, NFA, etc.) are rights. Thus, the ability to obtain a CHP a right[1]. In the case that [the ability to obtain] a CHP is a right, how can it be denied when all rights have been restored? If it is not a right but is instead a privilege, how can it be used to deny a right? You can closely equate all of this to the right to obtain a "Carry Permit" in places like Washington D.C.

[1] That's not to say that education or age requirements are nullified.

 

[coance]

This thread is still getting more views every day. I wonder is this from people just checking it out to see if anything is new or is it more people finding this from a search of some kind that are now having the same problem.

 

[323MAR]

This does not apply to me, but I can not help but read this thread. It would be a nightmare for me if I lost my Constitutional Rights. I feel for the people affected by this. It is obvious that those who have lost their rights here are not the kind of people who pose a danger to the community. At the very least, government resources are being wasted on trying to stop minor one-time offenders from defending their families.
Perhaps the Federal government should just issue people hunting licenses to violent criminals.

 

[mrppg]

I have been patiently waiting for ten years only to go and be denied because of this new confusing interpretation of the law. I've paid my debt to society a long time ago. So why am i still being punished! WHAT DO WE NEED TO DO?