Indiana Expungement email to ATF

[hallcs]

Dear ATF,

I would like to ask a question concerning the state of Indiana's expungement law (35-38-9).

A letter addressed to Lieutenant Peter B. Wood of the Indiana State Police in November of 2014, from ATF agent Michael Boxler indicated that the Federal Government would not consider a felony conviction expunged under Indiana Code 35-38-9 as a true expungement for the purpose of possessing a firearm, because Indiana does not provide a true expungement, and as long as that information was still available to law enforcement and could be used against a person in the future, it was not considered expungement by the federal government.

My question concerns the later part of Mr. Boxler's letter which indicates, IC 35-38-9-10(c) which states that a person granted expungement in the state of Indiana has had their civil rights restored would not count because the expungement was not sufficient. Why is that not sufficient under 18 U.S. Code § 921 to allow a person to own a firearm. Because 18 U.S. Code § 921 uses the word OR,

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

While I do understand Indiana's intent, that the sealed records are not misused to disguise continued criminal behavior and that fact that those records can be used to enhance a judges decision in sentencing does indicate a sealing and not a true expungement. Regardless, Indiana does state the a person's civil rights are restored and that person is is given the status of " A Proper Person" as of July of 2015 and under 18 U.S. Code § 921 a person that has had their civil rights restored may possess a firearm.

It is my understanding that the Federal Government's intent is not to quash or interfere with intent of a state government, it is clear with the latest changes in Indiana's criminal code 35-38-9 with the change of wording to 35-38-9-10(c): Except as provided in section 6(f) of this chapter, the civil rights of a person whose conviction has been expunged shall be fully restored, including the right to vote, to hold public office, to be a proper person under IC 35-47-1-7(2), and to serve as a juror, that Indiana clearly is trying to restore firearm rights to individuals that have been granted expungement under IC 35-38-9.

So my question is: since the recent changes to IC 35-38-9-10(c) as of July , 2015, does this restore an individuals rights to possess a firearm under 18 U.S. Code § 921

Thank you and Sincerely,

 

[sdprof]

Really, you're expecting the ATF to follow the law?

 

[hallcs]

Sadly, No... I expect to get no response or one of disappointment.

 

[Waffles]

Just a reminder; the Feds never completely delete ANY record from their files. It may be expunged, but not deleted. If you committed a minor Felony, and later got a Pardon from your Governor, your arrest record is NOT deleted. It is available to any LEO doing a Criminal Check. Your arrest, conviction and Pardon are all in the files. When you compete certain forms and the question is: "Have you ever been arrested or convicted...." you MUST answer and state you have a Pardon. FYI, in SC if you are arrested and later complete Pre-Trial Intervention and have your record expunged, the record is deleted from the arresting agency, but not by the feds. Under SC law, you can answer that question, "have you ever been arrested....." with a NO, and by law, you did not commit perjury. But, your arrest record, conviction, etc. is still on file with the Feds. Now, I am not an Attorney so what I say can be argued and debated, and some of it may be proven false, so..........Either way, just don't do the crime .

 

[gamecrimez]

For Indiana getting a carry permit
https://firearms.ariesportal.com/Public/ISPFaq.aspx#
You do not have to list expunged convictions.

I cleaned my record & am going to try & get my carry license. Hope I can, as I was under the impression my rights are restored.

 

[hallcs]

I am still in waiting period with ISP but my suspicion is that I will be denied. I do understand the position of both the ATF and State of Indiana. Indiana is saying hey, we are giving you a second chance and expunging your record but if you use it to go screw up again we are going to use it against you for sentencing. The ATF says if it's not cleared permanently then it's still there it's not a true expungement. I get that....

Where I have the problem is Indiana ALSO says my civil rights are restored and I am now a "Proper Person". Indiana is saying I have the right to bear arms, and under Federal law 18 U.S. Code § 921, the restoration of civil rights is the same as an expungement. But the ATF is saying since the expungement does not count, neither does the restoration of civil rights, that's where I disagree. I believe it is two separate issues, and since Federal law 18 U.S. Code § 921 will accept an expungement OR restoration of civil rights.

Good Luck with your LTCH, maybe next year we will follow Maine's lead and not need it period.

 

[hallcs]

In Indiana, the application asks if you have been convicted of any crime (Misdemeanor or felony) other than expunged by a court. So I did not lie on my application but you are correct, any LEO can see past records, expunged or not.

 

[blacksheep4371]

For Indiana getting a carry permit
https://firearms.ariesportal.com/Public/ISPFaq.aspx#
You do not have to list expunged convictions.

I cleaned my record & am going to try & get my carry license. Hope I can, as I was under the impression my rights are restored.

I just received an expungement as well and wish you good luck in receiving a carry license. ATF agents are not attorneys and so that's is one's opinion of the law. If they do not allow our rights to be reinstated I'm all for a Supreme Court battle!

 

[hallcs]

I just received an expungement as well and wish you good luck in receiving a carry license. ATF agents are not attorneys and so that's is one's opinion of the law. If they do not allow our rights to be reinstated I'm all for a Supreme Court battle!

I agree with you, and since federal law allows for the restoration of civil rights as a pathway to firearm possession, we should be allowed to carry. Sadly I believe it's going to be a battle, please let me know how you come out. I'm about 60 days in and hear it could take 6 months to get approved or denied.

 

[blacksheep4371]

I agree with you, and since federal law allows for the restoration of civil rights as a pathway to firearm possession, we should be allowed to carry. Sadly I believe it's going to be a battle, please let me know how you come out. I'm about 60 days in and hear it could take 6 months to get approved or denied.

I will contact the State Attorney General, I.S.P. and the ATF tomorrow

 

[hallcs]

I will contact the State Attorney General, I.S.P. and the ATF tomorrow

Let me know what you find out.

 

[gamecrimez]

Just curious if anyone has received a carry permit in Indiana with an expunged felony record. :triniti:

 

[indyyy]

I'm about 60 days in and hear it could take 6 months to get approved or denied.

I'm wondering if you applied by mail as opposed to in person ? It was a couple years ago that I got my permit - I went in person to get fingerprinted and then to the police station in person to apply and had my permit in about a week and half. Maybe the city your in has something to do with it too - i dunno.

As far as having an expunged felony record - i don't have that and don't know anything about how ISP treats it.

 

[gamecrimez]

I seen here that it is possible to get carry permit with expunged record, if it has the wording:restoration of rights. But, bottom line, without the restoration language in the order, individuals are still federally prohibited from getting a concealed carry permit.

 

[hallcs]

I seen here that it is possible to get carry permit with expunged record, if it has the wording:restoration of rights. But, bottom line, without the restoration language in the order, individuals are still federally prohibited from getting a concealed carry permit.

Most Expungements will say that the follow provisoins do not apply to a person that had their conviction expunged under IC 35-28-9-6(a) (2), which basically means that if your conviction is still showing on your record but is labeled as Expunged, your hosed and your rights are not restored at all.

Example: So say you got a couple of DUI's and it went into a felony and that was taken off your police record by the expungement then your probably ok, but lets say you got a conviction for stealing or something and the felony is still showing on your record but has (expunged) beside it... then your hosed.

I think most everyone thought that because they got the expungement their rights were restored but thats not true. You have to read the courts order very carefully.

 

[gamecrimez]

My court order says it expunged as well has the restoration of rights. If you where to search my counties database it shows only my driving record all other charges are not there anymore. Also I paid to do a limited criminal background check thru ISP & shows nothing as well, so I have high hopes. After Christmas im going to fill out a app. I will post results.

 

[gamecrimez]

Little update:
I filled out app paid fees finger printing, I was approved locally & now waiting on ISP approval. Will update if approved or not. Also I tried buying a firearm from a gun store & was denied the purchase, I will appeal but wanted to see if im approved to carry 1st or not & appeal both at same time if needed.
Will update.

 

[jeanramar]

nice thread, thx
Link Removed

 

[jeanramar]

nice thread!
Link Removed

 

[Royal Coachmen]

Hello all -

I conducted a Google search this morning and came across this thread. I am an attorney who practices firearms law locally in Carmel, Indiana and can address some of the questions that I have seen w/r/t how the ATF, the ISP, and the FBI are treating expungements. I saw reference to a 2014 letter sent by Lt. Wood to the ATF asking for clarification on whether Indiana's expungement law's restored an individual's right to possess a firearm. I encountered this issue while handling an expungement for a client in 2013 and 2014. If you recall, the law in 2013 stated that an individual who had his criminal conviction expunged would also have his civil rights restored, including the right to possess a firearm.

That same year, I received from Lt. Wood a letter from the United States Department of Justice stating that while the Indiana statute DID restore an individual's second amendment right at the State level, the Federal Government would not recognize Indiana's expungement because it did not amount to a "true expungement". Unsatisfied (and sligtly miffed) with this response I called the NRA and spoke with their legal counsel (who are wonderful by the way) and discussed the possibility of bringing a civil rights action against the Federal Government. After speaking at length with them, I learned that the NRA, with the help of an attorney in Wyoming, had already litigated this exact same issue in the State of Wyoming and lost at the Federal Court of Appeals there.

Because of the Federal Government's response to Indiana's expungement law, the 2014 amendments to the expungement law omitted reference to the restoration of an individual's second amendment rights entirely. In July 2015, the law was again changed to include new language that restored the second amendment rights of individuals who have had a felony expunged in Indiana. This time, the statutory language was slightly different. This time, Indiana Code 35-38-9-10(c) includes language that states an individual who has had their record expunged (except in cases involving domestic violence convictions which requires a whole different process) are considered a proper person under Indiana Code 35-47-1-7(2).

Remaining skeptical of the new change in the expungement law, clients were advised to proceed cautiously with expungements. Then, in November 2015 I came in to possession of a letter written by Donald Sorrano, the ATF Columbus Field Division Special Agent in Charge. In summary, in essence, the ATF's position letter states that I.C. 35-38-4-6 level expungements are sufficient to remove the Federal firearms prohibition provided for in the Gun Control Act found at 18 U.S.C Sec. 921 et. seq. In other words, Indiana's expungement laws DO constitute a restoration of rights according to the ATF.

That said, a few things are important to consider. Domestic battery charges are handled differently. There is a separate provision under Indiana Law by which and individual must proceed in order to have his/her Second Amendment rights restored. It is important to perform this function FIRST before expunging a prior conviction. The other important factor to consider is to ensure that your expungement is handled properly. There can be pitfalls with expungement petitions and timing considerations after the expungement has been filed you may need to know before applying for your concealed carry permit. I hope you all find this information helpful. I have started my own lawfirm recently and try to blog with bits of information here and there on topics like there. You all are welcome to follow along if you care Cate, Terry, Gookins - Attorneys At Law. Since there seems to be some interest among folks on this forum I will try to check back periodically to answer any general questions that may arise from time to time. Thanks.