“Will an expungement fix a federal denial to purchase a weapon?” Finally, the question, is going to be answered in Louisiana.September 15, 2016 | Category: Articles
One of the most vexing problems that many Louisiana sportsmen have been facing is the disparity between Louisiana law and federal law on gun possession for reformed felons. Under established Louisiana law, a person convicted of a felony lost his right to possess a weapon, either for ten years after the completion of sentence or merely for the duration of his sentence, depending on the severity of the crime. Either way, though, Louisiana law allows the prior felon to possess a weapon after some period of time. Federal courts, however, as they interpreted Louisiana law, ruled that a Louisiana felony conviction forever barred a person convicted of a felony from ever possessing a weapon, even if they had an expungement or had the conviction set-aside under Louisiana Code of Criminal Procedure article 893.
The ironic result was that, for many people, it was legal to have a weapon under Louisiana law but illegal under federal law. These folks were often placed in the precarious position of having weapons—and even Louisiana hunting licenses—but being denied the right to purchase a weapon from a licensed dealer after a background check—or investigated by the FBI after they unsuccessfully tried to purchase a weapon legally from a dealer.
That problem may be changing for the better. The crux of the disparity between Louisiana law and federal law is how the federal authorities evaluate whether a prior felon has had his weapons rights “restored.” Under the federal approach, the government asks whether, under the “most restrictive” example of the gun laws of the state in which the person was convicted, could he still legally buy a weapon. If the answer is “yes,” then the federal courts deem that person to have had his rights “restored” under law, and he may “pass” a federal background check, even if he has a prior felony. If the answer is “no,” then he will “fail” the federal background check and be denied permission to purchase a weapon from a licensed dealer or to possess a weapon under federal law—even if, under state law that person may, in his particular circumstances, legally possess a weapon.
In Louisiana, the “most restrictive” gun law is that which pertains to obtaining a concealed weapons permit (LSA-R.S. 40:1379.3). Formerly, the concealed carry permit statute expressly disqualified anyone who ever had a felony conviction—even if it were expunged or set-aside under article 893--from getting a concealed weapons permit. That meant that, even though former felons could openly possess a weapon under Louisiana law after some period of time (either 10 years or after completion of sentence, depending on the severity of the crime), they still could not get a permit to possess a concealed weapon.
The federal authorities, then, based on the concealed weapons permit restriction against felons obtaining a concealed carry permit, interpreted the law to mean that, even though they could possess a weapon openly, their gun rights were never fully “restored” because they could never qualify for a concealed permit, and, hence, they could not pass a federal Brady background check or even possess a weapon at all under federal law.
With the passage of Act 212 of the 2016 Regular Legislative Session, effective August 2016, the Louisiana legislature lifted the automatic ban on some felons from getting a concealed carry permit. While this change obviously affects concealed carry rights, the more pervasive collateral result is that it should also cure the federal prohibition against some prior felons possessing a weapon. Under the state of the law as it exists today, the “most restrictive” Louisiana gun law (the concealed carry permit) no longer prohibits some felons from obtaining the permit, and, hence, under federal interpretation, those individuals should be deemed to have had their gun rights fully “restored,” even if they do not actually choose to get the concealed carry permit.
LEAAC anticipates that these individuals should now be able to pass the federal Brady background check. Importantly, this is not a cure-all for every sportsman’s federal problem, though; it only applies to that class of felons who could now qualify for a concealed weapons permit.
Under the new law, that class of prior felon is one who:
- Was sentenced under Louisiana Code of Criminal Procedure Article 893 and who has had his conviction “set-aside;”
- Has completed his sentence more than 10 years ago; and
- Has successfully obtained an expungement of the conviction.
Obviously, that is a narrow group of individuals and does not cover most prior felons, but it is a significant first step towards curing the disparity between Louisiana and federal laws. Because the new law went into effect only last month, there is still some lag time while the federal authorities evaluate the repercussions of the change, but, finally, there is some clarity developing in the area.
The new reality is that a prior felon who meets these criteria and who gets an expungement should now be able to pass a federal background check and purchase a weapon.
This new law was proposed by Representative Blake Miguez (R-Erath), a precocious state representative for Iberia and Vermillion Parishes. Miguez is a world-class competitive shooter, a grand master of the United States Practical Shooting Association, and has competed in the first season of the History Channel's marksmen competition Top Shot http://www.blakemiguez.com/about.php) . The Louisiana Expungement Assistance & Advocacy Center (LEAAC) was integrally involved in the drafting, development and lobbying for this new legislation.