Domestic Violence, Expungement, & Gun Rights – Wyoming Takes on the FEDS
On August 26th, 2008, the Federal Tenth Circuit Court of Appeals in Denver ruled against the state of Wyoming in a lawsuit over a state law that allowed people convicted of misdemeanor domestic violence offenses to regain their gun rights despite federal law to the contrary. In the case Wyoming v. Bureau of Alcohol Tobacco and Firearms, 2008 U.S. App. LEXIS 18224, the Court of Appeals held that the procedure allowed by the Wyoming statute does not expunge the criminal record of people convicted of domestic violence. This procedure was long considered by federal authorities as a “get around” of the law that prohibits individuals convicted of domestic violence offenses to possess firearms.
The 2004 Wyoming law at the center of the lawsuit allowed people convicted of misdemeanor domestic violence to petition in state court to expunge their conviction and restore their gun rights. The law requires that petitioners must have completed probation, and it limits people to just one such request. The ATF had informed Wyoming that if it persisted in using the state law, the federal government would no longer accept Wyoming concealed weapons permits as a substitute for instant background checks for gun purchases.
What exactly is Expungement?
The term “expungement” is defined as erasing or wiping clean the criminal record. This process recognizes that those who have committed certain crimes and have been punished have basically learned their lesson and deserve another chance with a clean slate. To apply for expungement after a conviction the person must wait a certain period of time before his or her record can be wiped clean. Generally the waiting periods will not begin until any sentence of imprisonment has been completed, all fines completely paid and parole and probation successfully served. It is also important to note that each state’s expungement laws may differ and that not all crimes are allowed to be expunged.
Are the Federal Courts now Ignoring Expungement Rulings from State Courts?
Although technically the federal sentencing guidelines commentary instruct judges to not consider expunged state convictions, the guidelines also impose a bit of trickery when dealing with state expungements. Many states have sentences known as “diversionary dispositions” that do not count as convictions under state law. If the individual does not commit another crime during the period of the diversionary disposition, then they are given the opportunity to “expunge,” the diversionary disposition from their record. The point is whether they expunge their record or not, the diversionary disposition never counts as a conviction under state law. The Federal Sentencing Guidelines, however, ignores this concept and counts these state law non-convictions as convictions, as long as they have not yet been officially expunged.
So what Effect will the Wyoming Ruling have throughout the Federal Courts?
In what is considered a victory for the ATF, the ruling could nullify a number of other state expungement laws in respect to federal prosecutions. The ruling basically means that individuals that have not had complete expungements of prior convictions could be viewed by federal authorities as being in violation of federal firearms law, especially in regard to potential domestic violence prosecutions.