GunRelated
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Very. I knew the odds were slim when i started the process and forked over the $ to my attorney. At that time he had only signed like 60 out of almost 400.
Louisiana Expungements do not allow firearm ownership according to NICS/FBI/DOJ
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swampjockey
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Governor Edwards granted nearly 3000 pardons in 16 years in office. Gov. Mike Foster 432, Gov. Blanco 374, Gov. Jindal 23 in nearly 4 years
From reading all of these post, it seems the salient point is: does ineligibility for a CHP makes one a "prohibited person" under federal law. I was not under the impression that it did. But, I read in an early post, IIRC, that the OP's attorney received a similar letter of prohibition from someone convicted of a DWI. Assuming it was a misdemeanor conviction, then this is apparently what NCIS is doing.
I would like to see in the GCA '68 (or any other statute/caselaw) exactly where this is, or whether an agency of the federal government has just decided to make a new class of "prohibited persons."
This is troubling to me, either way.
I fear expanding the types of prohibited persons, and the methods in which to make someone a prohibited person, will be an increasing tactic of the gun-controlist to ban people from possessing guns.
Have I missed anything?
I would like to see in the GCA '68 (or any other statute/caselaw) exactly where this is, or whether an agency of the federal government has just decided to make a new class of "prohibited persons."
This is troubling to me, either way.
I fear expanding the types of prohibited persons, and the methods in which to make someone a prohibited person, will be an increasing tactic of the gun-controlist to ban people from possessing guns.
Have I missed anything?
They are basically stating that Caron v. United States gives them the precedent to deny anyone in a state where any type of restriction is placed on people with expunged or pardoned convictions.
In Alaska, one particular person has a Governor's Pardon, and another has a Presidential Pardon. Still, because the Alaska CHP restriction excludes anyone, even with a Pardon, they are still denied: http://www.anchoragepress.com/news/...cle_fb2e8d5f-cf56-5a02-a71f-b49935d4573c.html
This is inconsistent with the state's intentions. In Louisiana, people plead under 893 to avoid a potentially expensive trial with an unknown outcome. The prosecutors get quick closure and bill it as a way for people to move on, with all rights restored. That's not the case. All rights are not being restored since 2A is still removed. It's plainly spelled out. If you plead under 893 and successfully complete what's asked of you, all rights are restored; "the dismissal of prosecution shall have the same effect as an acquittal."
I believe Louisiana Revised Statute 40:1379.3(C) (10) (CHP) is unconstitutional in light of this. Especially when you consider the recent amendment to the Louisiana Constitution.
To make matters even worse, this isn't clear cut and is a very difficult conclusion to arrive at from reading the laws. Unless someone is flagged by NICS on a purchase, which seems to be a matter of chance, they are still prohibited and could face federal charges. They would have no idea that they are prohibited. Reading the laws, even the GCA, doesn't lead one to believe that they would be prohibited. The GCA falls back on the state to determine if someone's RTBA has been restored. Louisiana claims they have in these circumstances.
As the list of prohibited persons increases, this will present even more of an issue. How long before misdemeanor DWI's are added to the list under the guise of substance abuse?
On the state level, I have a feeling that they will just point the finger at the Feds who will just point back. The end result has not changed for the individual: prohibited.
In Alaska, one particular person has a Governor's Pardon, and another has a Presidential Pardon. Still, because the Alaska CHP restriction excludes anyone, even with a Pardon, they are still denied: http://www.anchoragepress.com/news/...cle_fb2e8d5f-cf56-5a02-a71f-b49935d4573c.html
This is inconsistent with the state's intentions. In Louisiana, people plead under 893 to avoid a potentially expensive trial with an unknown outcome. The prosecutors get quick closure and bill it as a way for people to move on, with all rights restored. That's not the case. All rights are not being restored since 2A is still removed. It's plainly spelled out. If you plead under 893 and successfully complete what's asked of you, all rights are restored; "the dismissal of prosecution shall have the same effect as an acquittal."
I believe Louisiana Revised Statute 40:1379.3(C) (10) (CHP) is unconstitutional in light of this. Especially when you consider the recent amendment to the Louisiana Constitution.
To make matters even worse, this isn't clear cut and is a very difficult conclusion to arrive at from reading the laws. Unless someone is flagged by NICS on a purchase, which seems to be a matter of chance, they are still prohibited and could face federal charges. They would have no idea that they are prohibited. Reading the laws, even the GCA, doesn't lead one to believe that they would be prohibited. The GCA falls back on the state to determine if someone's RTBA has been restored. Louisiana claims they have in these circumstances.
As the list of prohibited persons increases, this will present even more of an issue. How long before misdemeanor DWI's are added to the list under the guise of substance abuse?
On the state level, I have a feeling that they will just point the finger at the Feds who will just point back. The end result has not changed for the individual: prohibited.
This just happened to a buddy of mine in Maryland. Never had a felony, but he purchased a colt 6920 6 months ago. He got delayed and then picked the rifle up 5 days later.
Fast forward 6 months, he just found out that he was denied and he must return the firearm to the dealer. HE ALREADY FORM 1'd it and it's a registered sbr!
Fast forward 6 months, he just found out that he was denied and he must return the firearm to the dealer. HE ALREADY FORM 1'd it and it's a registered sbr!
This thread just exemplifies the fact that the current Administration is using each and every weapon in its arsenal to ban firearm ownership.
It has absolutely NOTHING to do with cutting down on firearm violence. Unfortunately...I have reached the conclusion that as far as firearms are concerned....Public policy is being tainted with illegal acts and misinformation spread by the likes of Bloomberg, Obama and Biden.
Gun violence in inner cities could almost be eliminated by legalization of marijuana plus decriminalization of possession of all drugs.
I have no doubt that Rahm Emanuel was influential in some of the current gun policy of today's Administration.
The simple facts are that Chicago's inner city murder rate was fueled by Mexican Drug Lord Chapo. He violently took over the Chicago market. The murder rate exploded....Rahm Emanuel influenced Obama to attack the problem by attacking guns.
So the current Administration passed 23 Executive acts which went after firearms.
The logic is so fricking twisted...because Chapo Guzman was already smuggling drugs....And if he would have had trouble getting guns...He would have just smuggled those into the USA also.
Chapo Capture Remakes Chicago Drug Market, His Home Port
Joaquin *El Chapo* Guzman, the alleged head of the Sinaloa drug cartel, once referred to Chicago as his *home port,* a hub of a narcotics empire he built by filling a power vacuum left by the imprisonment of the city’s gang leaders.
http://www.bloomberg.com/news/2014-...emakes-chicago-drug-market-his-home-port.html
It has absolutely NOTHING to do with cutting down on firearm violence. Unfortunately...I have reached the conclusion that as far as firearms are concerned....Public policy is being tainted with illegal acts and misinformation spread by the likes of Bloomberg, Obama and Biden.
Gun violence in inner cities could almost be eliminated by legalization of marijuana plus decriminalization of possession of all drugs.
I have no doubt that Rahm Emanuel was influential in some of the current gun policy of today's Administration.
The simple facts are that Chicago's inner city murder rate was fueled by Mexican Drug Lord Chapo. He violently took over the Chicago market. The murder rate exploded....Rahm Emanuel influenced Obama to attack the problem by attacking guns.
So the current Administration passed 23 Executive acts which went after firearms.
The logic is so fricking twisted...because Chapo Guzman was already smuggling drugs....And if he would have had trouble getting guns...He would have just smuggled those into the USA also.
Chapo Capture Remakes Chicago Drug Market, His Home Port
Joaquin *El Chapo* Guzman, the alleged head of the Sinaloa drug cartel, once referred to Chicago as his *home port,* a hub of a narcotics empire he built by filling a power vacuum left by the imprisonment of the city’s gang leaders.
http://www.bloomberg.com/news/2014-...emakes-chicago-drug-market-his-home-port.html
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FWIW...the laws in Maryland and Alaska are very different than Louisiana. In those states...after a conviction one can own a rifle but not a handgun. That's the "Unless clause"
La is very different. Our Code states after 10 years they are whole.
I am quite confident that when and if someone takes this CHP restriction to the US Supreme Court the Court would rule in their favor.
CHP is a privilege and a recently new state privilege when compared to the 10 year rule. And because La Law clearly demonstrates that by being clean for 10 years after said conviction then the person demonstrates they are no longer a threat...I think they have made their case for restoration of all rights including firearm possession.
Gerald Carol was a violent 3 time felon. And state law forbid handguns but allowed rifles and shotguns. The Alaskan case in the referenced article is similar...because Alaska allows rifles/shotguns but also forbids handguns.
That is what they are using with this NICS ruling for the Alaskan case. And the Carol Case really should not apply to La IMO because La allows all firearms. The CHP has nothing to do with anything.
Furthermore...I'm sure that if this was taken to the US Supreme Court....Our new Firearm right which was passed would also come into play.
The Feds are also using the Federal Law which allows enhanced sentencing of a 3 time felon...and Carol was a 3 time felon.
The parties, reflecting a similar division among various Courts of Appeals, disagree over the interpretation of the unless clause in the following circumstance. What if the State restoring the offender’s rights forbids possession of some firearms, say pistols, but not others, say rifles? In one sense, he *may not … possess … firearms* under the unless clause because the ban on specified weapons is a ban on *firearms.* In another sense, he can possess firearms under the unless clause because the state ban is not absolute. Compare, e.g., United States v. Estrella, 104 F.3d 3, 8 (CA1) (adopting former reading), cert. denied, 521 U.S. ___ (1997) and United States v. Driscoll, 970 F.2d 1472, 1480—1481 (CA6 1992) (same), cert. denied, 506 U S. 1083 (1993), with United States v. Qualls, ___ F.3d ___, No. 95—50378, 1998 WL 149393, *2 (CA9, Apr. 2, 1998) (en banc) (intermediate position), and United States v. Shoemaker, 2 F.3d 53, 55—56 (CA4 1993) (same), cert. denied, 510 U.S. 1047 (1994).
The Government contends the class of criminals who *may not … possess … firearms* includes those forbidden to have some guns but not others. On this reading, the restoration of rights is of no effect here, the previous offenses are chargeable, and petitioner’s sentence must be enhanced. On appeal, the Government’s position prevailed in the Court of Appeals for the First Circuit, and we now affirm its judgment.
It's a long read...the ruling from the court. But...the Court was pretty clear when they discussed pardons and right. The theme I was left with from the court is 2 things. First...Does the state allow one type of firearm and not another. And second...is the person a violent ex felon or a threat. The Court kind of says....If the person can be deemed to be a threat to society..then We the Feds should be able to restrict them.
While I prefer a more "Federal interpretation" of State rights...I can't really disagree with the Carol Ruling. I don't think the Carol ruling would apply to most of La cases.
http://www.law.cornell.edu/supct/html/97-6270.ZO.html
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GunRelated
Well-Known Member
Um, wow. How did this end?
He just found out last week. I haven't got an update yet. Seems like NICS dropped the ball and didn't inform the gun shop of the denied 4473 until 6 months later.
Sounds like there has been a drastic shift in "policy" in the last 6 months. This stuff should never be this subjective.
The interpretation of the precedent set in Caron v. United States seems to be that if the state puts any restriction on individuals in these situations then they have established that they do not trust them. That is what they are saying gives them the grounds to prohibit.
What law-abiding citizen wants to get arrested and reach this level? None. The ones that do are like Mr. Caron; in a very different set of circumstances.
Here they are saying that the CHP restriction matches may not ... possess ... firearms. I argue that it would closely match may not ... bear ... firearms, since I can possess any firearm another person could. Bear is not part of the GCA's ship, transport, possess, or receive. To my knowledge, I could go so far as to possess NFA arms prior to this letter.
The ruling was very narrow. It specified in precise text, one type but not another. It did not go into method or place of carry in the final ruling. This is an assumption or interpretation being made on the part of NICS/FBI. The court's ruling is derived from the past of the defendant, but in the end, centers around the "distrust" placed on a person in the restoration of their rights.
Two things need to be clarified:
1. Is CHP a right?
2. Does Caron v. United States hold up when CHP is optional and does not provide any [legal] restrictions on type or place one can carry?
Louisiana has repeatedly struck down CHP being a right. If it is not a right, does the Federal Government have the ability to use it as cause to prohibit someone? If it is a right, then Louisiana Revised Statute 40:1379.3(C) (10) (CHP) is unconstitutional. If all rights are restored, and CHP is a right (we are shall issue...), there is no basis for denial at the State level.
From our state constitution: The right of each citizen to keep and bear arms. Bear would insinuate, open or concealed carry. The State could probably argue successfully that persons carrying concealed must show competency with weapons. I would be surprised if they could maintain that 40:1379.3(C) (10) was still valid.
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To me the big question is what do we do from here? We can all talk on a forum about what is what but what can be done? What direction is everyone going to go in this? Is it that the CHP is a privilege not a right? That would say the arguement is with the feds. Or do we go the opposite and say it is a right and argue the state that CHP should be granted? Dont know about any of you but I think the state would be the one that holds a possibility to change. I am allowed to vote. While this probably makes no difference in the federal realm it may in the state realm. This is why I am speaking with my state representatives. If we can have them change 40:1379 to allow a chp then the feds should be back out of the situation. If I am wrong about this please enlighten me. This is the best I have come up with. Even the economics of this could be very harmful. Think for a minute of all the money spent on shooting, hunting and all activities that go with them. Alot of people that do this are felons that think they have their gun rights back by either expungement,14:95.1 or some other way.
When combined with the Caron v. United States interpretation, the current laws regarding restoration of rights and the RTBA create a mouse-trap. You are being told, by state law, that all rights, including the Right To Bear Arms, has been restored. Federal law now says that rights were only partially restored (since CHP is restricted). By that, they are saying that the ability to obtain a CHP is a right. Not necessarily that everyone can meet the requirements (e.g., training), but that they have the legal means to try.
While Louisiana may not feel that having a CHP is a right, I believe the Federal Government is correct in stating that the RTBA includes the right to carry. It is my opinion that 40:1379.3(C) (10) is unconstitutional. I would not be opposed to different wording, but it would need to be changed.
This part of 40:1379.3(C) (10) really strikes me as odd:
That seems like a politician added 18 U.S.C. 491(a) to allow a buddy who was convicted of using "Tokens or paper used as money" to get a CHP.
If the LSP doesn't want me to have a CHP, that's fine. I don't particularly care to have one. They may be able to remove 40:1379.3(C) (10) and replace it with:
ATF FORM 4473
Question 11.b. - 11.l. Definition of Prohibited Person: Generally, 18 U.S.C. § 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less); is a fugitive from justice; is an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance; has been adjudicated mentally defective or has been committed to a mental institution; has been discharged from the Armed Forces under dishonorable conditions; has renounced his or her U.S. citizenship; is an alien illegally in the United States or an alien admitted to the United States under a nonimmigrant visa; or is subject to certain restraining orders. Furthermore, section 922 prohibits the shipment, transportation, or receipt in or affecting interstate commerce of a firearm by one who is under indictment or information for a felony, or any other crime, punishable by imprisonment for a term exceeding one year.
Question 11.b. Under Indictment or Information or Convicted in any Court: An indictment, information, or conviction in any Federal, State, or local court. An information is a formal accusation of a crime verified by a prosecutor.
EXCEPTION to 11.c. and 11.i.: 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, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of
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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 (the right to vote, sit on a jury, and hold public office) 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. Persons subject to this exception should answer *no* to 11.c. or 11.i., as applicable.
Question 11.b. - 11.l. Definition of Prohibited Person: Generally, 18 U.S.C. § 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year (this does not include State misdemeanors punishable by imprisonment of two years or less); is a fugitive from justice; is an unlawful user of, or addicted to, marijuana or any depressant, stimulant, or narcotic drug, or any other controlled substance; has been adjudicated mentally defective or has been committed to a mental institution; has been discharged from the Armed Forces under dishonorable conditions; has renounced his or her U.S. citizenship; is an alien illegally in the United States or an alien admitted to the United States under a nonimmigrant visa; or is subject to certain restraining orders. Furthermore, section 922 prohibits the shipment, transportation, or receipt in or affecting interstate commerce of a firearm by one who is under indictment or information for a felony, or any other crime, punishable by imprisonment for a term exceeding one year.
Question 11.b. Under Indictment or Information or Convicted in any Court: An indictment, information, or conviction in any Federal, State, or local court. An information is a formal accusation of a crime verified by a prosecutor.
EXCEPTION to 11.c. and 11.i.: 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, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of
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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 (the right to vote, sit on a jury, and hold public office) 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. Persons subject to this exception should answer *no* to 11.c. or 11.i., as applicable.
To answer this more directly, I am waiting on my attorney to review the laws and letter. Since I am not an attorney and have not attended law school, my understanding of the laws may not be in line with how the legal system actually works. The purpose of my post is really to see how many others are affected by this and to determine if there are cases or precedents that I've missed. Has anyone else successfully argued this?
Since Article 893 and expungements are designed (among other things) to remove the offenses from public view, you can't just walk into the court house and ask for data on the matter. Assume that 10% of the people who plead guilty to a felony did so under 893 and/or received an expungement. Now, lets assume that 10% of those people have any interest in owning a firearm. Further, let's say that 10% of them have attempted to purchase one recently and were denied due to Caron v. United States. What's that number? How many people are even aware of this?
To answer that, you need to know how many people are affected by this. Is it 100; 200; 5,000; 50,000? I have no clue.
infringed I also would like to see not only expungements, but after the ten year cleansing period is done for non violent felons also. From what I have been able to find out a person that did time for his/her felony cannot file for a expungement. I think that their are alot of people like you and I that found out about this almost by accident. If you are like I am you feel like you have been made into a criminal after you have tried to do everything you possibly could to follow the law and thought you had as far as your firearms rights. I do think this will wind up as a finger pointing thing that will go back and forth feds saying it is the state and the state saying it is the feds. But in the end we will be screwed. I received a email back from my representative today that was a forward from the HLS legal division LA house of representatives that basically said it was a federal issue and as you and I have both seen the feds say it is a state issue. We may get lucky and have someone challenge the constitutionality of 40:1379.3 (c) (10) but if it stands as written we are done without a governors pardon. Please keep me updated with anything that happens and I will do the same.
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It seems Alaska's resolution to this was to modify their state law regarding CHP's. Here is their current list of statutes and regulations regarding the CHP: http://dps.alaska.gov/statewide/PermitsLicensing/docs/achp/ACHP Statutes and Regs.pdf
http://www.akbizmag.com/Alaska-Busi...toration-Bill-Signed-Into-Law-Ramrass-HB-408/
http://housemajority.org/spon.php?id=26hb408
http://www.akbizmag.com/Alaska-Busi...toration-Bill-Signed-Into-Law-Ramrass-HB-408/
http://housemajority.org/spon.php?id=26hb408
So they are saying if it was a non violent felony they are restoring all rights and actually trying to somewhat agree with the federal law. Except that once you have proven yourself by staying out of trouble for a period of time you get all rights restored including concealed carry. At least that was how I saw it. This is what I think we need to show our representatives. This is how I think most of us feel it should be.
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