Dear sf_trip,
You are wise to consider this issue. I recently provided legal
assistance to a gentleman who did not realize that his 20-year-old
felony conviction deprived him of any right to possess firearms,
absent a successful petition for reinstatement of those rights. He was
stopped by a conservation officer, and ended up charged with a felony.
The short answer to your question is that your Kansas expungement
probably permits you to possess a firearm in Arizona.
I say "probably" because there are certain offenses for which, after
conviction, Arizona will not restore full civil rights - specifically,
offenses: (1) involving the infliction of serious physical injury; (2)
involving the use or exhibition of a deadly weapon or dangerous
instrument. (3) for which the person is required or ordered by the
court to register pursuant to section 13-3821 (i.e., registered sex
offenders); (4) for which there has been a finding of sexual
motivation pursuant to section 13-118 (sexual motivation for a
non-sexual offense); (5) in which the victim is a minor under fifteen
years of age; or (6) for certain motor vehicle offenses, detailed
below.
If your expunged conviction does not fall into those categories, your
expungement will restore your right to possess a firearm under Arizona
law, pursuant to the "Full Faith and Credit" Clause of the United
States Constitution.
I. It Is A Crime In Arizona To Be A Felon In Possession of a Firearm
The relevant Arizona statute, restricting firearms ownership by a
convicted felon, is Arizona Revised Statute (ARS) 13-904(A)
------------------------
A conviction for a felony suspends the following civil rights of the
person sentenced:
* * *
5. The right to possess a gun or firearm.
------------------------
This statute is available in full on the website of the Arizona State
Legislature,
http://www.azleg.state.az.us/ars/13/00904.htm
The status of a convicted felon is further described in ARS
13-3101(6)(b):
------------------------
6. "Prohibited possessor" means any person:
* * *
(b) Who has been convicted within or without this state of a felony or
who has been adjudicated delinquent and whose civil right to possess
or carry a gun or firearm has not been restored.
------------------------
The full statute is available on the Arizona State Legislature
website,
http://www.azleg.state.az.us/ars/13/03101.htm
The possession of a firearm by a "prohibited person" is defined as a
crime by ARS 13-3102(A)(4):
------------------------
A. A person commits misconduct involving weapons by knowingly:
* * *
4. Possessing a deadly weapon if such person is a prohibited
possessor;
* * *
J. .... Misconduct involving weapons under subsection A, paragraph 3,
4, 8 or 13 of this section is a class 4 felony. ...
------------------------
The full statute is available on the Arizona State Legislature
website,
http://www.azleg.state.az.us/ars/13/03102.htm
The possible penalty for a class 4 felony is a prison term of 1.5 to 3
years. (The execution of sentence may be suspended, pending successful
completion of a term of probation.) See ARS 13-702, also available on
the Arizona State Legislature website:
http://www.azleg.state.az.us/ars/13/00702.htm
II. The Effect of Expungement in Arizona
Arizona is liberal in permitting those convicted of offenses to
petition a court to expunge the convictions, so as to have their full
civil rights restored. At the same time, those convictions remain in
effect for the purpose of sentence enhancement, in the event that the
defendant commits a subsequent time.
There are some categories of offender who are not eligible for
expungement under Arizona law:
------------------------
ARS 13-907. Setting aside judgment of convicted person on discharge;
making of application; release from disabilities; exceptions
A. Except as provided in subsection B of this section, every person
convicted of a criminal offense may, upon fulfillment of the
conditions of probation or sentence and discharge by the court, apply
to the judge, justice of the peace or magistrate who pronounced
sentence or imposed probation or such judge, justice of the peace or
magistrate's successor in office to have the judgment of guilt set
aside. The convicted person shall be informed of this right at the
time of discharge. The application to set aside the judgment may be
made by the convicted person or by the convicted person's attorney or
probation officer authorized in writing. If the judge, justice of the
peace or magistrate grants the application, the judge, justice of the
peace or magistrate shall set aside the judgment of guilt, dismiss the
accusations or information and order that the person be released from
all penalties and disabilities resulting from the conviction other
than those imposed by the department of transportation pursuant to
section 28-3304, 28-3306, 28-3307 or 28-3308, except that the
conviction may be used as a conviction if such conviction would be
admissible had it not been set aside and may be pleaded and proved in
any subsequent prosecution of such person by the state or any of its
subdivisions for any offense or used by the department of
transportation in enforcing the provisions of section 28-3304,
28-3306, 28-3307 or 28-3308 as if the judgment of guilt had not been
set aside.
B. This section does not apply to a person convicted of a criminal
offense:
1. Involving the infliction of serious physical injury.
2. Involving the use or exhibition of a deadly weapon or dangerous
instrument.
3. For which the person is required or ordered by the court to
register pursuant to section 13-3821.
4. For which there has been a finding of sexual motivation pursuant to
section 13-118.
5. In which the victim is a minor under fifteen years of age.
6. In violation of section 28-3473, any local ordinance relating to
stopping, standing or operation of a vehicle or title 28, chapter 3,
except a violation of section 28-693 or any local ordinance relating
to the same subject matter as section 28-693.
------------------------
This is the full text of the statute. The statute is available on the
Arizona State Legislature website,
http://www.azleg.state.az.us/ars/13/00907.htm
The exception under the Kansas expungement statute indicates that, if
you fall into a category of offender who is ineligible to have a
conviction set aside under Arizona law, your Kansas expungement would
not excuse you from prosecution as a "prohibited possessor" for
possessing a firearm in Arizona.
Otherwise, the "Full Faith and Credit" clause of the Constitution
would require Arizona to recognize the validity of the Kansas
expungement. For details on the "Full Faith and Credit" clause
(Article IV, Section 1 of the United States Constitution) see the
annotated Constitution on the FindLaw website:
http://caselaw.lp.findlaw.com/data/constitution/article04/
III. Federal Statutory Law Recognizes the Validity of Your Expungement
Absent an expungement, Title 18 of the United States Code Section
922(g)(1) - generally described as 18 USC 922(g)(1) makes it a federal
offense for a convicted felon to possess or transport a firearm, in a
capacity that implicates interstate commerce (e.g., driving across a
state border, or carrying a firearm on federal land):
------------------------
It shall be unlawful for any person ... who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one
year ... to ship or transport in interstate or foreign commerce, or
possess in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
------------------------
This statute can also be read in full on the website of Cornell Law
School's Legal Information Institute:
http://www4.law.cornell.edu/uscode/18/922.html
As you have already noted, with a few limitations, Title 18 of the
United States Code Section 922(a)(20) restores the right to transport
firearms in interstate commerce for those who have received
expungements in state court. That clause states in pertinent part:
------------------------
Any conviction which has been expunged, or set aside or for which a
person has been pardoned or has had civil rights restored shall not be
considered a conviction for purposes of this chapter, unless such
pardon, expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive firearms.
------------------------
This statute can also be read in full on the website of Cornell Law
School's Legal Information Institute:
http://www4.law.cornell.edu/uscode/18/921.html
As you have indicated that your expungement does not restrict your
right to possess a firearm, you would fall under that exception.
IV. Some Practical Suggestions
For a relatively small fee, you can obtain a "certified copy" of the
Kansas order expunging your criminal record. You would obtain this
through the office of the Clerk of the Court, where your expungement
was granted. I strongly urge you to obtain a certified copy of this
order.
Why? Because if, for some reason, your conviction is registered in a
state or national database, but your expungement was not picked up by
that database, an officer who stops you may find the conviction on
your record, but may not be able to confirm the expungement. If you
have a certified copy of the expungement, you may be able to extricate
yourself from that situation, by producing it as proof that your
conviction was expunged. It may also be useful in the event that your
expungement does not show up on a background check, associated with an
attempt to purchase a firearm.
In my experience, Sheriff's Departments are usually very helpful upon
polite, in-person inquiry, with regard to what might be showing up in
a computer check of your background. You may wish to check with your
local Sheriff's department, to see if they will verify for you what,
if anything, comes up when they check your background. If the
information they have is incorrect, they should be able to advise you
as to how to have it corrected. (For security reasons, it is likely
that you would have to send certain forms and proof to a central
authority, which should then make any appropriate corrections.)
(If you sense that I don't trust government databases to be complete
and accurate, you sense correctly. "Usually" isn't good enough when an
error or omission may result in your arrest.)
Research Strategy:
Google Search: Arizona Statutes
Browsing the Arizona State Legislature Site for relevant statutes
http://www.azleg.state.az.us/ars/ars.htm
Searching the free database of Arizona case law on LexisOne (free
registration required), and reviewing the cases produced:
http://www.lexisone.com/
LexisOne searches used were:
felon! /5 (firearm or gun)
expung! /20 felon!
(years or penalty) /5 "class 4 felony"
I hope this resolves your concerns, and that you sleep soundly
tonight.
- expertlaw |
