Argument centers on what constitutes 'expungement' of domestic violence conviction
BEN NEARY Associated Press writer | Posted: Thursday, March 20, 2008 12:00 am
DENVER - A lawyer for the state of Wyoming asked a panel of federal judges on Wednesday to uphold a state law that allows people convicted of misdemeanor domestic violence to regain their firearms rights.
But an opposing federal lawyer representing the Bureau of Alcohol, Tobacco, Firearms and Explosives told the three-judge panel that the state law fails to achieve its objective of making those with misdemeanor convictions eligible to own firearms again.
To reach a decision in the case, the three judges with the 10th Circuit Court of Appeals will have to decide what Congress meant when it specified that states have authority to set aside or expunge convictions that otherwise would bar citizens from gun ownership. The case has attracted attention from groups on both sides of the national gun-control debate.
Congress has specified that people convicted of misdemeanor violence can't own guns. But it has also said that states have authority to restore gun rights to those who receive pardons, or whose convictions are expunged or set aside.
The 2004 Wyoming law allows people convicted of misdemeanor domestic violence to petition in state court to expunge their convictions and restore their gun rights. The law requires that petitioners must have completed probation, and it limits people to just one such request.
The Wyoming attorney general's office said that under the 2004 law, Wyoming courts expunged 63 misdemeanor convictions from 2005 through last October. Only one person with an expunged record has gone on to receive a state-issued concealed weapons permit.
The BATF has refused to recognize the Wyoming law and said that if the state persists in using it, the agency won't recognize more than 10,000 state-issued concealed weapons permits as substitutes for instant background checks in gun purchases. The federal Brady Act requires background checks each time a person buys a gun unless he has a recognized state carry permit.
The BATF has said the 2004 Wyoming law doesn't truly expunge convictions because it specifies that they would stay on the books to enhance offenders' convictions in any subsequent cases.
The state sued the BATF in federal court in Wyoming but lost the challenge last year. The judge ruled that the BATF had authority to decide whether a state law succeeds in removing a federal prohibition against a person owning guns. Wyoming has appealed that ruling, saying the matter is an important states' rights issue.
"The importance to Wyoming is to have its sovereignty recognized," said Levi Martin, senior assistant Wyoming attorney general, after Wednesday's hearing. "The fact of the matter is Congress has said, 'States, you get to decide who's trustworthy enough to have firearms."'
During the hearing, Judge Carlos F. Lucero questioned whether Wyoming's law can properly erase a person's conviction for the purposes of restoring his firearms rights while leaving his conviction on the books for purposes of enhancing the penalty for any subsequent conviction.
Martin said Congress has already decided there should be a way for convictions to be expunged or set aside.
"This isn't a case about the propriety of whether wife-beaters get their firearms back," he said.
He said Congress used both the terms "expunge" and "set aside" in the Firearms Owners Protection Act of 1986, which spelled out state authority to restore citizens' firearms rights.
While an expungement would require the record of any conviction be obliterated from the records, Martin said federal sentencing guidelines and other federal court rulings have recognized that a conviction also may be "set aside," while still remaining on the books for consideration during future sentencing.
Michael S. Raab, attorney with the U.S. Department of Justice, argued that the federal courts have ruled in other cases that Congress meant for the terms "expunge" and "set aside" to be used synonymously.
Lucero asked why it wasn't within Wyoming's sovereign authority to pass a law expunging misdemeanor offenses.
Raab said states are free to enact "any statute they want." But he said Wyoming doesn't have standing to specify that a person who goes through the state court process to get his record clean "is exempt from any kind of federal background check that the Brady Act requires."
The judges will issue a written decision on the case later.