The site got a great write up today in the Courier-Journal. I’d like to thank all you all for making this possible. It’s the blog readers from the beginning that gave me the courage and inspiration to create this site. I know its been a week since the last blog post. I should have a lot of news when I get back to work full-time next week. So much to talk about, and so many people to help. It’s time to get back to work getting people back to work!
Archives for May 2016
Many of the people seeking to clear their records have asked me the same thing–“So if I get this done, can I get a gun? Can I get a carry concealed permit?” And the answer to that question is the one that lawyers always give: maybe. So, I’m putting this post up to talk a little bit about the intersection of the Second Amendment, the Federal Domestic Violence Offender Gun Ban, KRS 436.076, 436.078, and the new House Bill 40. If you or a loved one has had any of their rights restricted as a result of a criminal proceeding in Kentucky, visit Unconvicted and get a free evaluation to see if you can have those rights restored.
So what are some ways I can lose my Second Amendment right to possess a firearm?
There are three common ways Kentuckians can lose their right to posses a gun:
- any conviction for a felony after 1994;
- a conviction for a misdemeanor crime of domestic violence; or
- being subject to certain types of restraining orders.
Most people are aware of the first type of firearm restriction. The law is a bit more nuanced though. If you were convicted of a felony prior to 1975, state law does not prevent you from owning a weapon, though a felony conviction will interfere with your ability to get a concealed weapon license. If you were convicted of a felony between 1975 and 1994, you will be eligible to possess a long rifle, but not a hand gun. If you have questions about the distinctions and which firearms are eligible, contact me for more information. If you were convicted of any Kentucky felony AFTER 1994, you will be banned from possessing a firearm, for life, until the conviction is either pardoned by the Governor or President, OR you receive an expungement under House Bill 40. Even if Kentucky law does allow for felons of a certain age to possess a firearm, federal law still prohibits possession of a firearm.
OK, so what happens if I expunge my Class D felony under House Bill 40?
If you are granted an expungement under House Bill 40 for your felony conviction, your state and federal firearms rights are restored. Your state rights are restored because House Bill 40 doesn’t just expunge the conviction, it vacates it, then expunges it. As such, you will no longer have been convicted of a felony for the purposes of KRS 527.040, or any other purpose for that matter. Your federal firearm rights will be restored for this reason, and also because the Gun Control Act of 1968 (18 U.S.C. 921 (a)(33)(B)) specifically tells us:
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Short version: expunge a felony, get your firearm rights back.
What if I Void My Felony Drug Possession Conviction Under KRS 218A.275?
Unlike all other felonies, Felony Possession of certain drugs has been eligible to be “voided” since 1992. There are some scenarios in which a person may be able to void a conviction, but not able to expunge it. There have been a lot of questions about what effect a voided conviction actually has. Most notably, you cannot expunge a voided conviction. Com. v. Jones (Ky. 2013). Jones is really the only Kentucky case to discuss the implications of voiding a possession conviction. It Jones, the Supreme Court of Kentucky held that a voided felony possession is not the equivalent of the charge being dismissed with prejudice. Jones is a confusing case, but it is our best source on this issue. In it, the Court cites to Black’s Law Dictionary’s definition for void: “ ”
So does a conviction that has no legal force prevent you from possessing a firearm in state court or federally? I don’t believe it does. The issue of state court is easily resolved by KRS 218A.275(10):
After the sealing of the record, the proceedings in the matter shall not be used against the defendant except for the purposes of determining the person’s eligibility to have his or her conviction voided under subsection (8) of this section. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record has been sealed shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
If the proceedings cannot be used against the defendant except for the purpose of determining his eligibility to void a conviction, they shouldn’t be used in a proceeding to convict the defendant of a crime for possessing a firearm.
But what about federally? Would this procedure satisfy the Gun Control Act of 1968’s requirement that an offense be “expunged or set aside”? We know that voiding an offense is different than expungement because the Supreme Court of Kentucky ruled that it was in Jones. Is a conviction with “no legal force or binding effect” the same as one that is set aside? I would say yes, but would a federal court rule the same way? There is no (good) way to find out.
Because of this, if you would like to possess firearms, I would highly recommend expunging rather than voiding a Possession conviction. I believe there is a strong argument that a person with a voided conviction should be able to possess a firearm under federal law, but until there is more caselaw on the subject, there is certainly a risk.
What about misdemeanor crimes of domestic violence?
Under the Domestic Violence Offender Gun Ban (18 U.S.C. § 922(g)(9)), persons who have been convicted of a state crime of domestic violence are federally banned from possessing firearms. This law was recently interpreted by the Supreme Court of the United States in United States v. Castleman. In Castleman, a unanimous court ruled that any misdemeanor offense of domestic violence that involves the use of physical force does lead to a permanent federal firearms ban. Clearly Assault 4th Degree – Domestic Violence (KRS 508.032) is a crime that would qualify for this ban. Other misdemeanors may qualify.
Similarly to the Gun Control Act of 1968, the Domestic Violence Offender Gun Ban has an exception for expunged offenses. So, in short, if you previously were unable to possess a gun because of a misdemeanor domestic violence conviction, a state court expungement will restore your federal firearm rights.
If you have any questions about possessing a firearm after having been convicted of a crime, do not hesitate to contact me. The penalties for unlawfully possessing a gun can be very steep. Find out if you are banned, and if so, how to go about restoring your rights with Unconvicted.
Today, I’m featuring a guest post from a reader of the blog. The author’s name has been left out to avoid creating an online record of her case (in light of the fact she will be seeking an expungement soon), but she has graciously agreed to share her story with you all. I hope you find it as inspiring as I did:
When I was younger I had no idea how my life would turn out. Most people don’t. Usually, little girls dream of getting married or being princesses. I can remember wanting to be a doctor or the president when I was a child. When I was 15 I ran away from home. I was in and out of juvenile detention and children’s homes until I was 16. At 16 I got married so that I would be emancipated. At that time I thought I had life all figured out. I dropped out of high school and started working full time. I was hanging out with people much older than me because let’s face it, at 16 the only people out during the day are older. At 17 I was divorced. Obviously getting married wasn’t the smartest decision; I had no idea what I was doing. I received my GED at that age, though. Somewhere inside of me, I knew I needed to do better, but I still wasn’t on the path towards a good future.
I skipped around a lot, living in a lot of different places, with a lot of different people, most of the time with people I didn’t even really know. I was into drugs and partying and really had no care about what my future held. At 18 I met someone who I thought I was in love with. He had a similar story but was much worse off than I was. I followed him. We got into a lot of trouble together. At 19 years old I woke up one day inside of the Nelson County jail. I had been to jail before but only overnight stays. This time I was in regular population and not the drunk tank. I knew something was wrong but I had taken so many pills that I didn’t really remember what had actually happened. I asked the jailer for my paperwork so I could figure out what was going on. What I read on those papers changed my life. I was in jail on a $100,000 cash bond for Felony Theft. I knew I screwed up.
I spent a long time in Nelson County jail. I had no money so I was given a public defender. I received different offers on sentencing and tried to get a felony diversion but because of all the trouble I had been in my lawyer told me it was impossible. I plead with the judge to have mercy on me because I was out of mind during that time. The judge decided that after I left jail he would send me to an impatient rehab program. In August of 2005 I was sentenced. I will never forget that day for the rest of my life. The judge convicted me of felony theft and said I would stay in jail until a bed came open at the rehabilitation center. A couple of months later a bed was open and I was taken in an orange jumpsuit to the rehab where I would spend the next month telling my life story of drug abuse and trouble. I had nothing but a suitcase full of clothes and a car that barely got me anywhere.
After spending a month in rehab I started gaining some of my confidence back. Other people there had lived like me and the counselors gave me hope of starting over. When my time was up there I had nowhere to go. I ended up in a woman’s shelter in Elizabethtown. I started working two jobs so that I could save for a place to live and pay my restitution. I was on felony probation for 5 years. I can remember the first time walking in to see my probation officer and having to do a drug test. I cried. Even though I knew I was sober, I was scared to death of going back to jail. Of course, I passed with flying colors, and my probation started.
During this time I met a woman, who I now consider a second mother. She took me in, even though she knew my parole officer would be doing home visits, and even though I had been convicted of felony theft. She gave me a second chance. She gave me a chance to get on my feet. I basically had nothing. I saved money and was soon able to get my own apartment and a new car. I worked hard. I paid all my fines early and lived everyday by the books. I still had no idea what I was doing with my life. When my 5 years of probation was up I filed paperwork to get my voting rights back. Governor Beshear granted what most people call a partial pardon for me. I can remember my probation officer telling me I was one of the best probationees that she had ever had.
In 2009 I found out I was pregnant. Becoming pregnant changed my life the most. I had worked at restaurants and gas stations, even fast food places but I knew that with a child coming, that I would never be able to support us. I started going to college in Elizabethtown. I was concerned that even with a degree I wouldn’t be able to find a job afterwards but I was determined. I refused to bring a child into this world and not be able to take care of him. In the fall of 2010 I made the President’s Honor list at the college in Elizabethtown. I graduated in 2011 with an Associate’s degree in Information Technology. Before graduating, I made the Information Technology Student of the year and gained a couple of certifications through the school. I had a drive in me that wouldn’t stop. I can’t tell you that I didn’t spend some nights crying and worrying about how I would change my future. What I can tell you is this, I never gave up. Since then, I have received an Associate’s degree in Arts and am only 8 classes away from getting my Bachelor’s in Computer Science at WKU.
I am a single mother. I work full time and have a child that I have involved in sports since the age of 2. I was lucky enough to coach his soccer team at the YMCA a couple years back. Even with the felony on my record they gave me a chance. I just had to explain myself. I have met so many people in the last 11 years of my life. I have been turned down for jobs, I have been given chances, and I have been given recommendations. I still wanted more. I filed for a pardon and had recommendations from teachers and people that knew how much I had changed. When Governor Bashear released the names of the people that had received pardons in 2015, my name was not on the list. Honestly I thought that was my last shot. I started hearing more and more about House Bill 40. I started following the bill and talking to people who knew more about it than I did. Yesterday, April 12, 2016, Governor Bevin signed House Bill 40, allowing people with low level felonies a chance to have their record expunged. I have never been more excited and in aww in my entire life. Bevin signing that bill gives me a chance to take my life back. I will have more opportunities to enhance my career and give my son and I a better way of life.
I have been very lucky over the last 11 years with the people I have met and the chances I have been given. It hasn’t been easy and I have had to fight to stay ahead. I’ve laughed, I’ve cried, I’ve struggled, but I have managed to maintain my confidence in knowing that I am doing the best for my son and for myself. I don’t want people to think, “Oh she just got lucky.” It wasn’t just luck that has gotten me this far. I have stayed determined and I refuse to settle. I have set goals and once I reach them, I set more. I keep pushing. I surround myself with people that help build me up instead of tearing me down. I can’t thank the people that have given me second chances enough. I will never forget and I will always stay true to my goals and what I want in life. To anyone who may read this, know that this isn’t the end. There are second chances. There are people who will believe in you and while things may seem tough at times, you can overcome it, you will overcome it. Never stop believing in yourself.
Thank you so much blog reader. You know who you are. Your hard work is truly amazing and your words are an inspiration to everyone involved in this fight to get people their rights back. Thank you for sharing your story with us and allowing me to post it. I have little doubt that you will get your second chance in July.
This blog spends a lot of time focusing on the benefits of expungement. It’s true that expungement is an amazing opportunity in comparison to the previous system of being removed from the “mainstream” economy. However, many people are not eligible for expungement but would like to restore their voting rights. And many of those people that are eligible for expungement are interested in how a Class D Felony Expungement in Kentucky will affect their voting rights and whether they will have to go through a separate process to restore their right to vote.
I’m going to spend the next few weeks writing a multipart series on these issues, as well as the history of disenfranchisement in Kentucky and the South. I’m also going to explore some of the legal issues behind why Governor Bevin rescinded Governor Beshear’s executive order restoring voting rights to all non-violent, non-sex offenders. In all honesty, this is an issue I’m still exploring. As a lawyer, it’s easy to be caught up in the technical–does the Executive Branch have the power to pardon thousands of people as a class?, but it’s more important to focus on the big picture. Banning people from voting because of a mistake they made years ago is fundamentally incompatible with democracy.
Frank X Walker had a great poem in the Courier-Journal today highlighting the indignities of our legislatures failure to pass comprehensive reform in this area. Only two other states make it as hard as Kentucky does to get your voting rights back. Now is the time to have the conversation. Here are the pieces I’ll be writing and releasing over the coming weeks:
- Part Two: Will a Felony Expungement Restore My Voting Rights?
- Part Three: How Do I Apply to Have My Voting Rights Restored?
- Part Four: House Bill 70–What Happened?
- Part Five: Separation of Powers: Bevin v. Beshear
- Part Six: Felon Voting Rights Going Forward