Expungement & Your Right to Possess Firearms

In the past we posted on the new Indiana expungement statute that went into effect July 2013.  Many firearm attorneys across the State of Indiana had hoped that the implementation of this new statute would provide for the restoration of firearm rights for those individuals who may have been convicted of a felony in the past.  While the Indiana statute specifically included language regarding the restoration of the right to possess firearms for those whose prior felony was expunged, we have since found out that the U.S. Department of Justice has taken the position that the new Indiana law does not restore Federal firearm rights.  The scary fact is that many individuals who have had their felonies expunged since July 2013, may be operating on the assumption that their firearm rights are restored due to the fact that they have a court order from a state judge stating that they have been restored. 

When it comes to firearm rights, it is important to always remember that there are two rights.  First, the state right, and second a federal right.  While the Indiana expungement statute may restore a state right, the federal right has not been restored.  Or at least this is the position of the federal government in regards to the Indiana expungement statute.  The current Indiana expungement statute allows a future court to look back at a prior expunged felony if the individual was back in court on future criminal charges.  This “look back” provision makes the Indiana expungement really less of an expungement and more of a sealment of the record.  The U.S. Department of Justice position on this has always been that for these types of expungement statutes no federal firearm rights shall be restored. 

Without “true expungement” the federal firearm possession right will not be restored.  Therefore, an individual who has had their felony expunged in the State of Indiana since July 2013 may not necessarily find themselves in violation of state law. However, they would be in violation of federal law. It has always been the federal government’s practice to file federal felony criminal charges against individuals who possess firearms, but are federally prohibited to do so. 

                This then begs the question of what the Indiana State Legislature intended when drafting the new Indiana expungement statute.  Sadly, it was unlikely that they were intending to draft a statute to restore firearm rights.  While they have restored the right to hold office and the right to vote, they have fallen short of the federal requirements for the restoration of firearm possession rights.  This is also evidenced by the fact that the newly amended Indiana expungement law that goes in effect July 1, 2014 removes all firearm references from the provisions which indicate the benefits or rights that are restored by the Indiana law. 

Therefore, as the law in Indiana currently stands, expungement of a prior conviction is not a valid path for the reinstatement of firearm rights.  There may be some opportunities depending on an individual’s circumstances regarding the possibility of restoration of firearm rights. However, those are case specific and we would encourage you to contact our office to set up an appointment in order to discuss those options with us. Turner Valentine, LLP: Contact Us or call us at 574-371-2052