Expungements and How They Effect Gun Rights in Indiana

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Expungements and Their Effect on Applying for a Concealed Carry Permit in Indiana

In preparation for filing for a concealed carry permit, there are many areas that people need to make sure to button up prior to filing, like converting felonies to misdemeanors, petition for restoration of gun rights when there is a court order precluding it, expungements, gathering certified convictions, etc. This blog is going to focus on one of these areas, and more importantly, recent developments in the law and how it will benefit people applying for concealed carries — expungements. Expungements of felony convictions and other crimes that once precluded handgun purchases and concealed carry permits may now be ticket we’ve been looking for, but the law is ever evolving.

For years, expungement attorneys (and their clients) have been taking advantage of Indiana’s Expungement, or Second Chance, Laws. As criminal defense attorneys, we have the privilege of helping people take advantage of these amazing laws. After all, it doesn’t get much better than giving a client a second chance at “life.” A chance to start over without the hampering of their criminal history. And, when done properly, it truly can have a life-changing effect.
Many people perform an expungement not only for the benefits of bettering their lives like employment, etc., but many people file for expungements to erase felonies or convictions that may have precluded them from owning, possessing, or being approved for the carrying of concealed firearms. After all, the expungement law (on certain levels of crimes) specifically states that an expungement can and should restore firearm rights. And, this provision was enough for the Indiana State Police to start issuing concealed carry permits for people who had received an expungement. This was all well and good up until about a year ago.

Back in mid to early 2015, the ATF, or federal Alcohol Tobacco and Firearm division stepped in and directed the Indiana State Police to stop issuing concealed carry permits to people with convictions that had been expunged that would have precluded them from carrying firearms. With all due respect to the Indiana State Police, they pushed back at first quoting Indiana’s expungement laws. However, the feds, after re-reviewing the relevant statutes stepped in again and gave a further clarification that it was against federal law for Indiana to grant these concealed carry permits to expungement recipients. Why you might ask, because there is no federal expungement statute that effectively erases criminal history at the federal level — and, at the federal level, felons and certain other criminals are precluded from carrying a concealed weapon.

The feds were basically saying that our expungement laws did not restore gun rights under federal code 18 USC 922. They perceived our expungement laws as an “ensealment,” and because that happens at the state level only, there was still conflict with federal law. And, because there was not a full restoration of gun rights at the federal level, they didn’t care what was happening at our state level.

Obviously, this caused huge consternation among those that had utilized Indiana’s expungement laws hoping to regain firearm rights. Our office was inundated with people upset with their prior attorneys for telling them that expungements would solve their issues in not being able to carry concealed weapons. In fact, we have spent hours explaining that it wasn’t their attorneys’ faults, it was the feds.

So all is lost, right? Fortunately, if you are reading this and hoping all hope isn’t lost, there is a new development over the past couple of months (10/2015-12/2015). The ATF is changing their tune after a few defense attorneys pushed back with the Indiana State Police (including our firm). Basically, the feds are now saying that expungements WITH restoration of rights language contained in the order signed by the judge may now be enough to get someone a concealed carry according to 18 USC 921(33)(B)(ii).

Again, the expungement, alone, isn’t enough because a typical expungement may not have the restoration language. So, how does that affect you and your expungement already filed that doesn’t have the right language? That’s tricky. After a case is expunged, typically, it’s hidden. It’s very hard to amend orders in a file that isn’t technically supposed to exist — but it can be done. If the original expungement order can be modified to include the restoration language, that can help, and that can be done by filing an amended order. Or, an attorney can try to file a separate restoration of rights petition (see our blog on the topic here), being careful to ask that the petition be confidential and sealed. But, bottom line, without the restoration language in the order, individuals are still federally prohibited from getting a concealed carry permit.

What’s yet to be seen is how the Indiana State Police will treat expungements on cases like domestic violence where the crimes have been expunged, regardless of if they were felonies. Typically, those require a separate petition for restoration of rights, regardless of an expungement, as a court order precludes it. We will have to wait on that one…but one step at a time….right?

Should you or a loved one have any questions about applying for a concealed carry permit or in appealing a denial thereof, call the experienced Handgun Permit Attorneys at Banks & Brower, LLC at (317) 870-0019 or email us info@banksbrower.com. We are available 24/7/365. We are one of the premier firms in the state that handle these types of cases, and we help hundreds with their questions and representation so they can get that coveted permit in the mail.