Second Chance Laws May Not Mean a Second Chance to Carry

September 22, 2015

Second Chance Laws May Not Mean a Second Chance to Carry

Written by: Scott L. Barnhart

Many states have passed what is often referred to as a “Second Chance” or an expungement law. See e.g. Louisiana, Indiana, California, Colorado, and others. Generally for those individuals that qualify, those statutes can expunge, seal, or restrict access to a conviction and generally permit an individual to proceed as if the conviction does not exist. People often pursue these expungements to improve their employment prospects or simply move past an isolated mistake made in their past. In some instances, people seek out an expungment in order to try to restore their ability to possess a firearm. For example, the Indiana Legislature has addressed this issue and recently revised its expungement laws. A recent version of the Indiana expungement stated specifically addressed firearms rights. Specifically, it stated that if an individual was granted relief under the law, then “the civil rights of a person whose conviction has been expunged shall be restored, including the right to vote, to hold public office, to serve as a juror, and to the extent prohibited by federal law, to own or possess a firearm.” I.C. 35-38-9-10 (pertinent provision enacted on July 1, 2013).

However, in a letter sent to the State of Indiana in November of 2013, the U.S. Department of Justice has taken the position that the Indiana statute does not “expunge” a conviction, and thus, the individual remains federally prohibited from lawfully possessing firearms in accordance with the Gun Control Act, 18 U.S.C. §§ 92, 1 et seq. Thus, in Indiana and according to DOJ, even if a person successfully petitions and receives an expungement under Indiana law, that expungement does not restore your firearms rights if you are a prohibited person under federal law according to the federal government. While litigation on this topic may ensue, the federal government has made it clear where they stand on this issue. As laws vary from state to state, it is important to consult with an experienced attorney to determine what your rights and responsibilities are based on your specific facts and circumstances.

For more information on this topic please contact:

Scott L. Barnhart

Partner

Keffer Barnhart LLP

230 E. Ohio Street, Suite 600

Indianapolis, Indiana 46204

(317) 857-0160

www.KBindy.com

Barnhart@KBindy.com

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