Pardon vs. Expunge

For clients looking to restore their firearm rights a fundamental question is whether to pursue a pardon or an expunction (i.e. expungement). There are many factors which affect the ultimate decision, and we will consider some of these today.

Qualifications

To start, you should determine whether you qualify for a pardon or an expunction. If you don’t qualify for one or the other, then your choice on how to proceed becomes much easier.

Pardon

Anyone who has been convicted of a crime by South Carolina, served his time, and paid any fees due is technically eligible for a pardon. (The likelihood of receiving a pardon is affected by the crime or crimes, the time since last arrest, and how well you present your case.)

If you have not yet served your time, then you must have the most extraordinary circumstances to qualify for a pardon. These cases are very rare, but may include persons suffering from a terminal disease or other similar circumstances.

Expunctions

Non-Convictions

Charges that are ultimately dismissed without a conviction can be expunged. This allows the innocent to clear his record after defending the charge.

Convictions

Expungements of convictions are restricted to only a few types of crimes. Generally, only the most minor misdemeanors are eligible for expunction. Expunctions are further restricted to the first offense.

Misdemeanors

Minor misdemeanors include crimes punishable by less than thirty (30) days in jail. Additionally, you can expunge a failure to stop for a blue light, a first fraudulent check if the amount is minor, and some criminal domestic violence charges.

Misdemeanors punishable by more than thirty (30) days in jail, such as illegally carrying a handgun, generally cannot be expunged.

Even where the crime qualifies for expunction, before qualifying, you must wait several years and remain trouble free during the time. And you are allowed only one expungement per category per life. The SC Legislature established the expunction procedures as a second chance meant only for those who demonstrate their ability to abide by the law. The statutes are designed to prevent third, fourth, or further chances.

This requirement to have only one conviction and no follow up conviction disqualifies many persons from seeking an expunction. However, where several crimes result from one action and charge date, it may still be possible to expunge some or all of the convictions.

Felonies

As a rule, felony convictions cannot be expunged. But there are exceptions to everything. If the convicted were specifically and explicitly sentenced under the Youthful Offender Act, and the crime is non-violent, then it can be expunged. There are still other restrictions that must be met, such as those mentioned above regarding no prior or subsequent convictions.

Comparing the Two

A pardon is forgiveness from the State. The conviction remains on your record, but you are absolved of the legal effects of the conviction. (There are minor exceptions to this such as the requirement to register on the sex-offender list.) Private parties will still be able to see the conviction and to act on this knowledge, but you can show that you have made amends with the State and done all you can to restore your standing as a citizen.

An expunction completely removes the conviction from your public State record. (A copy of the conviction, along with the order to expunge, is retained by SLED to prevent a recipient from receiving a second. Private companies and the Federal Government may retain their records and require additional paperwork to remove the same.) Therefore your record from the SC State Law Enforcement Division (SLED) will no longer show the conviction. (Technically, that conviction no longer exists.)

So far, the expunction is the better option since it removes the conviction rather than absolving the effects of the conviction.  An expunction does cost a few hundred more than a pardon: a really minor point, but one to mention.

The most significant difference surfaces when we examine the effect of a pardon and an expunction on the right to own and bear arms. (i.e. your gun rights).

Restoration by Pardon

In SC, the Supreme Court has held that a Pardon restores your right to own guns. Read Pardons and Pistols. Generally, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and the Federal Bureau of Investigations (FBI) recognize and respect this ruling. Therefore, with a pardon, you can buy and possess a firearm knowing there is legal precedent to support this position.

Divided Opinions on Expunctions

The landscape is not nearly as clear with an expunction. While Federal law, 18 U.S. Code § 921(a)(20)(B) and 18 U.S. Code § 921(a)(33)(B)(ii), recognizes the effects of an expungement to restore firearm rights, interpreting case law requires the record to be completely destroyed and the recipient to be absolved of all legal effects of the conviction.

The ATF, placing emphasis on the “absolved of all legal effects of the conviction”, recognizes a SC expunction as effectively restoring the right to bear arms. SC SLED agrees with this interpretation and also recognizes the effect of an SC expunction.

The FBI however focuses on the language requiring complete destruction of the record. Because SC SLED retains a copy of the conviction and expunction to prevent a recipient from seeking a second expunction, the FBI refuses to recognize the restoration of firearm rights by an SC expunction. Therefore, even with an expunction, a purchaser of a firearm will be denied by the National Instant Criminal Background Check System (NICS) which is administered by the FBI.

Conclusion

Where your main purpose is to clear your record, an expunction is the only mechanism that actually removes a conviction from your record. However, the FBI may retain copies of that record and refuse to recognize the restoration of your firearm rights. Therefore, if gaining back your right to own a gun is important, a Pardon is the best path forward. If you want to accomplish both of these, nothing prevents you from seeking both a pardon and an expunction: provided you qualify for each.

Restoring Your Firearm Rights

When you lose your civil rights, including the right to own and bear arms, it is troubling to even think about. Many people hide the fact or deny it. Unfortunately, this is counter productive and does nothing to get your gun rights back. In most instances, time alone will not restore your rights. But, with a little work, there is much we can do to restore your firearm rights in South Carolina.

What we can do, and how we seek restoration of those rights is controlled by where and how you lost the rights to begin with. We do not treat a mental commitment the same as a felony charge.  But I can help you seek restoration in either case, and with the proper planning and work, we have a good chance of succeeding.

Below is a short overview of how you can lose your firearm rights and ways we can help you seek restoration of those rights.

Criminal Convictions

Many, but not all, criminal convictions cause you to lose your gun rights. However, convictions fall into two general types, and those types affect how we seek restoration of your rights.

Felonies

If you have been found guilty of a felony, you lose your gun rights automatically. And no amount of time alone will restore those rights. Rather, you must seek restoration of those rights from the State where you were convicted. In South Carolina, this requires seeking a Pardon. (To better understand how pardons restore your firearm rights in SC see: Pardons and Pistols.)

I help clients move beyond their past in seeking a pardon. In most instances, with the right application and a compelling story, you can have your rights restored.

Misdemeanors

Most misdemeanors will not cause you to lose your gun rights. However, any misdemeanor with a possible jail sentence over two years does cause an automatic loss of firearm rights. As an example, this would include failure to stop for a blue light.

Additionally, any misdemeanor which includes an act of violence against a member of one’s household will cause you to lose your gun rights. This includes domestic violence, but an assault and battery can also qualify if the victim is a member of one’s household.

Here, rights restoration is much trickier. Not because it is more difficult, but because there are more options! In many instance, the best option is to seek a pardon. This is a surefire way, and it is available to all misdemeanants.

For some criminal domestic violence charges in SC, there is an automatic firearms rights renewal based upon a lapse of time. While this is a good option, I strongly advise ensuring you qualify by requesting SC SLED send an appropriate letter to the FBI to note that your firearm rights have been restored. I can help with such, and this is a relatively simple and fast means for restoring rights when you qualify.

For other criminal domestic violence charges, and additional misdemeanors, you can seek an expungement. This removes the charge from your public record and should restore your firearm rights. Unfortunately, Federal Agencies are split on whether or not to honor a SC expungement to restore firearm rights. Therefore, a pardon, though less thorough, may be safer. But sometimes the best bet is to seek both.

In a few instances, where jail time was served, it is possible that firearm rights are automatically restored upon release. This is a tricky subject, and not a means which I suggest relying upon. Here individual evaluation by an attorney is a must.

How to handle firearm rights restoration loss by a misdemeanor is a personalized decision and one that I can help you make. Once made, we can seek restoration based upon that decision. And sometimes, multiple routes are the best way to proceed.

Mental Commitment

In SC, committal proceedings are handled in the Probate Court. Here the judge will decide if a person should be forced to undergo treatment. If a person is forced to undergo treatment, then we have a mental commitment. This adjudication of mental deficiency causes a loss of firearm rights, and that loss is indefinite until cured.

Fortunately, you can petition the same court to restore your firearm rights after having successfully completed treatment. This requires showing that you are stable and not a threat to yourself or the public. The process is quick and private, but it does require a court appearance and preparing the proper petition and supporting documents.

Again, this is another area where I have helped clients restore their firearm rights.

Miscellaneous

There are a few other ways to lose your gun rights, but instances of such are rare. When these do occur, restoring firearm rights becomes much more complicated and each scenario must be evaluated on its own. These instances include fugitives from justice, persons dishonorably discharged, habitual drunkards, users of illegal drugs, and persons who have surrendered their passport to give up citizenship. Each one of these instances is unique and requires personalized care.

Conclusion

If you have lost your firearm rights in South Carolina, there is hope to have them restored. I help clients seek restoration, and in most instances the chances of success are good. If you have lost your rights and would like to have them restored, please do not hesitate to reach out to me. You may contact me here.

SC Pardon – What to Expect?

The decision to apply for a pardon is not always easy. Very few people seek a pardon twice, and thus the entire procedure is practically unknown to the applicant. So how do you prepare yourself for seeking a pardon?

The Department

First it is important to understand the procedure for a Pardon in South Carolina. Unlike other states, and classic depictions, pardons in South Carolina are not issued by the Governor. Instead, pardons are issued by the SC Department of Probation, Parole, and Pardon Services. The SCDPPPS administers a Parole and Pardon Hearing process for all pardon applicants.

The Application

To have a hearing, a pardon seeker completes an application and submits it to the SCDPPPS.

The application includes identifying information, such as your name, address, and social security number, and employment and residence history for the past five years. Unless specifically requested, the SCDPPPS will contact your employer to verify your employment. (This can be worked around if your situation requires caution to continue your employment.)

You must provide a listing of all past criminal convictions, but should exclude minor traffic violations. It is important to list all SC convictions, and failure to do so could result in an incomplete pardon or a denial. This is also the place to disclose pending convictions.

Because not everyone can seek a pardon at any time, you must show the SCDPPPS that you qualify for a pardon. There are multiple qualifications, and you must identify the qualification under which you may seek a pardon.

References

The application is not everything. Your application must be accompanied by three letters of recommendation. The writers must know you were convicted, that you seek a pardon, and must address why they believe you are fit for a pardon.

This is a critical step, and selecting the right references can greatly influence the success or failure of your application. It is also important that your references effectively communicate their thoughts and reasonings in writing.

The Investigation

Upon receiving the application, the SCDPPPS begins to investigate your situation. They will verify your eligibility for a pardon and the information on your application. Finally, they examine your criminal history records.

As part of the application, you grant the SCDPPPS permission to examine all of your records for the purpose of the pardon application. All records include employment, military, school, and disciplinary records. (Note that the SCDPPPS will work with an applicant to prevent disclosing sensitive information to a current employer.)

Hearing

A hearing will be scheduled after the SCDPPPS has collected and reviewed all of the necessary files and verified your eligibility for a pardon. Typically, the SCDPPPS will hear sixty some cases in a day, and no particular time is given for any specific case. You must be there at the beginning and wait until you are called.

When your case is called you will receive a hearing in front of the Parole and Pardon Hearing Board where you will be able to present your case for why you want a pardon. Here is where you can provide information on how a pardon will help you overcome your past and achieve your goals for the future. A compelling reason is an important ingredient in receiving a pardon.

And no hearing would be complete without questioning. The Board may ask questions based on your presentation, application, or any of your case files in their records.

Victims

If your conviction involved a victim, then the SCDPPPS will notify the victim that you are seeking a pardon. The victim will be given the chance to respond, and they may do so either in writing or at the hearing itself. If at the hearing, the SCDPPPS will take all steps possible to avoid any interaction between the victim and the applicant, and the applicant will be asked to leave the room prior to the victim testifying.

Hired Help

You do not have to go through this process alone. A lawyer familiar with this area of law can help evaluate your situation, identify weaknesses, and put together a solid application. When assisting clients I create a compelling statement for why the client seeks a pardon, and I work with the client’s references to ensure their letters are professional and beneficial. Finally, I accompany my clients to the hearing and ensure that key information is brought to the attention of the Hearing Board and the case is given a thorough review.

Conclusion

A pardon application is a bit of a mystery the first time you go through it. However, the procedure is much what you may expect for someone attempting to convince a board that they have moved beyond their past, reformed their life, and are worthy of forgiveness. I can lend a helping hand in making your case, presenting your references, and highlighting the important information. The SCDPPPS typically grants roughly 60% of pardon requests, and with an attorney your chances only increase. If you are ready to get your firearm rights back, and want to seek a pardon, do not hesitate to contact my office for help.

Open Carry and Constitutional Rights

If you want to open carry a firearm, you best be polite. It also helps to know the law, your rights, and what to expect. To that end, we discuss Constitutional limitations on police actions where open carrying is legal.

(NOTE: Not every police officer will know, recognize, and respect your Constitutional Rights. We all know the saying about being dead right. . . Use your discretion and be polite. Things can be sorted out in court later, even if you must bring a Federal case to do it.)

What is Open Carry?

This is carrying in public a firearm, or other weapon, in plain sight. Carrying does not include brandishing: the act of waving a weapon to intimidate. Open does not include a concealed firearm that is ‘printing’ on the clothing covering it. And open carry does not include possessing a firearm or other weapon on your private property. Our open carry discussion is limited to where both the action and the weapon are legal.

Constitution: You mean the Second Amendment Right?

Do your Second Amendment protected rights allow you to ‘Constitutionally Carry’, guarantee you the ‘Right to Bear Arms’, or in some other way protect your right to carry a gun? Maybe. The Supreme Court hasn’t ruled on that and lower level Courts are reluctant to draw lines. There are a lot of arguments regarding the aforementioned ideas, and none of them are addressed here. This post covers where the open carry of firearms is clearly legal.

Why all of the disclaimers? Because this is a passionate subject, a subject you must know carefully before taking action, and a subject prone to less than logical interpretations on both sides. This article is not legal advice for any particular scenario. If you want legal advice, contact Robert.

 The Fourth Amendment

So what Constitutional Rights are we talking about? The Fourth Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Amendment that secures your house. The amendment that protects your privacy. That amendment that prevents unlawful seizures and detentions. So how does this apply?

The Scenario

It’s a midsummer Friday afternoon: it’s hot, you’ve been inside all day, and it’s time to take the dog for a walk. You grab a hat, a leash, and sling your favorite AR over your shoulder as you head out to stroll around the neighborhood. (The sagacity of this selection is up to you!)

While out a passing motorist notices the firearm, panics, and calls 911. A deputy is dispatched. He arrives on the scene and . . . A) Casually asks what is going on?, B) Observes no laws are being broken and leaves, C) Comes out of the car with hand on gun, shouting obscenities, and threatening to shoot if you “go for the weapon?” Northrup v. City of Toledo Police Department, No. 14-4050, 2 (6th Cir. 2015).

The Responses

If, like the John Boy and Billy Big Show, you ‘just choose C’ you’d be correct in the Northrup v. City of Toledo case. Though fortunately this is not always the case, and for reasons we see, it should not be the case.

In Northrup, the cases namesake was walking his dog while carrying a pistol on his side. An officer arrived and immediately used force to disarm Northrup, and then handcuffed and detained him for about 30 minutes. Eventually all charges were dismissed and the pistol returned. Northrup then brought suit against the police for the violation of his rights. This case, and other similar ones, show the limits and protections of our constitutional rights, and it is these we examine.

Scenario B is unlikely but technically correct. Where no crime has been or can be observed stopping to interrogate someone is unnecessary.

Scenario A is more likely, especially when the action occurs during daylight hours in an area not prone to high crime. The key in Scenario A is a consensual encounter that does not spill over into an investigatory detention like scenario C. (Consensual means you can walk away. If an Officer ever tells you that you cannot leave, or he holds onto your belongings such as an ID, then the stop has become a non-consensual investigatory detention.)

Wrong Way

In Scenario C the officer immediately treats the open carrier as a ‘suspect’ and disarms him. This action however is unconstitutional and the officer should not have arrested nor disarmed the open carrier.

To treat a person as a ‘suspect’ there must be some supporting evidence of crime.  “It has long been clearly established that an officer needs evidence of criminality or dangerousness before he may detain and disarm a law-abiding citizen.” Id at 7. It is not enough that a citizen be armed, he must be “armed and dangerous” before the police may disarm him. Sibron v. New York, 392 US 40, 64 (1968).

Courts have admonished police that “to allow stops [where the citizen is legally armed] ‘would effectively eliminate Fourth Amendment Protections for lawfully armed persons.'” Northrup No. 14-4050, 5 quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993).

The Courts are clear, where carrying the firearm is legal, that alone cannot be reason to seize the person and the firearm. Such action is a violation of the Fourth Amendment. A further element of criminality or dangerousness is required to justify a search and seizure of the person and firearm.

But What of Felons in Possession?

Police commonly claim that an open carrier may be a “felon in possession” of a firearm as justification for the search and seizure, but Courts quickly dismiss this argument noting that “where it is lawful to possess a firearm, unlawful possession ‘is not the default status’.” Id at 6, quoting Florida v. J.L., 529 US 266, 272 (2000). To drive the point home, the Court in Northrup offers this analogy rejecting the argument that possession might be illegal:

“The situation [is] ‘no different’ from a setting in which the officers suspected “that [Defendant] possessed a wallet, a perfectly legal act in the Virgin Islands, and the authorities stopped him for this reason. Though a search of that wallet may have revealed counterfeit bills – the possession of which is a crime under the United States law – the officers would have had no justification to stop [Defendant] based merely on information that he possessed a wallet.” Id at 6, quoting United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000).

Well, Officer Security!

In United States v. Nathaniel Black a group of seven police officers disarmed Dior Troupe. No. 11-5084 (4th Cir. 2013). Mr. Troupe was legally carrying a pistol in the open and upon being approached by the police politely pointed it out to them. (No accusations were made that Troupe’s motions were anything other than alerting the police to the presence of his firearm.) The officers proceeded to disarm Troupe claiming “it would be ‘foolhardy’ for the officers to ‘go about their business while allowing a stranger in their midst to possess a firearm.” Black No. 11-5084, 13. The Court, “not persuaded” by the Government’s argument, admonished that “permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals.” Id. 

Officer safety alone is not justification to disarm law abiding citizens. The Courts are reminding the police that these are citizens with rights and not subjects that simply obey.

The Standard

In short, where an officer has “no reason to stop and frisk” it is a violation of “clearly established law” to handcuff and seize a person and/or his arms.” Northrup No. 14-4050, 7. Merely carrying a firearm in a legal manner is not reason enough to stop and frisk a person, and the routine seizure of a firearm for officer safety without individualized assessment is unjustified. Officers must show some other criminal conduct or indication that the person is dangerous.  Absent such evidence, detainment and / or seizure of a person openly carrying a firearm is not justified.

What is Protected?

The Fourth Amendment doesn’t specifically protect your right to carry a firearm. Rather it protects your right to peacefully conduct your life free from government intrusion. Where the police cannot show an individualized suspicion of criminal activity or dangerousness, a low bar in reality, they cannot stop, seize, and search you. This was the basic standard established in Terry v. Ohio 392 U.S. 1 (1968), and the mere presence of a legal firearm does not form an exception to this rule. Northrup No. 14-4050, 6 (“There is no ‘automatic firearm exception’ to the Terry rule. quoting Florida v. J.L. 529 US 266, 272 (2000)).

Where an action is legal, such as the carrying of a firearm, the police cannot seize and search you based off of that activity. They cannot harass you for participating in that activity.

Exceptions

Some things to consider that may affect our analysis above. If you have been pulled over, even for a traffic violation, then the officer has some individualized suspicion of criminal activity. (We’ll look at traffic stops later). If you’re threatening to use the firearm or gesturing to it you have introduced an element of danger. And brandishing a firearm is normally a crime in and of itself.

The Bottom Line

Be a responsible gun owner. Be polite. Carry your firearm where appropriate and in a manner that is appropriate. If you carry your firearm in the open in places where this is not the norm you can likely expect the attention of police. While the police shouldn’t bother you, and they definitely shouldn’t disarm you, some will. If the police action becomes unconstitutional, you can always bring a case in Federal Court for damages and to make a point about your rights.

Felons and Firearms

It is commonly understood that felons and other prohibited persons cannot own firearms. However, strictly speaking this statement is incorrect. Prohibited Persons cannot possess firearms or control their movement in interstate commerce. (This includes a prohibition on controlling who uses a firearm through the legal theory of constructive possession.) See Henderson v. United States 575 US _____ (2015) (“By its terms, §922(g) does not prohibit a felon from owning firearms.”)

So What Can a Felon do?

Now that we know a felon or Prohibited Person can technically own a firearm, what can they do with it? The simple answer, sell it!

Prohibited Persons can direct who receives their firearms and receive the proceeds from the sale. This allows a Prohibited Person to divest himself of his property in an appropriate manner without losing it to the state.

In the recent Supreme Court case Henderson v. United States, the Court unanimously ruled that a court can order law enforcement holding firearms belonging to a Prohibited Person to transfer those firearms to any person or entity the Prohibited Person nominates as long as the Prohibited Person will not gain possession, constructive or physical, over the firearms.

Can I get my Firearm used in Committing the felony?

Likely not. Property used in the commission of a crime is commonly deemed forfeited to the state. The technicality we are discussing applies to firearms not used in the crime but owned by a Prohibited Person.

If you’re caught dealing cocaine with a Glock 19 you can kiss the gun good bye. However if you happen to have Grandpa’s mint double barrel at home that wasn’t part of the crime you can transfer that to a non-Prohibited Person. (But if you were storing the drugs and guns on the same property then all bets are off.)

What About My Trust?

The Court specifically mentioned trusts in their recent opinion. See Henderson v. United States 575 US _____ (2015) (“Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. . . . Results of that kind would do nothing to advance §922(g)’s purpose.”)

An appropriate trust protects your firearms even from you. The trust becomes the owner of the firearms and can deny you the right to control or possess those firearms should you become a Prohibited Person. This ensures that firearms you previously owned remain in your family and are passed down according to your wishes.

Is it too late to set up a Trust now?

While every set of facts are unique, most of the time a trust can be established by a Prohibited Person for this purpose. Some special precautions will have to be taken. For instance, the trust will need to be irrevocable, meaning the Prohibited Person cannot change it. Trustees must be individuals eligible to own firearms, and the Prohibited Person must not have control or influence over these Trustees. (And Successor Trustees should have the same qualifications.)

If the firearms are currently in the possession of a law enforcement agency or other governmental body then there may be additional requirements to meet that agency’s reasonable standard to ensure the Prohibited Person will not gain possession of the firearms.

Transfer Your Guns.

If you, or someone you know, is a Prohibited Person trying to have your firearms transferred to a third party contact Robert for help. He can provide you with guidance and represent you in court if necessary to achieve a transfer.