Gun Rights Restoration
I. IS IT POSSIBLE TO RESTORE A PERSON’S RIGHT TO BEAR ARMS?
What happens after a person has been convicted of a crime? Is it possible to later clear their name and/or criminal record? If possible, then what is the process for removing a conviction and restoring a person’s right to purchase and possess firearms? This chapter will explain how, under very limited circumstances, a person can have arrest records, criminal charges, and even criminal convictions removed or nullified. But a word of caution: success in this arena may be rare. Further, each state has different rules concerning these issues, as well as a completely different set of rules under federal law. Before we begin a meaningful discussion, it is important to explain two terms and concepts: clemency and word “expunction” and federal law uses the word “expungement” expunction. A small point about terminology: many states use the to refer to the same process; therefore, these words are usually used interchangeably.
A. What is clemency?
Clemency is the action the government, usually the chief executive (e.g., the President on the federal level or a governor on the state level), takes in forgiving or pardoning a crime or canceling the penalty of a crime, either wholly or in part. Clemency can include full pardons after a conviction, full pardons after completion of deferred adjudication community supervision, conditional pardons, pardons based on innocence, commutations of a sentence, emergency medical reprieves, and family medical reprieves. Clemency can be granted at both the federal and state level.
B. What is an expunction?
An expunction is the physical act of destroying or purging government criminal records, unlike sealing, which is simply hiding the records from the public. Under certain circumstances, a person may have their criminal record either expunged or sealed. If a record is expunged, the record is destroyed and no longer exists. If a record is sealed, a governmental agency can still access the record, but the general public cannot.
II. FEDERAL LAW
A. Presidential pardon
Under Article II, Section 2, Clause 1 of the United States Constitution, the President of the United States has the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The President’s power to pardon offenses has also been interpreted to include the power to grant conditional pardons, commutations of sentence, conditional commutations of sentence, remission of fines and forfeitures, respites, and amnesties. However, the President’s clemency authority only extends to federal offenses; the President cannot grant clemency for a state crime.
1. How does a person petition for federal clemency or a pardon?
Under federal law, a person requesting executive clemency must petition the President of the United States and submit the petition to the Department of Justice. The Pardon Attorney for the Department of Justice can provide petitions and other required forms necessary to complete the application for clemency. “Petition forms for commutation of sentence may also be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military branch that had original jurisdiction over the court-martial trial and conviction of the petitioner.” See 28 C.F.R. § 1.1.
The Code of Federal Regulations requires an applicant to wait five years after the date of the release of the petitioner from confinement, or in a case where no prison sentence was imposed, an applicant is required to wait five years after the date of conviction prior to submitting a petition for clemency. The regulation further states that “generally, no petition should be submitted by a person who is on probation, parole, or supervised release.” See 28 C.F.R. § 1.2. With that in mind, the President can grant clemency at any time, whether an individual has made a formal petition or not. For example, President Gerald Ford granted a full and unconditional pardon to former President Richard Nixon prior to any indictment or charges being filed related to his involvement in Watergate.
2. What should a petition for clemency include?
Petitions for executive clemency should include the following information:
1) that the person requesting clemency must state specifically the purpose for which clemency is sought, as well as attach any and all relevant documentary evidence that will support how clemency will support that purpose;
2) that discloses any arrests or convictions subsequent to the federal crime for which clemency is sought;
3) that discloses all delinquent credit obligations (whether disputed or not), all civil lawsuits to which the applicant is a party (whether plaintiff or defendant), and all unpaid tax obligations (whether local, state, or federal); and
4) that includes three character affidavits from persons not related to the applicant by blood or marriage.
In addition, acceptance of a Presidential pardon generally carries with it an admission of guilt. For that reason, a petitioner should include in his or her petition a statement of the petitioner’s acceptance of responsibility, an expression of remorse, and atonement for the offense. The forms and required information can be found on the United States Department of Justice website.
3. What happens after a petition for executive clemency is submitted?
The Attorney General reviews each petition and makes a non-binding recommendation on an application to the President. Federal regulations also provide for guidelines and requirements to notify victims of the crimes, if any, for which clemency is sought. See 28 C.F.R. § 1.6. The President will either grant or deny a pardon. There are no hearings held on the petition, and there is no appeal of the President’s decision. See 28 C.F.R. § 1.8.
4. What is the effect of a Presidential pardon?
A pardon is the forgiveness of a crime and the cancellation of the penalties associated with that crime. While a Presidential pardon will restore various rights lost as a result of the pardoned offense, it will not expunge the record of your conviction. This means that even if a person is granted a pardon, the person must still disclose their conviction on any form where such information is required, although the person may also disclose the fact that the offense for which they were convicted was pardoned.
B. Expungement of federal convictions
1. No law exists for general federal expungement
Congress has not provided federal legislation that offers any comprehensive authority or procedure for expunging criminal offenses. There exist only statutes that allow expungement in certain cases for possession of small amounts of controlled substances and, interestingly, a procedure to expunge DNA samples of certain members of the military who were wrongfully convicted. See 18 U.S.C. § 3607(c) and 10 U.S.C. § 1565(e). Because there is no statutory guidance, federal courts have literally made up the rules and procedures themselves, often coming to different conclusions. Some federal court circuits have stated they have no power to expunge records. However, other federal courts have indicated that they do have the power to expunge. For example, the United States Court of Appeals for the Fifth Circuit has held that under certain limited circumstances, federal courts may order expungement both of records held by other branches of the government (e.g., executive branch), and its own court records. See Sealed Appellant v. Sealed Appellee, 130 F. 3d 695 (5th Cir. 1997). Florida is within the federal Eleventh Circuit. However, pre-1981 it was part of the Fifth Circuit, therefore, Fifth Circuit decisions have authority as precedent in the Eleventh Circuit [See Bonner v. City of Prichard, 661 F. 2d 1206 (11th Cir. 1981) (en banc)]. Also, in Severson v. Duff, 322 F. Supp. 4 (M.D. FL. 1970), the Middle District of Florida ordered that State records regarding a conviction for a constitutionally vague statute be expunged. The United States Supreme Court has passed on hearing cases that would have resolved the split between the circuits. This issue remains legally murky.
2. Possible procedure for federal expungement
There are no statutory guidelines for how to seek an expungement under federal law; however, the place to start would be to file a motion with the federal court that issued the conviction that a person wants to have expunged. However, federal judges very rarely grant these types of motions. Some circuits have adopted a balancing test to decide if a record held by the court may be expunged. The court weighs the interests of the government in keeping open, unredacted records, against the injury to the individual of maintaining a criminal record. Courts have acknowledged that “expungement is ‘exceedingly narrow’ and is granted only in exceptional circumstances.” The court explained “the government cannot and should not be forced to rewrite history” every time a wrongfully accused wants his record expunged. Sealed Appellant v. Sealed Appellee, 130 F. 3d 695 (5th Cir. 1997). Some of the areas where expungement has worked are in incidents of extreme police misconduct, or where the conviction is being misused against the person. Unless there exist compelling reasons, a federal judge is highly unlikely to grant expungement.
3. Expungement for drug possession: statutory authority
Under a federal law entitled “special probation and expungement procedures for drug possessors,” certain persons are allowed to request a federal court to issue an expungement order from all public records. Congress intended this order to restore the person to the status he or she “occupied before such arrest or institution of criminal proceedings.” See 18 U.S.C. § 3607(c).
In order to qualify for the expungement, you must have been under the age of 21 when you were convicted, you must have no prior drug offenses, and your conviction must have been for simple possession of a small amount of a controlled substance.
4. How does a person have firearms rights restored under federal law?
Under the Gun Control Act of 1968 (“GCA”), a person who has received a Presidential pardon is not considered convicted of a crime preventing the purchase and possession of firearms subject to all other federal laws. See 18 U.S.C. §§ 921(a)(20)(B) and (a)(33) (B)(ii). In addition, persons who had a conviction expunged or set aside or who have had their civil rights restored are not considered to have been convicted for purposes of the GCA “unless the pardon, expungement, or restoration of civil rights expressly provides the person may not ship, transport, possess, or receive firearms.” See 18 U.S.C. §§ 921(a)(20)(B) and (a)(33)(B)(ii).
The GCA also provides the United States Attorney General with the authority to grant relief from firearms disabilities where the Attorney General determines that the person is not likely to act in a manner dangerous to the public safety and where granting relief would not be contrary to the public interest. See 18 U.S.C. § 925(c). The Attorney General has delegated this authority to the ATF. Unfortunately, the ATF reports that it has been prohibited from spending any funds in order to investigate or act upon applications from individuals seeking relief from federal firearms disabilities. This means that until the ATF’s prohibition has been lifted, a person’s best—and most likely—option to have their firearms rights restored is through a Presidential pardon. See www.atf.gov.
III. FLORIDA LAW
A. Clemency by Governor and Board of Pardons and Paroles
The Governor of Florida possesses the authority to grant executive clemency under Article IV, Section 8(a) of the Florida Constitution of 1968, except in cases of treason and impeachment. Unlike federal clemency where the President is free to pardon whomever, the President chooses; the Governor of Florida can only grant clemency if two members of the Clemency Board approves such recommendation. However, the Governor has full discretion to deny clemency for any reason without the approval of the Clemency Board. Furthermore, the Governor and the Clemency Board may grant executive clemency on a conditional basis, requiring an individual to perform various conditions. If an individual receives a conditional clemency and violates one of the conditions, the Clemency Board can revoke the clemency.
1. Are there different types of clemency in Florida?
Yes, there are eight different types of clemency in the State of Florida.
A. Full Pardon: This completely forgives a person for any convictions they received in Florida. A full Pardon restores all rights as they were prior to conviction. Most importantly these restored rights include the right to own, possess or use a firearm.
B. Pardon Without Firearm Authority: This allows an individual the same relief as a Full Pardon except for the right to own, possess or use a firearm.
C. Pardon for Misdemeanor: This forgives anyone who has been convicted of a misdemeanor.
D. Commutation of Sentence: This allows an individual to have his penalty lowered to a less severe penalty. However, this type of clemency does not restore any of the individual’s civil rights including the right to own, possess or use firearms.
E. Remission of Fines and Forfeitures: This form of clemency only suspends, reduces, or removes a fine or forfeiture. There is no restoration of civil rights including the right to own, possess or use firearms.
F. Specific Authority to Own, Possess or Use Firearms: This allows an individual who has been convicted of a felony to have his or her right to own, possess or use a firearm. In cases involving a federal conviction, the Clemency Board will only consider a request for this type of clemency if a Presidential Pardon or a Relief of Disability from the Bureau of Alcohol, Tobacco and Firearms has been granted. If the individual has a conviction from another state, then a pardon or restoration of civil rights with no restrictions on firearms is a prerequisite for this type of clemency.
G. Restoration of Civil Rights in Florida: This allows an individual to have his or her civil rights restored except for the right to own, possess or use firearms. Although the individual’s civil rights are restored, he or she will still have to comply with all the registration and notifications requirements, or any other obligations and restrictions imposed by law upon sexual predators or sexual offenders.
H. Restoration of Alien status under Florida Law: This gives a non-citizen of the United States, his or her civil rights under the authority of the State of Florida that he or she had prior to receiving a felony conviction. However, his or her right to own, possess or use firearms will not be restored.
2. Who is eligible for executive clemency in Florida
Anyone seeking clemency in Florida must meet the requirement of the specific clemency they are seeking to obtain. However, individuals wanting to be able to own, possess or use a firearm must either receive a Pardon or Specific Authority to Own, Possess or Use Firearms. The eligibility requirements for these two types of clemency are listed in the table that follows:
|TYPE OF CLEMENCY||ELIGIBILITY REQUIREMENT|
completed all sentences imposed for applicant’s most recent felony conviction at least 10 years has passed since the completion of all the conditions of supervision imposed for the applicant’s most recent felony satisfied all outstanding detainers, or any pecuniary penalties or liabilities which total more than $1,000.00 and result from any criminal conviction or traffic infractions satisfied all outstanding restitution owed to any victim, including but not limited to restitution pursuant to a court order, civil judgment, or obligations pursuant to Chapter 960, Florida Statutes
|Specific Authority to Own, Possess or Use Firearms|
completed all sentences imposed for applicant’s most recent felony conviction at least 8 years has passed since the completion of all the conditions of supervision imposed for the applicant’s most recent felony satisfied all outstanding detainers, or any pecuniary penalties or liabilities which total more than $1,000.00 and result from any criminal conviction or traffic infractions satisfied all outstanding restitution owed to any victim, including but not limited to restitution pursuant to a court order, civil judgment, or obligations pursuant to Chapter 960, Florida Statutes no prior federal, military, or out-of-state convictions
3. How does a person seek executive clemency in Florida?
A person seeking executive clemency in Florida is required to complete an application, which is available from the Office of Executive Clemency. Each applicant must attach a certified copy of the charging instrument and certified copy of the judgment and sentence for each conviction for which he or she is seeking clemency. Although not required, an applicant may include with their application character references, letters of support, and any other relevant documents. Once properly submitted, the file of any applicant eligible for clemency is forwarded to the Office of Clemency Investigation, which assigns the case to an examiner in the field offices.
Upon completion of the investigation by the Office of Clemency, a report is generated and submitted to the Clemency Board for a decision. The Clemency Board meets in the months of March, June, September and December of each year. The Governor may also call a special meeting at any time during the year. An applicant is not required to attend the hearing. If the Clemency Board grants clemency, a certificate of Restoration of Civil Rights will be mailed to the applicant.
Applicants are not able to appeal the decision of the Clemency Board, but applicants may re-apply for clemency after at least two years have passed from the date of the final order denying clemency. For more information on the process, please visit www.fcor.state.fl.us.
4. What is the effect of executive clemency in Florida?
A person who received an executive clemency may have their civil rights restored, but unfortunately the criminal conviction will remain on his or her criminal record. Anyone convicted of a felony is not eligible to have their record sealed or expunged under Florida law regardless of if he or she received a clemency.
B. Florida expungement
Florida Statute § 943.0585 controls expungement under Florida law. This statute provides for when a person is entitled to expungement. Note that the technical term under Florida law is expunction, but we will use these terms interchangeably. This section allows a person to expunge their record if he or she were acquitted, had charges dismissed or were no-billed by a grand jury or the State Attorney’s Office.
However, not all individuals are entitled to an expungement of their record. For instance, if a person was acquitted of one offense, but was convicted or remains subject to prosecution for another offense relating to or arising out of the charge for which they were acquitted, that person is not entitled to an expungement of their record. Anyone who has a prior conviction for any crime will not be eligible to have their record expunged. Additionally, if an adult was previously adjudicated a delinquent as a minor, he or she will not be eligible for expungement. A person is only allowed one expungement.
To obtain an expungement, a petitioner must first obtain a Certificate of Eligibility from Florida Department of Law Enforcement (FDLE). In order to obtain a Certificate of Eligibility, the petitioner must fill out an application which must be signed by the State Attorney’s Office, provide fingerprints, a certified copy of the disposition and provide a $75 check or money order made out to FDLE. Once a Certificate of Eligibility is obtained, the petitioner must file a originated in. A hearing on the Petition for Expungement may or Petition for Expungement in the county in which the charge(s) may not be required depending on the State Attorney’s position and the Judge’s preference.
C. Mental health adjudication
If at any point you have been adjudicated mentally unfit, it may be possible to restore your gun rights. As stated previously, a person who has been adjudicated mentally defective or who has been committed to a mental institution may not own a firearm or possess a firearm. This restriction applies until relief from the disability is obtained. See Florida Statute § 790.064. A person may petition the court which made the adjudication or commitment for relief from this disability. The petition for relief must satisfy the requirements set out in Florida Statute § 790.065(2). A copy of the petition must be served upon the state attorney as well as the court which made the adjudication or commitment. Submitting the petition does not guarantee relief. The state attorney may object to and present evidence relevant to the petition. To grant relief, the court must find, after considering the petitioner’s mental health record and, if
applicable, criminal history, that the petitioner will not be likely to act in a manner that is dangerous to public safety. The court must find that granting relief will not be contrary to public interest. If your petition is granted, any mental health records of the petitioner held by the relevant department shall be deleted and the person shall be granted relief from the automated database of persons prohibited from purchasing a firearm. However, if the petition is denied, the petitioner may not file again for a full year. Relief granted will not restore rights which are lost for any reason other than the particular adjudication of mental defectiveness which is petitioned. See Florida Statute §§ 790.065(2)(d) and (2)(e).