Denied a Gun Purchase? Can Your Rights be Restored?
Published by the Law Offices of Bruce Colodny
By Bruce Colodny, The California Gun Attorney
Revised & Copyright © 2016
As a result of recent anti-gun laws, many more Californians now find themselves classified as "prohibited persons", meaning an individual whose possession of a firearm is considered a criminal offense. Many of these people have never committed a violent crime and they lawfully owned and used guns for years until these new laws took effect and were retroactively applied.
This article begins with some legal history and then explains some of the most common reasons why Californians are denied a gun purchase. This article also discusses whether certain individuals can remove such a legal disability from their record and, if so, how this is accomplished. Historically, the vast majority of people considered prohibited from possessing firearms were thus classified due to felony convictions or adjudication as a mental health patient.
Before 1991 in California, only convicted felons and a very limited number of misdemeanor convicts were prohibited from possessing handguns. While this pre-1991 California law applied only to handguns, convicted felons were still prohibited from possession of any modern firearm under provisions of Federal law and, beginning in 1991, the California firearm prohibitions were applied to all firearms, including antique firearms. This California prohibition was permanent except for those eligible felons, who obtained a full pardon from the Governor or, subject to a few exceptions, had their convictions reduced to misdemeanors by means of a Penal Code §17(b) motion granted by a judge.
On January 1, 1991, with no individual notice, thousands of California gun owners with certain misdemeanors on their records became subject to felony prosecution as a new law purported to ban them from legal possession of firearms for a ten year period following conviction. Many of these old misdemeanor convictions, such as simple assault or battery, did not involve the misuse of a firearm. Since 1991, the list of misdemeanor convictions which result in this ten year ban on firearms possession has been continuously expanded. Some of these "ten year misdemeanors" involve violence while others do not. Examples are the unlawful sale or grossly negligent discharge of firearms.
Today in California, even persons who have never been convicted of a crime or adjudicated as mental patients may be subject to felony prosecution for possession of firearms. Again, due to recent new laws, many individuals subject to a restraining order or with limited contact with the mental health system are now considered a "prohibited person".
If, and how you can clear your record depends upon the reason you were denied a gun purchase. If you possess firearms, and you are informed or suspect that you are a "prohibited person", you should immediately consult a qualified California attorney to avoid criminal prosecution and to determine your legal options. There are dozens of reasons why people lose their guns rights; some are eligible to seek to restore their guns rights, some will have their gun rights restored after the passage of time, and some have permanently lost their guns rights. Also, sometimes a clerical error results in the denial of a lawful gun purchase.
Denials Based On Criminal Convictions.
The so-called "expungement" (i.e. the granting of a set-aside petition under Penal Code §1203.4 or §1203.4a) does not restore firearms rights. Depending upon the nature of your conviction, and whether you are eligible, you may need to seek relief by filing a Penal Code §17(b) motion or applying for a pardon.
In California, felony convictions may be called "straight felonies" or "wobblers". "Wobblers" are those offenses which can be charged as felonies or misdemeanors. "Straight felonies" are those offenses which are always charged as felonies.
If your denial was based on a "straight felony" conviction (for example, most drug sales offenses), you will need to obtain a full pardon from the Governor to legally possess firearms. However, the Governor may pardon you and not restore your right to possess a firearm and the Governor cannot restore this right if you were ever convicted of a felony involving the use of a dangerous weapon. If the nature of your "straight felony" conviction makes you eligible, seeking a pardon is a lengthy and complicated procedure but it can often be accomplished if you have led an exemplary life for many years following conviction.
If your denial was based on a "wobbler" conviction, such as receiving stolen property, you may be eligible to have this felony conviction reduced to a misdemeanor by means of a 17(b) motion. This procedure is usually much easier than obtaining a pardon.
For those misdemeanor convictions which result in the loss of guns rights, those rights are restored automatically after 10 years, subject to two major exceptions. Convictions for certain firearm misdemeanors, for example some brandishing and discharge offenses, impose a lifetime prohibition. Also, a California misdemeanor conviction deemed to be "domestic violence" under Federal law currently results in denial for life.
If your denial was based on a criminal conviction, your attorney needs to know exactly which code section you were convicted of. You should begin by providing your attorney with copies of any paperwork you may already have such as court documents, letters from your original attorney, etc. Be prepared to tell your attorney the location of the court and the approximate date of your conviction. This will assist your attorney in obtaining copies of, or reviewing, the court file.
Denials Based On Mental Health Issues.
In California, a gun purchase is often denied because the purchaser has been detained under Welfare & Institutions Code §5150, which provides for detention and a 72 hour mental health evaluation of a person considered a danger to himself/herself or others. Those detained under §5150 may become subject to a five year ban on firearms possession and denied a gun purchase.
If your denial follows a §5150 detention, you can petition the superior court for an early termination of this five year ban. You should consider hiring an attorney to represent you. To be effective, your attorney will likely recommend you be examined by a psychiatrist or psychologist to determine if expert testimony or a report can be offered at the hearing of your petition, that you are a person likely to use firearms in a safe and lawful manner. Without such favorable evidence, the judge may deny your petition.
In California, if your psychotherapist reports that you have made, "a serious threat of physical violence against a reasonably identifiable victim or victims", you become subject to a five year ban on firearms possession. The procedure for an early termination of this five year ban is similar to that used for the five year ban imposed after a qualifying detention under §5150.
Denials Based On Restraining Orders.
Many California gun owners have lost their gun rights as a result of the issuance of a temporary restraining order against them; this can happen without notice and without the opportunity to oppose the issuance of a restraining order. The gun owner may not learn of this until they are served with a copy of the court order requiring the subject individual to relinquish their firearms to a law enforcement agency, or, to store them with or to sell them to a licensed gun dealer within 24 hours, and the officer serving the order may request immediate relinquishment.
If you are a California gun owner and you are served with a restraining order, given notice that a restraining order will be sought against you, or if you even suspect that this will happen, you should immediately hire an attorney so that you can oppose the issuance of the restraining order or seek to have the order vacated (i.e. terminated) or modified. Delay may result in the loss of your gun rights for up to five years.
Denials Based On Pending Felony Charges.
If you are charged with a felony, you may not purchase or receive a firearm, ammunition or ammunition components while such charges are still pending against you. Unless you are ordered not to possess firearms as a condition of release on bail or on your own recognizance, firearms already in your lawful possession may be retained.
Loss Of Gun Rights Also Prohibits Ammunition, Components, Magazines And Antique Firearms. Under California law, the loss of gun rights extends to ammunition, ammunition components, clips, magazines, speed loaders, autoloaders, other ammunition feeding devices and antique firearms.
The above examples of procedures used to clear your record are the most common. Depending upon the circumstances of your case, there may be other options or even obstacles. Remember, each case is different; gather your records and seek the assistance of our office.
This is general information only. It is not legal advice. The information contained within, is subject to change as a result of future court decisions and/or new legislation.
If you have questions concerning a specific item, or your personal situation, you should consult
The Law Offices of Bruce Colodny 800-560-8000.