THE TENTH CIRCUIT CRANKS UP THE HEAT: EXPUNGEMENTS UNDER UTAH LAW AND THE FEDERAL FELON-IN-POSSESSION STATUTE*

Rich King

The Firearms Owners Protection Act and Felony Expungements

The federal felon-in-possession statute, the Firearms Owners Protection Act (FOPA), makes it unlawful for felons to possess firearms. FOPA applies to persons convicted of a crime punishable by imprisonment of a term exceeding one year, and thus includes felons convicted under Utah law. FOPA does provide, however, that felons can possess firearms if their convictions have been and under Utah law, a felony can be expunged. Therefore, it would appear that expungement of a felony under Utah law restores a felon In recent years, however, the United States Court of Appeals for the Tenth Circuit has placed strict limitations on the nature of felony expungements that allow a felon to possess firearms under FOPA.

State of Wyoming ex rel. Crank v. United States and expungement under FOPA

In State of Wyoming ex rel. Crank v. United States, the Tenth Circuit held that FOPA prohibits a felon from possessing firearms if a state procedure for expungement does not In Crank, the Court reviewed an expungement statute passed by Wyoming with the intention, and for the express purposes of: 1) qualifying felons to lawfully possess firearms under FOPA; 2) allowing felons to apply for Wyoming permits to carry concealed weapons that could not otherwise be issued under FOPA; and 3) allowing felons to purchase firearms from a federally licensed firearm dealer without submitting to a background check as required by federal law.

When Wyoming enacted its expungement statute in 2004, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent the Wyoming Attorney General a letter notifying Wyoming that: 1) because federal law preempts state law, federal law governs the definition of The ATF stated that Wyoming

Wyoming refused to comply with the ATF Thus, in the Tenth Circuit, a felon with his record expunged by a state can still face criminal liability under FOPA for possessing firearms if state law does not completely remove the effects conviction.

Utah felony expungement and felons-in-possession after Crank

The Tenth CircuitCrank confirms that it has joined the Fourth and Sixth Circuits, which look beyond a The Fifth, Seventh, Ninth, and D.C. Circuits, on the other hand, look solely to the language of the The circuits that have rejected the approach of Crank do so because they reason that: 1) the plain language of FOPA requires a court to look solely to the certificate restoring civil rights upon expungement; and 2) looking solely to the language of a in which the state expungement sets the bait and FOPA springs the trap, making prosecution under FOPA subject to the defense of entrapment by estoppel.

Until either Congress, or the Supreme Court of the United States, resolves the split in the circuits, however, district courts in the Tenth Circuit must address the holding of Crank in determining whether FOPA prohibits a felon from possessing firearms after a felony conviction is expunged under state law. Unfortunately, the Tenth Circuit has not addressed the issue of whether Utah Crank does provide a simple holding to guide courts confronted with a felon charged under FOPA after a Utah expungement: FOPA prohibits a felon from possessing firearms if a felony expungement under Utah law does not

In that regard, it is worth noting that Crank quotes, with approval, the ATF any state statute can completely remove the effects of a conviction upon expungement, as required by Crank.