February 27, 2017 Practice Points

Expungement and Firearm Possession Post-Conviction

Recent developments in the federal courts concerning motions to possess a firearm and for expungement after conviction.

By James R. Wyrsch – February 27, 2017

Lawyers who defend criminal cases in federal courts are frequently asked by their clients whether their convictions can be expunged and whether they can possess a firearm after their convictions. The two cases discussed below highlight recent petitions based on these issues.

In the recent case of Binderup v. The Attorney General of the United States, 836 F.3d 336 (3d Cir. 2016), the court of appeals, by an 8–7 vote, affirmed the lower court’s decision granting the plaintiffs’ motion to possess firearms after having been convicted of crimes that disqualified them from possessing firearms pursuant to 18 U.S.C. § 922(g)(1). The Third Circuit, applying the Supreme Court’s holding in District of Columbia v. Heller, 554 U.S. 570 (2008), decided that the plaintiffs had a right to possess handguns for self-defense in the home. The attorney general has now petitioned the U.S. Supreme Court to review the Third Circuit’s opinion, Case No. 16-847 (2017 WL 83637). The petition states, in part, that the Binderup decision departs from the decisions of other courts of appeal.

In Doe v. United States of America, 833 F.3d 192 (2d Cir. 2016), the Second Circuit held that it did not have collateral jurisdiction to grant Doe’s motion for expungement and, therefore, overruled the trial court’s decision to grant expungement. The Second Circuit stayed its order pending Doe’s petition to the U.S. Supreme Court, which was filed on January 9, 2017: Case No. 16-876 (2017 WL 117397). The petition argues that the circuit courts have decided the collateral jurisdiction issue in different ways.

James R. Wyrsch is president of Wyrsch Hobbs & Mirakian in Kansas City, Missouri.

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