Frequently Asked Questions - Expungement & Firearms

Q: My Certificate of Discharge from probation has the following language: "All civil liberties lost by operation of law a result of this conviction are hereby restored". Doesn't this mean that my right to possess firearms was restored when I was discharged from probation?

A: No. Washington courts have ruled that such language does not restore the right to possess firearms. A Certificate of Discharge must specifically state that firearm rights are restored.

Q: Can I possess firearms if my conviction was expunged or vacated?

A: Under Washington law, expunging or vacating a conviction removes it from public access, but does not authorize possession of a firearm. Although expunging, setting aside or vacating a conviction normally removes a federal firearm disability, it does not do so with respect to Washington state convictions because Washington statues provide that vacated convictions can be used in future prosecutions.

Q: Is it true that I can never again possess a firearm if I was convicted of a Class A felony or a sex offense?

A: No, but regaining the right is exceptionally difficult. The most recent court opinion on the subject was published on June 7, 2004, in Divisions I of the Court of Appeals: Washington v. Masangkay. The Masangkay court held that a person with a class A felony or sex offense cannot petition for reinstatement of firearm rights under RCW 9.41.040(3); rather, the offender must have a pardon, annulment, Certificate of Rehabilitation or other equivalent procedure based upon a finding or either rehabilitation or innocence. Ironically, Mr. Masangkay had not been convicted of either a class A felony or a sex offense. He filed a petition under RCW 9.41.040(3) in an attempt to regain his firearm rights prior to his 5-year waiting period required of felons under RCW 9.41.040(4). (Annulments and pardons are not discussed here.)

Division III of the Court of Appeals, in Smith v. Washington, also held there was no procedure for the issuance of a Certificate of Rehabilitation under Washington statutes. However, Judge Sweeny wrote a separate opinion to note that superior courts are constitutional courts and "have general jurisdiction over all cases and all proceedings which are not by law vested in some other forum or court". In other words, superior courts were not created by the legislature and are not constrained from granting relief simply because the legislature has not statutorily provided for such relief. The Masangkay court did not agree.

Although the Masangkay opinion would seem to lay the matter to rest, the Washington Supreme Court would have the final say when an appropriate case is taken up to the highest court. The only remedies other than a court order are a pardon and an annulment. While the statute provides that a person whose conviction has been the subject of a Certificate of Rehabilitation is not prohibited from possessing firearms, the courts are stating that such a certificate does not exist in Washington.

Q: Why am I now prohibited from possessing firearms when I didn't lose that right upon being convicted 20 years ago?

A: By 1996, Washington firearm laws prohibited persons convicted of any felony from possessing firearms. Federal and Washington courts have held that "felon in possession" statutes do not violate the "ex post facto" clauses of the federal and state constitutions because the law only proscribes future conduct, i.e. possession of a firearm, and does not increase the punishment for the prior offense. "Restriction of the right of convicted felons to possess firearms is a legitimate exercise of police power rationally related to governmental interest in securing public safety." [Huss, 7 F.3d 1444, (9th Cir. 1993)].

Clearly, no judge who has ever subscribed to this line of reasoning has ever had someone take away his or her privilege or right because of an act committed many years prior.

Read the story of a military veteran of 22 years and former policeman whose juvenile conviction, despite being dismissed and all rights restored, was told by the federal government he could neither purchase nor own firearms. Click here.

Q: I was convicted of a felony in another state. Can I have my firearm rights restored in Washington?

A: It is only fitting that since you can be prosecuted in Washington for possessing a firearm after being convicted of a felony in another state, that you can have the right to possess firearms within the State of Washington restored by a Washington court. You could not be prosecuted by the State of Washington. However, federal courts have held only the convicting jurisdiction may restore firearms rights. Thus, you could be prosecuted by the federal government. In order to remove the federal firearm disability and gain approval status with NICS, you must have your firearm rights restored by the state in which you were convicted. In some cases, an expungement or setting aside may remove the federal firearm disability - depending on the law of the state in which you were convicted.

Q: I was convicted of a federal crime that prohibits me from possessing firearms. Can I have my firearm rights restored in Washington?

A: You can have the right to possess firearms within the State of Washington restored by a Washington court, after which you could not be prosecuted by the State of Washington. However, you could be prosecuted by the federal government.

Until Congress restores funding to the ATF for reviewing applications to restore firearm rights, the only remedy available is a presidential pardon - an expensive and difficult option. Recently, in the case of Bean v. ATF, a federal district court granted a petition to restore firearm rights. The government appealed, and the 5th Circuit held that the refusal to review an application was effectively a denial, which paves the way for an appeal to federal court. Unfortunately, that decision was appealed and the U.S. Supreme court reversed the 5th circuit. You can read the opinion by clicking here.

Q: What if my out-of-state conviction was set aside, vacated or expunged?

A: You would not be subject to prosecution under federal law as long as such remedy did not expressly provide that you could not own, possess, ship or transport firearms, and the offense could not be used for any purpose in a future prosecution. You still need to have your right to possess firearms restored by a court in Washington or in the convicting jurisdiction. As a practical matter, if the conviction was expunged, i.e. the court file was destroyed, the prosecution would have a difficult time proving the prior conviction. Under Washington law, if no record of the conviction can be found, there is a rebuttable presumption that the person was never convicted of the offense.

Q: For purposes of the felon in possession of a firearm statute, is there a distinction between handguns, long rifles and muzzleloaders under Washington law?

A: No. "Firearm" means a weapon or device from which a projectile or projectiles may be fired by an explosive such as gunpowder. Thus, any firearm will support a charge of unlawful possession of a firearm. In fact, each firearm possessed will support a separate charge.

Q: Under federal law, a muzzleloader is not a restricted firearm. Can I hunt in Washington with a muzzleloader?

A: .Under Washington law, a muzzleloader is a firearm. You must have the right to possess firearms restored to avoid the risk of being prosecuted by the State of Washington. You could not be prosecuted by the federal government if the weapon meets the federal exception.

Q: Do I have to go before the same judge that sentenced me to get my firearm rights restored?

A: No. You can file a petition in any superior court. (You do have to return to the same court in which you were convicted to have a conviction vacated. Vacating a conviction does not restore firearm rights lost as a result of the conviction.)

Q: How long does it take to have my firearm rights restored?

A: Obtaining an order restoring firearm rights typically takes 2 to 3 weeks. The right to possess firearms is effective when the order is signed by the judge and filed with the court. Updating the WSP and FBI databases can take from 3 weeks to 3 months.

Q: Will I be eligible to obtain a Concealed Weapons Permit?

A: Yes. If the application for a CWP is made before the FBI database is updated, a certified court order should be presented with the application. You must also meet the eligibility requirements of RCW 9.41.070 and RCW 9.41.075.

Q: Why am I able to purchase firearms, but my application for a CWP was denied?

A: If you have a felony or DV crime and are approved by NICS, it means either that the crime was never reported to the FBI or that the conviction was set aside, vacated, expunged or sealed. Under federal law, a person whose felony or non DV conviction has been set aside or expunged is not precluded from possessing or acquiring a firearm. Under Washington law, however, setting aside, vacating, expunging or sealing a conviction does not remove the state firearm disability. Firearm purchases in Washington state are run through NICS, which checks your criminal history record maintained by the FBI. If you're clear with the feds, the dealer completes the transaction. An application for a CWP will be denied by the reviewing law enforcement agency if there is a conviction and the right to possess firearms has not been restored. There are a few exceptions.

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