Expert: Robert P. Firriolo - 2/1/2012

Question
I wasconvicted of a Class E felony in NYS in 1971. Received a CRD from NYS in 1973 after 1 year probation.I want to purchase a handgun in FL. Do I answer question 11 "no" on the Form 4473? On the CRD box B is checked-Relieves the holder of all disabilities and bars to employment except public office.

Wil I pass the NICS?

Answer
A person is not considered convicted for Gun Control Act purposes if he has been pardoned, had his civil rights restored, or the conviction was expunged or set aside, unless the pardon, expungement, or restoration expressly provides the person may not ship, transport, possess, or receive firearms. See 18 U.S.C. 921(a)(20) and (a)(33).

When a person purchases a firearm from a federally licensed dealer, he or she is required to fill out a Firearm Transaction Record (Over-The-Counter), commonly known as a 4473 form. This form asks in question 11.c if the applicant has ever been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned him for more than one year, even if he received a shorter sentence including probation.

The 4473 form then refers to the following instruction for answering that question:

EXCEPTION to 11.c. and 11.i.: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights (the right to vote, sit on a jury, and hold public office) taken away and later restored AND (2) the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms. Persons subject to this exception should answer "no" to 11.c. or 11.i. as applicable.

The last line of those instructions applies to your first question. A convicted felon who has had his or her civil rights fully restored may answer "no" to question 11.c.

The following information on what one needs to have a full restoration of rights in New York is excerpted from the state Division of Probation and Correctional Alternatives guidance document:

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It is a crime in New York State (Criminal Possession of a Weapon in the Fourth Degree) for an offender convicted of a felony or serious offense, to possess a rifle or shotgun and any such conviction automatically excludes an individual from securing a firearm [handgun] license (see Penal Law (PL) §§ 265.01(4) and 400.00(1)(c)). Exempted from prosecution is an individual who has been issued a Certificate of Good Conduct permitting possession (see PL§265.20(5)). After review of pertinent case law and written communication between the NYS Division of Criminal Justice Services and the federal ATF, it has been determined that an individual who has received a Certificate of Relief from Disabilities under Correction Law §701 permitting possession of any such firearms, will qualify for an exemption under PL§265.20(5). The individual would still need to secure a license to legally possess such weapons and other criteria must be met (see PL § 400.00).

A state Certificate of Relief from Disabilities or Certificate of Good Conduct may only remove New York State’s statutory bar to apply for and receive a license to possess a firearm imposed upon those convicted of a felony or serious offense. It is the position of the the federal Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") that unless an individual has had his or her rights fully restored, then there still exists a Federal disability or bar in this area.

According to the ATF, a person’s civil rights have not been fully restored unless, under State law, that person is eligible to hold public office, register to vote at a general election and serve on a jury in a court of that state. As to ability to hold public office, a Certificate of Relief from Disabilities cannot restore eligibility for public office (see Correction Law §701(1)). However, a Certificate of Good Conduct granted by the New York State Board of Parole can restore a person’s eligibility to hold public office.

A person who has been sentenced to a state correctional institution loses his/her right to hold public office (see Civil Rights Law §79(1)). If he/she completes his/her maximum sentence of imprisonment or is discharged from parole, then by operation of New York law, this person may again lawfully run for public office and a certificate would not be needed to restore this right. Further, a person’s right to hold public office is not forfeited upon conviction of a felony if the person is given a probation sentence or not sentenced to a state correctional facility.

Federal authorities do not require that these aforementioned State certificates specifically mention an offender’s ability to possess firearms. Presently, where either box (a) or (b) is checked by the court or Board of Parole on the signed certificate form (see DPCA-53 (04/04)), no Federal barrier exists and an individual may legally possess a firearm.

See: http://dpca.state.ny.us/pdfs/certificatesofrelieffromforfeituresanddisabilitiesq for the full document.

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The holder of a CRD with box "b" checked who received only probation (i.e., was not also sentenced to a state correctional facility) would be eligible to run for public office under New York law. Absent other facts to the contrary, that person would appear to have had all civil rights restored, and would not be prohibited under New York law from receiving or possessing firearms, and would thus fall within the Question 11 exception described on the 4473 form instructions.

Regarding whether you will pass a NICS check, that is impossible to answer. There is no way of knowing whether your relief from disability is in the NICS database. If you are denied because of the conviction for which you have been relieved, you may appeal the denial and provide proof of relief from disability.

Good luck to you.

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