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  1. #1
    Join Date
    Jan 2011
    Posts
    2

    Default How to Get the FBI to Update its NICS Database

    My question involves expungements or pardons for the state of: Washington and NICS Database




    I need assistance with the updating of the F.B.I.'s N.I.C.S.'s database. I am currently precluded from possessing a firearm due to the Lautenberg Amendment however I have taken the steps necessary to have this overturned if I understand this correctly.


    For individuals who find their gun rights revoked by the Lautenberg Amendment, having their misdemeanor record expunged, pardoned or their civil rights restored will regain legal access to firearms. (18 U.S.C. 921(a)(33)(B)(ii))


    (18 U.S.C. 921(a)(33)(B)(ii))

    A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.


    I have completely sealed and vacated all previous convictions on my record and when doing a W.A.T.C.H. (Washington Access To Criminal History) search it comes up completely clean. I have attempted to purchase a firearm since and was denied, I appealed with local law enforcecemt. to find out that I cannot own or possess a firearm but I am however eligible for a C.W.P. (I have all the court documentation as well as previous and current W.A.T.C.H. reports).


    I would like to know if this is something you think this is the proper process and what expenses would be incurred for this type of case?

    Thank You In Advance

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: How to Get the FBI to Update its NICS Database

    File an appeal, and document why their records are in error.

  3. #3
    Join Date
    Jan 2011
    Posts
    2

    Default Re: How to Get the FBI to Update its NICS Database

    I filed an appeal and got a letter back stating that I am disqualified under sections 921(a)(33) and 922(g)(9)


    921(a)(33)
    (A) Except as provided in subparagraph (C),[2] the term “misdemeanor crime of domestic violence” means an offense that—
    (i) is a misdemeanor under Federal, State, or Tribal [3] law; and
    (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.


    922(g)(9)
    (g) It shall be unlawful for any person—
    (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
    (2) who is a fugitive from justice;
    (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
    (4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
    (5) who, being an alien—
    (A) is illegally or unlawfully in the United States; or
    (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
    (6) who has been discharged from the Armed Forces under dishonorable conditions;
    (7) who, having been a citizen of the United States, has renounced his citizenship;
    (8) who is subject to a court order that—
    (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
    (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
    (C)
    (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
    (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
    (9) who has been convicted in any court of a misdemeanor crime of domestic violence,
    to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

    The letter also stated, "According to the WA State Attorney General's Office an opiniont was issued advising that a "vacated " conviction remains a conviction for the purposes of determining eligibility to purchase or redeem a firearm". The vacation (Superior Court order) does not specifically state that.

    Correct me if I am wrong but in the state of WA to vacate a conviction and to expunge a conviction are the same thing right?

    Even though the below statutes contradict the above IF am interpret them correctly.

    (It didn't go to court the charge was a plea bargain down from assault 4)

    921(a)(33)(b)(ii)
    (B)
    (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
    (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
    (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
    (aa) the case was tried by a jury, or
    (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
    (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.


    921(a)(20)

    (20) The term “crime punishable by imprisonment for a term exceeding one year” does not include—
    (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
    (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
    What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.


    I am prepared to hire an attorney to assist me in this I am curious as to what you folks think about the chances of a favorable outcome based on the facts presents above and also what a fair attorneys fee would be for representation in a case such as this. My 2nd Amendment is obviously being s*it on. I screwed up I own that it's been 10 years I want an end. The 10th Amendment should be enough but obviously it's not. I know I'm probably preaching to the choir on this one, but come on I raised my voice and I took the damn phone away from my meth addict of an ex-girl friend. This is just not right 10 years later I'm still paying the price WTF?

  4. #4
    Join Date
    Mar 2009
    Location
    Key West, FL
    Posts
    2,350

    Default Re: How to Get the FBI to Update its NICS Database

    Unless you had "adjudication withheld" you were still convicted as far as the Feds are concerned.
    Expungements return your civil rights, but not the right to own or possess a firearm or ammunition.

    The biggest problem is what the FEDS consider is a proper expungement. You can be clean at the state level but that original arrest and conviction is still in NCIC.

    You forget, NCIC is a database operated by the FBI, the federal government. They do NOT have to pay attention to any state court, they do what their regulations and the federal code tells them. They could care less what your opinion is.

    The only thing that might do something is to send them a certified copy of the court's judgment or order.

    Ten years means nothing. You won't get a gun in 20, 30 or 50 years either unless the law is changed in the meantime. And don't get caught with ammunition, that is just as bad.

    I know someone who was actually convicted for only one element of the crime, the intent element. The district court clerk actually entered the conviction as "intent to commit bank robbery." There is no such thing and on appeal the 7th Circuit said so and ordered the clerk to correct the judgment of conviction. That was 1982 and that change was never sent to NCIC, and this was a federal court. It has been wrong ever since.

    You will never win a constitutional argument in any federal court. Waste of time and lots of money.

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