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In response to a request from the Indiana State Police’s legal counsel, Attorney General Todd Rokita has issued a legal opinion that argues an expungement restores the rights of certain individuals to purchase or possess firearms.
Rokita issued the opinion on Feb. 2.
In the opinion, Rokita noted his office previously issued Official Opinion 2019-6 concerning the restoration of firearm rights under Indiana’s expunction statutes.
“This opinion updates and supplements Official Opinion 2019-6, and is put forth due to the misapplication of Indiana law by the Federal Bureau of Investigation (FBI) and is meant to clarify the firearm rights of an individual convicted as a serious violent felon under Ind. Code § 35-47-4-5, who subsequently has that crime expunged,” Rokita wrote, with the opinion addressed to Lieutenant Neal Foreman, the ISP’s legal counsel.
Rokita wrote that, although Indiana’s expungement process is inapplicable to certain felonies, a conviction of official misconduct, or a conviction for a crime of domestic violence, Ind. Code § 35-38-9-10(c) provides that an expungement fully restores a person’s civil rights, including the rights to vote, hold public office, serve as a juror, and be a “proper person” under Indiana law to purchase or possess a firearm.
“If the legislature intended to create a similar prohibition for serious violent felonies, it could have done so, and the absence of such an exception indicates a legislative intent to restore the civil rights of these individuals,” Rokita wrote.
Rokita wrote that the Legislature had spoken unequivocally as to what categories of felonies are eligible for expungement consideration, and Indiana’s expungement process does not apply to the following felonies:
- a sex or violent offender
- a person convicted of official misconduct
- a person convicted of any homicide offense
- a person convicted of any human and sex trafficking offense
- a person convicted of any sex crime offense
- a person convicted of two or more felony offenses that involved the unlawful use of a deadly weapon and were not committed as part of the same episode of criminal conduct
- a person convicted of a felony that resulted in the death of another person
These exceptions aim to keep people safe from violent felons obtaining weapons while also preserving the rights of those who have had more minor crimes erased or expunged from their criminal record, Rokita stated.
“In Indiana, we believe expungement restores civil rights, including Hoosiers’ Second Amendment rights,” Rokita said in a released statement. “America values justice and liberty for all, and this includes reinstating the right to vote, hold public office, serve as a juror, and purchase a firearm.”
Rokita wrote that the FBI has recently asserted that expungement does not restore a felon’s firearm rights when convicted of a serious violent felony under Ind. Code § 35-47-4-5.
He argued that the FBI appears to be improperly relying upon the serious violent felony statute as a means of denying firearm rights to individuals obtaining expungements for certain felony convictions under Indiana law.
Indiana Lawyer has reached out to the FBI for comment.
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