BEN NEARY Associated Press writer | Posted: Monday, September 18, 2006 12:00 am
CHEYENNE - Wyoming's legal challenge against the federal government could serve as a national test case on whether people convicted of domestic violence can expunge their records and regain their right to own guns.
In a lawsuit that has attracted support from national gun groups, Wyoming in May sued the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. U.S. District Judge Alan Johnson is scheduled to hear arguments in the case on Oct. 6 in Cheyenne.
The state is asking Johnson to rule that the ATF acted illegally when it threatened to disallow the use of the approximately 11,000 concealed weapons permits the state has issued to its citizens as a substitute for federal background checks for firearms purchases.
The federal agency threatened to take that step unless the state moved to repeal a 2004 state law that allows people to go to court to expunge a first conviction for misdemeanor domestic violence.
"This is turning out to be a test case for the entire nation, and boy, I'm glad to have a small part in that," said state Sen. Cale Case, R-Lander, one of the sponsors of the state's legislation. "If we can get the constitutional rights remedied, that would be a great thing."
Congress in 1996 expanded the ban that prohibits convicted felons from owning guns to include anyone convicted of misdemeanor domestic violence. Some police officers with past convictions lost their jobs, and the Fraternal Order of Police challenged the law up to the U.S. Supreme Court but ultimately lost.
Case said he and former state Rep. Mike Baker, R-Thermopolis, sponsored the Wyoming expungement legislation after Case heard from a constituent who had lost his right to own firearms because of a misdemeanor domestic violence conviction and then discovered there was no way to appeal.
Although Congress had established a mechanism that would allow people to apply directly to ATF to have their gun rights restored, Case has correspondence from the federal agency telling him that Congress had long prohibited the use of federal funds for acting on such applications.
"I just look at it as constitutional; it is the Second Amendment," Case said. "And to me, one of the fundamental rights in society shouldn't be lost for anything less than a felony conviction."
Pat Crank, Wyoming attorney general, says the current lawsuit comes down to an issue of states' rights. The National Rifle Association and the Gun Owners Foundation in Washington, D.C., have both filed briefs supporting the state's position.
"We believe that Congress has very explicitly said that you look to state law to see if someone's firearms rights have been restored," Crank said.
Federal officials say they don't challenge Wyoming's standing to expunge misdemeanor records, but rather say that the particular state law fails to accomplish that.
Although the state law allows people to petition in court to expunge a first misdemeanor conviction, it specifies that the record of that first conviction will still be available for purposes of enhancing penalties for any subsequent crime.
"The nuts and bolts of the government's position is that an expungement of a conviction wipes the slates clean, and that an expungement erases a conviction." said Carol A. Statkus, assistant U.S. Attorney in Cheyenne and one of the lawyers defending ATF against in the lawsuit. "The Wyoming statute that's at issue in this case doesn't do that."
Mike Blonigen, district attorney in Casper and vice president of the Wyoming Prosecutors Association, said Wyoming needs to know either way whether its expungement law is valid in the eyes of the nation.
"I feel very uncomfortable telling people they're OK, when we don't know that they are," Blonigen said. "That's the biggest thing we're worried about: We do the expungement, they think they're OK, and they get into trouble in another state."
Blonigen said he sees the Wyoming case having national implications. "There may be other states where gun rights are very important, in the West and in the South, that are watching this very closely," he said. "I don't know of any other states that have tried this yet; it's kind of a unique law."
Donley Linford, acting Uinta County attorney, said he believes there are cases where it's appropriate to restore gun rights to people with prior convictions.
"I think most prosecutors take a long, hard look at it before they're willing to sign off on it, or give a consent to do it," Linford said. "But for the most part, we have prosecutors who are interested in more than just convictions and records; they're interested in justice.
"This is not New York or Los Angeles; this is rural Wyoming," Linford said. "And hunting and fishing is a pretty important thing in a lot of people's lives."
Daniel Webster, co-director for the Center for Gun Policy and Research at Johns Hopkins Bloomberg School of Public Health in Baltimore, Md., says he worked on a national study that found that the risk women face of being killed in an abusive relationships increases approximately fivefold when their male partners have access to guns.
Webster said Wyoming's effort to restore gun rights to people who have been convicted of domestic violence, "suggests that there's greater value being placed on guns than on individual's lives, and I think that's very sad."