Restoration of gun rights in California

There are many ways for a person to lose their gun rights in California. If they were convicted of a felony or certain misdemeanor crimes, the person is subject to a restraining order, it’s a term of probation, or because of a mental health incident.  To have these rights restored, you need to take action to clear the conviction, restraining order, or mental health hold that is preventing you from possessing firearms.   California law provides several different options for cleaning your criminal record which may have the effect of restoring your gun rights.

Must be Eligible under both State and Federal Law

Despite being eligible to possess firearms under California law, a person may still be prohibited from possessing guns under federal law.  You must review both California and Federal firearm restrictions to determine if you are eligible to purchase and possess guns.  For conviction restrictions under federal law (including misdemeanor domestic violence) a person is prohibited until the conviction has been expunged, set aside or until the person has been pardoned, or has had their civil rights restored.  California does not offer a “set aside” or “expungement” that meets federal requirements. Under California law, a person may request a pardon and certificate of rehabilitation to restore their firearm rights provided the offense did not involve a firearm. If a felony is reduced to a misdemeanor, that will restore a person’s firearm rights under federal law unless it was for a domestic violence offense. A felony reduced to a misdemeanor is considered a misdemeanor for all purposes under both state and federal law.  As you can see, the restoration of gun rights under both state and federal law can be confusing.  You should consult with an attorney that is an expert in the restoration of gun rights.   

Attempting to purchase a gun when prohibited is a crime

If you think you are prohibited from possessing firearms or ammunition, you should not fill out paperwork to purchase a firearm because you could subject yourself to prosecution. These forms are signed under penalty of perjury, and require you to state that you are not prohibited from owning a firearm. Answering falsely is a crime, and under Cal DOJ’s California Armed Prohibited Person Program (CAPP) if you are a prohibited person and you attempt to purchase a firearm you will be investigated by police.

Determining your Eligibility to Possess guns 

If you want to find out if you are restricted from purchasing or possessing a firearm, you should fill out a “Personal Firearms Eligibility Check” and file it with the DOJ.  You can find the form at the California Department of Justice website.  It is Bureau of Firearms form number 116.  If you are determined to be ineligible, you can find out the reason why from DOJ.  Once you find out what your restriction is you can begin to work to clear it.   

Restoration of Gun Rights – Felony Reduced to Misdemeanor

Many California crimes can be charged as either felonies or misdemeanors.  These types of offenses are called “wobbler” offenses.  If you were convicted of a felony “wobbler” offense and received probation, not a state prison sentence, you can file a motion to have the judge reduce your felony to a misdemeanor.  Although there are exceptions, a 17(b) reduction of your felony to a misdemeanor will restore your gun rights under both California and Federal law.   Assuming you have nothing else on your criminal record which would still prohibit you from owning a firearm, or that the misdemeanor your charge was reduced to doesn’t have a lifetime or 10-year gun ban.  A judge may grant a 17(b) petition at any time.  To receive a reduction under 17(b), the applicant must demonstrate “good cause”, and must demonstrate that the requested relief “serves the interests of justice”.  If your conviction was not a wobbler crime, this is called a straight felony; you will need to apply for a Certificate of Rehabilitation, which is also an application for a governor’s pardon. A pardon may restore your gun rights.

California Restoration of Gun rights – Prop. 64 Marijuana Expungement

On November 8, 2016 California voters passed Prop. 64 also known as “The Adult Use of Marijuana Act”.  Prop. 64 legalized possession of small amounts of marijuana at home, reduced some marijuana crimes from felonies to misdemeanors and others from misdemeanors to infractions, plus it gives grounds to reduce or dismiss prior marijuana convictions. If your only felony conviction is a marijuana related offense and you are entitled to relief under Prop. 64, then a Prop. 64 reduction is a “misdemeanor or infraction for all purposes.” So that means a Prop. 64 reduction will probably restore gun rights.

California Restoration of Gun Rights – Correcting Errors In DOJ Records

Sometimes a person attempts to purchase a gun and gets denied even though they have purchased guns in the past.  Errors in the DOJ database, changes in the law, or new interpretations of the law could be the problem.  There is a way to correct an error in DOJ’s database.  A person can question the accuracy of their DOJ criminal record by submitting a written request to the DOJ.  The request shall include a statement of the alleged inaccuracy or incompleteness in the record, and its materiality, and shall specify any proof or corroboration available. Upon receipt of the request, the department shall review the record to determine if the information correctly reflects the source document.  If there is an error, the DOJ shall make the necessary corrections and shall provide the person with a corrected copy of the record.

Restoration of Gun Rights – Pardon  

If you are convicted of “straight” felony, received a state prison sentence, or convicted of certain misdemeanors, your only option to restore your firearm rights is a pardon.  The Governor of California has the authority to pardon individuals for certain misdemeanor or felony convictions. Obtaining a pardon is an achievement based upon proof of a useful, productive, and law-abiding life following conviction.  The procedure to apply for a pardon varies, depending on the offense for which the applicant was convicted.  In most cases, a gubernatorial pardon will restore gun rights unless the applicant was convicted of a crime involving dangerous weapons.

Restoration of Gun Rights – Misdemeanors  

Misdemeanants with 10-year firearm restrictions must wait for the 10 years to expire unless their conviction was added to the list of prohibiting misdemeanors after they were convicted. All other misdemeanor convictions will need to be pardoned in order for relief from a firearm restriction.

Restoration of Gun Rights – Juvenile Wards of Court    

When a juvenile is adjudged a juvenile ward of the court and prohibited until the age of 30, the juvenile will need to have their case sealed and any probation terms limiting the ability to possess firearms would need to be terminated or modified.

California Restoration of Gun Rights – Modification of probation

Often courts impose “weapons restrictions” as a condition of probation in a criminal case. This prohibits the possession or ownership of any dangerous or deadly weapons, usually for the term of probation which can be 3 to 5 years.  A motion to modify probation can be filed to modify the probation terms so that possession of a firearm is allowed by the court. 

California Firearm Prohibition – Restraining Orders

A person is prohibited from having firearms if the person is subject to a temporary restraining order, permanent restraining order, protective order, or injunction issued pursuant to: Code of Civil Procedure sections 527.6 and 527.8 of; 6218 of the Family Code; 136.2 and 646.91 of the Penal Code; or 15657.03 of the Welfare and Institutions Code.

Restoration of Gun Rights – Restraining Orders     

If you lost your gun rights because you became the subject of a civil harassment or domestic violence restraining order, you will need to have the order removed by the protected party, wait until the order terminates by operation of law, or file a motion to have the restraining order modified or terminated early.  If the court grants the modification to allow gun possession or terminates the order early, your gun rights may be restored.     

California Firearm Prohibition – Mental Incapacity 

Mental disorders outlined in Welfare and Institutions sections 8100 and 8103 prohibit persons from possessing firearms. These restrictions apply to those who: are considered dangerous inpatients; have communicated a threat to their psychotherapist; are adjudicated to have a mental disorder, mental illness, or are a mentally disordered sex offender; are found not guilty by reason of insanity; are incompetent to stand trial; are placed under conservatorship; are committed pursuant to Welfare and Institutions Code section 5150; or are “certified” for intensive psychiatric treatment. Depending on the restriction, a person is prohibited until the person’s rights are restored by the court, the restriction period ends, or the individual no longer falls under the category of a restricted person under the section.

California Restoration of Gun Rights – Mental Health Detention (5150)

Individuals restricted as a result of a mental health restriction can have a court decide if they may safely possess firearms again or wait for the restriction to terminate.  If you were held at a mental health facility which resulted in a determination that you were a danger to yourself or to others, your gun rights in California will be taken away for a period of five years.  If your initial mental health detention was not involuntarily extended beyond the initial 72 hours, you can petition the Superior Court for an order terminating the 5-year termination of your gun rights.  You can only file the petition once. 

Federal Restoration of Gun Rights – Mental Incapacity   

Federally, prior to the NICS Improvement Act, section 922(g)(4) was effectively a lifetime prohibition on possessing firearms by any person “who had been adjudicated a mental defective or who has been committed to a mental institution”.  The Act, however, provides that when relief is granted under a federal or state relief from disabilities program that meets the requirements of the Act, or when certain automatic relief conditions are met with respect to persons federally adjudicated or committed, the event giving rise to the mental health disability is “deemed not to have occurred” for purposes of the federal firearm prohibition.   

Domestic Violence Convictions Takes Away Gun Rights

If you suffered a conviction for a domestic violence charge like a PC273.5 or PC243(e)(1), you will not be able to restore you gun rights because the DV conviction triggers a lifetime ban on your federal criminal record.  Even if the conviction is for a misdemeanor offense or has been expunged under PC1203.4.  Under federal law, any domestic violence conviction precludes the person from ever owning guns again.  So while California law allows you to have your gun rights restored after 10 years in a misdemeanor domestic violence case, federal law still prohibits you from owning, purchasing, or possessing a gun for life.  This is because you can’t legally possess a gun in California unless both your state and federal criminal records are clear of restrictions. (Title 18, United States Code, Section 922(g)(9) [the Lautenberg Amendment bans the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence).    

California Expungement PC1203.4 Does Not Restore Gun Rights

A successful 1203.4 petition may change a defendant’s criminal record so that the case shows up as a “dismissal” rather than a “conviction” but it does nothing for gun rights. If you read the expungement order, it clearly states that a 1203.4 dismissal does not relieve a person of their duty to register as a sex offender and will not restore their rights to purchase or possess firearms.

PROP. 47 DOES NOT RESTORE GUN RIGHTS

Prop. 47 reduced many crimes from felonies to misdemeanors.  Since the law is retroactive, people who had been convicted of felonies years ago were suddenly eligible to apply to have their old convictions reduced to misdemeanors.  A Prop. 47 reduction from a felony to a misdemeanor will not restore your firearm rights. To restore your firearm rights, you will first need to reduce your felony to a misdemeanor under Penal Code 17b, not Prop. 47.  After that, you will need to make sure that you have no other felony convictions or registration requirements that disqualify you from firearm possession in California. This includes misdemeanors that carry a ten-year prohibition on owning or possessing firearms.  Lastly, you must be eligible to have your firearms rights restored under federal law.

Gun Prohibitions Includes Ammunition

Most people are unaware that under California and federal law a person prohibited from possessing firearms is also prohibited from possessing ammunition. Under California law these restrictions include magazines, clips, speed loaders, autoloaders, or projectiles capable of being fired from a firearm.

CALIFORNIA DEPARTMENT OF JUSTICE BUREAU OF FIREARMS

FIREARMS PROHIBITING CATEGORIES

State and federal law make it unlawful for certain persons to own and/or possess firearms, including:

• Any person who is convicted of a felony, or any offense enumerated in Penal Code sections 29900 or 29905.
• Any person who is ordered to not possess firearms as a condition of probation or other court order listed in Penal Code section 29815, subdivisions (a) and (b).
• Any person who is convicted of a misdemeanor listed in Penal Code section 29805 (refer to List of Prohibiting Misdemeanors).
• Any person who is adjudged a ward of the juvenile court because he or she committed an offense listed in Welfare and Institutions Code section 707(b), An offense described in Penal Code section 1203.073(b), or any offense enumerated in Penal Code section 29805.
• Any person who is subject to a temporary restraining order or an injunction issued pursuant to Code of Civil Procedure sections 527.6 or 527.8, a protective order as defined in Family Code section 6218, a protective order issued pursuant to Penal Code sections 136.2 or 646.91, or a protective order issued pursuant to Welfare and Institutions Code section 15657.03.
• Any person who is found by a court to be a danger to himself, herself, or others because of a mental illness.
• Any person who is found by a court to be mentally incompetent to stand trial.
• Any person who is found by a court to be not guilty by reason of insanity.
• Any person who is adjudicated to be a mentally disordered sex offender.
• Any person who is placed on a conservatorship because he or she is gravely disabled as a result of a mental disorder, or an impairment by chronic alcoholism.
• Any person who communicates a threat to a licensed psychotherapist against a reasonably identifiable victim, that has been reported by the psychotherapist to law enforcement.
• Any person who is taken into custody as a danger to self or others under Welfare and Institutions Code section 5150, assessed under Welfare and Institutions Code section 5151, and admitted to a mental health facility under Welfare and Institutions Code sections 5151, 5152, or certified under Welfare and Institutions Code sections 5250, 5260, and 5270.15.
• Any person who is addicted to the use of narcotics (state and federal).
• Any person who is under indictment or information in any court for a crime punishable by imprisonment for a term exceeding one year (federal).
• Any person who has been discharged from the military under dishonorable conditions (federal).
• Any person who is an illegal alien (federal).
• Any person who has renounced his or her US Citizenship (federal).
• Any person who is a fugitive from justice (federal).

CALIFORNIA DEPARTMENT OF JUSTICE BUREAU OF FIREARMS

FIREARMS PROHIBITING CATEGORIES

Firearm prohibitions for misdemeanor violations of the offenses listed below are generally for ten years from the date of conviction, but the duration of each prohibition may vary. All statutory references are to the California Penal Code, unless otherwise indicated. Threatening public officers, employees, and school officials (Pen. Code, § 71).

• Threatening certain public officers, appointees, judges, staff or their families with the intent and apparent ability to carry out the threat (Pen. Code, § 76).

• Intimidating witnesses or victims (Pen. Code, § 136.1).

• Possessing a deadly weapon with the intent to intimidate a witness (Pen. Code, § 136.5).

• Threatening witnesses, victims, or informants (Pen. Code, § 140).

• Attempting to remove or take a firearm from the person or immediate presence of a public or peace officer (Pen. Code, § 148(d)).

• Unauthorized possession of a weapon in a courtroom. Courthouse, or court building, or at a public meeting (Pen. Code, § 171(b)).

• Bringing into or possessing a loaded firearm within the state capitol, legislative offices, etc. (Pen. Code, § 171(c)).

• Taking into or possessing loaded firearms within the Governor’s Mansion or residence of other constitutional officers (Pen. Code, 171(d)).

• Supplying, selling or giving possession of a firearm to a person for participation in criminal street gangs (Pen. Code, § 186.28).

• Assault (Pen. Code, §§ 240, 241).

• Battery (Pen. Code, §§ 242, 243).

• Sexual Battery (Pen. Code, § 243.4).

• Assault with a stun gun or taser weapon (Pen. Code, § 244.5).

• Assault with a deadly weapon other than a firearm, or with force likely to produce great bodily injury (Pen. Code, § 245).

• Assault with a deadly weapon or instrument; by any means likely to produce great bodily injury or with a stun gun or taser on a school employee  engaged in performance of duties (Pen. Code, § 245.5).

• Discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3).

• Shooting at an unoccupied aircraft, motor vehicle, or uninhabited building or dwelling house (Pen. Code, § 247).

• Inflicting corporal injury on a spouse or significant other (Pen. Code, § 273.5).*

• Willfully violating a domestic protective order (Pen. Code, § 273.6).

• Drawing, exhibiting, or using deadly weapon other than a firearm (Pen. Code, § 417, subd. (a)(1) & (a)(2)).

• Inflicting serious bodily injury as a result of brandishing (Pen. Code, § 417.6).

• Making threats to commit a crime which will result in death or great bodily injury to another person (Pen. Code, § 422).

• Bringing into or possessing firearms upon or within public schools and grounds (Pen. Code, § 626.9).

• Stalking (Pen. Code, § 646.9).

• Armed criminal action (Pen. Code, § 25800).

• Possessing a deadly weapon with intent to commit an assault (Pen. Code, § 17500).

• Driver of any vehicle who knowingly permits another person to discharge a firearm from the vehicle or any person who willfully and maliciously discharges a firearm from a motor vehicle (Pen. Code, § 26100, subd. (b) or (d)).

• Criminal possession of a firearm (Pen. Code, § 25300).

• Firearms dealer who sells, transfers or gives possession of any firearm to a minor or a handgun to a person under 21 (Pen. Code, § 27510).

• Various violations involving sales and transfers of firearms (Pen. Code, § 27590, subd. (c)).

• Person or corporation who sells any concealable firearm to any minor (former Pen. Code, § 12100, subd. (a)).

• Unauthorized possession/transportation of a machine gun (Pen. Code, § 32625).

• Possession of ammunition designed to penetrate metal or armor (Pen. Code, § 30315).

• Carrying a concealed or loaded firearm or other deadly weapon or wearing a peace officer uniform while picketing (Pen. Code, §§ 830.95, subd. (a), 17510, subd. (a)).

• Bringing firearm related contraband into juvenile hall (Welf. & Inst. Code, § 871.5).

• Bringing firearm related contraband into a youth authority institution (Welf. & Inst. Code, § 1001.5).

• Purchase, possession, or receipt of a firearm or deadly weapon by a person receiving in-patient treatment for a mental disorder, or by a person who has communicated to a licensed psychotherapist a serious threat of physical violence against an identifiable victim (Welf. & Inst. Code, § 8100).

• Providing a firearm or deadly weapon to a person described in Welfare and Institutions Code sections 8100 or 8103 (Welf. & Inst. Code, § 8101).

• Purchase, possession, or receipt of a firearm or deadly weapon by a person who has been adjudicated to be a mentally disordered sex offender or found to be mentally incompetent to stand trial, or not guilty by reason of insanity, and individuals placed under conservatorship (Welf. & Inst. Code, § 8103).

The following misdemeanor convictions result in a lifetime prohibition:

• Assault with a firearm (Pen. Code, §§ 29800, subd. (a)(1), 23515, subd. (a)).

• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, house car or camper (Pen. Code, §§ 246, 29800, subd. (a)(1), 17510, 23515, subd. (b)).

• Brandishing a firearm in presence of a peace officer (Pen. Code §§ 417, subd. (c), 23515, subd. (d), 29800, subd. (a)(1)).

• Two or more convictions of Penal Code section 417, subdivision (a)(2) (Pen. Code § 29800, subd. (a)(2)).

* A “misdemeanor crime of domestic violence” (18 U.S.C. §§ 921(a)(33)(A), 922(g)(9)).