CAN YOU GET YOUR GUN RIGHTS BACK AFTER A CONVICTION?
Feb. 11, 2022
Most people are aware that being convicted of a crime can result in the loss of some of your rights. If you are looking into this issue because you have already been convicted, it’s very likely that the Judge at your plea and/or sentencing listed out some of these rights. These include your right to vote, hold public office, serve on a jury, and own or possess a firearm. What rarely comes up at those hearings is how long your rights are affected for and what you can do to potentially restore these rights in the future. Additionally, many people don’t know that being the subject of a protective order or having a conviction for a misdemeanor domestic violence charge can also impact this right. That’s why every week, our firm receives multiple calls asking when and how a person’s right to bear arms can be restored following a conviction or court order.
Current Kansas Law: The most important thing to realize when analyzing this issue is that there are two different sets of laws to consider: state law and federal law. Kansas state law is often times more lenient and has shorter restrictions on the loss of the right to own or possess a firearm compared to federal law. This is especially true after the Kansas state legislature lessened the restrictions in 2021.
Let’s first examine what Kansas state law says. Below is a very simplified breakdown of what sort of ban you can expect based on a felony conviction according to K.S.A. 21-6304, effective July 1, 2021:
Convicting court found firearm was used in the commission of the crime
Convicting court found firearm was NOT used in the commission of the crime
3 Year Ban OR 8 Year Ban*
3 Month Ban
*Depends upon the severity of the Person Felony. More serious crimes such as murder, manslaughter, aggravated assault, aggravated battery, criminal threat, robbery, rape, aggravated criminal sodomy, aggravated sexual battery, and aggravated burglary carry an 8-year ban.
The table above is a very simplistic breakdown and is certainly not all encompassing. Like in most areas of the law, there are of course exceptions to watch out for and additional factors to take into consideration. It’s important to know exactly what your underlying conviction is, whether the convicting court made a finding that a firearm was use in the commission of the crime, and when the offense and conviction both took place.
You can be subject to a firearm ban in Kansas even if your prior crime was a juvenile adjudication or was committed outside of Kansas. For instance, according to K.S.A. 21-6304, person felonies also include adjudications by juvenile offenders that if done by an adult would constitute the commission of a person felony. They also include a crime under the laws of another jurisdiction which is substantially the same as such person felony in Kansas law.
Also note that the period of time for all of the non-lifetime bans mentioned above are not from your final court date, but instead from the end of your period of incarceration, diversion, or supervision. That means, it is from:
The date the person satisfied the sentence imposed,
The date of successful completion of diversion, or
The date of discharge from probation, community corrections, parole, post-release supervision, conditional release, or a suspended sentence.
As stated above, it’s very important to know your date of conviction when examining this issue as these laws have changed over time. Your conviction may have occurred before the current law was in place and you therefore may be subject to different timelines of bans or penalties.
A felony conviction is not the only legal issue that can impact your right to own or possess a firearm in Kansas. According to K.S.A. 21-6301, a person may be subject to the charge of Criminal Use of Weapons if found in possession or ownership of a firearm. Some common situations where this can happen is:
PFA/PFS: If you are subject to an order of Protection from Abuse (PFA) or in some instances Protection from Stalking (PFS), and you are still currently in the period of time covered by that order. (K.S.A. 21-6301(a)(17))
Domestic Violence: If you have been convicted of a misdemeanor domestic violent (DV) offense within the last five years. (K.S.A. 21-6301(a)(18))
Potential Consequences: Owning or possessing a firearm in any of the above instances can have serious consequences under Kansas state law. If you have a felony conviction and you are found to own or possess a firearm during the time of your ban, you can be prosecuted for Criminal Possession of a Firearm (K.S.A. 21-6304). If you fall into the category of PFA/PFS or DV conviction, you can be prosecuted for Criminal Use of a Weapon (K.S.A. 21-6301). Under any of these scenarios listed here, your charge would be a Level 8 Non-Person Felony. Depending on your criminal history and any special rules that may apply to your case, a conviction could carry prison time ranging from 7-23 months and/or a fine as high as $100,000.
Federal Law Considerations and Expungement: According to federal law, it shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person:
Is under indictment for or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year (felony),
Is subject to a court order like a PFS or PFA under Kansas state law, or
Has been convicted in any court of a misdemeanor crime of domestic violence.
Many people ask whether these timelines are changed if they get their conviction expunged. The Kansas legislature has gone back and forth on this issue several times. Currently, Kansas law states that the provisions above shall NOT apply to a person who has had their conviction expunged or who has been pardoned of their crime. But even this new rule has exceptions depending on the specific ban that is imposed. For instance, if you are subject to an eight year ban because your conviction was one of the serious person felonies noted above, an expungement of that underlying felony does not shorten your firearm ban (K.S.A. 21-6304(c)). And once again, it’s important to know the date of your conviction. Because the current statute does not specifically say the expungement provisions are retroactive, then if your conviction happened before July 1, 2021, you are subject to the law that was in place at the time of your conviction. See State v. Jaben, 294 Kan. 607 (2012).
If your rights have been restored under state law, meaning your may now own or possess a firearm because you no longer fall under any of the bans discussed herein, then typically your rights are restored under federal law (18 U.S.C. 921(a)(20). There are of course always exceptions, distinctions, and complications. That’s why it is important to discuss the exact details of your case or conviction with your attorney to get the right answer.
Conclusion: The right to own or possess a firearm is incredibly important to some people but can often be overlooked or not considered when you are in the middle of a case. If you have a pending criminal case or a pending protection order case (PFA or PFS) you need to speak to an attorney about the possible implications of conviction or final orders in those cases before moving forward. If you are looking into this issue because you have already been convicted and you have more questions, you should reach out to our office. Roth Davies LLC proudly serves clients in Overland Park, Kansas and throughout Johnson County.