AN EXPUNGEMENT IN OKLAHOMA DOES NOT RESTORE THE RIGHT TO POSSESS A FIREARM

A pardon in Oklahoma restores the right to possess a firearm if all felony convictions are pardoned and if all felony convictions were for nonviolent crimes.[1] That is not the case for pardoned felony convictions of violent crimes.[2] An expungement under Oklahoma law does not restore your right to possess a firearm. Law enforcement can continue to access records of an expunged conviction.[3] Furthermore, records of an expunged felony conviction can be introduced in court to prove the existence of a prior conviction without a prosecutor having to petition for a court order.[4] Thus, anyone who receives an expungement of a violent felony conviction should be aware that possessing a firearm is still a crime (felony) in Oklahoma. It does not matter whether or not the violent felony conviction was pardoned. Moreover, anyone who receives an expungement of a nonviolent-felony conviction and has not received a pardon should be aware that possessing a firearm is still a crime (felony).

Oklahoma law has historically been confusing as it applies to the legality of possessing a firearm by convicted felons who have had a felony conviction pardoned. In the late 1990s, the law was made a bit clearer.[5] For the first time, a pardon of a nonviolent felony conviction restored the right to possess a firearm.[6] An expungement does not restore said right.

As further explanation, the Legislature added a twist when it amended the expungement laws in 2018 to remove the pardon requirement for nonviolent felony convictions.[7] It did so again a year later. In 2019, it broadened the law even further to allow violent felony convictions to be expunged (for those who did not have a written finding of actual innocence by the Governor).[8] However, the expungement law does nothing to restore the right to possess a firearm for convicted felons.

Federal law provides a little more relief. The federal law that makes it unlawful for convicted felons to possess a firearm provides that an expunged conviction is not a conviction.[9] It states that a conviction that "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." The federal statute operates to treat 1) expunged, 2) set aside, and 3) pardoned as equals. So, a full arrest-records expungement (the type provided by Sections 18 and 19 of Title 22 of the Oklahoma Statutes) of a felony conviction in Oklahoma should prevent it from being a "conviction" under federal law. Oklahoma law, however, does not have a similar provision in its statutes.

Would such a violation of law be prosecuted in Oklahoma? It is possible, which is why individuals should be fully informed about the potential risk of possessing a firearm even with a full arrest-records expungement. It also exemplifies the need, at least for those who have a nonviolent felony conviction and want to lawfully possess a firearm, to seek a pardon of said conviction before seeking an expungement of the records.

In 2019, the Legislature amended the law to permit carrying a firearm without a concealed-carry permit. However, it also made it illegal (a misdemeanor) to carry a gun after having been convicted of certain enumerated crimes.[10] The enumerated offenses include: assault and battery (A&B) causing serious physical injury, aggravated A&B, A&B qualifying as domestic abuse, stalking, violating a victim protection order, and unlawful drug use and possession. Several of the enumerated crimes are misdemeanors and not nonviolent felonies.[11] Said statute fails to provide for the restoration of the right to carry a firearm upon a pardon or expungement. Because Oklahoma law lacks any reference to the restoration of the right to carry a gun after a misdemeanor conviction, the right is not going to be restored by an expungement. If you are considering an expungement of a misdemeanor conviction for one of the enumerated crimes, you should be aware of this recent change in the law.

[1] 21 O.S. § 1283(B).

[2] See 1.

[3] 22 O.S. § 18(D).

[4] See 3.

[5] Enrolled Senate Bill 628 (1997) (Enrolled Senate Bill provided because OSCN.com has only Oklahoma Session Laws since 1998 and the Secretary of State’s website only contains legislation introduced since 2001).

[6] See 5.

[7] 2018 O.S.L. 127, § 1.

[8] 2019 O.S.L. 379, § 1.

[9] 18 USCA § 921(a)(20)(B); 18 USCA § 922(g).

[10] 2019 O.S.L. 1, § 1.

[11] See 10.