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Thread: Open carrier has legal issue

  1. #1
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    Ok so here is the deal. A really good friend of mine wants to start open carrying out here in California. He served three years in the army, was discharged with an other than honorable discharge (which does not preclude him from owning a fire arm). Here is the hitch: Before he ever joined the army, he was arrested for, convicted of and did community service for felony possession of a weapon on school grounds, specifically two fixed blade knives, but while school was not in session during an extended closing for the holidays. Now normally that would preclude him from owning a fire arm, however it clearly states in the case paperwork that the sentence was deffered for two years after which pending no further arrests during that two year period the record would be expunged.

    Now, two years later he joins the Oklahoma national guard, as an infantryman. It gets pulled up and flagged as a felony, he tells them that he had been told it was expunged. They recruit him. For three (3) years he carries a burst fire assault weapon (specifically an M-4 carbine) and further more is entrusted with the use, service of, and discharging of an M-203 grenade launcher. His contract was for six years but after some discrepancies with his command the army decides that his contractual duties have been fulfilled and he is free to leave the service. No criminal charges were ever filed.

    During the last year of his time in the military he is arrested by local civilian police for possession of a concealed fire arm without a license. He is charged with a misdemeanor, kept in jail for 30 days until his hearing, then released with only a misdemeanor from the same courts that had convicted him of a felony only five years earlier, but whom supposedly had expunged that record.

    We ran a check on him just to make sure there wouldn't be any problems when he went to get his firearm. He was flagged as a felon in the state of Oklahoma for the possession of a weapon on school grounds charge. Now my question is this: How is it that he flags as a felony on public records but he was able to carry an assault rifle and explosives on his person at all times for three years in the army, and was only charged with a misdemeanor for possession of a concealed fire arm without a license? If you are a felon and get caught with a gun you are going to prison for a very long time.

    What recourse do we have to make it possible for him to legally purchase a hand gun or rifle?

    thanks in advance for your time and advice.

    rtarrent

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    It seems that this friend of yours needs to find an attorney that is well versed in this sort of thing.

    It is going to cost a few bucks, but to regain or retain ones 2A rights is well worth it IMO.

    If he is flagged a s a felon, I am guessing the gun he got caught carrying was not purchased from an FFL dealer. And why didn't the arrest turn into "Possession by a felon" charge too?

    Something is not quite correct here.

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    Now see that is what gets me, the courts honored his claim that it was expunged when they charged him with possession, the military allowed him to join and carry openly during his shifts and when off duty, /and/ when he bought the fire arm in question he was not stopped by the ATF from purchasing. I have seen the licensing on the weapon, it is legit and from two years after the charge was to be expunged.

    The only thing I can think of is that some county clerk ran across it, thought it was misfiled as an "expunged, sealed record" and restored it to the public database. If that is the case wouldn't it just take a trip to the Oklahoma county clerk's office to clear it up, or should he hire a lawyer and push litigation?

    To my knowledge he hasn't yet tried to purchase a firearm since getting out of the military and I don't know how this might effect that since the ATF already previously gave the green flag for him to purchase post-conviction...

    I will advise him to seek a civil rights attorney and see what can be done.
    But from what I have seen and read he has a legal right to own and carry a firearm.
    I can see his concern though, I mean for instance if I were to go to a job interview and they ran a background check on me and it came up I was a felon, I think I would be just as hesitant to carry in CA, the LEO's out here are crazy about those 12031 checks and some can get quite aggressive in trying to put you away for any reason.

    rtarrent

    p.s. what really gets me is that the only convictions on his record are for carrying weapons in a peaceable manner, I would hate to see him lose his 2nd amendment rights just for exorcising them! True he made some mistakes in how he was carrying, but OK is a no open carry state, so what was he supposed to do? Wear them on his hip and hope no one noticed?

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    Regular Member zoom6zoom's Avatar
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    when he bought the fire arm in question he was not stopped by the ATF from purchasing.
    ATF has nothing to do with this. Purchase checks go through the FBI, or in some states their own organization such as the state police.

    He really needs to have a professional help him clean up his records or they will haunt him a long time.



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    Regular Member Interceptor_Knight's Avatar
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    Your friend needs to lawyer up and try his bestest not to continue his pattern ofgetting caught on weapons violations.....

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    rtarrent wrote:
    <SNIP>
    We ran a check on him just to make sure there wouldn't be any problems when he went to get his firearm. He was flagged as a felon in the state of Oklahoma for the possession of a weapon on school grounds charge.
    <SNIP>
    Where did you run a check? I don't want to assume anything. Did you look online, or did you use similar services to that the dealer would use?

    If he has bought a firearm since his record was "expunged" why would he not be able to now, ordid I miss something?

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    His concern (and his coming to me for help) stems from a background check for a job returning the felon charge, despite it being expunged. We then did a DOC check in Oklahoma County court records online, and there it was for all the world to see. We have contacted a lawyer and he will be flying out to OKC in a few weeks to speak with a judge on the matter. From what the lawyer says there may be some restitution in it for him. Something about it interfering with his ability to work, but I'm not holding my breath. Looks like he will be able to OC when he gets back though.

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