No Second Amendment Rights For You
If you are charged with a crime you’re part of the State of Michigan family now. Call us – Because you don’t want to be a part of that family.
Komorn Law (248) 357-2550
A federal judge in Michigan has ruled that a man with a prior misdemeanor conviction for domestic violence remains prohibited from possessing firearms under federal law, even though a Michigan state court had previously set aside that conviction.
Jeramy Wilburn, the plaintiff in the case, began acquiring firearms after his domestic violence conviction was set aside by the state court, believing he was once again eligible to do so. However, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) confiscated his weapons, asserting that he was still federally prohibited from owning them.
Wilburn subsequently sued the ATF and its Director, alleging violations of his Second Amendment rights and seeking a preliminary injunction to have his firearms returned.
U.S. District Judge Susan K. DeClercq sided with the government, granting their motion to dismiss Wilburn’s lawsuit and denying his request for a preliminary injunction. Judge DeClercq explained that under federal law, specifically 18 U.S.C. §921(a)(33)(B)(ii), a prior domestic violence conviction only ceases to be a bar to firearm ownership if the state procedure used to set aside the conviction “completely remove[s] all effects of the conviction.”
Citing the Tenth Circuit Court of Appeals’ decision in Wyoming ex rel. Crank v. United States, Judge DeClercq noted that the terms “expunged” and “set aside” in federal law are intended to be equivalent and require the complete removal of all consequences of the conviction.
The court found that Michigan’s law regarding setting aside convictions does not meet this federal standard. Judge DeClercq pointed out that Michigan law explicitly states that a conviction may still have various legal ramifications even after it has been set aside.
Therefore, Judge DeClercq concluded that “as a matter of statutory construction, the relief Wilburn received under Michigan’s set-aside procedure did not expunge or set aside his conviction for purposes of federal law.”
The 21-page ruling is titled Wilburn, et al. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al.; MiLW No. 02-109059.
Link to the full text of the opinion
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