ATF form 4473 question

[0750turbo]

I know this has been bantered around before but I couldn't find an old thread that spelled this out specifically.

My son was charged and convicted of a felony that carried a potential sentence of over a year when he was 18.

When he was convicted, his sentence laid out that if he did A, B and C, the conviction would be modified to a Class A Misdemeanor which carries potential jail time of up to one year. This modification was completed in court earlier this year and his record shows that he was convicted of a Class A Misdemeanor rather than a Felony.

As we all know, when you purchase a firearm from a LGS, you have to complete ATF form 4473. Of particular concern is box 11c which asks "Have you ever been convicted of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, ..." It then has Instructions that are found a few pages down which indicate that a person is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or…..”

So, my question is whether the modification he received meets the standard of being “pardoned, the conviction has been expunged or set aside”? I realize that ATF form 4473 is a national form and may not match up with the exact language on a state by state basis. His attorney says he good to go and that he can lawfully possess and purchase but I'm not yet 100% convinced.

I appreciate your response - especially if you are an attorney that practices law in Indiana, has a background in this area and doesn't mind giving free non-binding advice.

 

[Robert Richardson]

Why would you not believe your own attorney?

 

[DanVoils]

I'll answer with my opinion. The way I understand it he was not convicted of a Felony as it was plea bargained down to a misdemeanor. Therefore he can honestly say he wasn't convicted of a felony.

 

[mastery]

If you aren't going to believe the attorney, then send a letter to the ATF and ask them to mail you their response. You'll get the answer on their letterhead to save.

I'll be the first to say I'm not up to date on firearm law. What would happen if he went to buy a gun, filled out the form, tried to buy the gun, and then the background check failed? Is he subject to arrest for attempting to buy a firearm, or is he just refused and not allowed? I'm not saying he should attempt to buy a firearm if he would be subject to arrest but if it's just a refusal, then that would be the fastest way to find out if he's in the system or not now as a felon.

Just a thought. I'm no attorney.

 

[Walt_Jabsco]

Mastery, if he were refused in the background check, there's a fairly extensive appeals process to deal with, but no risk of arrest.

As to the initial question, and mind you I'm not a lawyer, but I'd be inclined to say the key here is "...more than one year." In this case, his maximum potential sentence was just one year, and he was not convicted of a felony, so he should be good.

But yeah, the simple way to deal with it is to contact the ATF and get a written response. Or, you know, just try to buy a gun and see what NICS says.

 

[Cameramonkey]

I know this has been bantered around before but I couldn't find an old thread that spelled this out specifically.

My son was charged and convicted of a felony that carried a potential sentence of over a year when he was 18.

When he was convicted, his sentence laid out that if he did A, B and C, the conviction would be modified to a Class A Misdemeanor which carries potential jail time of up to one year. This modification was completed in court earlier this year and his record shows that he was convicted of a Class A Misdemeanor rather than a Felony.

As we all know, when you purchase a firearm from a LGS, you have to complete ATF form 4473. Of particular concern is box 11c which asks "Have you ever been convicted of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, ..." It then has Instructions that are found a few pages down which indicate that a person is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or…..”

So, my question is whether the modification he received meets the standard of being “pardoned, the conviction has been expunged or set aside”? I realize that ATF form 4473 is a national form and may not match up with the exact language on a state by state basis. His attorney says he good to go and that he can lawfully possess and purchase but I'm not yet 100% convinced.

I appreciate your response - especially if you are an attorney that practices law in Indiana, has a background in this area and doesn't mind giving free non-binding advice.

Your safest advice would be to contact Guy Relford and pay for an hour of his time to sit down and discuss. He is the premier 2A attorney in the state. (and a darned nice guy too)

 

[T.Lex]

This is not advice, or really even an answer.

The statute, 18 USC 922, says a firearm cannot be transferred to anyone:

... or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

The statute you describe in Indiana is known as "Alternative Misdemeanor Sentencing." Not "Alternative Misdemeanor Conviction."

ETA:
Knowingly making a false statement on a 4473 is a class D felony.

IC 35-47-2.5-12

 

[Ruffnek]

This is not advice, or really even an answer.

The statute, 18 USC 922, says a firearm cannot be transferred to anyone:


The statute you describe in Indiana is known as "Alternative Misdemeanor Sentencing." Not "Alternative Misdemeanor Conviction."

ETA:
Knowingly making a false statement on a 4473 is a class D felony.

IC 35-47-2.5-12

Exceeding one year. This misdemeanor carried a possible penalty of up to one year.

 

[mastery]

Not to sidetrack the OP's original posting, but perhaps this answer would be beneficial to his determination:

What's the easiest way to see if somebody has a felony currently on their record before trying to buy a gun? Could they just walk into the Sheriff's office or their nearest state police post and request a background check on their self (or in this case, a relative such as the OP's son)?

While the ATF answer would be the best, it probably would take some time to get that information from them.

 

[T.Lex]

Exceeding one year. This misdemeanor carried a possible penalty of up to one year.

This is a bit of (educated) speculation: the OP's son was convicted of a D felony.

When he was convicted, his sentence laid out that if he did A, B and C, the conviction would be modified to a Class A Misdemeanor which carries potential jail time of up to one year. This modification was completed in court earlier this year and his record shows that he was convicted of a Class A Misdemeanor rather than a Felony.

In Indiana, the official records will say A Misdemeanor. But the reality is that he was convicted of a crime punishable by more than 1 year of imprisonment.

Again, this is not advice. More like reading comprehension. Which is sometimes significantly different than ATF interpretation, I admit.

I am not aware of any Indiana case to test what the correct interpretation is. I would not recommend to any INGOer to become the test case.

 

[LP1]

Why would you not believe your own attorney?

Because his attorney isn't the one who will go to jail.

 

[Ruffnek]

Not to sidetrack the OP's original posting, but perhaps this answer would be beneficial to his determination:

What's the easiest way to see if somebody has a felony currently on their record before trying to buy a gun? Could they just walk into the Sheriff's office or their nearest state police post and request a background check on their self (or in this case, a relative such as the OP's son)?

While the ATF answer would be the best, it probably would take some time to get that information from them.

If you can get a full name on someone (and a birthdate as a bonus), you can go to mycase.in.gov and view their court records. Admittedly, this is what I do any time I meet someone who trips my spidey senses.

 

[Ruffnek]

This is a bit of (educated) speculation: the OP's son was convicted of a D felony.



In Indiana, the official records will say A Misdemeanor. But the reality is that he was convicted of a crime punishable by more than 1 year of imprisonment.

Again, this is not advice. More like reading comprehension. Which is sometimes significantly different than ATF interpretation, I admit.

I am not aware of any Indiana case to test what the correct interpretation is. I would not recommend to any INGOer to become the test case.

It seems to me that whatever the records show is what they would go by. Hopefully someone more educated about this type of thing will come along soon because I, like you, am going off of reading comprehension.

 

[Spear Dane]

I would call the NRA and see if you can get an opinion from them. They see all kinds of cases and have probably seen and dealt with this before.


https://www.nraila.org/articles/20111212/legal-support

 

[0750turbo]

Thanx for all of the comments guys. As recommended, I plan to seek counsel from Mr Relford

My son and I have struggled to find common ground for a few years and when I took him last weekend for the first time he really loved it. He asked me this week if he could borrow one of my .22s on his day off and go back to the range he joined last week. I told him I wanted to make sure he was going to be ok from a legal perspective.

I will let everyone know what I find out.

 

[Gluemanz28]

Thank you for sharing Turbo and for taking time to build a relationship with your son. Life is a journey with our children. Sometimes that journey has unpredictable curves in it.

 

[Cameramonkey]

Thanx for all of the comments guys. As recommended, I plan to seek counsel from Mr Relford

Be advised that ANY possession, whether through purchase or even being handed one ANYWHERE (like at the range) is a problem if he is a prohibited person. If he cant pass muster on the 4473, you cant hand him yours... Period.

I'd suggest editing the post I quoted before the Googles caches it.

Good luck.

 

[TOD74]

This is a very old thread . I’m curious if the original poster ever got an answer because I’m in the same boat. My felony was 23 years ago and I recently had it converted to a misdemeanor. In court I asked the judge if I could posses a firearm. He told me he was not allowed to give legal advice. So I asked him if I am filling out paperwork for a job or anything else , and I see the question “Have you ever been convicted of a felony?” , what should I answer/ The prosecutor spoke up and said “You answer No….that much I can tell you “

So I’m still curious if I am legal

 

[Mgderf]

This is a very old thread . I’m curious if the original poster ever got an answer because I’m in the same boat. My felony was 23 years ago and I recently had it converted to a misdemeanor. In court I asked the judge if I could posses a firearm. He told me he was not allowed to give legal advice. So I asked him if I am filling out paperwork for a job or anything else , and I see the question “Have you ever been convicted of a felony?” , what should I answer/ The prosecutor spoke up and said “You answer No….that much I can tell you “

So I’m still curious if I am legal

Sounds to me like you should be ok, but I am not a lawyer.
Calling Kirk Freeman or Guy Relford

 

[TOD74]

Sounds to me like you should be ok, but I am not a lawyer.
Calling Kirk Freeman or Guy Relford

Sounds to me like you should be ok, but I am not a lawyer.
Calling Kirk Freeman or Guy Relford

on the advice of a retired gun shop owner , I started the VAF process to get the UPIN number. I also applied for a Indiana permit just need to get the final round of fingerprints submitted