Relief from disabilities is a federal remedy. The specific statute that establishes relief from disabilities is 18 U.S.C. § 925(c). The disabilities at issue in the relief from disabilities statute are disabilities that arise under federal law, and that relate to purchase, possession, and use of firearms.
Under federal law, any person convicted of a crime punishable by imprisonment exceeding one year cannot legally purchase, possess, or use any firearm. Relief from disabilities under 18 U.S.C. § 925(c), when granted, restores the person's right under federal law (but not necessarily State law) to again purchase, possess, or use a firearm.
18 U.S.C. § 925(c) specifies that application for relief is made to the United States Attorney General. Thereafter, authority to review these applications was transferred to the United States Bureau of Alcohol, Tobacco, and Firearms (“ATF”). For many years, though, Congress, through the appropriations process, has specifically barred ATF from using any appropriated funds to review these applications. As a result, no processing of these applications takes place, and no relief is granted.
Applicants have sought judicial review from the refusal of ATF to consider applications. In almost every instance, the courts have ruled that they lack jurisdiction to provide such review. In essence, their reasoning is that the refusal of Congress to appropriate funds for review constitutes a legislative decision to not permit the relief that 18 U.S.C. § 925(c) would appear to provide.
One case held otherwise. The United States Court of Appeals for the Third Circuit held that the courts do have jurisdiction to consider appeals from the refusal of ATF to act on the applications. Included within the Third Circuit are federal court actions arising in the State of New Jersey. Thus the door for New Jersey residents seeking relief from disabilities may be not completely shut.
The case where the Third Circuit allowed judicial review from the ATF refusal to act is Palma v. United States Department of Alcohol, Tobacco and Firearms, 228 F.3d 323 (3rd Cir., 2000). Note, however, that even though the Palma court did provide judicial review, it ultimately denied relief from disabilities on the merits of that case. Thus, to date, Expungement Lawyers in New Jersey™ are unaware of anyone who has succeeded in obtaining relief from disabilities since Congressional appropriations were discontinued.
Changes in the law since the year 2000 lead Gun Lawyers in New Jersey™ to believe that this issue, if presented in a new case, could receive more favorable consideration. Note, though, that if the Third Circuit (or any other circuit) did grant such relief, the United States Supreme Court might well grant review of that decision in order to resolve the conflicting rulings between the various circuits.
Finally, federal disabilities in many instances can be removed by State law procedures. We refer here primarily to expungement of criminal and of mental health records. A different web site that Gun Lawyers in New Jersey™ maintains devotes itself exclusively to expungement of criminal and of mental health records in New Jersey.
Allan Marain |
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