Appeal Your NICS Denial

Gun RightsFinally, there is some great news for people whose Second Amendment (2A) rights were improperly denied. The FBI’s The National Instant Criminal Background Check System (NICS) website again has an appeals page. Many firearms owners and hopeful gun purchasers were wrongly denied gun purchases following their NICS check. For the last year, these people had no opportunity to appeal… Until now. If you were denied a purchase, you can appeal your NICS denial.

Halting Gun Sales

In October 2015, NICS’s appeals workers were transferred to other positions within the organization. People who were denied the purchase of a firearm had no recourse. The NRA and other 2A organizations and authorities decried the transfer of employees as a backhanded attempt at preventing legitimate firearms purchases by eligible citizens.

Would be purchasers were out of luck. They could file an appeal, but there were no employees to process the appeal. Those appeals kept rolling in and piling up as frustrated purchases took what steps they could to correct the improper denial of their 2A rights.

Reclaiming Firearms Rights

We’re almost out of the woods now. People who appealed their NICS firearms purchase denial now have a chance at relief. Those who have recently been denied, should feel encouraged to appeal the NICS finding of ineligibility to purchase a gun. Unfortunately, there is still a year and  a half backlog of previously filed appeals.

If you were denied a firearm purchase following your NICS check, there are some things you need to know and do. Make sure that you get any information about the denial that you can. FFLs should give you whatever information they received, which generally isn’t much, but it will help you start the appeal process.

The next thing you’ll want to do is visit the FBI NICS information website here. It’s a pretty easy site to navigate, and it will help you get the information you need to file an appeal. You can definitely start the process on your own, and if you are again denied, you may want to contact an attorney to help you out.

If you have any 2A questions, call the attorneys at Durflinger Oliver & Associates for a free consultation, (253)683-4180.

False-Confession-Lawyer

Gun Attorney

 

Stupid People

Cops jumping to conclusions? What could go wrong with that?

Gustave Flaubert said that “Stupidity lies in wanting to draw conclusions.” I just finished a criminal trial for my client in which the cops and “victims” couldn’t wait to jump to conclusions.

The basic facts are that my client was visiting a buddy who lives in unincorporated Pierce County where homeowners are allowed to shoot on their property as long as they don’t endanger anybody else. So client was shooting a 9mm pistol 300 yards from his neighbor’s home..in a different direction…with 600′ of woods between the properties. While he was shooting, someone elsewhere was shooting a rifle…in the direction of the neighbor’s house.

The poor neighbors were terrified trying to hide from the rifle fire that peppered the trees around their property, as well as their home. As there was a 200 yard stand of trees that concealed the neighbor’s home, they could only guess who was pulling the rifle trigger. Cops were called and they went to the property where my client was found standing with his buddy chatting.

My client made the mistake of telling Deputies that he was firing his pistol earlier in the day. That was enough for them to conclude that the bullets striking the neighbor’s home obviously came from my client’s pistol. The neighbors likewise concluded that my client must have been the shooter even though they never saw anybody firing any gun. The fact that my client didn’t have a rifle, and the fact that all the damage to the neighbor’s home was caused by rifle fire didn’t matter to the neighbors or the cops. My client and his buddy were charged with Reckless Endangerment.

My Client is a retired Air Force Security Officer who has been working for the Transportation Safety Administration since just after 9/11. He was also 10 months from retirement, and a guilty conviction would have cost him his pension.

We were fortunate, however, to have a couple of great witnesses. We hired an expert witness who analyzed the bullet damage and concluded that it was caused by rifle fire. He further testified that based on the bullet paths of rounds that struck the neighbor’s home, it was unlikely that my client or his buddy could have fired the rounds. Our second great witness was the client. He has 35 years of law enforcement/security experience, and a lifetime of firearms safety training. He was fantastic on the stand. As a result, he and his buddy were quickly acquitted by the jury.

It’s unfortunate that my client had to pay gun attorney to fight charges that the State should never have filed, but that’s the world we live in. We’re surrounded by stupid people leaping to stupid conclusions. Fortunately, the jury wasn’t stupid.

Call Us 253-683-4180

Durflinger Oliver & Associates PS

711 St. Helens Ave.
Suite 209

Tacoma, WA 98402

Fax: 253-683-4184

Email: jim@durflingeroliver.com

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James E. Oliver, Esq.

James E. Oliver, Esq.

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. After serving six years in the Army Reserves, James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as well respected and zealous advocate for a wide variety of clients.

Get Your Gun Rights Back!

Gun Rights Attorneys

Restore Your Gun Rights.

If you’re reading with a gun nearby, and a felony, or DV conviction in your past, be careful! In Washington State, any felony conviction and some misdemeanor DV convictions will result in a loss of the right to possess a firearm. It doesn’t matter whether your conviction has been vacated, or whether the charge was dismissed under some deferral program in a plea deal.  As far as cops and prosecutors are concerned, the conviction still prohibits being around guns.

Restoration of 2A rights can be accomplished by way of a Pardon, Annulment, Certification of Rehabilitation, or an order restoring the right to possess firearms from a superior court. This last method is the most commonly used.

A Superior Court will generally issue an order restoring gun rights for an eligible person who makes such a request.  Here are the basics: Ten years have elapsed since you satisfied all the obligations of a Class B felony conviction, and five years have elapsed since you satisfied all the requirements of a Class C felony conviction (three years if the conviction was for a misdemeanor), and there are no pending criminal charges or arrest warrants.  And, of course, the person must not be prohibited from firearm possession due to some other factor unrelated to the old conviction, such as a mental-health commitment, or a court order that limits firearm rights, such as a protection order, restraining order, or no-contact order. For misdemeanor cases, all conditions of the sentence must be successfully completed.

Some offenses are so serious that a convicted person can never restore firearm rights.  These are the sex offenses and Class A felonies, such as homicide, robbery, and other violent crimes.

In Washington, if an eligible person asks (petitions) a Superior Court judge to restore firearm rights, the judge must grant the request.  It’s mandatory.  The judge cannot refuse the request just because the judge thinks the applicant is a bad actor.  On the other side of the coin, the judge cannot grant the request of an ineligible person just because the person has a long list of accomplishments and a fistful of character references.  This is a pass/fail test.  The applicant either meets the criteria or he doesn’t.

The gun rights attorneys at Durflinger Oliver & Associates are dedicated to helping put firearms back into the hands of qualified people. Call us today for your free consultation.

~ Martha McLaughlin, Sr. Associate

 

Vacating A Misdemeanor Conviction (Clean Up That Record!)

Expungement, expunge, Vacate

Clean Up Your History!

Who doesn’t love a good vacation? Nobody! Everybody loves vacation. This is especially true if you were ever convicted of a crime!

In Washington State, The process of removing a misdemeanor conviction from your criminal history is called vacation. Vacating a conviction has requirements, and it can be done only once in a lifetime on your most recent charge.

Here’s how it works:

  1. The court vacates the judgment and sentence and then dismisses the charge(s) against you.
  2. This gets rid of your conviction.
  3. Once your conviction is vacated, you can honestly say that you were never convicted of the crime.
  4. The conviction is removed from the defendant’s criminal history.
  5. The vacate order is sent to the WSP and FBI, which then update their databases.
  6. Record of the conviction may not be disclosed to any person except other criminal justice enforcement agencies.

While certain rules apply to determine whether a person qualifies to have a conviction vacated, it is important to remember that any decision to vacate a conviction is up to the judge. Generally, if you’ve done what you’re supposed to, the judge will vacate your crimes.

Washington State has several laws dealing with the ability to vacate an adult criminal conviction. Each applies to a specific type of case. Each has its own unique set of factors you must meet to vacate a conviction. In most instances the judge has the discretion to grant or deny a request to vacate a conviction.

RCW 9.94A.640 – Felony Convictions

Washington law allows a person to vacate most class B and C felonies. Class A felonies, violent crimes, and crimes against persons may not be vacated. For class B felonies, you must wait ten (10) years to vacate after receiving a Certificate of Discharge. For class C felonies, you must wait five (5) years. During this time you must not have any criminal convictions of any kind. It is possible to vacate more than one felony conviction.

RCW 9.96.060 – Misdemeanor and Gross Misdemeanor Convictions

Generally, a person must wait 3 years after completing all conditions of sentence to become eligible to vacate a non-DV conviction. For domestic violence offenses, you must wait 5 years after paying off your legal financial obligations, completing probation, treatment, etc. In 2012, the Legislature changed this law to require persons with a DUI reduced conviction (Negligent Driving, Reckless Driving, or Reckless Endangerment) to wait ten years. Certain crimes, like DUI’s and sex crimes, cannot be vacated. You must wait five (5) to vacate domestic violence crimes. You must meet several more requirements to be eligible to vacate a conviction. Unlike the felony law, you may only vacate a single misdemeanor conviction from your record.

If you have any questions about cleaning up your criminal history, you can trust the attorneys at Durflinger Oliver to meet with you for free and explain all your options. We offer a military discount and easy payment plans.

~ Martha McLaughlin, Sr. Associate

 

The New Face Of Gun Control

Tacoma Gun AttorneyWashington Second Amendment lawyers are closely watching developments in Missouri. The “Show Me State” recently organized a four-day Urban Crime Summit at which attendees were to come up with ideas for reducing crime. One of the ideas being floated during this summit was a “gun court” system that would treat differently/harshly not only armed criminals, but CCP holders accused of petty traffic offenses.

As proposed, all cases involving firearms in any capacity would be separated from all other types of criminal cases and would be heard before one of two judges. These two judges would set high, cash-only bonds for defendants and ensure that the matters before them head to trial much faster than normal, non-gun cases.

Armed robbery, assault with a deadly weapon, and homicide by way of a firearm will all land you in front of a gun judge. Unfortunately, if a person with a concealed weapon permit gets into a fight – but never brandishes or uses the gun – they can be charged with assault in the fourth degree, and will end up in gun court.

Moreover, some poor guy with a hunting rifle who gets pulled over and arrested for driving under the influence can also end up in gun court.  This has many Tacoma gun lawyers wondering whether this is yet another assault on our Constitutional right to bear arms. Such legislation is a slippery slope upon which our Constitutional right to bear arms may be further restricted.

Here’s how restrictions are likely to develop: Step one: create a separate court that deals only with crimes in which the defendant had a weapons, or was licensed to possess a weapon.  Step two: set astronomically high, cash-only bail, which ensures that the accused are locked up until released by a judge, jury, jail, or prison. In additional to high bail, the defendant and his attorney would be rushed through the process at a breakneck pace designed to overwhelm defense attorneys. Of course, the accused would also lose their firearms in the process. Step three: make the penalty/sentence for those convicted of the commission of a crime with a firearm severe.

Essentially, steps one through three aims to separate defendants into two categories: those who commit crimes with a firearm, and everyone else.  Every 2nd Amendment attorney will be concerned with equal protection issues and uniform application of the law. For instance, a defendant charged in gun courts may not enjoy the same procedural rights and equal application of the law. That’s because their case proceeds at the speed of sound and any criminal attorney will tell you that it takes time to prepare a case for trial, or resolution.

Defendants are also unlikely to enjoy the same rights (procedural, Constitutional, etc.)  as other non-gun court defendants. Experienced criminal defense attorneys worry that they won’t be able to adequately prepare and defend their clients who are being rushed through the system. Very few people outside the legal system would have any idea how unfair gun courts will be.

Few people would object to stiffer/harsher sentences and penalties for those convicted of a crime while using a firearm. I’m a former prosecutor, and most of our attorneys and support staff in my office have CCP’s, and we want to see punishment for people who use guns to victimize others. Unfortunately, the proposed gun courts, while not directly affecting gun rights currently, could be the first step towards curtailing our right to bear arms. Thus, it is important that we recognize that any potential legislation aimed at curbing gun violence can eventually lead to the infringement of our Constitutional right to bear arms.

Ross D. Brittain, Esq.