Wyo. Law Fails to Restore Federal Gun Rights to DV Misdemeanants

Wyoming ex rel. Crank v. U.S., 2008 WL 3906587 (Aug. 26, 2008): The State of Wyoming sought declaratory and injunctive relief against the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which had ruled that a Wyoming statute purportedly establishing a procedure to expunge convictions of domestic violence misdemeanors, so as to restore lost firearms rights, would not restore federal firearm rights. The district court ruled against the State.

On appeal, the Tenth found that Wyoming had standing to bring the action, but affirmed the ATF's interpretation. It held that Wyoming waived its Tenth Amendment argument by not reasserting it on appeal. On the merits of the Wyoming law, which purports to set aside or expunge convictions for the purpose of restoring lost firearms rights, the Tenth determined that the ATF's interpretation that federal law governed definition of "expunge" for purposes of 18 USC 921(a)(33)(B)(ii) and that the Wyoming law did not meet the federal definition was not arbitrary and capricious. The Tenth, in upholding the ATF's position, concluded that § 921(a)(33)(B)(ii) requires the complete removal of all effects of a prior conviction to constitute either an expungement or a set aside for purposes of restoring federal firearms rights.