Governor Murphy enacts law expanding gun rights! Kind of.

AP Photo/Seth Wenig

Back in December I reported about a woman that was seeking rights restoration through the expungement process in New Jersey. The problem was at that time there were no provisions in the law to allow her to receive an expungement for her type of infraction of the law. On January 18, 2022 Governor “The Bill of Rights is above my paygrade” Murphy signed Assembly Bill 4771 which allows for the expungement of criminal records for certain drug offenses involving children.

Gov. Phil Murphy signed a bill that expands the offenses eligible for expungement for drug court graduates. The measure, which passed the state legislature with strong bipartisan support, creates a path to expungement for recovering addicts who had been convicted of nonviolent, nonsexual child endangerment.

The statement in the bill originally filed explains who does or does not qualify.

This bill would expand the offenses that are eligible for expungement upon a defendant’s successful discharge from special probation (drug court).  Under current law, upon successful discharge from a term of special probation the Superior Court may order the expungement of the defendant’s records and information relating to all prior arrests, detentions, convictions, and proceedings for any offense set forth in Title 2C of the New Jersey Statutes.  However, the offenses set forth in subsection b. and c. of N.J.S.2C:52-2 are barred from expungement.  This bill would add an exception to this provision and permit the expungement of records that include a conviction for any offense set forth in paragraph (2) of subsection a. of N.J.S.2C:24-4 (endangering the welfare of a child by causing the child harm that would make the child an abused or neglected child) if the person was a drug or alcohol dependent person within the meaning of N.J.S.2C:35-2 and was drug or alcohol dependent at the time of the commission of the offense. 

The section of law cited for those who would be seeking relief reads:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in R.S.9:6-1, R.S.9:6-3 and P.L.1974, c.119, s.1 (C.9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

And those who would be ineligible include persons who engaged in sexual molestation and a whole other host of crimes.

The process that Nikki Tierney, the woman who’s now eligible for expungement, went through has her bringing up some very valid points and a study that’s worth a read.

Despite the change, Tierney sees the law as a key step in the right direction. She cites a University of Michigan study, published in 2020 by the Harvard Law Review, that examined Michigan’s expungement process.

The study concluded: “Long after they have served their sentences, tens of millions of Americans and their families face the serious challenges of life with a criminal conviction record, and this number increases daily. Collectively, these challenges contribute to many significant public policy concerns, making it harder for these families to avoid poverty and contributing to racial disparities in employment and other domains.

“Our empirical results suggest that expungement is a powerful policy lever for redressing these negative consequences, without risk (and possibly with benefits) to public safety,” the study continued. “But expungement will only realize its full potential and make a serious dent in these large-scale social problems if we make it available much more broadly and much more easily.”

If it’s working in Michigan, Tierney said, it can work in New Jersey, too. 

“Hopefully this opens a conversation,” she said. “We can prove the value of expungements and second chances. Just open the door to us.”

What does that mean for a person who successfully makes it through such a drug program, qualifies, and has their record expunged in regards to the Second Amendment? The short answer is that an individual who’s had their record expunged would no longer fall subject to the disqualifiers to own, buy, or possess a firearm (provided they don’t have any other disqualifiers). Looking into a post explaining the process on an attorney’s website, we have some expansion on that statement.

If your offense is eligible for expungement, however, and you successfully expunge the record, then you would not need to disclose the expunged offense when applying for a gun permit and the expunged record would not prevent you from being eligible to obtain a gun permit in New Jersey.  

As can be seen on New Jersey’s Application for Firearms Purchaser Identification Card and/or Handgun Purchase Permit, questions 18 through 20 ask if you have ever been convicted of a juvenile offense, a disorderly persons offense, or a felony.  Those questions, however, specifically exclude records that have been “expunged or sealed” from their scope.  The same is true for questions 16 through 18 of New Jersey’s Application for Permit to Carry a Handgun.  Thus, expunged offenses do not need to be disclosed and will not be held against you.  

In addition to removing any New Jersey firearms disabilities associated with your conviction, an expungement would also remove any federal firearms disabilities.  Pursuant to federal law located at 18 U.S.C. 921(a)(20), expunged offenses “shall not be considered a conviction for purposes of this chapter” unless the expungement order specifically stated that the individual may not hold or control firearms.

There’s still a lot of nuance to how this might play out should you have an expungement. While in theory a person would no longer be disqualified from firearm ownership, New Jersey’s permitting provisions for the purchase of both long guns and handguns equates to a “may issue” system. The issuing authority has the “right” to not issue the needed paperwork should it not be in the “interest of public safety”. Because of that, any applicant can be barred for whatever arbitrary reason a police chief may have. They may win on appeal, or they may not.

Other bills that The Murph signed into law on the 18th that are worth mentioning involving the expungement process:

A-5322/S-3433 (Mosquera, Vainieri Huttle, DePhillips/Cruz-Perez, T. Kean) – Provides for process to vacate and expunge certain arrests, charges, complaints, convictions, other dispositions, and DNA records, associated with violations by certain human trafficking victims

S-3493/A-5458 (Vitale, Gill/Vainieri Huttle, Mukherji, McKnight) – Permits expungement of possession or distribution of hypodermic syringe or needle offense in cases of previous expungement; repeals criminal offense of possession of syringe

While the debate on expunging a person’s record after they’ve paid their debt to society will continue, we can look at the passage of this law as an incremental step towards having that conversation on a larger scale. Right now we can actually commend The Murph for signing something that’s actually commonsense. Not the fake commonsense that’s always being cited when gun laws are involved.

Governor Murphy, we don’t know how many people are going to be granted relief by this new law, however, I welcome them all into the community as potential gun owners. Kudos!

For those of you that become newly relieved from any disabilities to own and possess firearms, be sure to check out: https://www.nssf.org/shooting/where-to-shoot/