Expungments, Disclosure & Maryland State Police Applications

CypherPunk · Mar 1, 2015

For the attorney's, current/former LEO's and other knowledgeable parties...

I am interested in the discussion of the following scenario:

A potential Maryland State Police (MSP) Maryland Handgun Permit (MHP) applicant files a Petition for Expungment of Police and Court Records, and receives a Certificate of Compliance from each relevant agency. After 60 days, the potential applicant than completes a fingerprint supported CJIS record check and confirms the expungement.

Questions:

1. Does the this or other applicable statutes protect applicants from having to disclose expunged record(s)?

2. If so, should MSP MHP applications notify applicants that expunged or pardoned records are not required to be disclosed (similar to Federal forms which state that SSN's are optional, but not required)?

3. Is it likely or probable that MSP would discover the expunged arrest or charges anyway?

4. If not required, should an applicant therefore disclose such expunged records regardless.

§ 10-109. Prohibited acts
(a) Applications for employment or admission. -- (emphasis added)

(1) Disclosure of expunged information about criminal charges in an application, interview, or other means may not be required:
(i) by an employer or educational institution of a person who applies for employment or admission; or
(ii) by a unit, official, or employee of the State or a political subdivision of the State of a person who applies for a license, permit, registration, or governmental service.

(2) A person need not refer to or give information concerning an expunged charge when answering a question concerning:
(i) a criminal charge that did not result in a conviction; or
(ii) a conviction that the Governor pardoned.

(3) Refusal by a person to disclose information about criminal charges that have been expunged may not be the sole reason for:
(i) an employer to discharge or refuse to hire the person; or
(ii) a unit, official, or employee of the State or a political subdivision of the State to deny the person's application.

(b) Penalties. --
(1) A person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $ 1,000 or imprisonment not exceeding 1 year or both for each violation.
(2) In addition to the penalties provided in paragraph (1) of this subsection, an official or employee of the State or a political subdivision of the State who is convicted under this section may be removed or dismissed from public service.
Md. CRIMINAL PROCEDURE Code Ann. § 10-109 (2014)

Expungment - Information about Removing Criminal Records from Public Access In Maryland, Maryland Judciary

TIA

Straightshooter · Mar 1, 2015

IANAL, but most of your questions are answered on page #9.
#1. This statute allows you to answer any questions concerning an expunged record as though it never happened.

#2. No need for MSP or anyone else to male this statement since the expungement statute already affords you the right of non disclosure.

#3. Nope.

#4. Why would you declare a charge that you took the effort to make go away? So, the answer is no.

As I said IANAL but sometimes experience is the best teacher.

woodstock · Mar 1, 2015

you are the MAN! i have had these exact questions for some of my students, of which, i had no answer. thank you cypher :clap:

thread subscribed.

Blaster229 · Mar 3, 2015

Here where the conundrum is, the question that asks if you have ever been arrested. Yes. List the disposition. There you have to expound on your expungements.

Records are still in NCIC although they MAY be deleted from Maryland CJIS.

Straightshooter · Mar 3, 2015

********! Mine hasn't shown up shown up and I've gotten permits in MD, Fl, Ut and Pa and all but Pa required fingerprints and an NCIC check. After the expungement, I had an LEO friend run my name before doing anything that asked such questions and nothing was found. I'm also cleared on the pre-screen list when I fly.

My attorney said that no matter how the question is phrased, you have the right to answer no to anything related to an expungement. When MD courts expunges a record, the FBI is notified and they are required to also dump that record.

If you answer YES, you are placing back into record an offense that you have had removed. What on earth would I do that for?

Let's hear from someone who did not disclose an expunged offense and has actually had an expunged record come back on him, rather than pontificating as to what you think happens. I don't want any of the "I have a friend who..." crap either.

Straightshooter · Mar 3, 2015

marylandmark said:
So thoughts on my post- I had them expunged, disclosed them on my CCW application and was approved. Should I disclose again, not like I can get my application expunged at this point. I'm not dead set on listing them again, just figured I already told them about them and was approved so why not do so again? Very open to direction on this one!

This is exactly the problem with the advice being given by some on this forum. Once you volunteer this information, there is no provision the clear it from your record, you got that chance already through the court.

For those giving the advise there is no consequences for them being wrong, but for those that take their advise, there are lasting consequences. Some of what has been advised here IMO borders on giving legal advice without a license. In instances relating to criminal law, I wouldn't even rely in a lawyer in any area of expertise other than criminal law. I don't want an estate lawyer, a divorce lawyer, or an ambulance chasing lawyer giving me their opinion let alone a Cop, prison guard, truck driver, fireman, accountant or any other identity on a internet forum telling me to "Say Yes".

CharlieFoxtrot · Mar 3, 2015

I get asked this question a fair bit. Under the law you don't have to disclose it. If you do not and something pops up the only risk you run is delaying the process while you provide proof it was expunged. They can't really hold the non-disclosure against you* because under Maryland law they can't legally ask you about it in the first place for a permit application.

* This doesn't apply to security clearances/background checks/ applications for law enforcement-type jobs. With these you disclose, disclose, disclose. They will and can deny you for something that wouldn't prevent you from getting the clearance but that you didn't disclose.

Afrikeber · Mar 3, 2015

Straightshooter said:
********! Mine hasn't shown up shown up and I've gotten permits in MD, Fl, Ut and Pa and all but Pa required fingerprints and an NCIC check. After the expungement, I had an LEO friend run my name before doing anything that asked such questions and nothing was found. I'm also cleared on the pre-screen list when I fly.

My attorney said that no matter how the question is phrased, you have the right to answer no to anything related to an expungement. When MD courts expunges a record, the FBI is notified and they are required to also dump that record.

If you answer YES, you are placing back into record an offense that you have had removed. What on earth would I do that for?

Let's hear from someone who did not disclose an expunged offense and has actually had an expunged record come back on him, rather than pontificating as to what you think happens. I don't want any of the "I have a friend who..." crap either.

straight shooter you are absolutely correct. Expunged means never existed and you answer no period.

Straightshooter · Mar 3, 2015

CharlieFoxtrot said:
I get asked this question a fair bit. Under the law you don't have to disclose it. If you do not and something pops up the only risk you run is delaying the process while you provide proof it was expunged. They can't really hold the non-disclosure against you* because under Maryland law they can't legally ask you about it in the first place for a permit application.

* This doesn't apply to security clearances/background checks/ applications for law enforcement-type jobs. With these you disclose, disclose, disclose. They will and can deny you for something that wouldn't prevent you from getting the clearance but that you didn't disclose.

Thank You!

Blaster229 · Mar 3, 2015

So, when something has been expunged, that means you were never arrested?

People with criminal records go on a pre screen list for flying? You get secondary screening?

Straightshooter · Mar 3, 2015

Blaster229 said:
So, when something has been expunged, that means you were never arrested?

People with criminal records go on a pre screen list for flying? You get secondary screening?

Legally YES.
With a pre-check you are cleared to keep your shoes on and leave items such as laptops in your bag.

Straightshooter · Mar 3, 2015

Here's the Code. Pay attention to the section in BOLD. Heck, that's pretty much all of it.

2010 Maryland Code
CRIMINAL PROCEDURE
TITLE 10 - CRIMINAL RECORDS
Subtitle 1 - Expungement of Police and Court Records
Section 10-109 - Prohibited acts.
§ 10-109. Prohibited acts.

(a) Applications for employment or admission.-
(1) Disclosure of expunged information about criminal charges in an application, interview, or other means may not be required:
(i) by an employer or educational institution of a person who applies for employment or admission; or
(ii) by a unit, official, or employee of the State or a political subdivision of the State of a person who applies for a license, permit, registration, or governmental service.
(2) A person need not refer to or give information concerning an expunged charge when answering a question concerning:
(i) a criminal charge that did not result in a conviction; or
(ii) a conviction that the Governor pardoned.
(3) Refusal by a person to disclose information about criminal charges that have been expunged may not be the sole reason for:
(i) an employer to discharge or refuse to hire the person; or
(ii) a unit, official, or employee of the State or a political subdivision of the State to deny the person's application.

Straightshooter · Mar 3, 2015

Blaster229 said:
So, when something has been expunged, that means you were never arrested?

People with criminal records go on a pre screen list for flying? You get secondary screening?

Try to wrap your mind around the idea that if your record is expunged, you no longer have a criminal record.

Don't know what you mean by "secondary screening" but yes, pre- screened people go through the same checks as the little people but they go thru a line where the checks are expedited and jackets, belts, shoes do not have to be removed and electronics can stay in your bags.
I hope that will make you feel safer if we end up on the same flight.

rseymorejr · Mar 3, 2015

Straightshooter said:
I hope that will make you feel safer if we end up on the same flight.

I think he feels plenty safe when he flies!
:lol2:

Blaster229 · Mar 4, 2015

Straightshooter said:
Try to wrap your mind around the idea that if your record is expunged, you no longer have a criminal record.

Don't know what you mean by "secondary screening" but yes, pre- screened people go through the same checks as the little people but they go thru a line where the checks are expedited and jackets, belts, shoes do not have to be removed and electronics can stay in your bags.
I hope that will make you feel safer if we end up on the same flight.

Yeah I don't even think about all the pre screening stuff, since I care about post screening :-) I was thinking of something else.
Friends ask about this or that and I say "how should I know?"

fabsroman · Mar 4, 2015

This horse has already been beat to death, but I will second what CharlieFoxTrot wrote.

Expunged items do not need to be disclosed on the bar exam.

Same goes for CCW applications. Had a client last year, upon my advice, not disclose an expunged charge on his CCW application and he got his CCW permit without a problem.

fabsroman · Mar 4, 2015

marylandmark said:
I used a firearms lawyer..

I wanted a turn key CCW application. Kind of like taxes, I give my CPA all my info, they put it on the forms, I sign it and mail in. I wanted the same process for my CCW, add in me getting fingerprints and then mail it in. Yea, almost none of that happened and then I got my bill that was over twice as much as quoted (last bill was around $1100 but total may have been around $1600, forget if I paid them the original $500 when they started and then a bill again at the end or just the whole thing at the end). I did contact them plenty of times but it was for things they should have answered in my original contact. I sent an email with my concerns, they said they can handle it for $500 and then it seemed like I had to email 5 more times, once for each of the original 5 questions I had asked, with the cash register ringing each and every time (which I didn't know about until the end, thought answering my questions that I had asked before the fee was set was what I was paying for).. ETA- not sure if it was 5 questions, that's an example in case this thread gets technical.

I keep hearing "firearms lawyer" on this forum and I really have no freaking clue what the heck a "firearms lawyer" is. Does the firearms lawyer know everything about the criminal code as it pertains to firearms violations? Does he know everything there is to know about firearms law as it would apply to advising a dealer/FFL? Does he know everything there is to know about firearms law as it applies to the 2nd Amendment?

Would Alan Gura, an accomplished 2nd Amendment lawyer, be considered a firearm's lawyer?

How about an accomplished criminal defense attorney that has successfully argued self defense over and over again on behalf of clients involved in a defensive shooting? What about a defensive stabbing? Would he be considered a firearms lawyer?

What about an attorney that advises several FFL's on what is and is not legal for them to do business wise? Would that be a firearm's lawyer?

Heck, then we get into those lawyers that draft NFA trusts?

Thing is, I doubt you would want Alan Gura representing you in a murder trial when you are making a self defense argument, unless there was some convoluted 2nd Amendment issue involved. Then again, maybe Mr. Gura does more than just argue 2nd Amendment cases.

Lastly, and most importantly to me, I think my wife, parents, and in-laws are right, I charge way too little. I hate it when they are right. $1,100 to help somebody with a CCW application? I really hope there were some seriously difficult questions for them to answer to earn $1,100.

fidelity · Mar 4, 2015

fabsroman said:
...

Lastly, and most importantly to me, I think my wife, parents, and in-laws are right, I charge way too little. I hate it when they are right. $1,100 to help somebody with a CCW application? I really hope there were some seriously difficult questions for them to answer to earn $1,100.

Pardon me. Can I reserve your current rate before this happens? Lol. Just kidding. I'm sure you do good work by your clients, and should seek compensation commensurate to your expectations to take care of your family's future, that is comparable or higher to fees for similar services (time invested, advocate competency, case complexity) in the same locale, and in the range that you feel also serves your clients fairly.

HeatSeeker · Mar 4, 2015

Straightshooter said:
********! Mine hasn't shown up shown up and I've gotten permits in MD, Fl, Ut and Pa and all but Pa required fingerprints and an NCIC check. After the expungement, I had an LEO friend run my name before doing anything that asked such questions and nothing was found. I'm also cleared on the pre-screen list when I fly.

My attorney said that no matter how the question is phrased, you have the right to answer no to anything related to an expungement. When MD courts expunges a record, the FBI is notified and they are required to also dump that record.

If you answer YES, you are placing back into record an offense that you have had removed. What on earth would I do that for?

Let's hear from someone who did not disclose an expunged offense and has actually had an expunged record come back on him, rather than pontificating as to what you think happens. I don't want any of the "I have a friend who..." crap either.

OK, so say you don't disclose it because it was expunged. Then something does show up in the NCIC check, how do you explain why you lied and said you were never arrested when you definitely were arrested OR can you guarantee that an expunged case will never show up on a background check? I wondered about this before submitting my applications and I even put it out for advice on this forum at one time. The replies were mixed with many saying to just be honest.

I have to admit, I have had anything and everything expunged but I still answered Yes to the "ever been arrested" question and included that it was expunged as the only details. I was granted an initial permit and a renewal.

I will surely take fabsroman's word for it, but can also say that I did disclose it and got my permit with no problems.

HeatSeeker · Mar 4, 2015

I think maybe that is the real question many actually have. Can we be absolutely 100% positive that an expunged record will not show up on a background check? This is why so many people are unsure about how to answer those questions on the application. It is why I was not sure what to check. I didn't want to disclose it, but felt I should because of the uncertainty.

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