HB 854 Criminal Procedure – Expungement of Records – Revisions
Sponsored by Delegate Attar
Being heard 3/7 in the House Judiciary Committee at 1pm
The Bill: The Bill amends the definition of “expunge” as used in Maryland law, MD Code, Criminal Procedure, § 10-101(d), to make clear that the term means THE EXTRACTION AND ISOLATION OF ALL RECORDS ON FILE WITHIN ANY COURT, DETENTION OR CORRECTIONAL FACILITY, AND LAW ENFORCEMENT OR CRIMINAL JUSTICE AGENCY CONCERNING A PERSON’S DETECTION, APPREHENSION, DETENTION, TRIAL, OR DISPOSITION OF AN OFFENSE WITHIN THE CRIMINAL JUSTICE SYSTEM.” The existing version of that subsection merely defines “expunge” to mean the removal of these records from public inspection. The new definition is thus broader. Subsection (e) is likewise amended to define “expungement” to mean THE EXTRACTION AND ISOLATION OF ALL RECORDS ON FILE.
The Bill would amend MD Code, Criminal Procedure, § 10-102(c), to delete the existing exception from expungement of an investigatory file or the work product of a law enforcement unit. The Bill would further amend Section 10-102 by adding a new provision that would provide that: (D) A POLICE RECORD OR A COURT RECORD THAT HAS BEEN EXPUNGED UNDER THIS SUBTITLE: (1) MAY NOT BE USED FOR ANY PURPOSE; AND (2) SHALL BE TREATED AS IF THE RECORD NEVER EXISTED. Finally, the Bill would amend MD Code, Criminal Procedure, § 10-108, to delete that part of that Section that currently allows a State’s Attorney to petition a court for an order allowing inspection of records needed for a pending criminal investigation where “the investigation will be jeopardized, or life or property will be endangered without immediate access to the expunged record.”
The Statutory Scheme: Federal and State law has long recognized the restoration of rights by expungement. For example, federal law, 18 U.S.C. § 921(a)(33(B)(ii), makes clear that conviction of an otherwise disqualifying misdemeanor under State law is not disqualifying if the conviction “has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Similarly, 18 U.S.C. § 921(a)(20) provides that “[a]ny conviction which has been expunged or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
Maryland law likewise allows for expungement of convictions or arrests for a variety of offenses. See MD Code, Criminal Procedure, §§ 10-105, 10-110. Maryland law makes clear that the term “convicted of a disqualifying crime” “does not include a case” * * * (ii) that was expunged under Title 10, Subtitle 1 of the Criminal Procedure Article.” MD Code, Public Safety, § 5-101(b-1)(2). Maryland law, MD Code, Criminal Procedure, § 10-108, further provides that these expunged records are sealed, stating that “[a] person may not open or review an expunged record or disclose to another person any information from that record without a court order from: (1) the court that ordered the record expunged; or (2) the District Court that has venue in the case of a police record expunged under § 10-103 of this subtitle.
Indeed, Section 10-108(d) currently makes it a crime to improperly access expunged records, providing that “[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.” In addition, “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.” This bill does not alter this provision. However, Section 10-108(c) does permit a State’s Attorney to reopen and examine expunged records where “(i) the expunged record is needed by a law enforcement unit for a pending criminal investigation; and (ii) the investigation will be jeopardized, or life or property will be endangered without immediate access to the expunged record.” This Bill would address Section 10-108.
The Bill Is Necessary: The FBI has apparently informed the Maryland State Police that, in its view, Maryland expungements are not “expungements” under federal law, as defined in 18 U.S.C. § 921(a)(20) and 18 U.S.C. § 921(a)(33), because law enforcement agencies may, under very limited circumstances, still access expunged records under MD Code, Criminal Procedure, § 10-108(c). Apparently, the FBI is also relying on that part of Maryland law that excludes from expungement certain types of files, including investigatory and work product files. See MD Code, Criminal Procedure, § 10-102(c).
In adopting this policy, the FBI has relied on a 2008 Tenth Circuit case, Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1246 (10th Cir. 2008), which ruled that where, under State law, “the conviction records are not destroyed and remain available to law enforcement agencies for criminal enforcement purposes, [State law] does not result in ‘expungement’ that removes the fact of conviction for criminal justice purposes.” The State Police have yielded to the FBI’s application of the Wyoming case, and thus refused to issue wear and carry permits (or Handgun Qualification Licenses) to any person whose conviction has been expunged under Maryland law, even in those cases where the order of expungement did not impose any limitation on firearm possession. Indeed, the State Police have even revoked HQLs on this basis. That position of the State Police (and the FBI) is impossible to square with the provisions of Section 921(a)(20), which as noted, gives full effect to expungement orders, unless the order of expungement expressly limits firearms access in some way. The State Police stance has led to litigation, including at least one case in which the decision of the State Police was overturned on review by the Office of Administrative Hearings. In that case, the Circuit Court has already denied the State Police request for a stay of OAH’s order, pending further review.
In our view, Wyoming ex rel. Crank is inapplicable to Maryland because the Maryland statutory scheme is unlike the Wyoming statute there at issue. The Wyoming statute allowed the person to possess firearms, but it also expressly stated that expungement did not insulate the person from enhanced penalties for any future crime based on the expunged conviction. See 539 F.3d at 1240. In contrast, Maryland law not only provides that an expunged conviction is not a disqualifier, MD Code, Public Safety, § 5-101(b-1)(2), it also seals the records under MD Code, Criminal Procedure, § 10-108. Unlike Wyoming law, there is nothing in Maryland’s expungement law, MD Code, Criminal Procedure, § 10-108, that allows any expunged conviction to be used for sentencing enhancements. Again, Section 10-108 merely permits a State’s Attorney to access expunged records where the State’s Attorney swears out an affidavit stating that “(i) the expunged record is needed by a law enforcement unit for a pending criminal investigation; and (ii) the investigation will be jeopardized, or life or property will be endangered without immediate access to the expunged record.” Such access need not even necessarily relate to the person whose conviction was expunged.
State law treatment of expungements is controlling. Such deference is demanded by 18 U.S.C. § 921(a)(20), which provides that “[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.” Thus, in United States v. Essick, 935 F.2d 28, 31 (4th Cir. 1991), the Fourth Circuit held that “[i]n enacting the Firearm Owners' Protection Act in 1986, Congress clearly empowered each state to determine if ex-felons would be legally permitted under federal law to possess firearms. In effect, each state is able to carve out exemptions to the general federal proscription against possession of any firearm by any ex-felon.” (Emphasis the court’s). Under this test, “the government must show the continuing vitality of the conviction.” Id.
Other case law is in full accord. See United States v. Laskie, 258 F.3d 1047, 1050-52 (9th Cir. 2001) (overturning a conviction for being a felon in possession of a firearm because an “honorable discharge” of a previous drug conviction was “unequivocal,” changed the finding of “Guilty” to “Not Guilty,” and released Laskie from “all penalties and disabilities resulting from the crime of which he has been convicted”); United States v. Aka, 339 F.Supp.3d 11, 19 (D.D.C. 2018) (holding that DC’s disqualifying statute was controlling on the question of disqualification under federal law); Siperek v. United States, 270 F. Supp.3d 1242, 1249 (W.D. Wash. 2017) (concluding that the expungement of plaintiff's juvenile adjudication was established under federal law because “Washington law clearly dictates that ... the sealing of a juvenile record constitutes expungement of the juvenile offense” because the statute explicitly states that “the proceedings in the case shall be treated as if they never happened”). Compare Bergman v. Caulk, 938 N.W.2d 248 (Minn. 2020) (holding that merely sealing the records did not constitute an expungement where such records remained fully accessible).
In short, the law in Maryland makes clear that expunged convictions are not disqualifiers and may not be used for any other purpose as against the person whose conviction has been expunged. Such expunged convictions simply have no “continuing vitality.” Essick, 935 F.2d at 31. See United States v. Bagheri, 990 F.2d 80, 84 (4th Cir. 1993) (discussing Maryland expungement law). The State Police are violating these expungement provisions by using expunged convictions to deny permits and revoke existing permits. This Bill is designed to put the matter to rest before more resources are expended on litigation by leaving no doubt that Maryland expungements fully qualify as expungements, even under the FBI’s erroneous view of the law. We urge a favorable report.
