Delaware has an extensive list of persons who are subject to restrictions on their firearm rights. See 11 DE Code § 1448. For convicted felons and others, other than seeking a pardon from the Governor, there is no procedure or statutory method of restoring firearm rights. However, there is a unique Delaware statutory provision that creates a procedure for restoring firearm rights to those who have recovered from mental illness. Here is what you need to know.
Who has their firearm rights restricted in Delaware?
Under Delaware law, if the reason for firearm rights disqualification is conviction of a criminal charge, the ban is either “for life” or for five years after the conviction. Note that is five years from the date of conviction, not five years from the end of any incarceration or diversionary sentencing. The lifetime ban is for felonies; the five year ban is for convictions that are “not felonies.”
The general list of persons who are prohibited from buying owning, possessing, or controlling a “deadly weapon” or ammunition for a firearm is as follows:
- Those convicted of felonies in Delaware or in some “other jurisdiction” whether or not the person was armed or possessed a weapon when the crime was committed – applies to juveniles if the crime would have been a felony if committed by an adult
- Those convicted of “a crime of violence involving physical injury to another person” again, whether or not the person was armed or possessed a weapon when the crime was committed
- Persons with mental conditions as defined
- Persons who have been found not guilty of a crime by reason of insanity
- Persons who have been found mentally incompetent to stand trial
- Those convicted of various defined drug crimes
- Any juvenile is prohibited from possessing a handgun, unless engaged in lawful hunting, instruction, sporting or recreational activity while under the direct or indirect supervision of an adult
- Those subject to a Family Court protection from abuse Order – person must know the Order has been issued and the prohibition lasts only for so long as the Order remains in effect
- Those subject to a lethal violence protection Order – the prohibition lasts only so long as the Order remains in effect
- Fugitives from justice
- Those who are in possession of certain controlled substances – drugs – are prohibited from possessing, at the same time a semi-automatic or automatic firearm, or a handgun
- Those convicted in any court of any misdemeanor crime of domestic violence as defined
- Those who know they are the subject of an outstanding arrest warrant, or post-arrest charges or an active indictment for certain defined offenses
As noted, some of these offenses might be deemed or might have been charged as “not felonies” (that is, charged as misdemeanors). If the conviction was for a misdemeanor, then the firearm rights prohibition is for five years.
Restoring firearm rights
As noted, for criminal convictions, generally, only a pardon from the Governor will restore firearm rights.
What about Delaware’s expungement laws and the 2021 “Clean Slate” law?
Starting in 2019, Delaware has enacted several far-reaching expungement laws and, in 2021, Delaware passed a statute that is commonly called the “Clean Slate Act.” Most of these laws are aimed at juvenile, minor drug and misdemeanor convictions. However, some non-violent felony convictions are eligible for expungement. Moreover, for many convictions, expungement is mandatory and, under the 2021 legislation, some expungement is automatic after the passage of several years – as defined – and as long as the person’s criminal record remains clean.
The problem is that there is no mechanism for ensuring that an expunged conviction removes the disability of the person with respect to possessing, owning and buying a firearm. In many states, a person can file a petition and obtain a court Order or other certification that an expungement is sufficient to restore firearm rights. The laws are fairly new and it will take time for the courts, prosecutors and law enforcement officials to determine exactly how expungements will affect firearm rights.
What is the procedure for mental health disqualifications?
Delaware has a unique procedure for removing firearm rights disqualifications for those with mental health conditions. See 11 DE Code § 1448A(l). This provision creates a “Relief from Disabilities Board” which is composed of three persons – one appointed by the federal Secretary of Safety and Homeland Security and two members appointed Secretary of the Department of Health and Social Services. At least one member of the Board must be a licensed psychiatrist. Anyone who has lost his or her firearm rights due to an adjudication of mental illness or who has been committed to a mental health facility can file a Petition For Relief with the Board. The Board shall review the Petition and supporting materials and is required to hold a hearing. The hearing is required to be recorded “for purposes of appellate review.”
Any Petition For Review shall contain:
- Information with respect to the circumstances regarding the firearms disabilities
- The petitioner’s mental health medical records
- A certificate of a medical doctor or psychiatrist licensed in this State that the petitioner is no longer suffering from a mental disorder which interferes or handicaps the person from handling deadly weapons
- The petitioner’s criminal history records
- Statements and other documents with respect to the petitioner’s reputation and character such as good character witness statements
- And more
The Board has the authority to require that the petitioner undergo a clinical evaluation and risk assessment which may also be used as evidence in determining whether to approve or deny the Petition For Relief.
According to the statute, the Board shall grant the Petition if it finds that the petitioner will not be likely to act in a manner dangerous to public safety and that granting the relief will not be contrary to the public interest. If the Petition is granted, the Board is directed to cause the petitioner’s records to be updated and to cause the petitioner to be removed from firearm prohibition databases and to notify the US Attorney General that the petitioner is no longer subject to a firearms prohibition pursuant to a mental health deficiency.