OAKLAND — When is an expunged criminal record not really expunged?

When applying for a gun permit in New Jersey.

A Navy veteran seeking to become a legal gun owner was denied that opportunity because of a felony conviction 18 years ago and a misdemeanor bust when he was 18 years old.

Courts in New Jersey have repeatedly affirmed that the right to bear arms is not absolute and is subject to “reasonable limitations.” This case stands out because it also addressed the expungement of criminal records — the point of which is that they're not supposed to exist in the eyes of the law.

But the borough man lost his appeal last week after judges pointed out that expunged records can be unsealed in limited circumstances.

The man, whose identity is not revealed in the appellate decision, ran into trouble with his application to purchase firearms last year because the police officer who handled his paperwork remembered that he had unsuccessfully applied to be a police officer back in 2016, before his record had been expunged.

When he was 18, he stole a purse and wrote himself a check for $100. He also was busted for smoking marijuana. He pleaded guilty to a disorderly person’s offense.

When he was 24 in October 2001, a year after leaving the Navy as corpsman platoon medic, he was arrested after leading police on a high-speed chase. Police said he refused orders to drop a knife. He admitted being drunk, although he was below just under the legal limit for driving. He pleaded guilty to third-degree eluding police.

Since then he has worked as a paramedic at Hackensack University Medical Center and has stayed out of legal trouble. A psychologist who assessed him wrote that he “poses a very low risk to the community and himself with a firearm.”

Borough police, however, denied his permit based on his arrest record. A Superior Court judge agreed.

He appealed, arguing that police and the judge should not have looked at his past and that the denial based on the law’s provision addressing “public health, safety and welfare” violated his Second Amendment right.

The appellate decision cited past court cases that explained that “while the records of an expunged arrest may be said to be nonexistent in the eyes of the law,” the events and evidence still exist.

The judges pointed out that the expungement law allows inspection and release of files and records through a court order “for good cause shown and compelling need based on specific facts” during the course of a lawsuit or judicial proceeding.

There are other caveats, too. The law, while it allows people with an expunged record to answer in the negative if asked about an arrest of conviction, requires that they divulge their record when applying for a job with the court or a police department.

The appellate decision also explains that the courts have a wide latitude when it comes to firearms. For example, judges and police departments investigating the fitness of a firearm permit applicant can consider the facts underlying an arrest even if the charges were dropped. And in some domestic violence cases, authorities are not required to return confiscated firearms even after the complaint is dismissed.

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The judges also said that they were concerned that the man’s psychologist minimized his behavior, saying that they found it “extremely troubling and concerning” that he told the psychologist that he was trained in the military to “work while inebriated” and thus “he felt quite functional” even though he may “have been legally drunk at the time.”

They also were concerned about this stated reasons for wanting guns because he said that being allowed to have firearms would “validate to himself that he has become a better person.”

The appellate decision concludes that his past is “clearly relevant” because his “decision to drink and drive, the cavalier nature with which he discussed being able to work while intoxicated, his apparent violent encounter with the police, and the seeming unwillingness to acknowledge his conduct during the 2001 arrest all bear on his fitness to own a firearm.”

Sergio Bichao is deputy digital editor at New Jersey 101.5. Send him news tips: Call 609-359-5348 or email sergio.bichao@townsquaremedia.com.

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