SHARE J.B. Van Hollen Jon Erpenbach

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Madison — The state Department of Justice has a policy of issuing concealed-weapons permits to felons whose criminal records have been erased by court order — a situation that is not allowed under state law, according to nonpartisan attorneys for the Legislature.

At least one felon with an expunged record has been granted a concealed-weapons permit, but Department of Justice spokeswoman Dana Brueck said the agency does not maintain figures on how many others in that situation have received permits.

She declined to provide any explanation of why Attorney General J.B. Van Hollen believes his office can give permits to criminals with expunged records.

State Sen. Jon Erpenbach (D-Middleton) said he wants the Department of Justice to revoke any weapons permits that have been issued to those with expunged criminal records.

"The law is pretty clear," Erpenbach said. "I don't know how they could interpret it any other way.An expunction is not a pardon."

The 2011 concealed-weapons law allows most people to get permits to carry guns, but the permits are not available to people who are barred from possessing firearms.

According to lawyers for the Legislature, that means felons can gain the ability to possess firearms and get permits only in limited circumstances — if they have been pardoned, if they have been given permission from the U.S. attorney general or, for certain crimes, if they have received approval from a judge.

But Van Hollen's Department of Justice contends permits can also be given to those who have had their criminal records expunged, according to the legislative attorneys.

When judges expunge criminal records, court files are destroyed. But records of their conviction are still retained by prosecutors and available through criminal background checks.

"It appears to us that a person who has had the record of a felony conviction expunged continues to have been convicted of that offense and may not possess a firearm or obtain a concealed carry license under Wisconsin law because of that conviction," the Legislative Council attorneys wrote Friday in a memo to Erpenbach.

They cautioned, however, that it is impossible to know how courts would rule on the issue.

Judges can approve expunging records in a small set of cases, and they must do it at the time they sentence an offender.

The process is available to those who were under 25 when they committed misdemeanors or felonies that have maximum penalties of up to six years in prison.

If expunged, the records are destroyed by the court. But that does not nullify their conviction, according to the Legislative Council memo.

In a 2002 decision, the state Supreme Court determined an expungement applies only to court records — and not records belonging to prosecutors and law enforcement. Expunged records can remain on criminal background histories maintained by the state Department of Justice and FBI, the court found.

"The court's analysis in (the case) appears to distinguish between expunction of the court records related to a conviction and the complete vacating of the conviction itself," the legislative attorneys wrote.

They noted state courts use a form for people seeking to expunge their records that notes when records are expunged "the conviction is not vacated or set aside."

Erpenbach learned last month about one instance in which a felon with an expunged record got a concealed-weapons permit. He then asked the legislative attorneys to look into the matter.

He said he was stunned Van Hollen's office would not explain why it believes it could issue permits to such people.

"They had to have a legal rationale to hand out the permits in the first place," Erpenbach said.

The GOP attorney general did not seek a third term and will step down on Jan. 5. His replacement will be Waukesha County District Attorney Brad Schimel, a Republican who was elected as attorney general this month.

In an email, Schimel told the Milwaukee Journal Sentinel he would wait to take a position on the matter until he takes office and discusses it with Department of Justice staff.

The public does not have a way to find out the names of people with expunged records who have been given concealed-weapons permits.

The names of permit holders are not available under the state's public records law because of a provision of the concealed-weapons law aimed at protecting gun owners' privacy.

Erpenbach said he did not expect to get the names of those people, but believed the department should be able to determine how many people with expunged records have been given permits. Brueck, the DOJ spokeswoman, said the department does not maintain that information.

"I'm not buying the fact that they don't keep track," Erpenbach said. "It's the Department of Justice. They keep track of everything."