I posted this previously in a different thread. If this doesn't answer your question, contact the TSA Chief Counsel at the number below.

The problem is that if you have a conviction of one of the offenses included in the statute or the regulation, it won't be up to an employer to hire you or not. If you fingerprints indicate a disqualifying conviction within 10 years, that's it.

The statute and regulations prohibit employment of those individuals who have unescorted access to aircraft or a secured area of an airport when an individual has a criminal conviction (or finding of not guilty by reason of insanity) for a disqualifying offense in the previous ten-year period. The disqualifying offenses are listed in 49 U.S.C. § 44936(b)(1)(B).

WHAT IS A CONVICTION?

The statute and regulations specify that if an individual was convicted, or found not guilty by reason of insanity, of any disqualifying offense in the preceding 10 years, then the individual may not be granted unescorted access authority. TSA has taken the position that a conviction means any finding of guilt, plea of guilty, plea of nolo contendere, or finding of not guilty by reason of insanity. Whether a disposition of a criminal case is a conviction is a matter of Federal law. In Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983), the Supreme Court held that the defendant had been convicted for purposes of a gun control statute even though under state law the defendant’s sentence had been deferred under state law. The key was that the defendant had pled guilty to the state offense and that was all that was required to make the underlying case a conviction for purposes of the Federal gun control statute.

TSA considers the following scenarios to be convictions (this is not an exclusive list):

· Person enters plea of guilty followed by deferred adjudication where court places defendant on probation for a period of 2 years.
· Person enters plea of nolo contendere followed by a 2 year period of community supervision.
· Person is found guilty by judge or jury followed by deferred adjudication where court places defendant on probation for period of 2 years.
· Person is arrested and placed on probation pending a trial. The state revokes probation and prosecutes the person and there is a finding of guilt.

TSA considers the following scenarios to not be convictions (this is not an exhaustive list):

· Person is arrested, tried, and acquitted.
· Person is arrested and is placed in a first offender program. Upon successful completion of program, the person is discharged and the charges are dropped.
· Person is arrested and placed on probation pending a trial. Upon successful completion of period of probation the charges are dropped.

HOW DOES AN EXPUNGEMENT EFFECT THE CONVICTION?

A number states allow an individual who has been convicted to seek a judicial order expunging the conviction. Expungements come in a variety of forms, but predominantly fall into two categories: (1) post-probationary period automatic expungements; and (2) post-conviction discretionary expungements.

As a general rule, where an expungement acts to nullify a conviction and the record of the conviction is maintained by the state only for purposes of sentencing in a subsequent criminal trial, then the expungement acts to nullify the conviction for purposes of the CHRC statute and regulations. If however, the expungement has conditions on it then the expungement will not act to nullify the conviction for purposes of the CHRC statute and regulations. Some examples of such conditions include the following (not an exhaustive list):

· Person may not own a firearm based on the conviction.
· Person may not be hired as a police officer or teacher.
· Person may not work as a health care provider.

Therefore, some expungements will remove the disabling effect of the underlying conviction and some expungements do not. Adjudicators should look to the specific provisions of state law through which the expungement was granted. (See attachment A).

WHAT EFFECT DOES A PARDON HAVE?

Most states, either through the governor’s office or a state board of pardons and paroles, have the power to grant pardons to persons convicted of a crime. TSA has taken the position that all pardons will act to nullify the underlying conviction for purposes of the CHRC statute and regulations.

ARE MISDEMEANOR CONVICTIONS DISQUALIFYING?

Unless otherwise stated in the statute, a misdemeanor conviction would act to disqualify an individual from unescorted access authority. For example, § 44936(b)(1)(B)(xi) specifies “armed or felony unarmed robbery.” (emphasis added) Conversely, § 44936(b)(1)(B)(ix) specifies “unlawful possession, sale, distribution, or manufacture of an explosive or weapon.” This provision encompasses both misdemeanor and felony weapons charges. Recently, the Fourth Circuit Court of Appeals held that a misdemeanor firearm offense does fall within list of disqualifying offenses in section 44936. The case is United States v. Baer, 2003 U.S. App. LEXIS 6023 (4th Cir., 2003).

ARE JUVENILE CRIMINAL RECORDS APPLICABLE?

When a juvenile has been tried as an adult, then the criminal record is applicable. Otherwise, juvenile records should not be considered for purposes of the criminal history records check statute.

For further assistance, please contact Stephen Brundage, attorney in the Office of Chief Counsel, at (571) 227-2662; email: [email protected]