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March 22, 2013

Based on new Louisiana constitutional provision, state judge strikes down law criminalizing felon gun posssission

As reported in this lengthy local article from New Orleans, some felons in the Bayou have gotten (for now) some benefit from the modern gun rights movement. Here are the basics:

An Orleans Parish judge on Thursday ruled that the state statute forbidding certain felons from possessing firearms is unconstitutional, in the wake of a constitutional amendment passed last year that made the right to bear arms a fundamental one in Louisiana.  The issue will now go straight to the state Supreme Court, which must decide whether the statute infringes on Louisiana citizens' now-enhanced right to gun possession.

Orleans Parish Criminal District Court Judge Darryl Derbigny on Thursday dismissed the charge against one felon, but took his decision a step further than another judge faced with a similar decision earlier this month.

Derbigny ruled that the entire statute -- RS 14:95.1 -- was unconstitutional after voters last year approved by a sweeping majority a constitutional amendment backed by the National Rifle Association. That bill made gun ownership a "fundamental right," on the same level as freedom of speech or religion. A court interpreting any law restricting a fundamental right -- as gun ownership is now considered -- must approach it with "strict scrutiny," the highest level of judicial scrutiny.

Before Jan. 1, questions of gun rights were considered with "rational scrutiny," which allowed regulations to "protect the public health, safety, morals or general welfare." But strict scrutiny requires that the law is, first, necessary for a "compelling government interest." Then, it must be so narrowly defined as to serve only that interest and, third, be the least restrictive way of doing so.

The Orleans Parish public defenders office challenged the constitutionality of the statute on behalf of a half-dozen clients, all charged with being a felon in possession of a firearm. The attorneys concede that public safety is a compelling interest to bar violent offenders, like murderers or armed robbers, from possessing weapons. But the law also bars people convicted of a number of less obviously violent felonies from possessing guns....

The case before Derbigny involved a 20-year-old man named Glen Draughter who had previously pleaded guilty to attempted simple burglary. Draughter was later caught riding in a car with two other people; a .40-caliber Smith & Wesson was in the backseat and an AK-47 with a 30-round magazine was in the trunk.

Public defenders Jill Pasquarella and Colin Reingold argued that under a strict-scrutiny test, the government must be able to provide compelling data showing that those convicted of crimes like simple burglary prove a heightened threat to society when armed. "There is, simply, no rational basis for stripping Louisianans of their rights ... where they have been convicted of crimes that are wholly unrelated to firearm possession or use," Pasquarella wrote to judges in this and several other cases.

Assistant District Attorney Matthew Payne submitted sociological studies suggesting a link between such offenses and a proclivity toward later violent crime.

But Derbigny on Thursday ruled that the statute infringed on constitutional protections when analyzed under a "strict scrutiny" test required of laws restricting fundamental rights. He wrote that it "is not narrowly tailored to achieve the government's interest."...

Judge Frank Marullo had already ruled in favor of defendants in several similar cases. But he did not declare the statute unconstitutional, saying his rulings applied to specific defendants and the circumstances of their cases. Judge Arthur Hunter is scheduled to hear a similar case later this month.

Payne on Thursday noted that he intends to appeal the decision. When a statute is deemed unconstitutional in its entirety, the appeal skips mid-level appeals courts and is fast-tracked straight to the state Supreme Court for review.

If the Supreme Court sides with Derbigny, and rules that the statute violates the state constitution, the law will be scrapped and the Legislature forced to rewrite it. If the court finds that the amendment makes the gun-possession law unconstitutional, it will also have to decide whether the unconstitutionality is retroactive -- which could jeopardize convictions that occurred before the amendment went into effect....

In the meantime, prosecutions of felons in possession of a firearm will continue on, said Chris Bowman, spokesman for Orleans Parish District Attorney Leon Cannizzaro. In the weeks leading up to the November election, with the gun rights amendment on the ballot, Cannizzaro warned of the possible fallout.

He wrote an op-ed column threatening that it would lead to a "flurry of litigation in which criminal defendants will challenge the constitutionality of current criminal laws regulating gun possession."

The nonpartisan Bureau of Governmental Research also urged voters to defeat the constitutional amendment, saying it "would expose the public to unnecessary risks and hamper law enforcement efforts" and adding: "There is no good reason to enter this uncharted territory." Gov. Bobby Jindal wrote an op-ed too, but his exhorted voters to pass the amendment, which he described as "an ironclad guarantee of freedom here in Louisiana."

In a prepared statement Thursday, the Jindal administration said: "We disagree with the judge's ruling. The amendment passed last session is not in conflict with Louisiana or federal law barring felons from owning guns."

Cannizzaro's office, meanwhile, offered an "I told you so" statement. "District Attorney Cannizzaro predicted that the passing of this amendment would cause prosecutors across the state to go to court and defend the constitutionality of 14:95.1," Bowman said Thursday.

Some related Second Amendment and gun policy posts:

March 22, 2013 at 05:24 PM | Permalink

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Comments

When one pushes for the 2nd Amendment protections, one must also follow the other amendments as possible, such as the 8th, 14th, as well as the ex post facto and commerce clauses. Historically, only the third branch can impose limitations on laws, even at the state level.

Instead of blanket laws emanating from executive or legislative branches, more emphasis must be placed on restructuring the criminal codes that give judges more pertinent control on felon disenfranchisement. For instance, a judge can institute a lifetime ban on weapons as part of a sentence for a particular crime (such as using a gun in the commission of a crime), as opposed to generic legislative laws that use an overbroad brush. This is not about giving "rights" to felons, when such "rights" should never have been suppressed in the first place.

Posted by: Eric Knight | Mar 22, 2013 7:44:35 PM

The focus here should be on risk. The commission of a crime is just one factor to consider. Some felons have little risk of committing another crime; others may have a high risk.

Posted by: Tom McGee | Mar 23, 2013 1:09:03 PM

Now this was funny!

"Derbigny ruled that the entire statute -- RS 14:95.1 -- was unconstitutional after voters last year approved by a sweeping majority a constitutional amendment backed by the National Rifle Association. That bill made gun ownership a "fundamental right," on the same level as freedom of speech or religion. A court interpreting any law restricting a fundamental right -- as gun ownership is now considered -- must approach it with "strict scrutiny," the highest level of judicial scrutiny."

Is there something in the writing of this amendment as apposed to the other 9 that would make you think a decison like this was even needed.

It is a fundamental right. Just like the other 9!

Only a fucktard govt stooge like the judges and politicians of this country would think different!

Posted by: rodsmith | Mar 23, 2013 3:50:32 PM

If i'm not mistaken this is also one of the fucked up states that is now trying to rewrite thier state constitution to overturn a State Supreme Court decison that make the Sex Offender Registry an expost violation.

So now they want to make an expost violation only legal in sex crimes law.

Pity the guy who went for the colorado DOC head didn't go for this fuckup Jindal instead

Posted by: rodsmith | Mar 23, 2013 3:56:38 PM

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