New Orleans judge rules statute forbidding felons from having firearms unconstitutional after ‘fundamental right’ amendment

NOLA – by Claire Galofaro

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.

It reads: “It is unlawful for any person who has been convicted of a crime of violence … which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense …, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state…”

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.”

“The courts cannot question the wisdom of fundamental law and frustrate the will of the people; their function is to interpret and apply that law,” he wrote. “After reviewing the law and applying a strict scrutiny standard, the Court finds La R.S. 14:95.1 unconstitutional in its entirety.”

He dismissed the charge against Draughter, but gave prosecutors until 5 p.m. Friday to seek new charges before ordering his release from jail.

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.

State Sen. Neil Riser, a Republican from Caldwell Parish who sponsored the bill, and state Sen. A.G. Crowe, a Slidell Republican who co-sponsored it, did not reply to requests for comment on how broadly they meant for the bill to be interpreted.

The National Rifle Association also did not respond to inquiries about its position on felons’ rights to own firearms.

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.

Loyola Law School professor Dane Ciolino said it’s not unusual for constitutional amendments to have consequences  voters may not have foreseen.

“They’re written in such general terms that are more open to interpretation,” he said. “The voters have one idea of what they mean, but in the end it’s going to be up to the Supreme Court to determine what they meant.”

Ciolino he believes it’s likely some kind of law limiting criminals’ ability to possess weapons will eventually pass constitutional muster. But the court could agree with Derbigny and conclude that the law now being challenged is too broad, and that in passing it decades ago, the Legislature failed to consider the least restrictive solutions to the problems it was trying to address.

For instance, there might be no reason to consider a doctor convicted of violating drug laws a likely candidate for violence, he said.

“The scope of what is felonious conduct (under the law Derbigny ruled unconstitutional) includes lots of what we call ‘malum prohibitum’ offenses, offenses that don’t involve violence,” Ciolino said. “But I think everybody would agree that some type of regulation on felons holding a firearm will pass the strict scrutiny test.”

http://www.nola.com/crime/index.ssf/2013/03/new_orleans_judge_rules_statut.html

Sent to us by Sir David Andrew.