Open Carry in Louisiana

English: The Bill of Rights, the first ten ame...

The Bill of Rights, the first ten amendments to the United States Constitution  (Photo credit: Wikipedia)

Recently, I was told about an officer that ran across a citizen carrying a firearm openly.  The officer took what he felt was the appropriate action to address the situation.  In light of the current political climate regarding guns, gun control, the 2nd Amendment, etc., a couple of people indicated they would like to see some further information on the topic of open carrying.  This topic is much simpler than it may seem.

The law that allows open carry in Louisiana is Article 1 Section 11 of the Louisiana Constitution and the 2nd Amendment to the U.S. Constitution.

Article 1 Section 11 of the Louisiana Constitution was recently amended to state “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.” La. Const. art. I, § 11.The 2nd Amendment to the United States Constitution states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  U.S. Const. amend. II

Without getting too heavy into some type of constitutional analysis, the Supreme Court says that American citizens have the right to keep and bear arms.  “Keep arms” means “have weapons” and “bear arms” means “wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.”  Dist. of Columbia v. Heller, 554 U.S. 570, 584, 128 S. Ct. 2783, 2793, 171 L. Ed. 2d 637 (2008).  See also McDonald v. City of Chicago, Ill., 2010, 130 S.Ct. 3020, 177 L.Ed.2d 894.

It is allowable to ban the possession under certain circumstances.  LSA 14:95.1 bans convicted felons from possessing a firearm or carrying a concealed weapon (see State v. Clement, Sup.1979, 368 So.2d 1037).  It is likewise allowable to ban carrying a firearm at a school, a school-sponsored function, or a firearm-free zone (see LSA 14:95.2).

However, attempts to prohibit any form of open carry have been overturned as unconstitutional in Georgia and Tennessee.
In this regard, what is legal is defined by what is specifically illegal.  In general, if one is not in violation of LSA 14:95, et seq., one will be protected by the Louisiana Constitution and the U.S. Constitution.
The Louisiana Supreme Court has held that the state can regulate how weapons are

Louisiana Supreme Court

Louisiana Supreme Court (Photo credit: Wikipedia)

carried as discussed above:

The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States. The arms there spoken of are such as are borne by a people in war, or at least carried openly. The article explains itself. It is in these words: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This was never intended to prevent the individual States from adopting such measures of police as might be necessary, in order to protect the orderly and well disposed citizens from the treacherous use of weapons not even designed for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke. There is, therefore, nothing in the Constitution of the United States which requires of us a rigorous construction of the statute in question.  State v. Smith, 11 La. Ann. 633 (1856).

The Louisiana Supreme Court also addressed what constitutes concealment.  Basically, if part of the weapon is concealed and part visible, then it is concealed.  If you strap a rifle to your back or holster a weapon on your hip, it is not concealed.

The constitutional right is to bear arms openly, so that when one meets an armed man there can be no mistake about the fact that he is armed. When we see a man with musket to shoulder, or carbine slung on back, or pistol belted to his side, or such like, he is bearing arms in the constitutional sense. Of course there are other examples. These are but illustrations. There is no danger of any jury or court misinterpeting our statute prohibiting carrying concealed weapons, and confounding a case of lawful arms-bearing with one of carrying dangerous weapons concealed, unless verbal distinctions are pressed too far and they are misled by them. A pistol half stuck in a pocket or about the clothes so that it is not fully exposed, even though a part of it may be visible, is carrying a concealed weapon within the meaning and intent of the statute, and that is the language of the charge.  State v. Bias, 37 La. Ann. 259, 260 (1885).

A law enforcement officer who encounters someone who is openly carrying a firearm is going to conduct an analysis as indicated in
T

erry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),

unless the officer already has probable cause to arrest.  Of course a law enforcement officer is free to speak with whoever he or she choose.  However, that person is also free to not speak back or answer questions.  Once the individual is no longer free to leave, a law enforcement officer would need articulable probable cause to arrest.

I think it is also important to note that one is not guilty of trespass (LSA 14:63) as long as you have express, legal, or implied authority to enter or remain on the property.  A business, by the very nature of being open, impliedly invites people in.  However, that authorization can be revoked at which time it could be a violation of LSA 14:63 to remain.  In the context of this discussion, if an individual was lawfully carrying a firearm openly, it would be legal to walk into the local grocery (as long as it didn’t violate some other law like being too close to a school or in a firearm-free zone).  However, if the store rescinds whatever authorization that person had to enter the store, then it could be a violation of LSA 14:63 to remain on the property (or return later).

The Louisiana Open Carry Awareness League provides these guidelines regarding open carry in Louisiana.  While this is obviously a special interest group, the FAQ’s appear to be decent explanations of the law.

If anyone has anything they would like to add to this discussion, please feel free to comment or let me know directly.  This is in no way meant to be a political statement on my part.  It is simply a recitation of the law as I understand it to be currently and is intended for those tasked with enforcing the law.

2012 Enforcement Expo

As Education Chairman for the Louisiana Fraternal Order of Police, it is my pleasure to announce that I have been asked to speak on legal issues revolving around officer-involved shootings at the upcoming Enforcement Expo to held at the Morial Convention Center in New Orleans.  The Expo is being put on by the publishers of Law Enforcement Technology, Officer.com, and Law Enforcement Product News and supported by the Louisiana Fraternal Order of Police.

There will conference sessions on numerous topics of interest on October 31 and November 1, 2012.  Attendance at these conference sessions is free.  My session will October 31, 2012 from 11:00 a.m. to 12:15 p.m.

In addition, there will be many exhibitors showing off their latest and greatest equipment and tools of the trade for the modern law enforcement officer.

As I mentioned earlier, admission to the Expo is free.  The Expo will be open from October 31 through Noember 2, 2012 at the Morial Convention Center.  Come on down, enjoy the free seminars, check out the new equipment, and meet up with some fellow law enforcement officers from other departments.

Logging Every Key You Stroke and Button You Push

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Sometime ago, I wrote an article about public records on this blog. I wanted to take this opportunity to further discuss some records or data maintained by law enforcement agencies and other employers. I would also invite any readers to add any other sources of data or information which I leave out in the comments section.

Let’s start with the fact that there is no expectation of privacy afforded to employees while using any departmental equipment or property. While this statement applies to physical properties such as lockers and desks, I plan on focusing on electronic data. For example, many employees are issued departmental cell phones. These cell phones are maintained and paid for by the police department. They also communicate through the city’s servers every time you engage in some type of transaction. The city of New Orleans is currently using BlackBerry. The BlackBerry communicates through the BlackBerry enterprise server which is located in City Hall. The BlackBerry enterprise server then communicates with whoever you were attempting to communicate with. So, phone calls, text messages, BlackBerry Messenger messages, and emails, are all directed through the BlackBerry enterprise server prior to transmission to other destinations. This data is maintained by the city of New Orleans and can be retrieved at their desire for whatever reason.

Similarly, departmental emails are also logged and recorded on the city’s servers. You have no right to an expectation of privacy in any communication made through your city email account. Your city email account should be used for no other purposes than official communications. Nobody likes having multiple email accounts, but under these circumstances it is certainly best to have a Gmail or Yahoo account (or other email service) for your own personal use.

In fact, there is some case law to suggest that your department could potentially be able to order you to surrender certain records from your own personal cell phone and or email account if the communication can be shown to be directly related to your employment. It is better to be safe than sorry with records never go away.

You should assume that all computer activity is logged. For example, officers of the NOPD are required to read daily training bulletins. The department has easy access to information about reading these daily training bulletins. It is a simple computer inquiry to determine whether or not an officer has read the daily training bulletins they were supposed to read.

MOTION inquiries are also logged. MDT to MDT transmissions are logged. Your network logins are logged. Every time you key up your radio, your identity, time, date, and length of communication are logged, even if you are on a radio talk group that is not recorded. There are many radio talk groups which are recorded, even if they are not being used as a dispatch channel.

Obviously, FIC cards are logged. Radio transmissions are logged by dispatchers. Your car’s location is logged. In car cameras are constantly recording and log every button push. The EPR system logs every event. Your access to the subpoena system is logged. Every time you use the NFC chip in your access card to unlock a door, it is logged.

This is just an illustrative list of things that are recorded or logged. If anyone has anything to add to this list, or would like to expound on something I included, feel free to do so in the comments. Also, I have used the NOPD for my examples. However, this is probably true for whatever department you work for. If you work for another department, feel free to add any specifics for your department in the comments.

It is a fact of modern life that the addition of many electronic conveniences has been detrimental to our privacy. Be smart. Assume that everything you do with departmental equipment or computers is logged and tracked. If you say you read the daily training bulletin, make sure you have actually read the daily training bulletin. They can and do check that type of information. Keep your private life private.

Notes on Public Records for Law Enforcement (Part 1)

The Louisiana Public Records Law insures that public records are available for inspection by the public.  This has an impact on law enforcement in a number of ways.  Therefore, it is important for law enforcement personnel to be familiar with the Louisiana Public Records Law.

A “Public Body” means “any branch, department, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority.”

For the purpose of law enforcement personnel, your agency is a public body within the definition.

A public record is anything maintained by a public body which is not exempted from disclosure by another law.

The “custodian” of these records is the head of the public body having custody and control of these records.  For the New Orleans Police Department, the Superintendent of Police is the custodian of records.  For the Kenner Police Department, it is the Chief of Police, and for the Jefferson Parish Sheriff’s Office, it is the Sheriff.  These custodians often appoint someone to act in there capacity as custodian.  In New Orleans, this is normally a function of the Records and Identification Division.

Certain law enforcement records are exempt from disclosure.

  • Records pertaining to “pending criminal litigation” are exempt from disclosure.
  • Records pertaining to confidential informants or which contain information that could identify the source of confidential information are exempt from disclosure.
  • Records containing security procedures, investigative training information or aids, investigative techniques, investigative technical equipment or instructions in the use thereof, criminal intelligence information pertaining to terrorist-related activity, or threat or vulnerability assessments collected or obtained in the prevention of terrorist-related activity, including but not limited to physical security information, proprietary information, operational plans, and the analysis of such information, or internal security information are exempt from disclosure.
  • Records of the arrest of a person until a conviction or acceptance of a plea of guilty by a court of competent jurisdiction are exempt from disclosure.  EXCEPT that ALL initial incident reports are ALWAYS public record.
  • Information which would reveal undercover or intelligence operations are exempt from disclosure.
  • The identity of the victim of a sexual offense is exempt from disclosure.
  • Records containing the identity of an undercover police officer or records which would identify an undercover police officer are exempt from disclosure.
  • Records concerning juvenile status offenders are exempt from disclosure.

In addition, LSA 40:2532 forbids disclosure of a law enforcement officer’s home address, photograph, or other confidential information (SSN, DOB, etc.).

Stay tuned for Part 2.

FOP Legal Plan Primer

The Crescent City Lodge of the Fraternal Order of Police provides its members with an outstanding legal plan.  The FOP Legal Plan provides an attorney to any member who is the subject of an administrative or criminal investigation.  It will also provide an attorney if you become the defendant in a civil law suit arising out of the course and scope of your employment.  But wait, there’s more. . .

Fraternal Order of Police

Fraternal Order of Police (Photo credit: Wikipedia)

The FOP Legal Plan will also provide you with an attorney if you are a witness in an administrative or criminal investigation.  The FOP Legal Plan will provide you with an attorney if you become the subject of an administrative or criminal investigation because of an incident that occurred while you were off-duty.

The FOP Legal Plan will provide you with an attorney for any Civil Service appeals or other Civil Service matters.  If the matter warrants action beyond the Civil Service Commission, the FOP Legal Plan will provide an attorney for appeals through the court system.

The FOP Legal Plan provides complimentary notary services.  The FOP Legal Plan will pay for the first two hours of legal services for ANY personal legal matter.

Finally, the FOP Legal Plan will reimburse you for up to five suspension days if you choose not to appeal (you have to be represented by an FOP attorney to qualify).

These are benefits you pay for every other week by payroll deduction.  You should take advantage of these benefits.

**PLEASE NOTE that the above specifically relates to the FOP Legal Plan as administered by Crescent City Lodge #2.  Certain benefits, such as the two hours on any personal legal matter, are not available through the National Legal Plan and may not be available to members employed by agencies other than the New Orleans Police Department.  If you have any questions and are not employed by the New Orleans Police Department, please call me or the FOP Legal Plan at 1-800-341-6038.

What types of investigations should I call about?

Any type of investigation.

People frequently tell me that they did not call, or were not sure if they should call, because the investigation seemed minor.  It is as if somehow this minor investigation would be an imposition on the attorney.  Nonsense.  Wouldn’t you use your health insurance for the most minor appointment with your doctor?

In addition, you need to be represented by an FOP attorney in order to qualify for the Salary Reimbursement Option (SRO).  You don’t need to have “something to worry about” in order to call.

When should I call?

Immediately.  You should call as soon as you learn that you are either an accused or witness in an administrative or criminal investigation.

You should also call if you receive a letter from Civil Service about the department’s request for an extension of time.

Also, it is almost never too late to call.  Just because you didn’t have an attorney when you made a statement doesn’t mean you don’t get an attorney for the disciplinary hearing or the Civil Service appeal.

Finally, you should call if you have any question about an investigation or the process of conducting these investigations.

Who should I call?

If you know one of the FOP attorneys, you can call that person directly.  If you do not know who to call, you can call Jim Gallagher at 504-442-4050.  You can contact me directly by email, phone, or text.

Statements from Officers Following Critical Incidents

On March 13, 2012, the NOPD sent out a press release stating that they had not been able to take a statement from an officer involved in a critical incident.  My phone buzzed shortly thereafter to alert me to “Breaking News” that the NOPD has asked, but not been able to take a statement from an officer involved in a critical incident.  Is this was passes for “Breaking News” these days?

My first reaction after being amazed by what qualifies as “Breaking News” is to point out that the United States Constitution, in particular Amendment V, clearly gives every citizen in the United States the lawful authority to say he or she does not wish to give a voluntary statement in a criminal investigation.  We know it applies to every citizen of the United States thanks to Amendment XIV.

The more I thought about it, the more I became convinced that could be perceived as a smart ass response.  So, in an effort to keep this from becoming a thesis of sorts, I would like to relay several passages from the IACP Officer Involved Shooting Guidelines:

From Section 1, Purpose:

The field experience of members of the IACP Police Psychological Services Section, along with scientific research, suggests that following these guidelines can reduce the probability of long-lasting psychological problems resulting from such incidents (officer-involved shootings).

From Section 3, At the Scene and Immediately Following, Paragraph 3.2:

Involved officers should be encouraged to step immediately away from the scene and any media attention and be sensitively transitioned to a safe and supportive environment.  Instead of driving themselves, they should be provided with transportation.  If returning immediately to the department is not practical, they should be allowed to choose another appropriately private and safe remote location.  Above all, officers should not be isolated.  Instead, they should be accompanied by supportive peers and supervisors who can assist them in following agency policies regarding talking about the incident before the initial investigative interviews.  If officers themselves have an immediate need to talk about the incident, they should be encouraged to do so solely with individuals with whom they have legally privileged confidentiality.  Consider both the officers’ preferences and the integrity of the investigation when deciding if an when the officers are to return to the scene.

From Section 4, Investigative Period, Paragraph 4.1:

Shootings and other use-of-force incidents can result in heightened physical and emotional reactions for the participants.  It is recommended that officers involved in such incidents be given a minimum of three days leave, either administrative or through regular days off, in order to marshal their natural coping skills to manage the emotional impact of the incident prior to return to duty or the preparation of a use-of-force or incident report.  Those who are present at the scene but did not discharge their weapons may also be emotionally impacted by the incident and may benefit from a period of administrative leave.  It is important that the officers and the public understand that administrative leave is a routine procedure and not a disciplinary suspension.

From Paragraph 4.2:

While officers may be asked to provide pertinent information soon after a shooting to aid the initial investigative process, it is suggested that they have some recovery time before providing a full formal statement.  Depending on the nature of the incident and the emotional status of the officer, this can range from a few hours to several days.  Officers will often benefit from at least one night’s sleep prior to being interviewed.  Officers who have been afforded these opportunities are likely to provide more coherent and accurate statements.  Providing a secure setting, insulated from the press and curious coworkers, is important during the interview process.

From Paragraph 4.9:

Members of the community, including the media, may benefit from education regarding procedures and protocols related to police use of force.  It is recommended that police agencies assist the community in these efforts by providing information about factors involved in police use of force such as officer safety issues and pertinent laws.

Information about the International Association of Chiefs of Police (IACP) can be found here.

The Fraternal Order of Police and the Crescent City Lodge of the Fraternal Order of Police recommend that officers involved in critical incidents call the FOP or an FOP attorney immediately following a critical incident.  As we have witnessed here, these situations can be emotionally charged on many different levels.  Consulting with an FOP attorney provides the officer with someone they can talk to about the incident with legally privileged confidentiality.  Furthermore, it is my experience that police officers want to explain their actions.  However, it simply may not be in anyone’s best interest for that to be done, at least not initially.  Finally with regard to this topic, the FOP attorney is well educated and trained to provide advice and analysis about giving statements moving forward.  These can be complicated legal issues.  A legal professional is best suited to provide this counsel.

And for more “Breaking News“…

Benefit for Tony Mayfield and Mike Asevedo (Please Share!)