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.

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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“…