Every year, the Louisiana Legislature passes a slew of new legislation, most of which will take effect on August 1. And so, each year, I like to do a run-down of the new legislation related to or impacting criminal law. This week’s topic: Firearms!

The Louisiana legislature amended Louisiana Revised Statutes 40:1379.1.4 to edit the definition of “qualified retired law enforcement officers” who are permitted to carry concealed weapons as individuals who “[were] properly certified by the Council on Peace Officer Standards and Training at the time of retirement, in accordance with R.S. 40:1379.3(D)(1)(f).” In keeping with this additional definition, the Louisiana legislature amended the Illegal Carrying of Weapons statute to allow for this change.

The Louisiana Legislature also amended the concealed carry permit statute (La. R.S. 40:1379.3) to remove the restriction from obtaining a concealed carry permit if one has been convicted of operating a motor vehicle while intoxicated. The restriction on individuals who “chronically and habitually use alcoholic beverages to the extent that his normal faculties are impaired” remains in effect. This statute was further amended to state that “No permit shall be suspended or revoked solely upon the basis of an arrest for a violation of R.S. 14:98.1.” La. R.S. 40:1379.3(I)(6).

The Louisiana Legislature also amended the definition of a “machine gun” to define it as:

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one show without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, and any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun.

La. R.S. 40:1751.

This same Act increases the penalty range for the manufacture, transfer, or possession of a machine gun in Louisiana from imprisonment at hard labor for not less than one year nor more than five years to not less than one year nor more than ten years. La. R.S. 40:1755(A). If the person has a prior conviction of a felony crime of violence (as defined in La. R.S. 14:2), that person shall be imprisoned at hard labor for not less than three years nor more than ten years. La. R.S. 40:1755(B). This change in the law also removes “flame thrower” from the definition of “firearm” in La. R.S. 40:1781.

The Louisiana Legislature expanded the definition of “utility service employee” for purposes of the offense of Aggravated Assault Upon a Utility Service Employee with a Firearm to include:

any person employed under contract, of any utility service that provides electricity, gas, water, broadband, cable television, heat, steam, telecommunications services, or sewer services, whether privately, municipally, cooperatively, or investor-owned."

La. R.S. 14:37.5(B)(3).

Finally, the Legislature increased the penalty for Assault by Drive-By Shooting from not less than one year nor more than five years to not less than three years nor more than 10 years, and expanded the definition of “drive-by shooting” to include interstate highways along with the previously included “public street or highway.” La. R.S. 14:37.1.

If you or someone you know is facing prosecution for a firearm charge in Louisiana, give us a call at (318) 459-9111 to set up a consult.

The short answer to this question is: No.

The right to a first offender pardon is established in the Louisiana Constitution of 1974, Article IV, Section 5(E), and states in relevant part:

a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

Louisiana Constitution of Article IV, Section 5(E). Louisiana Revised Statutes 15:572 elaborates on this power:

B.(1)  A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.

(2)  No person convicted of a sex offense as defined in R.S. 15:541 or determined to be a sexually violent predator or a child predator under the provisions of R.S. 15:542.1 et seq. shall be exempt from the registration requirements of R.S. 15:542.1 et seq., as a result of a pardon under the provisions of this Subsection.

(3)  Notwithstanding any provision of law to the contrary, no pardon shall be issued to a first offender unless that person has paid all of the court costs which were imposed in connection with the conviction of the crime for which the pardon is to be issued.

C.  For the purposes of this Section, "first offender" means a person convicted within this state of a felony but never previously convicted of a felony within this state or convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would have been a felony, regardless of any previous convictions for any misdemeanors.  Convictions in other jurisdictions which do not have counterparts in this state will be classified according to the laws of the jurisdiction of conviction.

D.  On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred.  This copy shall be filed in the record of the proceedings in which the conviction was obtained.  However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.

E.  Notwithstanding any provision herein contained to the contrary, any person receiving a pardon under the provisions of Subparagraph (1) of Paragraph (E) of Section 5 of Article IV of the Louisiana Constitution of 1974 and this Section may be charged and punished as a second or multiple offender as provided in R.S. 15:529.1.

La. R.S. 15:542.

A first offender pardon does not remove the record from public access and it can still be used against a person in a subsequent prosecution.

The effect of an expungement is established in Louisiana Code of Criminal Procedure Article 973:

A. An expunged record of arrest or conviction shall be confidential and no longer considered to be a public record and shall not be made available to any person or other entity except for the following:

(1) To a member of a law enforcement or criminal justice agency or prosecutor who shall request that information in writing, certifying that the request is for the purpose of investigating, prosecuting, or enforcing criminal law, for the purpose of any other statutorily defined law enforcement or administrative duties, or for the purposes of the requirements of sex offender registration and notification pursuant to the provisions of R.S. 15:540 et seq.

(2) On order of a court of competent jurisdiction and after a contradictory hearing for good cause shown.

(3) To the person whose record has been expunged or his counsel.

(4) To a member of a law enforcement or criminal justice agency, prosecutor, or judge, who requests that information in writing, certifying that the request is for the purpose of defending a law enforcement, criminal justice agency, or prosecutor in a civil suit for damages resulting from wrongful arrest or other civil litigation and the expunged record is necessary to provide a proper defense.

B. Upon written request therefor and on a confidential basis, the information contained in an expunged record may be released to the following entities that shall maintain the confidentiality of such record: the Office of Financial Institutions, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Louisiana Board of Pharmacy, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, the Louisiana Department of Insurance, the Louisiana Licensed Professional Counselors Board of Examiners, the Louisiana State Board of Chiropractic Examiners, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1, or as otherwise provided by law.

C. Except as to those persons and other entities set forth in Paragraph A of this Article, no person whose record of arrest or conviction has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offense, or that the record of the arrest or conviction has been expunged.

D. Any person who fails to maintain the confidentiality of records as required by the provisions of this Article shall be subject to contempt proceedings.

E. Nothing in this Article shall be construed to limit or impair in any way the subsequent use of any expunged record of any arrests or convictions by a law enforcement agency, criminal justice agency, or prosecutor including its use as a predicate offense, for the purposes of the Habitual Offender Law, or as otherwise authorized by law.

F. Nothing in this Article shall be construed to limit or impair the authority of a law enforcement official to use an expunged record of any arrests or convictions in conducting an investigation to ascertain or confirm the qualifications of any person for any privilege or license as required or authorized by law.

G. Nothing in this Article shall be construed to limit or impair in any way the subsequent use of any expunged record of any arrests or convictions by a “news-gathering organization”. For the purposes of this Title, “news-gathering organization” means all of the following:

(1) A newspaper, or news publication, printed or electronic, of current news and intelligence of varied, broad, and general public interest, having been published for a minimum of one year and that can provide documentation of membership in a statewide or national press association, as represented by an employee thereof who can provide documentation of his employment with the newspaper, wire service, or news publication.

(2) A radio broadcast station, television broadcast station, cable television operator, or wire service as represented by an employee thereof who can provide documentation of his employment.

H. Nothing in this Article shall be construed to relieve a person who is required to register and provide notice as a child predator or sex offender of any obligations and responsibilities provided in R.S. 15:541 et seq.

La. CCrP. Art. 973.

Under current ATF guidelines, an expungement will serve to restore an individual’s right to possess a firearm under federal law. An expungement, like a first offender pardon, does not prevent the use of the expunged conviction from use against a person in a subsequent prosecution.

If you or someone you know has questions about eligibility for or obtaining an expungement and would like to set up a consult, give us a call at (318) 459-9111.

One of the most common questions we are asked is: how does a criminal conviction impact my right to own or possess a firearm? The answer is: it’s complicated.

What you are dealing with when trying to determine whether a certain criminal conviction will impact your right to possess a firearm is the intersection of both state and federal law.

Under Louisiana law, a person is prohibited from possessing a firearm for 10 years from the completion of any sentence as the result of a felony conviction of one of the following offenses or an attempt to commit one of the following offenses:

• a felony crime of violence (as defined in La. R.S. 14:2),

• simple burglary,

• burglary of a pharmacy,

• burglary of an inhabited dwelling,

• unauthorized entry of an inhabited dwelling,

• felony illegal use of a dangerous weapon,

• manufacture or possession of a delayed action incendiary device,

• manufacture or possession of a bomb,

• possession of a firearm while in possession of or during the sale or distribution of controlled dangerous substances,

• a felony violation of the controlled dangerous substances laws, or

• a sex offense (as defined in La. R.S. 15:541).

A person is further prohibited from possessing a firearm under Louisiana law for certain offenses that may be misdemeanors for 10 years from the completion of any sentence:

• domestic abuse battery,

• a second or subsequent conviction of battery of a dating partner, or

• battery of dating partner that involved strangulation or burning.

Under Louisiana law, the passage of 10 years from the completion of sentence restores an individual’s right to possess a firearm; however, federal law has no such cleansing period. Under federal law, an individual is prohibited from possessing a firearm for any conviction for:

• a crime punishable by imprisonment for more than one year (Note: this pretty much includes all felonies in Louisiana, not just the ones enumerated above) or

• a misdemeanor crime of domestic violence.

The ATF allows for the restoration of a person’s right to possess a firearm under federal law if:

…as long as the pardon, expungement or restoration does not expressly provide that the person may not ship, transport, possess or receive firearms. A restoration of civil rights, however, is only effective to remove the federal firearms disability if the law of the jurisdiction provides for the loss of civil rights for a conviction of such a misdemeanor.

Bureau of Alcohol, Tobacco, Firearms, and Explosives Website.

Under current ATF regulations, a person eligible for expungement who actually expunges an arrest (and conviction) from his record will be able to possess a firearm because Louisiana law does not specifically exclude the right to possess a firearm from its expungement law.

If you or someone you know would like to set up a consult to discuss an expungement to restore your right to. possess a firearm, give us a call at (318) 459-9111.