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.

Today is the 65th anniversary of Law Day, an annual event established by the American Bar Association to commemorate the rule of law and its role in our society.

This year’s Law Day theme is Cornerstones of Democracy: Civics, Civility, and Collaboration.

Our local bar association has planned a week’s worth of events in celebration and culminating in the annual Red Mass on Friday, May 5.

In honor of the 230th anniversary of the ratification of the Bill of Rights, we move on to our second week: Amendment II:

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.

As we discussed last week, despite the plain language of this amendment, both the States and Federal government have placed a multitude of restrictions on the possession of firearms, which have been upheld b the Supreme Court. Individuals with certain convictions (even some misdemeanors) are prohibited (under Federal law) from possessing a firearm (specifically: most offenses involving domestic violence).

Further reading:

• Caetano v. Massachusetts, in which the Court addressed the question: “Does the Second Amendment protect the right to possess a stun gun for self-defense?” Answer: “Although stun guns are unusual in nature and were not common during the enactment of the Second Amendment, they are included in the Second Amendment’s protections.

• Voisine v. United States, in which the Court addressed the question: “Does a misdemeanor crime that requires only a showing of recklessness qualify as a misdemeanor crime of domestic violence under federal statutes 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?” Answer: Yes.

See you next week for the Third Amendment!

After the Constitution of the United States was drafted, it became clear to many of the “founders” that additional rights and restrictions should be explicitly provided to and placed upon the government. The Bill of Rights was drafted in 1789 and finally ratified on December 15, 1791. In honor of the 230th anniversary of the Bill of Rights, we will be spending the following 10(ish) weeks talking about each of the first 10 amendments. This week: Amendment 1:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment to the United States Constitution establishes the right to free speech, a free press, peaceable assembly and the right to petition the Government. The First Amendment protects people in the United States from the government passing laws restricting their rights to exercise their own religion freely, from speaking freely, from assembling (peacefully) and freely. The Supreme Court has regularly found, despite this language, that reasonable time and place restrictions can be placed on speech. The most common example: laws can prohibit a person from shouting “fire!” in a crowded movie theater. Another example: the local government can require permits for protests or other public gatherings.

The rights contained in the Bill of Rights are foundational. They are the seeds from which so much of our law has sprouted. But they are also subject to interpretation. And restriction. And the plain language is fairly often not the end-all-be-all of what they mean.

Further Reading:

• Carson v. Makin, in which the Court addressed the question: “Does a state law prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction violate the Religion Clauses or Equal Protection Clause of the U.S. Constitution?” The Court has not ruled on this case at the time of this writing.

• Snyder v. Phelps, in which the Court addressed the question: “Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?” Answer: Yes.

• Morse v. Frederick, in which the Court addressed the question: “Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? Answer: Yes. (Note: the student’s sign had the nonsensical phrase, “Bong Hits 4 Jesus” written on it.)

The blog linked to above is oyez.org and it contains a great searchable database of Supreme Court cases that is easy to read.

See you next week for the Second Amendment!

My favorite of the new laws passed by the Louisiana legislature in 2020 is the law regarding Daylight Savings Time.

Effective August 1, 2020, if the United States Congress amends 15 U.S.C. 260(a) to authorize states to observe daylight saving time year-round, Louisiana will, by the enactment of La. R.S. 1:50, adopt daylight saving time as the year-round standard of time for the entire state.

So far, we’re still subject to springing forward and falling back, but if the US Congress acts to change that, Louisiana will spring forward and stay there!

Law Day is celebrated annually on May First and, according to the American Bar Association, is:

a national day set aside to celebrate the rule of law. Law Day provides an opportunity to understand how law and the legal process protect our liberty, strive to achieve justice, and contribute to the freedoms that all Americans share.

This year’s theme is: Free Speech, Free Press, Free Society. Again, from the American Bar Association’s website:

In the United States and around the world, freedom of speech and the press are among the most important foundations for a free society. Free speech and free press are prominent topics in public discourse and litigation. It is impossible to imagine a free society without these individual liberties, yet historical and current debates surrounding them continually challenge us to consider their boundaries and resilience. Changes in technology have reshaped how free speech and free press work in the everyday world.

To read more about Law Day in the United States, check out the American Bar Association’s website here.

Yes.

Driving While Intoxicated in Louisiana prohibits the 

operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when any of the following conditions exist:

1. The operator is under the influence of alcoholic beverages.

2. The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.

3. The operator is under the influence of any controlled dangerous substances listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964.

4. (i) The operator is under the influence of a combination of alcohol and one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.
   …

5. (i) The operator is under the influence of one or more drugs that are not controlled dangerous substances and that are legally obtainable with or without a prescription.
   …

La. R.S. 14:98A(1). Further, if you are under the age of 21, it is illegal to operate a motor vehicle with a BAC of .02. La. R.S. 14:98.6.

What all of the above means is that, in order to prove a person is operating a vehicle while intoxicated, the State of Louisiana must prove: (1) that the person was operating a motor vehicle and (2) that the person was “under the influence” of alcoholic beverages. This can be done in a number of ways: via presumption if the driver submits to a breath test, blood test, or urine test, and the results show a BAC of .08 or above; or if the driver performs poorly on Standardized Field Sobriety Tests (SFSTs) and sufficient other evidence shows that the driver is under the influence of alcohol, controlled dangerous substances, or other drugs.

This New Year’s Eve, if you are going to celebrate, please drink responsibly and arrange for alternate transportation.

Happy New Year from Gilmer & Giglio!