From: The Volokh Conspracy at:

http://volokh.com/archives/archive_2005_09_04-2005_09_10.shtml#1126317466

A commentary regarding New Orleans gun confiscations by David Kopel:


Friday, September 9, 2005

[David Kopel , September 9, 2005 at 9:57pm ] 18 Trackbacks / Possibly More Trackbacks New Orleans Gun Confiscation is Blatantly Illegal:

On Monday, I'll have an article on the New Orleans gun confiscation on Reason.com. But there's one part of the story that's too important to wait: the confiscation is plainly illegal. I realize that there are plausible arguments that the house-to-house break-ins and gun-point confiscations violate the Second, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, as well as numerous provisions of the Louisiana Constitution, including the right to arms. Indeed, the confiscations are inconsistent with the Universal Declaration of Human Rights, and with natural law. But my point is much more specific. The particular Louisiana statute which allows emergency controls on firearms also clearly disallows the complete prohibition being imposed by the New Orleans chief of police.

The relevant statute is La. Stat., title 14, § 329.6. It provides:

§329.6. Proclamation of state of emergency; conditions therefor; effect thereof

A. During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any municipality or parish, or in the event of reasonable apprehension of immediate danger thereof, and upon a finding that the public safety is imperiled thereby, the chief executive officer of any political subdivision or the district judge, district attorney, or the sheriff of any parish of this state, or the public safety director of a municipality, may request the governor to proclaim a state of emergency within any part or all of the territorial limits of such local government. Following such proclamation by the governor, and during the continuance of such state of emergency, the chief law enforcement officer of the political subdivision affected by the proclamation may, in order to protect life and property and to bring the emergency situation under control, promulgate orders affecting any part or all of the territorial limits of the municipality or parish:

(1) Establishing a curfew and prohibiting and/or controlling pedestrian and vehicular traffic, except essential emergency vehicles and personnel;

(2) Designating specific zones within which the occupancy and use of buildings and the ingress and egress of vehicles and persons shall be prohibited or regulated;

(3) Regulating and closing of places of amusement and assembly;

(4) Prohibiting the sale and distribution of alcoholic beverages;

(5) Prohibiting and controlling the presence of persons on public streets and places;

(6) Regulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition;

(7) Regulating and controlling the possession, storage, display, sale, transport and use of explosives and flammable materials and liquids, including but not limited to the closing of all wholesale and retail establishments which sell or distribute gasoline and other flammable products;

(8) Regulating and controlling the possession, storage, display, sale, transport and use of sound apparatus, including but not limited to public address systems, bull horns and megaphones.

(9) Prohibiting the sale or offer for sale of goods or services within the designated emergency area for value exceeding the prices ordinarily charged for comparable goods and services in the same market area at, or immediately before, the time of the state of emergency. However, the value received may include reasonable expenses and a charge for any attendant business risk in addition to the cost of the goods and services which necessarily are incurred in procuring the goods and services during the state of emergency, pursuant to the provisions of R.S. 29:701 through 716.

B. Such orders shall be effective from the time and in the manner prescribed in such orders and shall be published as soon as practicable in a newspaper of general circulation in the area affected by such order and transmitted to the radio and television media for publication and broadcast. Such orders shall cease to be in effect five days after their promulgation or upon declaration by the governor that the state of emergency no longer exists, whichever occurs sooner; however, the chief law enforcement officer, with the consent of the governor, may extend the effect of such orders for successive periods of not more than five days each by republication of such orders in the manner hereinabove provided.

C. All orders promulgated pursuant to this section shall be executed in triplicate and shall be filed with the clerk of court of the parish affected and with the secretary of state of this state.

D. During any period during which a state of emergency exists the proclaiming officer may appoint additional peace officers or firemen for temporary service, who need not be in the classified lists of such departments. Such additional persons shall be employed only for the time during which the emergency exists.

E. During the period of the existence of the state of emergency the chief law enforcement officer of the political subdivision may call upon the sheriff, mayor, or other chief executive officer of any other parish or municipality to furnish such law enforcement or fire protection personnel, or both, together with appropriate equipment and apparatus, as may be necessary to preserve the public peace and protect persons and property in the requesting area. Such aid shall be furnished to the chief law enforcement officer requesting it insofar as possible without withdrawing from the political subdivision furnishing such aid the minimum police and fire protection appearing necessary under the circumstances. In such cases when a state of emergency has been declared by the governor pursuant to R.S. 29:724 et seq., all first responders who are members of a state or local office of homeland security and emergency preparedness, including but not limited to medical personnel, emergency medical technicians, persons called to active duty service in the uniformed services of the United States, Louisiana National Guard, Louisiana Guard, Civil Air Patrol, law enforcement and fire protection personnel acting outside the territory of their regular employment shall be considered as performing services within the territory of their regular employment for purposes of compensation, pension, and other rights or benefits to which they may be entitled as incidents of their regular employment. Law enforcement officers acting pursuant to this Section outside the territory of their regular employment have the same authority to enforce the law as when acting within the territory of their own employment.

F. Notwithstanding the provisions of this Section, except in an imminent life threatening situation nothing herein shall restrict any uniformed employee of a licensed private security company, acting within the scope of employment, from entering and remaining in an area where an emergency has been declared. The provisions of this Subsection shall apply if the licensed private security company submits a list of employees and their assignment to be allowed into the area, to the Louisiana State Board of Private Security Examiners, which shall forward the list to the chief law enforcement office of the parish and, if different, the agency in charge of the scene.

First, there are the procedural issues. According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.

The more serious issue is the substantive one. The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."

"Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting." The statute does not authorize the New Orleans Police--abetted by the National Guard and the U.S. Marshalls--to break into homes, point guns at people, and confiscate every single private firearm--or every single private bullhorn or private cigarette lighter.

Yet New Orleans' lawless superintendant of police, P. Edwin Compass, has declared, "No one is allowed to be armed. We're going to take all the guns."

The Compass order appears to be plainly illegal. Under section 1983 of the federal Civil Rights law, any government employee who assists in the illegal confiscation would appear to be personally liable to a civil lawsuit. Moreover, higher-ranking officials--such as the National Guard officers who have ordered their troops to participate in the confiscation--would seem to be proper subjects for impeachment or other removal from office (and attendant forfeiture of pensions), depending on the procedures of their particular state.

All police officers, National Guard troops, and U.S. Marshals take an oath to uphold the Constitution and the laws. It appears that carrying out an illegal order to confiscate lawfully-owned firearms from homes would be inconsistent with the oath, contrary to sworn duty, and perhaps a criminal act.


UPDATE: Orin's response to my post (above) contains several misunderstandings, in my view:

1. The most serious problem is that he reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibitting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

2. He's right that the statute doesn't specify whether proper publication and filing are necessary for the emergency orders to be lawful. (And as my original post indicated, it's not absolutely certain that proper publication and filing have not occured, although it would be odd for the Louisiana Secretary of State not to post the filing of such an important order.) At least in some circumstances, strict adherence to the provisions of subsections (B) and (C) would be impossible. For example, the Secretary of State's office might be closed; indeed, the courts in Orleans Parish are currently closed. However, if the police chief failed to file the proper notice with the Secretary of State, even when the Secretary of State's office is open, the failure to file indicates, at the least, a disregard on the part of the chief for proper legal procedure.

3. Note subsection (B)'s rule that "Such orders shall be effective from the time and in the manner prescribed in such orders... Such orders shall cease to be in effect five days after their promulgation..." Has the police chief ever promulgated a proper emergency order about firearms? Sending police officers out to confiscate guns is not "promulgation." For the order to be valid, there must, at least, be some form of proper order to the public, not merely to the police. The "promulgation" must, at the least, include a date on which the order goes into effect, because a legal start date is necessary to calculate the automatic expiration date five days thereafter. It seems unlikely that a press conference merely announcing--after the confiscations and break-ins have already begun--the confiscations are taking place, consistutes the promulgation of an "order." The only Louisiana case law definitions of "promulgate" come from election law cases; they rely on the dictionary definition of "promulgate" as "To make known or announce officially and formally to the public." The cases further specify that "promulgate" should be understood in its specific statutory context. E.g., LeCompte v. Board of Sup'rs of Elections of Terrebonne Parish , 331 So.2d 173 (La. App. 1976). And it appears that the chief of police has not complied with any of the statute's specific standards for promulgation (newspaper, parish court, Secretary of State).

4. Violation of a person's state constitutional right to keep and bear arms is a violation of her 14th Amendment rights, and gives rise to a cause of action under section 1983. Kellogg v. City of Gary , 562 N.E.2d 685, 696 (Ind. 1990): For all of the foregoing reasons, we now hold there is a state created right to bear arms which includes the right to carry a handgun with a license, provided that all of the requirements of the Indiana Firearms Act are met. This right is protected by the Due Process Clause of the Fourteenth Amendment and is both a property and liberty interest for purposes of § 1983.

If the confiscation of firearms is illegal under Louisiana statute, then the confiscation is very likely a violation of the right to arms under the Louisiana constitution. Moreover, pursuant to United States v. Emerson , the Second Amendment is recognized as an individual right in the Fifth Circuit, which includes Louisiana. The Second Amendment, even if unincorporated, would be the basis of a section 1983 claim against any federal employees involved in the confiscation. Also, the warrantless entry into homes and illegal confiscation of property might give rise to section 1983 claims premised on the Fourth and Fifth Amendments.

5. In response to some of the issues raised by comments on related posts...the President of the United States probably has the power, as Commander in Chief, to order the confiscation of firearms from areas in actual rebellion, following a proclamation of martial law. Martial law has not been declared. The "standard of scrutiny" question for the deprivation of state or federal constitutional rights is irrelevant here; the question would be relevant if there were a challenge to the constitutionality of the Louisiana emergency statute. When the police chief exercises power which he was never granted by law, then his act is ultra vires , and necessarily illegal.