Skip to comments.Louisiana's new gun rights law considered by state Supreme Court
Posted on 10/21/2013 6:43:23 PM PDT by neverdem
Louisiana Supreme Court justices are considering the residual and likely unintended effects of the constitutional amendment that voters overwhelmingly approved last year to make gun ownership a "fundamental" right. The question is whether the amended Constitution now lets convicted felons possess firearms, an act that is forbidden by the state criminal code.
Just how far Louisiana's new gun right, one of the strongest in the country, should extend was a central theme of argument that lawyers gave Monday, on the constitutionality of Louisiana's law against felons possessing firearms. As Associate Justice John Weimer of Thibodaux framed it, in weighing a public safety policy against the constitutional demands, should the state let people on probation -- even people still in prison -- have guns?
"Don't you admit there are some lines we have to draw?" he asked Colin Reingold, a New Orleans public defender who argued that the new amendment makes the the felon firearm law unconstitutional.
The issue arrived at the Supreme Court after New Orleans Criminal District Court Judge Darryl Derbigny's March 21 ruling in the state's case against Glen Draughter, 21. Convicted of attempted burglary, he was not allowed to have guns under Revised Statute 14:95.1, which bars convicted felons from possessing firearms.
His attorneys, Reingold and Jill Pasquarella, asked that the firearm charge be tossed out on constitutional grounds. Derbigny agreed, leading District Attorney Leon Canizzarro's office to appeal.
Almost 75 percent of Louisiana voters who cast ballots in November approved adding these words to the Constitution: "The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes, is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny."
Don't you admit...
(Excerpt) Read more at nola.com ...
Here are the steps to take someone’s gun in Louisiana.
All nice and spelled out by the judicial branch.
Louisiana Protective Order Registry (LPOR)
These are the steps a petitioner takes to get a restraining order:
STEP ONE: INTRODUCTION TO FILING
STEP TWO: DETERMINE ELIGIBILITY AND VENUE
STEP THREE: FILL OUT FORMS
STEP FOUR: FILE PETITION
STEP ONE: INTRODUCTION TO FILING
A person seeking protection may ask the court for protection by filing a petition for a restraining order.
The person in need of protection is the petitioner , the person against whom the petition is filed (the abusive person) is the defendant .
There are no filing fees and court costs for this process.
It is not necessary to have an attorney to file the petition or to represent the petitioner at court. Petitioners may get forms and assistance from this website, from the parish Clerk of Court’s office, or from victim advocates at the local battered women’s program or district attorney’s victim assistance program.
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STEP TWO: DETERMINE ELIGIBILITY AND VENUE
Eligibility for the two most commonly used statutes differs. Read each carefully to decide which one to use.
Domestic Abuse Assistance Act
La. R.S. 46:2131, et seq.
Can be filed by or on behalf of a person who has experienced domestic abuse.
The relationship between the abuser and the person asking for protection must be one of the following:
family member (spouses, former spouses, parent/child, stepparent/stepchild, grandparent/grandchild)
household member (persons of opposite sex presently or formerly living together as spouses)
parent, adult household member, or district attorney on behalf of minor child(ren) or an adult who is incompetent to act in his/her own behalf
former or current dating partners
This statute may provide more opportunities for protection than the “generic” restraining order (for example, in addition to prohibiting any contact by the abuser, this order may also include ordering temporary child custody, financial support, and use of property to the victim in order to ensure safety).
Injunction Against Abuse (”Generic” Restraining Order)
La. Code of Civil Procedure Article 3601, et seq.
Can be filed by anyone seeking protection
Relationship between parties is not defined in this statute, therefore people who are not eligible for protection under the Domestic Abuse Assistance Act may use this avenue to get court ordered protection instead.
The person filing for protection must post a bond.
There are several possibilities of venue under each of the statutes mentioned above.
Under the Domestic Abuse Assistance Act, you can apply to the court in the parish where the abuse happened, in the parish where the petitioner and defendant lived together, in the parish where the defendant is living now, or in the parish where the petitioner is living now. If those parishes are not the same, you must select one in which to file the petition. Once the order has been granted, it will be good throughout the state.
To file a “generic” restraining order you may apply in the city or parish where the defendant lives, or in the city or parish where the abuse you are trying to prevent MAY occur. Once the order has been granted, it will be good throughout the state.
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STEP THREE: FILL OUT FORMS
Fill out the necessary forms.
There is a section of the petition where you will swear to the truthfulness of the information you have provided.
This section requires your signature to be notarized, so you must sign it in front of a notary public. The Clerk of Court’s office can usually provide the services of a Notary.
If you want to file a petition under the Domestic Abuse Assistance Act (La. R.S. 46:2131, et seq.), you will use Petition LPOR B.
If you want to file a petition under the Children’s Code (La. Ch. C. Art. 1564, et seq.), you will use Petition LPOR C.
BUT! If you are filing a petition against your spouse under this statute, and your spouse has already filed for a legal action which has not yet been finalized (such as a divorce or a protective order against you, or other legal actions), you will use Petition LPOR BR, or Petition LPOR CR instead of LPOR B or LPOR C. This circumstance is called filing in reconvention.
NOTE: If you filed the legal action, such as a divorce, you can use Petition LPOR B or LPOR C - only use Petition LPOR BR or LPOR CR if the person you are filing against was the one who filed the legal action.
TIP: To help you fill out Petition LPOR B, Petition LPOR BR, Petition C. or Petition CR print out LPOR A- Instructions.
If you want to file a petition for a “Generic” Restraining Order (La. Code of Civil Proc. Article 3601, et seq.) you will use Petition LPOR O.
TIP: To help you fill out LPOR O, print out LPOR Z - Instructions.
In addition to filling out a petition, there are several supplemental forms you can fill out as well.
LPOR H - Information for Service of Process Form
The abuser must be served by the sheriffs office with a certified copy of the order and notice to come to court on the assigned day of the hearing. To assist the sheriffs office in locating the defendant, fill out this form as completely as possible. This form can be used with any of the petitions.
LPOR F - Confidential Address Form
Available under the Domestic Abuse Assistance Act only. Your address will be kept private by the court and the abuser will not receive notice of where you are currently living if you submit this form with your petition. Use this form only with LPOR B, or LPOR C.
LPOR FR - Confidential Address Form (In Reconvention)
Available under the Domestic Abuse Assistance Act only. Use this form when the abuser is your spouse and has filed a legal action that has not yet been finalized. Your address will be kept private by the court and the abuser will not receive notice of where you are currently living if you submit this form with your petition. Use this form only with LPOR BR, or LPOR CR.
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STEP FOUR: FILE PETITION
The petition and accompanying forms are filed in the Clerk of Court’s office. The Clerk will present the forms to the judge for review. If the judge agrees that immediate court protection is necessary, s/he will grant a Temporary Restraining Order (TRO) with a date to come back to court for a hearing. The TRO will contain some or all of the requests made in the petition, and will be in effect until the date of the court hearing, up to 20 days if filed under the Domestic Abuse Assistance Act (LPOR B, BR, C, or CR) or 10 days if filed under La. Code of Civil Proc. 3601, et seq. (LPOR O).
The clerk should provide the petitioner with a copy of the petition, a certified copy of the TRO, and the date and time of the court hearing. The clerk will also give a copy of the petition and TRO to the sheriff’s office to serve to the defendant. The defendant will be notified to be present at court on the date of the hearing.
NOTE: The petitioner should keep a copy of the TRO at all times. The petitioner may also want to make copies of the TRO to be kept in the car, at work, with a friend or other safe place, at children’s daycare or school, or other places it may be needed.
The petitioner should call law enforcement if the defendant violates the terms of the order.
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The Louisiana Protective Order Registry is a project of the Office of the Judicial Administrator, Supreme Court of Louisiana”
And here are the forms the Louisiana Supreme Court requires and provides free to ever Parish. note the back door use of the Brady law to disarm people.
Hee is the warning to the defendant.
The court only has to give you ‘opportunity to be heard’ .
Then the judge issues the protective order. The order does not have to ban you from owning a gun.
Then federal law 922(g) kicks in. The existence of the protective order bars youfrom owning guns.
Are they not sneaky?
PURSUANT TO 18 U.S.C. § 922 [g], AFTER NOTICE AND OPPORTUNITY FOR A HEARING, THE DEFENDANT IN AN ORDER THAT EITHER INCLUDES A FINDING BY THE JUDGE OR BY ITS TERMS EXPLICITLY PROHIBITS CERTAIN BEHAVIOR MAY BE PROHIBITED FROM PURCHASING OR POSSESSING FIREARMS OR AMMUNITION FOR THE DURATION OF THE ORDER IF THE PROTECTED PERSON(S) IS RELATED TO THE DEFENDANT AS A CURRENT OR FORMER SPOUSE, CURRENT OR FORMER COHABITING INTIMATE PARTNER, CHILD, HAS A CHILD IN COMMON WITH THE DEFENDANT, OR IS THE CHILD OF DEFENDANT AND/OR DEFENDANTS CURRENT OR FORMER INTIMATE PARTNER.
Federal aw says...
“(8) is subject to a court order that
restrains such person from harassing, stalking, or threatening an intimate partner of such person
or child of such intimate partner or person,
or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child,
except that this paragraph shall only apply to a court order that -
(A) was issued after a hearing of which such person
received actual notice,
and at which such person had the opportunity to participate;
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child;
or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
or - See more at: http://codes.lp.findlaw.com/uscode/18/I/44/922#sthash.8sxP79LA.dpuf
That article is alarmist and pointless, the author concocts imaginary issues where there really are none.
Consider that it is utterly, completely, totally immaterial whether or not a state-level law prohibits convicted felons from owning firearms. A state-level law will not, and can not, change the federal prohibition against this.
Any person harping on about a state constitutional provision that supposedly grants felons gun rights is either so amazingly ignorant that he or she shouldn’t be allowed to vote in the first place, or is simply making hyperbolic comments in order to rile up the ignorant and easily swayed fools that make up the low-information-voter block.
Most of the other issues raised in the article are equally absurd and unfounded.
And the discussion died. Bah.
I assume reference is made to convicted felons that have served or satisfied the sentences or fines imposed by a court of law; i.e., have paid their debt to society.
If such be the case, for what reason are they described as convicted felons? I have not been able to understand why a citizen that had paid the penalty imposed for a felonious offense should for the rest of his/her live be denied possession of a firearm for defense of self and others. This is particularly unreasonable, in my opinion, when the felonious act was not one of physical, life-threatening or lethal violence against a person.
Felon restrictions should only be for violent crimes and/or those involving a firearm. “Misuse it, and you lose it” is not unconstitutional, especially when a person deliberately misused a tool that - let’s not kid ourselves, folks - is built from the ground up to intimidate or kill a human being.
But denying 2nd Amendment rights to, say, someone who’s crimes were all white-collar and would barely swat a bee in self-defense is just ludicrous.
Interesting. My copy of the 2nd mentions nothing about State vs. Fed.
However, those IN prison (felons) can and do have their Rights ‘disabled’ while serving their term.
The EX-felon, being again a Free Citizen, has the enjoyment of their Rights, fully restored.
The issue, as in most instances, is the twisted, pretzel logic used by gov’t to further erode Rights. Either one is FREE, and thus has the same Rights as all Citizens, or one is still a danger to themselves and/or other Citizens that they should have not been released. Otherwise, there are 2+ sets of Citizens, and Equal Protection is out the window.
Mine would never be found.
I have always thought that after being released a felon, after set amount of time has passed, should be allowed to have firearms just like anyone else. If you don’t think they are “rehabilitated” don’t let them out.
What if you dont have health insurance and dont pay the penalty? Felony?
I think that is a necessary but not sufficient requirement.
I suggest that you tighten up your requirements a little.
The People's Republik of Kalifornia has over sixty-eight pages of guns laws. It's a gun crime to have a pistol grip on otherwise legal rifles. It's a gun crime to purchase a handgun which has not been approved by the state as being "not unsafe". It's a gun crime to supply your sister with a firearm without having the transfer approved by the state. SIXTY-EIGHT PAGES of this nonsense.
A question I have long been asking and I have never gotten a good answer. Maybe there is none.
I thought that is a law for which senator dead Lautenberg is responsible. I suggest that once we end the political careers of Zero and about 7 to 10 Rats in the Senate, we mount an FR push to repeal that law just to honor Lautenberg for making life on the other side miserable
No requirements are tight enough for a state that has gone past the line of utter insanity at Mach 5, I’m afraid.