Lousiana

Louisiana recently changed it's state Constitution right to keep and bear arms provision:

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.

The decision is obviously correct, but it's going to make a lot of people uncomfortable.  The truth is there are far too many crimes treated as felonies, many of which are entirely non-violent or technical in nature.  A lot of those have to do with firearms, not surprisingly.  Some of the surprising ways to become a felon:

1. Say something a federal agent thinks might be misleading during an investigation into securities trading activities which turn out to be legal.  (The Martha Stewart conviction)
2. Load 8 rounds into a magazine that holds 10 rounds in New York.
3. Drive through Massachusetts with an expended .22 caliber ammunition casing stuck in your boot tread.
4. Leave your wife at home with your firearms in Colorado while you go on a trip longer than 72 hours.
5. Legally check a firearm with your luggage on an airplane flight that lands in New York City.
6. Ask a police officer if there is a place to safely store your firearm while driving through Washington, DC, and stopping for a necessary medical appointment.
7. Ship a lobster in the wrong type of packaging.

The right to self-defense is important, and it doesn't become less so just because someone has made mistakes in the past.  We can make a value judgment that someone who has committed violent felonies in the past is likely to commit more in the future, and that this justifies a prohibition on possession of firearms by that individual.  Extending that same prohibition to all felonies, including non-violent crimes, does not and should not pass strict scrutiny.

It's the right decision, I'm just worried it will scare people who aren't clued in to the details of the issue.

There are at least two reasons not to panic.  First, this appears to be a decision based on state law.  It won't strike down federal felon-in-possession laws.  Second, the obvious response for the Louisiana legislature is to pass a more selective felon-in-possession law that focuses on violent criminals.  Third, there probably will be appeals.

The firearms issue certainly is heating up lately.

UPDATE: Dave Hardy comments here with a similar take.  The central point is that judges do this to express their hostility to the right to arms.  If gun control laws receive intermediate scrutiny, courts treat it like rational basis and uphold almost anything that the state can provide some evidence for.  If gun control laws receive strict scrutiny (as the Louisiana constitution now requires) we get rulings like this one that go way past the public's comfort zone.

I think strict scrutiny is the right standard, I just don't think this is the right time to have the discussion about felon-in-possession laws.

Mark was arrested in Louisiana for open carry of his firearm, which is legal in that state.  He has now filed suit.  Nicki at The Liberty Zone seems to be on top of the case.

There has been some minor activity in the Konie v LA case; that's the one wherein Patricia Konie, little old lady, is suing numerous jackbooted thugs for breaking down her door, harming her person, and violating her civil rights by confiscating her firearm. 

It's just the preliminaries.  On 12/16/05, the summons was served upon the State of Louisiana, through its representative Kathleen Blanco, through her representative Terri Ricks.  This is basically notifying the recipient that there is a lawsuit pending, and it demands a response within 20 days or a default judgement will be entered against the defendent.  This didn't get entered into the docket until 1/9, so it's clear there's a substantial delay operating.

The defendents (Louisiana and California) missed the deadline to respond.  It was not until January 11th, 2006 that they finally filed their response, which itself was a motion for extension of time to plead, requesting an extension of 20 days to respond.  The only interesting point to note is that the response, filed on behalf of both the LA and California, claims that their police departments were erroneously sued as separate entities.  It's one of those legal details that I can't nitpick much about for lack of expert knowledge.  I don't expect it to become a serious issue in the case, in any event, though (if the states are correct) it may reflect a bit poorly on Konie's advocate.  We'll see. 

Aside from the fact that the response was filed 6 days after the deadline, there's no reason to refuse it, and in fact the court granted the motion within two days, which makes the new deadline the 23rd of January, 2006.

Unless, of course, you are the Louisiana governor, Kathleen Blanco, who has issued an executive order to that effect.

I can understand, politically, why she might want to do this.  It's undoubtedly difficult to hold elections after a devastating hurricane, especially when said hurricane exposed your own incompetence along with the incompetence of your political allies.  You might rightly fear a backlash from the voters.  You might even realize that you deserve a backlash from the voters.

But you do NOT suspend the elections indefinitely.

Not in America.

It seems that Patricia Konie, who was tackled by a cop on national TV as they "evacuated" her from her home in New Orleans, has decided to sue.  I don't blame her.  In addition to confiscating her legally-owned firearm, they broke and dislocated her shoulder. 

Hat tip on this one to The Smallest Minority, Ravenwood, SaysUncle, Standard Mischief, and the Geek.  But if they are going to beat me on timing, I'll have to swamp them with details... 

Luckily, the Louisiana Courts have the appropriate infrastructure for me to offer detailed ongoing coverage of this case.  I was able to obtain the complaint in PDF format, though I won't be posting that as it contains the plaintiff's home address.  However, there are some damn good quotes therein, and I will gleefully excerpt those.  Here's the meat:

On September 8th, 2005, defendants, acting under color of State law in an official capacity, and in violation of federal and state law, wrongfully trespassed on premises legally occupied by plaintiff at [address withheld], and committed the following additional torts against plaintiff, her person and her property:

a) Assault and battery, including using excessive force under the circumstances;

b) False imprisonment by illegally taking plaintiff into custody and transporting her to South Carolina, from which she did not return to New Orleans until October 13th, 2005;

c) Intentional infliction of emotional distress; and

d) Conversion of legally owned property, to wit, a chrome 32 caliber Colt Revolver, with a pearl handle, which has not been returned to plaintiff.

By virtue of having committed the above-identified torts against plaintiff and her property, defendents violated rights, privileges, and immunities guaranteed to plaintiff under the Second, Fourth and Fourteenth Amendments of the United States Constitution, all in violation of 42 USC 1983.

In addition, certain of the defendents conspired to deprive plaintiff of rights, privileges and immunities guaranteed to plaintiff by the United States Constitution, all in violation of 42 USC 1985.

Further, certain of the defendants, who had full knowledge of their colleagues' conspiring to violate, and actually violating, plaintiff's constitutional rights, and committing torts against plaintiff's person and property, failed to intervene, all in violation of 42 USC 1986.

Defendants' acts and omissions were practiced with malice and/or with reckless disregard for plaintiff's federally protected rights, as well as her rights under state law.

As a direct result of the above-described tortious and illegal conduct by defendants, plaintiff sustained severe and disabling personal injuries, including injuries to her face, nose, left eye, left shoulder, left arm, and chest, among other injuries to her mind and body, for which surgery may be necessary, and causing plaintiff excruciating pain, suffering, mental anguish, humiliation, and embarassment.

Y'know, just as a hunch, I don't think letting the news cameras in to record the incident was wise of the officers involved.

The defendents in the case are:

1. The State of Louisiana and its agency and instrumentality;
2. The Louisiana State Police;
3. The State of California and its agency and instrumentality;
4. The California Highway Patrol; and their employees.

The identities of the specific defendants are not known (cited as John Doe and Richard Roe).

Folks, we have a jackbooted-thugs-gun-confiscation case headed to court with a sympathetic plaintiff making 2nd Amendment claims.

Let me say that again.  The significance may not be immediately clear.

WE HAVE A SECOND AMENDMENT CLAIM AGAINST  JACKBOOTED THUGS KICKING DOWN DOORS AND CONFISCATING LEGALLY-OWNED FIREARMS FROM LITTLE OLD LADIES ON CAMERA.

Why, yes, I will be following this case in detail.

And speaking of which, the complaint (which was filed 11/30/2005) is not the only action in the case.  The court has issued a summons for the defendants.

The case is before Judge Martin Feldman and Magistrate Judge Daniel Knowles III.

UPDATE: There is still video of the incident available, and The Smallest Minority has some more information about Konie's choice of legal counsel.

According to the Geek, who is reporting an email from the Second Amendment Foundation, FEMA has reversed its policy on firearms in temporary housing for hurricane victims.  He notes that this has been a good week for gun rights.  I think this smells like progress.

Yes, P Edwin Compass, police chief of the City of New Orleans, has resigned.  Was it the widespread desertion and looting by police officers?  Or was it his decision to order the illegal confiscation of lawfully-owned firearms? 

The media mentions the former prominently, while ignoring the latter.  But Compass did not resign until shortly after the NRA and the SAF received an injunction prohibiting further firearm confiscations -- a consent decree in which Mayor Nagin hung Compass out to dry, refusing to admit to any delegation of authority or give any official sanction to disarmament orders.

I know what I think.

Hat tip to SayUncle, who got it from Jay.

According to an email alert, the NRA and the Second Amendment Foundation have joined forces to file a lawsuit and obtain an injunction prohibiting the confiscation of firearms from law-abiding citizens in New Orleans.  Here's the scoop:

The U.S. District Court for the Eastern District of Louisiana this afternoon issued a temporary restraining order on behalf of the Second Amendment Foundation (SAF) and National Rifle Association (NRA), bringing an end to firearm seizures from citizens living in and around New Orleans. 

District Judge Jay Zaney issued the restraining order against all parties named  in a lawsuit filed Thursday by SAF and NRA. Defendants in the lawsuit include New Orleans Mayor Ray Nagin and Police Chief Edwin Compass III.

Obviously, I'll be following this case as closely as I can once I can find a way to obtain related documents.  Given the mess that Louisiana is in at the moment, that may take a while.  This promises to be a very interesting case, however.

UPDATE: Here's a press release from the NRA.

UPDATE: You may want to donate to the Second Amendment Foundation to help their efforts on this case.

Recently, the city of New Orleans began a program of universal firearms confiscation within the city.   Legally-owned firearms were taken at gunpoint from peaceable citizens; citizens who wanted nothing more than to protect themselves from widespread looting during a time when the police refused to respond.  250-pound police officers tackled old ladies with bone-crunching force because she politely requested they leave her home.  Police officers from as far away as California went door to door, breaking into homes without provocation. 

We may never know how many citizens of New Orleans died in a hail of police gunfire because they correctly identified police officers as looters and responded with deadly force. 

We may never know how many police officers, federal agents, and active or reserve military refused the illegal orders issued by New Orleans Police Superintendent Edwin Compass.  We will be best served by assuming that none did so.

While I sympathize philosophically with those who called for armed resistance at the scene, that type of response is likely to do more harm than good at this stage.  Purportedly pro-gun politicians control both houses of Congress, the Presidency, and are about to appoint two Supreme Court Justices.  We can push the line back quite a ways if we keep our heads, and it's exactly this sort of desperate action by the opposition that will provide us the public justification to enact further protections for our rights.  Our appropriate response right now is within the legislature and the courts. 

Maybe we can push the doomsday clock back a few ticks.

But I know this: if we allow the enemy to dictate the time, place, and manner of the battle, they will fight it on their terms, and they will win.

For decades, those who claim to occupy the middle ground in the gun control debate have answered the concerns of gun owners with the simple statement: it can't happen here.  We won't ever have Nazi death camps.  We won't ever have police abuses.  We won't ever again have a government evil enough to be worth comitting our lives and sacred honor to revolution.  And we won't ever have gun confiscation.

Now, we do.

Any resident (or ex-resident) of New Orleans or surrounding areas whose legally-owned firearm(s) were confiscated by police or military forces, please contact me with details. 

The full story is available from the New York Times.  Take a close look at the picture on the story, which is captioned "Police officers looking for survivors today..."; it doesn't look to me like they are looking for survivors.  It looks like they are breaking in.  Looking for survivors is easy; knock, announce, listen for a response.  Confiscating firearms, on the other hand, requires axes, crowbars, and jack boots.  Looks like the New Orleans Police came prepared.

UPDATE: There's some video here.  I don't remember where I got it originally.  I'm not going to go into whether the confiscation order is legal or illegal under Louisiana law; it's clearly a violation of the right to bear arms provision in Louisiana's Constitution, as well as the 2nd Amendment by way of the 14th.  Searching the houses violates the 4th.  Confiscating property, both firearms and the land itself, violates the 5th.  Quartering soldiers in local buildings, as in one reported incident, without permission, violates the 3rd -- perhaps the only violation of that Amendment we're ever likely to see in the modern world. 

The response to this disaster has demonstrated that the government no longer cares even to pay lip service to the rights of the people.

What do we do about this?  I don't know.

But it is clear we must do something.

UPDATE: More video, courtesy of the Geek with a .45.  Take heart, folks.  We've got two open spots on the Supreme Court slated to be filled by a reasonably pro-gun President, and a reasonable chance of one or two more openings in the term.  Take down names and badge numbers of anyone trying to confiscate your firearms.  Don't resist with force (but you are not obligated to help the police find any firearms that may not be readily visible).   Plan to survive and plan to sue.  (This is good advice). 

UPDATE: Dave Kopel has more in Reason magazine.  We still have a court system through which those affected can seek redress, and hopefully set some badly-needed pro-2nd precedents in the process.  Remember, fight smart.  And get those badge numbers, because officers involved in the violation of civil rights under color of law are personally liable.

UPDATE: Gun Owners of America has a statement.  The NRA is busy making  waffles.

UPDATE: Seconded.  The confiscation operation appears to be either stalled or stopped at present, so the immediate urgency is past, but reports are still sketchy.  Wayne -- I want to see those badges on your wall if you want to have any credibility in the future as a supporter of gun rights.  Start with the so-called cop who gave the orders, and track it all the way down to every single beat cop who followed them.  The police need to understand two things.  First, that orders to confiscate firearms from otherwise peaceful citizens are always illegal.  Second, that there are serious consequences for obeying an illegal order.

UPDATE: The NRA and the Second Amendment Foundation are seeking plaintiffs from this event.  Contact safalert@liberty.seanet.com if you, or someone you know, had their firearms confiscated.  Gun Owners of America says they know of at least one person who intends to bring a suit.
 

In the days following the decision by Caddo District Attorney Paul Carmouche to not bring charges against the police officers involved, The Times obtained a copy of three videotapes of the incident through the Freedom of Information Act. At that time, we discussed placing the videos on our Web site at shreveporttimes.com and chose not to because of the sensitive nature of the scene and concern over how the videos might be viewed out of context.