I just got this:
http://volokh.com/archives/archive_2005_09_04-2005_09_10.shtml#1126317466
[David Kopel, September 9, 2005 at 9:57pm]
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.
***
Shane
www.theplacewithnoname.com/blogs/k