Supreme Court of Louisiana FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #035
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 1st day of July, 2014, are as follows:
BY HUGHES, J.:
2013-KK-2306 STATE OF LOUISIANA v. CHRISTOPHER EBERHARDT (Parish of St. Tammany)(Constitutionality JAMAL C. TAYLOR AND KELIN A. STEVENS STATE OF LOUISIANA v. of LSA-R.S. 14:95.1)) C/W (Parish of Jefferson) STATE OF LOUISIANA v. JAMAL C. TAYLOR AND KELIN A. STEVENS 2014-KA-0209 (Parish of Jefferson)
For the reasons assigned, we reverse the judgment of the Jefferson Parish district court, rendered in favor of the defendants, Jamal C. Taylor and Kelin A. Stevens, which declared LSA-R.S. 14:95.1 unconstitutional and granted these defendants’ motions to quash. We further affirm the judgment of the St. Tammany Parish district court, rendered in favor of the State of Louisiana, which upheld the constitutionality of LSA-R.S. 14:95.1 and denied the motion to quash filed by Christopher Eberhardt. TWENTY-FOURTH JUDICIAL DISTRICT COURT JUDGMENT REVERSED; TWENTY- SECOND JUDICIAL DISTRICT COURT JUDGMENT AFFIRMED. 07/01/14
SUPREME COURT OF LOUISIANA
NO. 2013-KK-2306
STATE OF LOUISIANA
VERSUS
CHRISTOPHER EBERHARDT
ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. TAMMANY
CONSOLIDATED WITH
NO. 2014-KA-0209
JAMAL C. TAYLOR AND KELIN A. STEVENS
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON
HUGHES, J.
In 2012 by a seventy-three percent majority the people voted to amend
Article I, Section 11 of the Louisiana Constitution, effective December 10, 2012,
which now provides:
The right of each citizen to keep and bear arms is fundamental and
shall not be infringed. Any restriction of this right shall be subject to strict
scrutiny.
Prior to its amendment this article provided that, “The right of each citizen
to keep and bear arms shall not be abridged, but this provision shall not prevent the
passage of laws to prohibit the carrying of weapons concealed on the person.”
The purpose of the amendment is to strengthen and protect from government
intrusion the right of our citizens to keep and bear arms. While many have always considered the right fundamental, that has now been made clear, and any
restriction may occur only after the highest level of review, “strict scrutiny.”
Some arrested or convicted of crimes involving firearms have attempted to
show that the laws under which they were charged do not withstand strict scrutiny
and are thus unconstitutional.
In these consolidated cases we now reject those arguments. Our law
proscribing the possession of firearms by convicted felons is not affected by the
amendment and withstands a strict scrutiny analysis. Such laws are effective,
time-tested, and easily understandable, and do not violate the constitution.
Common sense and the public safety allow no other result.
FACTS AND PROCEDURAL HISTORY
In the case of State v. Eberhardt, the September 17, 2012 St. Tammany
Parish felony bill of information charged Eberhardt with: (1) one count of
possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1,
alleging that, on or about June 27, 2012, he illegally possessed a firearm, having
been previously convicted of the unauthorized entry of an inhabited dwelling, a
violation of LSA-R.S. 14:62.3, on June 11, 2007 in St. Tammany Parish; (2) one
count of theft, a violation of LSA-R.S. 14:67, alleging that, between March 6, 2012
and June 25, 2012, he misappropriated or took over $1,500 worth of property
belonging to Faye Eberhardt; and (3) one count of cyberstalking, a violation of
LSA-R.S. 14:40.3(B)(1), alleging that, on or between November 7, 2010 and
August 30, 2011, via electronic mail or electronic communication of words or
language, he threatened to inflict bodily harm to a person or such person’s child,
sibling, spouse, or dependant, or physical injury to the property of a person, or for
the purpose of extorting money or other things of value from a person. Eberhardt
was also charged by a September 17, 2012 misdemeanor bill of information with
2 one count of first offense possession of marijuana, a violation of LSA-R.S.
40:966(C) and (E)(1), which occurred on or about June 26, 2012.
In the case of State v. Taylor, a May 10, 2012 Jefferson Parish grand jury
indictment charged defendants Taylor and Stevens, each, with one count of second
degree murder, a violation of LSA-R.S. 14:30.1, alleging that, on January 6, 2012,
the defendants committed the second degree murder of “a Known Juvenile (DOB
2/23/2000).”1
In addition to the charge of second degree murder, Taylor was also charged
with: (1) five counts of possession of a firearm by a convicted felon, violations of
LSA-R.S. 14:95.1, alleging that, on June 21, 2011, August 2, 2011, November 22,
2011, January 6, 2012, and January 9, 2012, he illegally possessed a firearm,
having been previously convicted of possession of cocaine in the United States
District Court for the Eastern District of Louisiana; (2) one count of attempt to
commit the second degree murder of Derrick Ford on November 22, 2011, a
violation of LSA-R.S. 14:27 and 14:30.1; and (3) one count of possession with
intent to distribute cocaine, a violation of LSA-R.S. 40:967(A).
In addition to the charge of second degree murder allegedly committed with
co-defendant Taylor, Stevens was also charged with two counts of possession of a
firearm by a convicted felon, a violation of LSA-R.S. 14:95.1, alleging that, on
June 8, 2011 and January 6, 2012, he illegally possessed a firearm, having been
previously convicted of second degree battery, a violation of LSA-R.S. 14:34.1,
and of possession with intent to distribute marijuana, a violation of LSA-R.S.
40:966(A).
Eberhardt, Taylor, and Stevens all filed motions to quash the felon-in-
possession charges against them, in their respective district court proceedings,
1 On July 12, 2012, a third co-defendant, Brandon J. Smith, was joined, along with Taylor and Stevens, in the second degree murder charge; however, Smith was not charged with LSA-R.S. 14:95.1 and did not join in contesting the constitutionality of LSA-R.S. 14:95.1.
3 asserting the unconstitutionality of LSA-R.S. 14:95.1, which they contend
impermissibly infringes on their fundamental right to keep and bear arms, as set
forth in LSA-Const. art. I, § 11. The Jefferson Parish district court ruled in favor
of Taylor and Stevens, granting these defendants’ motions to quash, and the State
appealed the declaration of the ruling of unconstitutionality as to LSA-R.S.
14:95.1. The St. Tammany Parish district court denied Eberhardt’s motion to
quash, and he filed a writ application with this court, which was granted. See
State v. Eberhardt, 2013-2306 (La. 2/14/14), ___ So.3d ___. These cases were
consolidated for review in this court as they present the same issue, i.e., whether
LSA-R.S. 14:95.1 is unconstitutional, as violative of LSA-Const. art. I, § 11.
In appealing the ruling of unconstitutionality rendered in State v. Taylor,
the State asserts in its assignments of error that the Jefferson Parish district court
erred in finding that: (1) felons are entitled to the right conferred by LSA-Const.
art. 1, § 11; (2) LSA-R.S. 14:95.1 is facially unconstitutional; and (3) LSA-R.S.
14:95.1 is unconstitutional as applied to the defendants. In conjunction with his
application for supervisory review, Eberhardt contends the St. Tammany Parish
district court erred in failing to hold LSA-R.S. 14:95.1 unconstitutional.
A motion by the Louisiana District Attorneys Association (“LDAA”)
seeking to file an amicus curiae brief in this court was granted, and the LDAA has
submitted arguments in support of the constitutionality of LSA-R.S. 14:95.1.
LAW AND ANALYSIS
Our standard of review in determining the constitutionality of a statute, a
question of law, is de novo.2 See State v. Webb, 2013-1681 (La. 5/7/14), ___
2 These consolidated cases present no factual issues, as the rulings under review were made following hearings, in the respective district court proceedings, on the defendants’ motions to quash. A motion to quash is essentially a mechanism whereby pre-trial pleas, which do not go to the merits of the charge, are urged. See State v. Byrd, 96-2302 (La. 3/13/98), 708 So.2d 401, 411, cert. denied sub nom. Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998).
4 So.3d ___, ___; State v. Draughter, 2013-0914 (La. 12/10/13), 130 So.3d 855,
860; City of Bossier City v. Vernon, 2012-0078 (La. 10/16/12), 100 So.3d 301,
303. A de novo review means the court will render judgment after its
consideration of the legislative provisions at issue, the law, and the record, without
deference to the legal conclusions of the tribunals below. City of Bossier City v.
Vernon, 100 So.3d at 303.
The defendants herein have challenged the validity of the charges against
them under LSA-R.S. 14:95.1, which makes it unlawful for any person convicted
of certain felonies to possess a firearm or carry a concealed weapon. Because the
right to keep and bear arms is a fundamental right, as described in LSA-Const. art.
I, § 11, a statute restricting that right (here, LSA-R.S. 14:95.1) must survive the
test of “strict scrutiny,” a test which is mentioned in LSA-Const. art. I, § 11, but
not defined. See State v. Webb, ___ So.3d at ___.
Under strict scrutiny the government bears the burden of proving the
constitutionality of the regulation by showing: (1) that the regulation serves a
compelling governmental interest, and (2) that the regulation is narrowly tailored
to serve that compelling interest. State v. Draughter, 130 So.3d at 862. Strict
scrutiny requires a careful examination by our courts, keeping in mind that the
fundamental right at issue is one where some degree of regulation is likely to be
necessary to protect the public safety. State in the Interest of J.M., ___ So.3d at
___ (quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 2338, 156
L.Ed.2d 304 (2003), which stated that in a strict scrutiny analysis “context
matters”).
The defendants contend, and the Jefferson Parish district court ruled, that
LSA-R.S. 14:95.1 is unconstitutional on its face, as violative of LSA-Const. art. I,
§ 11. The defendants further contend that LSA-R.S. 14:95.1 is unconstitutional as
applied to their individual circumstances.
5 Revised Statute 14:95.1 provides:
A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
B. Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. Notwithstanding the provisions of R.S. 14:27, whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than seven and one-half years and fined not less than five hundred dollars nor more than two thousand five hundred dollars.
C. The provisions of this Section prohibiting the possession of firearms and carrying concealed weapons by persons who have been convicted of certain felonies shall not apply to any person who has not been convicted of any felony for a period of ten years from the date of completion of sentence, probation, parole, or suspension of sentence.
D. For the purposes of this Section, “firearm” means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.
Subsequent to the 2012 amendment of LSA-Const. art. I, § 11, this court
considered the constitutionality of LSA-R.S. 14:95.1 in State v. Draughter, 2013-
0914 (La. 12/10/13), 130 So.3d 855, and the constitutionality challenge to LSA-
R.S. 14:95.1 was rejected in the limited circumstances presented in that case, i.e.,
vis-à-vis a defendant who had been released from the physical custody of the State,
but who continued to be subject to State supervision, on active probation, for his
6 prior conviction. We held that the State has a compelling interest in regulating
convicted felons still under the State’s supervision, and LSA-R.S. 14:95.1 is
narrowly tailored to achieve that interest. This court concluded that LSA-R.S.
14:95.1 survives strict scrutiny and was not an unconstitutional infringement of
Draughter’s right to bear arms, pursuant to Article I, Section 11, as applied to the
narrow fact situation presented in that case. This court’s conclusion in State v.
Draughter was easily reached given that the defendant was still under State
supervision and was serving the probation portion of his criminal sentence, which
necessarily involved an intrusion into the defendant’s life by the State officials
administering the supervision required by his status. The possession of a firearm
by such a defendant was found to be inconsistent with that status and would
subject the individuals tasked with his supervision to an untenable safety risk. We
declined to address the “larger question” of whether the State may dispossess
certain convicted felons of their right to bear arms for a number of years, even after
they have paid their debt to society and fully discharged their sentences, having
determined that precise question was not before the court. See State v.
Draughter, 130 So.3d at 866-68.
Since deciding State v. Draughter, we have examined the 2012 amendment
to LSA-Const. art. I, § 11 in State in the Interest of J.M. (with respect to LSA-
R.S. 14:95(A), making illegal the carrying of an intentionally concealed firearm on
one’s person, and LSA-R.S. 14:95.8, making unlawful the possession of a handgun
by a person under the age of seventeen except in certain enumerated
circumstances), and in State v. Webb (with respect to LSA-R.S. 14:95(E), making
unlawful the possession of a firearm while in the possession of or during the sale or
distribution of a controlled dangerous substance). In both State in the Interest of
J.M. and State v. Webb, this court upheld the challenged statutes against the
defendants’ claims that these statutes unconstitutionality violated LSA-Const. art.
7 I, § 11, concluding that each of the challenged statutes was enacted pursuant to
compelling government interests and that each was narrowly tailored to achieve
legitimate government purposes.
While the status of the defendants in the instant consolidated cases differs
from those at issue in State v. Draughter, in that the Draughter defendants were
still under State supervision at the time of their arrests and the instant defendants
had completed all aspects of their prior sentences and were no longer under State
supervision when they were arrested on subsequent offenses, we nevertheless
uphold the validity of LSA-R.S. 14:95.1.
We begin our analysis of the current LSA-Const. art. I, § 11-based
challenges to LSA-R.S. 14:95.1 by pointing out that we recognized in Draughter
that the right to bear arms has always been considered fundamental. The 2012
amendment to LSA-Const. art. I, § 11 merely sought to ensure that the review
standard of an alleged infringement of this fundamental right was in keeping with
the refinements made to constitutional analysis that developed since our decision in
State v. Amos, 343 So.2d 166 (La. 1977).3 See State v. Draughter, 130 So.3d at
863. The 2012 amendment of LSA-Const. art. 1, § 11 did not, therefore, effect a
change in the nature of the right by adding the term “fundamental” to describe the
right to keep and bear arms. State v. Webb, ___ So.3d at ___ n.3
3 State v. Draughter further recognized that the 2012 amendment to LSA-Const. art. I, § 11 was prompted in part by the slim 5-to-4 Supreme Court majority decisions in the recent cases of District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (holding that the Second Amendment’s right to keep and bear arms extended beyond participation in a citizen militia to “law-abiding, responsible citizens to use arms in defense of hearth and home” and invalidating the District of Columbia’s total ban on the possession of handguns and the requirement that citizens keep their firearms inoperative, as the requirement made it impossible for citizens to use firearms for the core lawful purpose of self-defense), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (holding that the Second Amendment’s individual right to bear arms, recognized in Heller, is a right fundamental to our scheme of ordered liberty and fully applicable to the states through the Due Process Clause of the Fourteenth Amendment). Partly in response to Heller and McDonald, Louisiana legislators introduced legislation that ultimately resulted in the 2012 amendment of the State constitution, with the stated intention being to secure and protect Louisiana citizens’ right to bear arms under the Louisiana Constitution from possible future judicial or legislative erosion.
8 As we recognized in State v. Amos, the right to keep and bear arms, like
other rights guaranteed by our State constitution, is not absolute. Further, the
Supreme Court described a similar understanding of the nature and limitations of
the right to bear arms in the analogous Second Amendment, in District of
Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 2816, 171 L.Ed.2d 637
(2008), stating, “From Blackstone through the 19th-century cases, commentators
and courts routinely explained that the right was not a right to keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose.” See
State in the Interest of J.M., ___ So.3d at ___.
This court concluded in State in the Interest of J.M. that the voters’
ratification of strict scrutiny as a standard of review to be applied to alleged
infringements on the right to keep and bear arms was not meant to invalidate every
restriction on firearms, whether in existence at the time the amendment was ratified
or yet to be enacted. Rather, the strict scrutiny standard adopted by the voters is
“designed to provide a framework for carefully examining the importance and
sincerity of the reasons advanced by the governmental decisionmaker” for firearm
regulation within the context of the fundamental right to keep and bear arms. State
in the Interest of J.M., ___ So.3d at ___ (quoting Grutter v. Bollinger, 539 U.S.
at 327, 123 S.Ct. at 2338).
A measure of ambiguity was created by the fact that the legislature, in its
2012 amendment of LSA-Const. art. I, § 11, omitted from its prior text the phrase
“but this provision shall not prevent the passage of laws to prohibit the carrying of
weapons concealed on the person” and by calling for “strict scrutiny” of any
restriction on the right to keep and bear arms. Therefore, consideration of the
legislative history is appropriate. See Louisiana Federation of Teachers v. State
of Louisiana, 2013-0120 (La. 5/7/13), 118 So.3d 1033, 1061.
9 A discussion of the proposed amendment to LSA-Const. art. I, § 11, by
Senate Bill No. 303 (later passed as 2012 La. Acts, No. 874), took place on the
Senate floor, which is instructive on the issues before this court. 4 During the
Senate discussion, the bill’s sponsor, Senator Riser, answered questions about the
meaning and effect of the bill, raised by Senators Claitor, Thompson, Donahue,
Appel, and Long. Senator Riser stated that the purpose of the act was to reinforce
the Second Amendment in Louisiana law, so that Louisiana would have the
strongest Second Amendment law in the nation should the amendment pass. The
aim of the legislature in amending LSA-Const. art. I, § 11 was described by
Senator Riser as protecting the fundamental right of individuals to keep and bear
arms, in light of the Supreme Court’s narrow 5-to-4 majority opinions in District
of Columbia v. Heller and McDonald v. City of Chicago. However, when
specifically questioned about the effect the proposed act would have on existing
gun laws, Senator Riser stated, “[T]his [act] defines . . . how laws are judged . . . .
[W]e roughly have close to forty gun laws right now and those laws will stay in
effect.” Senator Riser further stated, “Any [weapon] law on the books right now is
on the books [and] they are going to stay there . . . . You’ll have to follow the
current statute[s].” From these discussions, we can conclude that, in passing Act
874, the legislature did not intend to invalidate existing weapons laws.
As declared by this court in State v. Amos, it is beyond question that the
statute challenged in the instant case, LSA-R.S. 14:95.1, was passed in the interest
of the public and as an exercise of the police power vested in the legislature. Its
purpose is to limit the possession of firearms by persons who, by their past
commission of certain specified serious felonies, have demonstrated a dangerous
4 The recorded April 9, 2012 Senate discussion is archived on the Louisiana Senate website (http://senate.la.gov/sessioninfo/Archives/2012/rs.htm at 01:57:44).
10 disregard for the law and present a potential threat of further or future criminal
activity. State v. Amos, 343 So.2d at 168.
State v. Amos further acknowledged that LSA-R.S. 14:95.1 is addressed to
persons who are citizens of this State by virtue of the termination of state or federal
supervision following their convictions, pursuant to LSA-Const. art. I, § 20.5
These persons have previously been convicted of serious criminal offenses, and
restoration of citizenship cannot erase this fact. The State v. Amos opinion
recognized that the verbatim transcripts of the constitutional convention debates
indicated that neither LSA-Const. art. I, § 11 nor LSA-Const. art. I, § 20 were ever
intended to preclude the type of legislation disputed herein. We are satisfied that it
is reasonable for the legislature in the interest of public welfare and safety to
regulate the possession of firearms, for a limited period of time, by citizens who
have committed certain specified serious felonies. Courts of other states having
statutes and constitutional provisions comparable to our own have similarly
concluded that such regulation is constitutionally permissible as a reasonable and
legitimate exercise of police power. See State v. Amos, 343 So.2d at 168. We
conclude that the precepts set forth in State v. Amos continue to be valid and
applicable today.
We also note that in District of Columbia v. Heller the Supreme Court, in
evaluating the analogous Second Amendment right to bear arms, stated that
“nothing in our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings,
5 Article I, Section 20 provides, in pertinent part: “Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.” Nevertheless, this court held in State v. Adams, 355 So.2d 917, 922 (La. 1978), that LSA-Const. art. 1, § 20 restores only the basic rights of citizenship, such as the right to vote, work, or hold public office. See State v. Selmon, 343 So.2d 720, 721-22 (La. 1977). See also U.S. v. Dupaquier, 907 F.Supp. 951, 953-57 (M.D. La. 1995).
11 or laws imposing conditions and qualifications on the commercial sale of arms.”
District of Columbia v. Heller, 554 U.S. at 626-27, 128 S.Ct. at 2816-17. See
also McDonald v. City of Chicago, 561 U.S. at ___, 130 S.Ct. at 3047; U.S. v.
Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (“[S]omeone with a felony conviction
on his record is more likely than a nonfelon to engage in illegal and violent gun
use.”).
We conclude that LSA-R.S. 14:95.1 serves a compelling governmental
interest that has long been jurisprudentially recognized and is grounded in the
legislature’s intent to protect the safety of the general public from felons convicted
of specified serious crimes, who have demonstrated a dangerous disregard for the
law and the safety of others and who present a potential threat of further or future
criminal activity. See State v. Amos, 343 So.2d at 168. Further, the law is
narrowly tailored in its application to the possession of firearms or the carrying of
concealed weapons for a period of only ten years from the date of completion of
sentence, probation, parole, or suspension of sentence, and to only those convicted
of the enumerated felonies determined by the legislature to be offenses having the
actual or potential danger of harm to other members of the general public.6 Under
these circumstances, we find “a long history, a substantial consensus, and simple
common sense” to be sufficient evidence for even a strict scrutiny review. State in
the Interest of J.M., ___ So.3d at ___ (quoting Burson v. Freeman, 504 U.S.
191, 211, 112 S.Ct. 1846, 1858, 119 L.Ed.2d 5 (1992)).
Furthermore, to challenge a legislative act as unconstitutional on its face is
the most difficult challenge to mount successfully, since the challenger must
6 We note that Louisiana’s LSA-R.S. 14:95.1 felon-in-possession law is less restrictive than the comparable federal law, which encompasses nearly all felonies and has no ten-year cleansing period. Pursuant to 18 U.S.C.A. § 922 (g): “It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
12 establish that no set of circumstances exists under which the statute would be valid.
Prejean v. Barousse, 2012-1177 (La. 1/29/13), 107 So.3d 569, 571-72; City of
New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 2005-2548
(La. 10/1/07), 986 So.2d 1, 19; State v. Brown, 94-1290 (La. 1/17/95), 648 So.2d
872, 875 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095,
2100, 95 L.Ed.2d 697 (1987)). Generally, the legislature may do anything that the
constitution does not prohibit. The task is to determine whether the challenged
statute is so inconsistent with our constitution that there exists no set of
circumstances under which the statute would be valid. See Prejean v. Barousse,
107 So.3d at 572. See also Washington State Grange v. Washington State
Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151
(2008) (“[A] plaintiff can only succeed in a facial challenge by ‘establish[ing] that
no set of circumstances exists under which the Act would be valid,’ i.e., that the
law is unconstitutional in all of its applications.”). No such showing can be made
in the instant case; as seen in State v. Draughter, circumstances clearly exist
where LSA-R.S. 14:95.1 is valid. Therefore, we find no merit in the defendants’
facial challenge to LSA-R.S. 14:95.1.
We also reject the defendants’ argument that LSA-R.S. 14:95.1 is
unconstitutional as applied to their individual circumstances.
Each of the three defendants reoffended within a relatively short period of
time following the completion of previously imposed State supervision. Stevens
was released from State supervision on his prior conviction for possession of
marijuana on May 18, 2011, and he was charged with committing a violation of
LSA-R.S. 14:95.1 on June 8, 2011, only three weeks later. Eberhardt was released
from State supervision on his prior conviction of unauthorized entry of an
inhabited dwelling on May 30, 2010, and he was charged with committing a
violation of LSA-R.S. 14:95.1 on June 27, 2012, approximately two years later
13 (though we note that the third count of the indictment against Eberhardt charged
him with cyberstalking, which had allegedly commenced on or about November 7,
2010, only twenty-three weeks after completion of his prior State supervision).
Taylor completed his prior federal sentence for possession of cocaine and was
released from federal supervision on June 1, 2007, and he was charged with
committing a violation of LSA-R.S. 14:95.1 on June 21, 2011, approximately four
years later.
These three defendants illustrate, rather than show exceptions to, the
principles underlying felon-in-possession laws such as LSA-R.S. 14:95.1, i.e., that
certain convicted felons have demonstrated a dangerous disregard for the law and
present a potential threat of further or future criminal activity and are more likely
than nonfelons to engage in illegal and violent gun use. These cases demonstrate
that convicted felons are not only at risk to reoffend, but are at risk to reoffend
using firearms.
In the case of Taylor and Stevens, a firearm was used in the second degree
murder for which they are charged as co-defendants in this case. This is exactly
the type of offense LSA-R.S. 14:95.1 was enacted to prevent.
In Eberhardt’s case, his weapon possession offense does not appear to be
connected to his other charged offenses of cyberstalking and theft. Eberhardt
further suggests that his prior offense of unauthorized entry of an inhabited
dwelling had no connection to possession of a firearm and that, therefore, as
applied to his circumstances, LSA-R.S. 14:95.1 is not narrowly tailored to ensure
public safety. We find no merit in Eberhardt’s argument. While Eberhardt might
not have armed himself before committing unauthorized entry of an inhabited
dwelling, the entry by an unauthorized person into the residence of another
presents a situation of potential harm to the occupant who may resist the intrusion,
in that the offender may nevertheless acquire a weapon on the premises and use it
14 to cause harm to others. Moreover, some inhabited dwelling offenders go on to
reoffend with a weapon. See State v. Wiggins, 2013-0649 (La. App. 1 Cir.
1/31/14), ___ So.3d ___ (wherein the defendant was previously convicted of
simple burglary of an inhabited dwelling and subsequently reoffended with a
firearm and attempted to kill his victim); State v. Shepherd, 2008-1556 (La. App.
3 Cir. 6/3/09), 11 So.3d 729 (wherein the defendant entered the residence of the
victim, without authorization, and then armed himself with the victim’s weapon
and shot the victim in the chest). We do not find as applied over-inclusiveness in
Eberhardt’s case. The offense of unauthorized entry of an inhabited dwelling
carries such a high potential for harm to innocent bystanders that its inclusion by
the legislature within the ambit of LSA-R.S. 14:95.1 is clearly warranted.
Furthermore, it is impossible for the legislature to predict with complete certainty
which offenders will reoffend with a firearm, and including those offenses that
demonstrate a serious disregard for the safety of others within LSA-R.S. 14:95.1’s
felon-in-possession prohibition is appropriate given the compelling state interest in
protecting the public.7
7 Eberhardt also cites the first offender pardon he received from the Department of Public Safety and Corrections (“DPSC”) after completing his probation; the June 24, 2010 DPSC notice stated that Eberhardt had completed his sentence for unauthorized entry of an inhabited dwelling and had met all of the requirements for an automatic first offender pardon, under LSA-R.S. 15:572(D), and further stated: “[A]s provided by Article 1, Section 20, and Article 4, Section 5(E)(1), of the Louisiana Constitution, this will certify that effective May 30, 2010, CHRISTOPHER EBERHARDT has discharged his/her sentence for the above stated offense(s) and that all rights of citizenship and franchise are restored in Louisiana.” However, the “verification of first offender pardon” received by Eberhardt also notified him that “[t]he right to receive, possess or transport a firearm may not be restored unless all legal provisions are met and should be determined through the local law enforcement agency.” At the time the June 24, 2010 notice was sent to Eberhardt, LSA-R.S. 14:95.1(C) provided that, in addition to the ten-year cleansing period, a convicted felon who had completed his sentence, probation, parole, or suspension of sentence could apply to the sheriff of the parish in which he resided for a permit to possess a firearm; this discretionary sheriff’s permit procedure was repealed by the Louisiana Legislature by 2010 La. Acts, No. 942, § 1, effective August 1, 2010. There is no indication that Eberhardt applied for a sheriff’s permit to possess a firearm between his date of eligibility, May 30, 2010, and the date that the repeal of the sheriff’s permit provision became effective, August 1, 2010. In the absence of such a permit, the restoration of citizenship rights accorded by an LSA-R.S. 15:572(D) automatic pardon to first offenders does not exempt such an offender from the application of LSA-R.S. 14:95.1. See State v. Wiggins, 432 So.2d 234, 236-37 (La. 1983); State v. Riser, 30,201 (La. App. 2 Cir. 12/12/97), 704 So.2d 946, 949-50.
15 We find no merit in the as applied challenges asserted by these defendants.
CONCLUSION
We conclude that LSA-R.S. 14:95.1 is not unconstitutional as violative of
LSA-Const. art. I, § 11.
DECREE
For the reasons assigned, we reverse the judgment of the Jefferson Parish
district court, rendered in favor of the defendants, Jamal C. Taylor and Kelin A.
Stevens, which declared LSA-R.S. 14:95.1 unconstitutional and granted these
defendants’ motions to quash. We further affirm the judgment of the St. Tammany
Parish district court, rendered in favor of the State of Louisiana, which upheld the
constitutionality of LSA-R.S. 14:95.1 and denied the motion to quash filed by
Christopher Eberhardt.
TWENTY-FOURTH JUDICIAL DISTRICT COURT JUDGMENT REVERSED; TWENTY-SECOND JUDICIAL DISTRICT COURT JUDGMENT AFFIRMED.