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Thread: Louisiana Open Carry Case Law, from the AG's own website

  1. #1
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    Hellow everyone. I have lurked for a while and posted at PDO several times. After searching The Louisiana Attorney Generals Office :
    http://www.ag.state.la.us/opinionsearch.asp

    It has produced The following AG opinions. Much thanks to Crashvector and others at this site for pressing the issue.

    Search the AG site with the following phrase : open carry firearms

    You will find:
    Opinion# Opinion Title
    95-0198 The effect of pardons
    87-0389 Opinion Import - 87-0389.DOC
    83-0126 Opinion Import - 83-0126.DOC
    79-1212 Opinion Import - 79-1212.DOC
    78-1288 Opinion Import - 78-1288.DOC
    78-0795 Opinion Import - 78-0795.DOC


    The ones we care about are the last three : 79-1212, 78-1288, and 78-0795.
    I will post the copys of the documents for everyone to read. I intend to print copys of these and keep them on me when I open carry.



  2. #2
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    Office of the Attorney General
    State of LOUISIANA

    Opinion No. 79‑1212
    March 31, 1980

    FIREARMS & FIREWORKS 47
    LAW OFFICERS 60 R.S. 14:95.1, 40:1379.1, 40:1379.3, 40:1783 and 40:2405
    The carrying and use of guns or other firearms by commissioned law
    enforcement officers is regulated by the respective law enforcement agency or
    by state statute. Auxilliary police officers are permitted to carry a gun if
    they have been adequately trained

    Ms. Irene W. Pressley
    Police Department
    Town of Westlake
    Post Office Box 635
    Westlake, LOUISIANA 70669

    Dear Ms. Pressley:

    Your request for an opinion of the Attorney General has been forwarded to the
    undersigned for disposition. Your questions as I appreciate them are:
    1. Are there any laws prescribing when it is legal to carry a gun?
    2. Are all law enforcement officers commissioned by a police or Sheriff
    Department permitted to carry guns?
    3. Are auxilliary police officers permitted to carry guns, even if they
    have no special training?
    In answer to your first inquiry I have attached Attorney General Opinion No.
    78‑795, 1978. It is the conclusion of this office that it is legal to carry a
    gun when it is exposed on one's person. The LOUISIANA Supreme Court has
    affirmed this conclusion. State v. Fluker, 311 So.2d 863 (1975). However, the
    legality of carrying even an exposed gun is subject to certain limitations of
    law. For instance, under LA. R.S. 14:95.1 persons who have been convicted of
    certain felonies are not permitted to possess a firearm, unless issued a
    special permit. The Deputy Secretary of the Department of Safety or the chief
    law enforcement officer of a respective parish may issue a concealed weapon
    permit to retail or wholesale merchants, (LSA‑R.S. 40:1379.3); or to
    individuals within the parish and state (LSA‑R.S. 40:1379.1(F)(G). Generally,
    all firearms should be registe with the Department of Public Safety. LSA‑R.S.
    40:1783.
    Your second and third inquiries are also answered partially by the LA. R.S.
    14:95 proscription against the illegal carrying of weapons. Section (F) of
    this statute states:
    'The provisions of this section except paragraph 4 of sub‑section A shall
    not apply to sheriffs and their deputies, state and city police, constables
    and town marshals, or persons vested with police power when in the actual
    discharge of official duties.' (Emphasis added)
    This office has concluded therefrom the following:
    1. A peace officer or any person vested with police power may carry a gun
    either openly or concealed on his person while in the actual discharge of his
    official duties.
    Every police department, sheriff office, or other law enforcement agency
    makes its own reasonable regulations on the carrying of firearms and ammunition
    by police officers while on and off duty, as well as other matters within its
    authority. Lally v. Department of Police, 306 So.2d 65 (4th Cir. 1974). In
    Lally the court affirmed the dismissal of a police officer from the department
    for his failure to comply with regulations stating:
    '[A] Police officer by voluntarily accepting a commission and
    becoming an employee consents to being subject to all reasonable
    regulations . . . Appellant has not shown that there is anything in these
    regulations which makes them arbitrary or unreasonable.'
    State statute regulates the carrying of firearms by state police officers,
    agents, or employees, LA. R.S. 40:1382, and by university or college police
    officers, LA. R.S. 17:1805.
    Finally, in answer to your third inquiry with reference to auxiliary police
    officers or others carrying guns, without undergoing any special training, the
    following authorities are illustrative: Pursuant to LA. R.S. 40:2405(A), all
    peace officers must be trained. This statute provides:
    (A) Every peace officer, not later than one year after accepting
    employment as a peace officer or within one year after the effective date of
    this Chapter, whichever is later, shall successfully complete a basic law
    enforcement training course conducted by a training center accredited by the
    council [on Peace Officer Standards and Training].
    The council shall retain the power to extend the one year period . . .
    allowed for completion of a basic law enforcement training course. A
    certificate of successful completion of such course . . . shall constitute
    presumptive evidence that the requirements of this Paragraph have been
    complied with. Persons having two (2) years full‑time employment as peace
    officers at the effective date of this Chapter shall, in any event, be exempt
    from the requirements of this sub‑section . . .
    The lack of basic training of any peace officer may constitute just cause for
    dismissal or disciplinary action. See, Martin v. City of St. Martinville, 321
    So.2d 532 (3rd Cir.1975). Presumably, an auxilliary police office vested with
    police power should also be trained although this statute does not read so
    specifically.
    Therefore, it is the opinion of this office that a gun may be carried legally
    if it is in open view; that the carrying of guns by commissioned law
    enforcement officers is regulated by the respective law enforcement agency or
    by state statute; and lastly auxilliary police officer are permitted to carry
    guns if they are sufficiently trained.
    I hope that this opinion has sufficiently answered your questions. If this
    office may be of further assistance to you, please feel free to contact us.

    Sincerely,

    William J. Guste, Jr.
    Attorney General

    By: Patrick G. Quinlan
    Assistant Attorney General
    1980 WL 116801 (La.A.G.), 1978‑79 La. Op. Atty. Gen. 139,
    La. Atty. Gen. Op. No. 79‑1212, 1980 WL 116801 (La.A.G.)
    END OF DOCUMENT

  3. #3
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    Office of the Attorney General
    State of LOUISIANA

    Opinion No. 78‑1288
    September 29, 1978

    47‑A FIREARMS
    An off duty deputy sheriff cannot carry a concealed weapon beyond the parish
    where he is commissioned without a permit by the State Police superintendent.
    R.S. 14:95 & R.S. 40:1379.1

    Hon. Huntington B. Downer, Jr.
    State of LOUISIANA
    House of Representatives
    District 52
    P. O. Box 7015
    Houma, LA 70361

    Dear Mr. Downer:

    This office is in receipt of your recent letter requesting an opinion. Your
    question, as I appreciate it, is as follows:
    Whether a deputy sheriff or other law enforcement officer of a parish can
    carry his weapon off duty beyond the parish where he is commissioned?
    Pursuant to R.S. 14:95 it is illegal for a private citizen to carry a
    concealed weapon, but deputy sheriffs, among certain other designated law
    enforcement officers, are excepted. However, beyond the territorial limits of
    his jurisdiction an off duty deputy sheriff would be governed by the same laws
    as every other citizen.
    Therefore, it must be concluded a deputy sheriff could not legally carry a
    concealed weapon while off duty and outside of his parish unless he has
    received a concealed hand gun permit from the superintendent of state police as
    set forth in R.S. 40:1379.1.
    Of course, it is pertinent to observe that any citizen may bear arms that are
    not concealed. In this regard the LOUISIANA Supreme Court ruled in State v.
    Fluker, 311 So. 2d 863, that a weapon is not concealed, even if not in full,
    open view, if it is sufficiently exposed to reveal its identity. Thus, a gun
    in a holster on one's hip is not illegal.
    We hope this sufficiently answers your question but if we may be of further
    assistance, please do not hesitate to contact us.

    Sincerely yours,

    William J. Guste, Jr
    Attorney General

    By: Barbara B. Rutledge
    Assistant Attorney General
    La. Atty. Gen. Op. No. 78‑1288, 1978 WL 32438 (La.A.G.)
    END OF DOCUMENT

  4. #4
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    Office of the Attorney General
    State of LOUISIANA

    Opinion No. 78‑795
    June 19, 1978

    FIREARMS & FIREWORKS 47‑A R.S. 14:95.1, 40:1379.1 Acts 1956, No. 345, s 1,
    1958, No. 2 1958, No. 379, ss 1, 3, 1968, No. 647, s 1, 1975, No. 492
    The carrying of an exposed handgun is not illegal, except as provided in LSA‑
    R.S. 14:94.1. Parishes and/or Municipalities may not enact ordinances
    regulating the carrying of illegal handguns because the state has pre‑empted
    the legistlative control and has implicitly authorized the carrying of
    unconcealed weapons.

    Honorable James H. Brown, Jr.
    State Senator
    32nd District
    Baton Rouge, LOUISIANA 70804

    Dear Senator Brown:

    Your request for an opinion of the Attorney General has been forwarded to the
    undersigned for disposition. Your questions, as I appreciate them, are:
    1. Is it legal to carry an exposed handgun?
    2. Do Parishes and/or Municipalities have the power to regulate the
    carrying of exposed handguns?
    LSA‑R.S. 14:95 provides as follows:

    s 95 Illegal carrying of weapon

    A. Illegal carrying of weapon is:
    (1) The intentional concealment of any firearm, or other instrumentality
    customarily used or intended for probable use as a dangerous weapon, on
    one's person; or
    (2) The ownership, possession, custody or use of any firearm, or other
    instrumentality customarily used as a dangerous weapon, at any time by an
    enemy alien; or
    (3) The ownership, possession, custody or use of any tools, or dynamite,
    or nitroglycerine, or explosives, or other instrumentality customarily used
    by thieves or burglars at any time by any person with the intent to commit
    a crime; or
    (4) The manufacture, ownership, possession, custody or use of any
    switchblade knife, spring knife or other knife or similar instrument having
    a blade which may be automatically unfolded or extended from a handle by
    the manipulation of a button, switch, latch or similar contrivance.
    ****
    B. Whoever commits the crime of illegal carrying of weapons shall be fined
    not more than five hundred dollars, or imprisoned for not more than six
    months, or both.
    C. On a second conviction, the offender shall be imprisoned with or
    without hard labor for not more than five years.
    D. On third and subsequent convictions, the offender shall be imprisoned
    with or without hard labor for not more than ten years without benefit of
    parole, probation, or suspension of sentence.
    E. The enhanced penalty upon second, third, and subsequent convictions
    shall not be applicable in cases where more than five years have elapsed
    since the expiration of the maximum sentence or sentences, of the previous
    conviction or convictions, and the time of the commission of the last offense
    for which he has been convicted; the sentence to be imposed in such event
    shall be the same as may be imposed upon a first conviction.
    F. The provisions of this Section except Paragraph (4) of Sub‑section (A)
    shall not apply to sheriffs and their deputies, state and city police,
    constables and town marshals, or persons vested with police power when in the
    actual discharge of official duties. (Amended by Acts 1956, No. 345, s 1;
    Acts 1958, No. 21, s 1; Acts 1958, No. 379, ss 1, 3; Acts 1968, No. 647, s 1,
    emerg. eff. July 20, 1968; Acts 1975, No. 492.) (Emphasis supplied)
    In State vs Fluker, 311 So.2d 863 (1975), the defendant had been
    arrested for carrying a handgun in a holster on his hip. The weapon was
    exposed except for that portion in the holster, and it was fully recognizable
    as a weapon. The LOUISIANA Supreme Court, in reversing Fluker's conviction,
    stated that 'by making the offense of concealment a crime of specific intent,
    the legislature has abandoned the old rule that a partially hidden weapon is a
    concealed weapon in favor of a more realistic proscription that contemplates
    that a weapon, although not in 'full open view,' is nonetheless not a concealed
    weapon, if it is sufficiently exposed to reveal its identity.
    If the weapon is carried in a manner that reveals its identity, its carrier
    cannot be presumed to have intended to conceal it and, accordingly, is not in
    violation of the statute ...... The appropriate test to be applied in
    prosecutions for illegal carrying of weapons is whether, under the facts and
    circumstances of the case as disclosed by the evidence, the manner in which
    defendant carried the weapon revealed an intent to conceal its identity.'
    Therefore, the carrying of an exposed handgun is not illegal, except as
    provided in LSA‑R.S. 14:95.1.
    LSA‑R.S. 14:95.1 provides:

    s 95.1 Possession of firearm or carrying concealed weapon by a person convicted
    of certain felonies

    A. It is unlawful for any person who has been convicted of first or second
    degree murder, manslaughter, aggravated battery, aggravated or simple rape,
    aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed
    or simple robbery, or any violation of the Uniform Controlled Dangerous
    Substances Law which is a felony 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 three nor more than ten
    years. If such conviction is for the crime of carrying a concealed weapon,
    such sentence shall be 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.
    C. Except as otherwise specifically provided, this Section shall not apply
    to the following cases:
    (1) 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.
    (2) Upon completion of sentence, probation, parole, or suspension of
    sentence the convicted felon shall have the right to apply to the sheriff
    of the parish in which he resides, or in the case of Orleans Parish the
    superintendent of police, for a permit to possess firearms. The felon
    shall be entitled to possess the firearm upon the issuing of the permit.
    (3) The sheriff or superintendent of police, as the case may be,
    shall immediately notify the Department of Public Safety, in writing, of
    the issuance of each permit granted under this Section. Added by Acts 1975,
    No. 492, s 2.
    In answer to your second question it can be analogized that when the State
    provides that it is unlawful for a person to carry a concealed weapon, LSA‑R.S.
    14:95 A (1), unless they hold a bonafide law enforcement commission, R.S.
    14:95(F) or possess a concealed handgun permit, R.S. 40:1379.1, it is
    equivalent to stating that it is lawful to carry an exposed weapon (firearm).
    In City of Shreveport V. Curry and City of Shreveport V. Bukhett, 357 S.2d
    1078, (LA. 1978) which held that a city ordinance proscribing frog gigging out
    of season was unconstitutional as not being a reasonable exercise of Police
    Power and as such a violation of the defendant's right to due process; the
    Court stated in dicta that '. . . a municipal ordinance which goes further in
    its prohibitions than a state statute is valid so long as it does not forbid
    what the state legislature has expressly or implicitly authorized . . .'
    (Emphasis supplied)
    It is the opinion of this office that the state statutes aforementioned have
    the purpose of establishing a general scheme to control weapons (handguns) and
    that a fair reading of those statutes show this would constitute an area in
    which the state has pre‑empted the legislative control and has implicitly
    authorized the carrying of unconcealed weapons.
    Therefore, an ordinance enacted by a Parish and/or Municipality requlating
    the carrying of exposed handguns would be without effect as being in conflict
    with State Law.
    We hope this opinion has adequately answered your questions. If we may be of
    any further assistance in this or any other matter, please do not hesitate to
    call upon us.
    With kind regards, I am

    Sincerely

    William J. Guste, Jr.
    Attorney General

    By: L. J. Hymel Jr.
    Assistant Attorney General
    La. Atty. Gen. Op. No. 78‑795, 1978 WL 32078 (La.A.G.)
    END OF DOCUMENT

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