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

packing_in_la

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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.
 

packing_in_la

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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
 

packing_in_la

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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
 

packing_in_la

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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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