louisiana state police

ryan26 · Jan 24, 2009

imported post

louisiana state police claim it is illegal to open carry if there are more than 2 people around you they claim that it is a gathering and I will go to jail for brandishing a weapon. there phone number is 504-441-2775

Doug Huffman · Jan 24, 2009

imported post

Welcome Ryan. You might PM the moderator to move this to the LA forum where it may get more better attention. You might also call it to Mark Edward Marchiafava's attention (that's his user name) with a PM. He is very knowledgeable and experienced in dealing with LA law and cops.

sraacke · Jan 24, 2009

imported post

Ryan,

Thanks for the phone number but the only numbers I'm interested in arethe numbers to a reputable lawer and a reputable motorcycle dealer.
Seriously, if you want to see a gathering join us for our next meetup.Hell yes it's a gathering. We'll probably be gathered around a BBQ grill. We will all be armed but at no time could we be considered brandishing.

Hawkflyer · Jan 24, 2009

imported post

ryan26 wrote:

louisiana state police claim it is illegal to open carry if there are more than 2 people around you they claim that it is a gathering and I will go to jail for brandishing a weapon. there phone number is 504-441-2775

By a decision of the La state attorney General they would be wrong -

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 DOC

Legba · Jan 24, 2009

imported post

ryan26 wrote:

louisiana state police claim it is illegal to open carry if there are more than 2 people around you they claim that it is a gathering and I will go to jail for brandishing a weapon. there phone number is 504-441-2775

What happened to the right of the people peaceably to assemble, per the 1st amendment? How can peaceful gathering itself be an element of a crime?

-ljp

Hawkflyer · Jan 24, 2009

imported post

Legba wrote:

ryan26 wrote:

louisiana state police claim it is illegal to open carry if there are more than 2 people around you they claim that it is a gathering and I will go to jail for brandishing a weapon. there phone number is 504-441-2775

Click to expand...

What happened to the right of the people peaceably to assemble, per the 1st amendment? How can peaceful gathering itself be an element of a crime?

-ljp

It is a real stretch, but what they are telling him is that if he carries around a group of people he is disturbing the peace because he is scaring them. The underlying presumption is that the group is not a bunch of people who know each other, but instead just a bunch of people in proximity like at a mall or supermarket.

Whatever cop told him that is headed for a major law suit.

mark edward marchiafava · Jan 24, 2009

imported post

1. the exercise of a right cannot be converted to a crime.
2. article 1 sec 11 of the state constitution has no provisions for how many citizens are allowed to exercise this right.
3. a holstered weapon is not considered "brandishing."
4. If you actually read Louisiana's disturbing the peace statute, it clearly doesn't apply to OC'ing.
5. No one has some mystical right not to be scared or frightened.

XD-GEM · Jan 25, 2009

imported post

I guess you were talking to someone at Troop B?

Tell them to call 225-925-4867 and ask for Sgt. Jason Starnes. He runs the Louisiana State Police Concealed Handgun Permit Unit, and he knows the law correctly. He'll set them straight. He's told me personally that he's frustrated with people who should know better spreading false information like that.

sheepdog · Feb 12, 2009

imported post

...having been a cop...and loving cops of all flavors...and being pro-law enforcement-oriented...let me say that most cops have many more opportunities to eat than to defecate...resulting in a condition that taints the opinions and advice freely offered in order to relieve pressure....and the lack of time in the reading room keeps them from being up to date on the issues...one condition aggravates the other.....1)never ask a cop legal advice, 2)always check the law when hearing the words "you can't"....

r6-rider · Feb 14, 2009

imported post

sheepdog wrote:

1)never ask a cop legal advice, 2)always check the law when hearing the words "you can't"....

yep, 2 biggest problems in this country... everyone thinks cops are the law since they enforce it. i hate hearing those words more then anything "thats against the law, A COP TOLD ME SO" lol

when i ask cops for legal advice (just to see what they know) and they give me wrong info i always call them on it. they will never admit theyre wrong but what i get out of the convo is, the way they preach the law (which is wrong) is the way they WANT the law to be

louisiana state police

ryan26

Regular Member

Doug Huffman

Banned

sraacke

Regular Member

Hawkflyer

Founder's Club Member

Legba

Regular Member

Hawkflyer

Founder's Club Member

mark edward marchiafava

Banned

XD-GEM

Campaign Veteran

sheepdog

Regular Member

r6-rider

Regular Member