Amid the growing confusion over whether Louisiana’s litany of gun crimes violates its residents’ turbocharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?
Rico Webb, a 22-year-old caught in a car with one marijuana cigar and a gun, points to a state constitutional amendment passed last year, applauded by conservatives and the National Rifle Association, that for the first time in American history declared gun ownership a fundamental right in Louisiana, subject to the same level of judicial scrutiny as free speech and voter equality.
The amendment provoked an avalanche of legal challenges to the state’s major gun-crime laws. At least three judges have declared various criminal statutes unconstitutional.
The Louisiana Supreme Court is tasked with sorting out the mess.
The high court already is considering the statute that forbids certain felons from possessing firearms. It heard oral arguments last month, and its decision is pending.
In the meantime, the court agreed on Friday to take up Webb’s challenge to the law that punishes the possession of guns and drugs with five to 10 years in prison without the possibility of parole.
The court has not yet announced when it will consider a third major gun law, the one that legal watchers believe is most likely to crumble under the amendment: the requirement that a person have a permit to carry a concealed weapon.
The constitutional amendment sailed through the Legislature last year and received overwhelming support from voters at the ballot box. Its proponents, both inside and outside the Legislature, defended the measure as a guarantee of freedom if federal gun protections were to somehow fall.
But critics described it as an unnecessary law that solved no problem. Louisiana already had among the most liberal gun laws in the nation. All the amendment has accomplished, they say, is widespread constitutional chaos that could endanger public safety and waste hundreds of courthouse hours on the taxpayers’ dime.
The measure was pitched by conservative legislators as a state equivalent to the Second Amendment. But in practice, it goes far past the protections offered by the U.S. Constitution.
The amendment erased language in the law that allowed the Legislature to prohibit carrying a concealed weapon and specified that, for the first time anywhere in the nation, gun laws would be subject to a “strict scrutiny” test, the highest level of judicial review.
“What the Legislature did is it took discretion away from itself,” said Raymond Diamond, a LSU law professor and Second Amendment scholar. “This pro-gun Legislature voted to bind itself, and future Legislatures that might not be so pro-gun, from undertaking gun control. It has similarly binded local communities in ways that right now we really don’t understand.”
He has described the amendment as “a can of worms.”
It pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a strict scrutiny test.
That test presumes that every person has the right to be armed. Any law that seeks to infringe that right must pass a grueling legal test that kills more than two-third of the laws that come up against it.
The state must show that the law serves a compelling government interest, and that it is so narrowly defined that there is no less restrictive way of achieving that interest.
The arguments against the current statutes are similar, in that they equally dole out “heavy-handed penalties” to vast groups of people.
The drug statute treats people caught with small amounts of marijuana the same as those with large amounts of more serious drugs. The felon-with-a-gun statute equates burglars with murderers. It includes a list of 150 felony offenses, characterized as drug or violence crimes, and says that anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.
The state supports that law by arguing that those with a demonstrated capacity to break the law are more dangerous when armed. Its position on the drugs-and-gun statute is the same: Drugs beget violence and guns make volatile situations deadly.
But Webb’s attorney, New Orleans public defender Colin Reingold, argues that the state cannot prove, under a strict-scrutiny test, that a single marijuana blunt makes him more dangerous when armed than anyone else, particularly since the possession of alcohol and guns is not equally restricted.
“The true danger of a firearm comes not from the manner in which its owner keeps or bears it, but rather from how the citizen uses the weapon,” Reingold wrote in his appeal to the Supreme Court.
Webb, who has no criminal record, was arrested on Sept. 10, 2012, when police pulled over his girlfriend for having a broken taillight. He confessed to police that he had the blunt in his backpack and said the gun on the floorboard was his, too.
The gun was legal and the marijuana alone would have amounted to a misdemeanor, prosecuted in Municipal Court and typically punished with a fine and probation. But combined, the gun and pot became a felony with a minimum sentence of five years and a maximum of 10 years, without the possibility of parole.
Webb appealed his charge to the Louisiana Supreme Court, which announced on Friday it would hear the case.
Over the years, the courts will have to sort out which of the 80 other gun crimes on Louisiana law books remain constitutional under the new amendment.
The state has become an experiment.
“This is an exciting time because there is some risk that some of the laws will be declared unconstitutional,” Diamond said. “ Everybody’s very interested to see what the court’s going to do with it.”
$24M crime lab construction begins - Forensic center set to open in 18 months
A state-of-the-art crime lab should help speed investigations in 29 parishes. Officials broke ground Friday on the 86,000-square-foot North Louisiana Forensic Science Center, which is being constructed using $24 million in capital outlay funds from the state. Construction is expected to take 18 months.
“I can tell you this is a forensic scientist’s dream,” crime lab director Jimmy Barnhill said. “I can promise you this is going to be a cutting-edge forensics facility.”
In February, The Times published a report detailing lengthy efforts — and an eight-year-old promise — to build a crime lab and the hurdles that came along the way. In order to move forward, construction hinged on a decision by Louisiana Gov. Bobby Jindal’s office to better prioritize the project. The same day The Times’ report was released, the new crime lab was approved to advertise for bids.
“This is a facility that will serve more than 1.2 million people in a 29-parish region and shows what can happen when law enforcement leaders come together and see what they can do for the good of not only their parish, but those around them,” said Jindal, who attended the ceremony.
Once complete, the new center will house North Louisiana Criminalistics Laboratory’s current operations and provide new services, including forensic pathology and forensic toxicology. Those new services are expected to bring approximately 30 new jobs at an average annual salary of $65,000.
In addition, the facility will provide training to law enforcement agencies such as crime scene investigation for rural departments.
The current lab was built in 1929 in a small, outdated facility off Line Avenue in Shreveport. Due to limitations, the crime lab has a backlog of more than 800 unworked cases needing DNA and firearms analysis. The new facility will speed the processing time on cases such as those while helping keep local dollars in state, the governor said.
Right now, every single one of those 29 parishes is having to send at least some of its evidence out of state to be processed, Jindal said. “That’s money going out of state that now stays in Louisiana while also quickening the processing time for those cases.”
The property, at Linwood at Tulane avenues in Shreveport, is leased from LSU Health Sciences Center. In addition to its work with law enforcement, the facility will be used to teach forensic pathology for the medical school and for master’s and doctorate programs in forensic sciences in its School of Allied Health.
“We have an opportunity to not only add to the beauty of our campus but also enhance our offerings,” said medical school Chancellor Dr. Robert Barish.
About 230 people who were sentenced in Louisiana to life in prison for committing murders before they turned 18 will not benefit from a U.S. Supreme Court decision banning that punishment for juvenile killers, the state Supreme Court ruled Tuesday. The justices, who heard argument on the question in September, handed down the decision in the case of Darryl Tate of New Orleans, who is serving life for killing a man during a Central City robbery 32 years ago.
The court's 5-2 ruling appears to end any chances that the juvenile lifers had of one day being released on parole. At issue was whether the U.S. Supreme Court's decision, Miller vs. Alabama, is retroactive and thus may be applied to lifers who were convicted and sentenced before the high court handed down its decision on June 25, 2012.
In its 5-4 decision, the U.S. Supreme Court found that mandatory life sentences for juvenile killers run afoul of the 8th Amendment's prohibition against cruel and unusual punishment. The ruling invalidated laws allowing mandatory sentences in 28 states, including Louisiana. The ruling led numerous lifers to file petitions in courts across the state, seeking to correct what they routinely call "illegal sentences" in light of the Miller decision. Among them was Tate, who was 17 years old when he killed Anthony Jeffrey on April 1, 1981. These petitions have been put on hold while lower courts waited for the state Supreme Court to decide the matter.
Some states, including Mississippi, have decided that the Miller decision is retroactive, meaning all their juvenile lifers are now eligible for parole. But as a result of Tuesday's ruling, Louisiana now says it applies only to those juvenile killers who have been convicted since the U.S. Supreme Court weighed in.
The conflict among the states means the U.S. Supreme Court likely must revisit the Miller decision, legal experts said.
"We are disappointed in the ruling," said Dana Kaplan, executive director of the Juvenile Justice Project of Louisiana in New Orleans. "Given that the Untied States Supreme Court clearly ruled that a mandatory life without parole sentence was cruel and unusual punishment, it is a disappointment that the Louisiana Supreme Court has determined that whether such mandatory punishment can be given out is set only by the date of the offense.
"This is especially disappointing given that other states, including our neighbor Mississippi, and the U.S. attorney general have stated that the sentence should be retroactively applied," Kaplan said. "Ultimately, the U.S. Supreme Court will have to determine the resolution of the issue."
The Orleans Parish district attorney's office and Louisiana attorney general's office argued against applying the Miller decision to the older cases. "We're pleased with the court's decision, but beyond that we have no comment," said Assistant District Attorney Christopher Bowman, spokesman for District Attorney Leon Cannizzaro. "I think the decision stands for itself."
Louisiana's justices found that the Miller decision "merely sets forth a new rule of criminal constitutional procedure, which is neither substantive nor implicative of the fundamental fairness and accuracy of criminal proceedings," according to the 21-page decision published Tuesday.
Chief Justice Bernette Johnson dissented, saying the Miller mandate should be applied to all people whose life sentences were handed down before the U.S. Supreme Court rendered its Miller decision. "Fundamental fairness in the administration of justice requires that these new laws apply to Darryl Tate, and all defendants who are similarly situated in Louisiana," Johnson wrote. Associate Justice Jefferson Hughes also dissented, for the same reasons given by Johnson.
But most of the justices found that the Legislature did not intend for Miller to be retroactively applied. The Legislature enacted a law in response to the Miller decision to let judges hear testimony and argument from attorneys on both sides of cases before they decide whether the convict will be eligible for parole. If so, the convict must serve at least 35 years of the life sentence, and meet other criteria, before he or she can apply for parole.
Juvenile killers already have been sentenced in Louisiana, both under the Miller vs. Alabama decision and since the Legislature enacted the new law. The latter involved Arnold Ross of the Gretna area, who was sentenced to life with parole in September for killing an 8-month-old boy. Attorneys in that case said they thought that Ross was the first convict to be sentenced in the state under the new law.
Among the lifers whose cases were in a holding pattern until the retroactivity question was addressed, is Jessie Grace, 37, of Marrero, who was 16 when he killed a man in West Jefferson. Last year, 24th Judicial District Court Judge Lee Falkner ruled Grace was entitled to a hearing at which attorneys could argue whether he should benefit from the Miller decision. It was the first ruling of its type under the Miller case in Jefferson Parish.
Grace's attorney, Michael Rocks, said Tuesday said he, too, expects the U.S. Supreme Court must revisit the Miller decision, given the conflict among the states in determining whether the decision is retroactive. The U.S. Supreme Court "will correctly apply the constitutional standard and find Miller retroactive," Rocks said. The nation "cannot have one state say retroactive and another say no."
Tate's case landed before the Louisiana Supreme Court after he petitioned to have his life sentenced changed last year. Criminal District Court Judge Frank Marullo denied Tate's request for a hearing on the question of retroactivity, but the state 4th Circuit Court of Appeal ordered a hearing. Cannizzaro's office then took the matter to the Louisiana Supreme Court, resulting in Tuesday's decision.
The Miller vs. Alabama decision follows a string U.S. Supreme Court rulings that affect juvenile criminals in the past decade. In 2010, the high court banned mandatory life sentences for juveniles convicted of non-homicide offenses such as aggravated rape. In 2005, justices banned the death penalty for juveniles.