In re State
| Decision Date | 07 May 2014 |
| Docket Number | No. 2013–CA–1283.,2013–CA–1283. |
| Parties | STATE of Louisiana in the Interest of D.V. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant/D.V.
(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge PAUL A. BONIN, Judge JOY COSSICH LOBRANO).
On August 15, 2013, the Orleans Parish Juvenile Court adjudicated D.V.1 delinquent as a result of having committed the crime of illegal possession of a handgun by a juvenile, a violation of La. R.S. 14:95.8. The Juvenile Court judge entered a disposition of commitment to the Department of Public Safety and Corrections for a period of six (6) months, but suspended the commitment and placed D.V. on six (6) months of inactive probation, with certain special conditions. D.V. now appeals his adjudication and disposition.
The facts of the instant case are not relevant to the issues presented in this appeal.
On appeal, D.V. first argues that La. R.S. 14:95.8 is unconstitutional and a violation of Article 1, § 11 and Article 1, § 3 of the Constitution of the State of Louisiana, and the Fourteenth Amendment of the Constitution of the United States. The trial court denied D.V.'s motion to declare La. R.S. 14:95.8 unconstitutional. La. R.S. 14:95.8 states as follows:
A. It is unlawful for any person who has not attained the age of seventeen years knowingly to possess any handgun on his person. Any person possessing any handgun in violation of this Section commits the offense of illegal possession of a handgun by a juvenile.
B. (1) On a first conviction, the offender shall be fined not more than one hundred dollars and imprisoned for not less than ninety days and not more than six months.
(2) On a second conviction, the offender shall be fined not more than five hundred dollars and imprisoned with or without hard labor for not more than two years.
(3) On a third or subsequent conviction, the offender shall be fined not more than one thousand dollars and imprisoned at hard labor for not more than five years.
(4) A juvenile adjudicated delinquent under this Section, having been previously found guilty or adjudicated delinquent for any crime of violence as defined by R.S. 14:2(B), or attempt or conspiracy to commit any such offense, shall upon a first or subsequent conviction be fined not less than five hundred dollars and not more than one thousand dollars and shall be imprisoned with or without hard labor for not less than six months and not more than five years. At least ninety days shall be served without benefit of probation, parole, or suspension of sentence.
C. The provisions of this Section shall not apply to any person under the age of seventeen years who is:
(1) Attending a hunter's safety course or a firearms safety course.
(2) Engaging in practice in the use of a firearm or target shooting at an established range.
(3) Hunting or trapping pursuant to a valid license issued to him pursuant to the laws of this state.
(4) Traveling to or from any activity described in Paragraph (1), (2), or (3) of this Subsection while in possession of an unloaded gun.
(5) On real property with the permission of his parent or legal guardian and with the permission of the owner or lessee of the property.
(6) At such person's residence and who, with the permission of such person's parent or legal guardian, possesses a handgun.
(7) Possessing a handgun with the written permission of such person's parent or legal guardian; provided that such person carries on his person a copy of such written permission.
D. For the purposes of this Section “handgun” means a firearm as defined in R.S. 14:37.2, provided however, that the barrel length shall not exceed twelve inches.
The constitutionality of La. R.S. 14:95.8 was upheld by the Louisiana Fifth Circuit Court of Appeal in State in Interest of D.W., 13–114 (La.App. 5 Cir. 9/18/13), 125 So.3d 1180, and the Louisiana Supreme Court recently denied writs in that case. State in Interest of D.W., 13–2478 (La.4/4/14), 135 So.3d 639. The Fifth Circuit stated as follows:
The right to bear arms is established by the Second Amendment to the United States Constitution and Article I, Section 11 of the Louisiana Constitution. The State of Louisiana is entitled to regulate that right for legitimate state purposes, such as public health and safety. State v. Sandifer, 95–2226 (La.9/5/96), 679 So.2d 1324, 1333; State v. Williams, 98–1006 (La.App. 5 Cir. 3/30/99), 735 So.2d 62, 70, writ denied,99–1077 (La.9/24/99), 747 So.2d 1118.
La. Const. Art. 1, Section 11 currently provides that the right of each citizen to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. La. Const. Art. 1, Section 11 was amended by Acts 2012, No. 874, Section 1, and approved on November 6, 2012. La. Const. Art. 1, Section 11 formerly 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. D.W. committed this offense on October 27, 2012, before the new amendment was approved, and therefore, it is unclear as to whether the new amendment would apply. However, under the following analysis, we find that La. R.S. 14:95.8 is constitutional under either version of the law.
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A statute is presumed to be constitutional, and the burden of clearly establishing unconstitutionality rests upon the party who attacks the statute. A statute should be upheld whenever possible. State v. Muschkat, 96–2922 (La.3[/4/98), pp. 4–5,] 706 So.2d 429, 432. Neither the Louisiana Supreme Court nor this Court has determined whether La. R.S. 14:95.8 is constitutional or unconstitutional.
Federal courts have found that similar statutes do not violate the Second Amendment and are constitutional. In United States v. Rene E., 583 F.3d 8 (1st Cir.2009), cert. denied,558 U.S. 1133, 130 S.Ct. 1109, 175 L.Ed.2d 921 (2010), a juvenile was charged with possessing a handgun in violation of 18 U.S.C., Section 922(x)(2)(A). The juvenile entered a conditional guilty plea. On appeal, he argued, inter alia, that the statute violated his rights under the Second Amendment. The U.S. Court of Appeals, First Circuit, held that the statute did not violate the Second Amendment. It found that the law was a narrowly drawn federal prohibition on handgun possession by juveniles that contained exceptions for self- and other-defense in the home, National Guard duty, and hunting, among others. The First Circuit stated that it had evaluated this prohibition in light of state laws regulating juvenile access to handguns on the ground that their possession could pose a serious threat to public safety. It also stated that it had evaluated evidence which showed that the founding generation would have regarded such laws as consistent with the right to keep and bear arms. Therefore, the court concluded that the law, with its narrow scope and its exceptions, did not offend the Second Amendment.6Id. at 16.
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6. In its analysis, the First Circuit in United States v. Rene E., pointed out that for a long time the states were engaged in regulating firearms, including their transfer to and possession by juveniles. It noted that some states criminalized the mere possession of handguns by juveniles, citing Glenn v. State, 10 Ga.App. 128, 72 S.E. 927 1911), where a Georgia court held that a ban on juvenile possession of handguns did not violate the Georgia constitution, and Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182, 184–85 (1917), where the Illinois Supreme Court held that a Chicago ordinance that required individuals to obtain permits to purchase concealable weapons, including handguns, but denied such permits to all minors, did not violate either the Illinois or the U.S. Constitution. United States v. Rene E., 583 F.3d at 14–15.
The First Circuit also noted that handgun possession by juveniles was banned by federal law in 1994 in the Youth Handgun Safety Act, and that the act was aimed at preventing juvenile misuse of handguns and associated crime. Id. at 13. The federal ban on handguns was part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms—those whose possession posed a particular danger to the public. Id. at 15. The court lastly recognized that the U.S. Supreme Court had held repeatedly that the rights of minors were not commensurate with those of adults because of their inability to make informed and mature decisions. Id. at 16 n. 8. See also, Dozier v. State of Indiana, 709 N.E.2d 27, 31 (Ind.Ct.App.1999); National Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185 (5th Cir.2012).
La. Const. Art. 1, Section 11, provides at the present time that the right of each citizen to keep and bear arms is fundamental and shall not be infringed, and that any restriction on this right shall be subject to strict scrutiny. Under the strict scrutiny test, the state action may be justified only by a compelling state interest, and the state action must be narrowly confined so as to further only that compelling interest. State v. Perry, 610 So.2d 746, 760 (La.1992).
We find that La. R.S. 14:95.8 meets the strict scrutiny test because it is narrowly tailored to address the compelling state interest of protecting the public's safety by attempting to curb juvenile gun violence with reasonable, limited restrictions. The statute is narrowly tailored in that it contains several exceptions which are found in La. R.S. 14:95.8C, including exceptions for hunting and target shooting at an established range. Juveniles who have permission from their parents are...
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