State v. Webb

• Decision Date: 07 May 2014
• Docket Number: No. 2013–KK–1681.,2013–KK–1681.
• Citation: 144 So.3d 971
• Parties: STATE of Louisiana v. Rico WEBB.
• Court: Louisiana Supreme Court

144 So.3d 971

STATE of Louisiana

v.Rico WEBB.

No. 2013–KK–1681.

Supreme Court of Louisiana.

May 7, 2014.

Public Defender's Office, Orleans Parish, Colin Reingold, for Applicant.

Department of Justice, State of Louisiana, James D. Caldwell, Attorney General, Jessica M.P. Thornhill, Colin Clark, Steven B. Jones, Assistant Attorneys General, District Attorney's Office, Orleans Parish, Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Kyle Daly, Assistant District Attorneys, for Respondent.

WEIMER, Justice.

We granted a writ to determine whether a recent constitutional amendment involving a fundamental right to bear arms found in La. Const. art. I, § 11 renders a criminal statute related to the possession of a firearm while possessing illegal drugs, facially unconstitutional.

According to the defendant, because the right to bear arms has been recently enshrined as a fundamental constitutional right, notwithstanding the fact the defendant was allegedly carrying illegal drugs while in possession of a firearm, La. R.S. 14:95(E) is facially unconstitutional. Essentially, the defendant argues that, even assuming he possessed illegal drugs, because La. R.S. 14:95(E) deals not only with illegal drugs but with firearms, the firearm aspect of the statute cannot survive strict judicial scrutiny, and the entire statute must be declared unconstitutional.

We disagree. Nothing in the recent constitutional amendment regarding firearms requires dismissal of the criminal charges against the defendant for carrying a firearm while in possession of illegal drugs.

Under longstanding constitutional authorities, on its face, the challenged statute does not restrict the legitimate exercise of the fundamental right to bear arms. Instead, the statute enhances the penalty for possessing illegal drugs while in carrying a firearm. When a defendant carries a firearm while possessing illegal drugs, La. R.S. 14:95(E) is facially constructed such that the possession of a firearm under those circumstances is illicit and is made illicit as a result of defendant's own illegal activities. Further, the illicit possession of a firearm may be used to enhance the penalty for possessing illegal drugs. Our own jurisprudence, and that of the United States Supreme Court, demonstrates the existence in La. R.S. 14:95(E) of a compelling state interest, which is narrowly tailored to restrict firearm possession by those who possess illegal drugs.

The legislature's criminalization of the possession of illegal drugs with the illicit possession of a firearm, therefore, passes strict judicial scrutiny. Thus, on its face, there is nothing in La. R.S. 14:95(E) that requires this court to declare that statute to be unconstitutional.

FACTUAL AND PROCEDURAL BACKGROUND

The facts alleged by the state in this case are contained in a New Orleans Police Department report. On September 10, 2012, at 4:40 p.m., the defendant, Rico Webb, was in a car driven by his girlfriend, Brianisha Robinson. Officers Berger and Abram conducted a traffic stop of the vehicle at South Claiborne Avenue and Cleveland Street for an allegedly broken taillight. The officers smelled the faint odor of marijuana when they approached the car, so they asked the occupants to exit the vehicle. After the officers issued Miranda warnings to both occupants, the defendant stated that he had a marijuana “blunt” in his backpack. The defendant removed the blunt from his backpack, which later tested positive for marijuana. The officers then saw a handgun on the driver's side floorboard. The defendant claimed ownership of the gun. It was determined that the defendant legally purchased the firearm and had the corresponding paperwork. Ms. Robinson was given a traffic citation for the broken taillight and driving without a license and was then released from the scene. However, the defendant was arrested for violating La. R.S. 14:95(E). He has no prior felony criminal convictions and was not arrested for, nor charged with, misdemeanor possession of marijuana.

The defendant filed a motion to quash the bill of information, which was denied, as the district court declined to find La. R.S. 14:95(E) unconstitutional. The court explained that strict scrutiny is essentially a two part test, under which legislation must “(1) ... serve[ ] a compelling state interest, and (2) ... [be] narrowly tailored to serve that compelling interest.” The district court noted the defendant had conceded, in his motion to quash, that La. R.S. 14:95(E) promotes a compelling state interest, namely, public safety.¹

On appeal, the defendant again urged that he was being charged with an unconstitutional crime. The court of appeal declined to exercise supervisory review over the case and remarked that State v. Draughter, 13–0914 (La.12/10/13), 130 So.3d. 855, was pending before this court. State v. Webb, 13–0759 (La.App. 4 Cir. 6/17/13) (unpublished writ action). In Draughter, the district court declared the state's felon-in-possession of a firearm statute, La. R.S. 14:95.1, was unconstitutional. We reversed, finding the right to bear arms did not extend to Mr. Draughter, who remained under state supervision as a “probationer or parolee.” Id., 13–0914 at 16, 130 So.3d. at 867. While Draughter remained pending, the defendant in the instant case applied for this court's supervisory review. Because the newly enacted constitutional amendment has generated substantial litigation, to provide guidance, we granted the defendant's application to determine the constitutionality of La. R.S. 14:95(E). State v. Webb, 13–1681 (La.11/22/13), 126 So.3d 474.

LAW AND ANALYSIS

The determination of the constitutionality of a statute presents a question of law, which is reviewed by this court de novo. See Draughter, 13–0914 at 4, 130 So.3d. at 859–60, citing City of Bossier City v. Vernon, 12–0078, p. 2 (La.10/16/12), 100 So.3d 301, 303.

Principles of Review for Constitutionality

“Mindful of our civilian mandate, ... we begin [our review of the defendant's constitutional challenge], as we must, with the language of the [statute] itself.” Quinn v. Louisiana Citizens Property Ins. Corp., 12–0152, p. 11 (La.11/2/12), 118 So.3d 1011, 1018. The challenged statute, La. R.S. 14:95(E), provides as follows:

If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.

Although there are numerous factors that may bear upon interpreting a statute, as it concerns the defendant's challenge to whether the statute conforms to the language and purposes of the constitution, the following summary is especially informative: “Words and phrases shall be read in context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. “The meaning and intent of a law is determined by considering the law in its entirety and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law.” Sensebe v. Canal Indem. Co., 10–0703, pp. 8–9 (La.1/28/11), 58 So.3d 441, 447, quoting Hawkins v. Redmon, 09–2418, p. 9 (La.7/6/10), 42 So.3d 360, 365.

This court's civilian mandate applies with equal force when interpreting constitutional provisions. Therefore, “[w]e begin, as we must, with the applicable constitutional language.” Louisiana Federation of Teachers v. State, 13–0120, p. 24 (La.5/7/13), 118 So.3d 1033, 1049. As amended effective December 10, 2012, La. Const. art. I, § 11 now provides: “The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction of this right shall be subject to strict scrutiny.” ²See 2012 La. Acts 874, § 1. “When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. When interpreting constitutional language, the same general rules used in interpreting laws and other written instruments are followed.” Louisiana Federation of Teachers, 13–0120 at 24, 118 So.3d at 1049 (citations omitted).

When analyzing a statute under a provision of our constitution to determine whether the statute is constitutional, the following principles apply:

As a general rule, legislative instruments are presumed to be constitutional; therefore, the party challenging the validity of a legislative instrument has the burden of proving its unconstitutionality.

Because the provisions of the Louisiana Constitution are not grants of power, but instead are limitations on the otherwise plenary power of the people of the state, exercised through the legislature, the legislature may enact any legislation that the constitution does not prohibit. Consequently, a party challenging the constitutionality of a legislative instrument must point to a particular provision of the constitution that would prohibit the enactment of the legislative instrument and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question. A constitutional limitation on the legislative power may be either express or implied.

Finally, because it is presumed that the legislature acts within its constitutional authority in promulgating a legislative instrument,...