May a felon sell rather than give up his guns?
By: Elizabeth B. Carpenter — Firearm Attorney New Orleans
The Unites State Supreme Court has agreed to examine this issue during the present session in the case Henderson vs. United States.
This case centers on Tony Henderson, a former U.S. Border Patrol agent who was charged with selling marijuana in 2006, and later convicted of a felony.
Federal law prohibits felons from possessing firearms, and Henderson turned 15 personal weapons over to the FBI while his case was pending.
Two years later, he submitted a bill of sale to the FBI, indicating that he had sold the guns to another man and asked the FBI to transfer them accordingly. The government refused, reasoning that doing so would amount to granting “constructive possession” of the guns to Henderson.
The questions before the court are:
Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure* or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
Henderson’s case was governed by precedent in the 11th U.S. Circuit Court of Appeals that says allowing a felon to transfer guns is tantamount to giving him constructive possession of the weapons in violation of the law. U.S. Courts of Appeals for the 3rd, 6th and 8th Circuits are in accord.
“Requiring a court to return firearms to a convicted felon would not only be in violation of a federal law, but would be contrary to the public policy behind the law,” that court argued.
But Henderson says the weapons had nothing to do with his crime.
Three other appeals courts reject that position, reasoning that the guns can be transferred because the felon has an interest in the firearms apart from a possessory interest.
By denying his sale of the guns, the government is trampling on his property rights, his lawyers argued in a petition seeking Supreme Court review of the case.
“It allows the government — based on a statutory prohibition on mere possession — to bypass formal forfeiture procedures and effectively strip gun owners of their entire ownership interest in significant, lawful household assets following a conviction for an unrelated offense,” petitioners say.
In this case, I agree with Henderson. If his criminal offense involved a weapon, then I would feel differently – I see no reason for the government to deprive him of his right to transfer his ownership in this property. Of course, I will be following this case — I am curious to see what the Supreme’s think.
*Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
During the 2014 legislative session, Louisiana lawmakers added and modified many laws pertaining to domestic violence. One of the most significant actions taken was the creation of Louisiana Revised Statute 14:95.10, which prohibits someone previously convicted of domestic abuse battery from possessing a firearm or carrying a concealed weapon for 10 years. The statute was created by House Bill 753 – also known as the Susan “Pixie” Gouaux Act – which was signed into law earlier this year by Governor Bobby Jindal.
Possession of a Firearm or Carrying a Concealed Weapon by a Person Convicted of Domestic Abuse Battery — La. R.S. 14:95.10
It is unlawful for anyone convicted of domestic abuse battery at 14:35.3 to possess a firearm or carry a concealed weapon.
Whoever is found guilty of this offense shall be imprisoned with or without hard labor for not less than 1 year nor more than 5 years and shall be fined not less than $500.00 nor more than $1,000.00.
A person cannot be found guilty of this offense if the original domestic battery conviction has been set aside, expunged or pardoned.
The statute applies to anyone who has been convicted of domestic abuse for a period of 10 years from the date of completion of the sentence, probation, parole or suspended sentence.
The law went into effect August 1, 2014.
If you know someone who has a domestic battery conviction, please inform that person of the new law — this ban on possession of firearms includes hunting rifles.
By Elizabeth B Carpenter — New Orleans Weapons Offense Attorney
Governor Bobby Jindal has signed three bills into law. Two of these bills expand gun rights, while the third one restricts gun rights.
Carrying Weapons in Establishments that Serve Alcohol
A new law that allows concealed-carry permit holders to carry their weapons into restaurants that serve alcohol — the establishment must make most of its money from the sale of food rather than alcohol. This law will also permit off-duty law enforcement officers to carry their guns into bars. However, no one will be allowed to drink alcohol while carrying a weapon in restaurants.
The state’s concealed-carry law already allows for permit-holders to carry guns in restaurants that serve alcohol, the criminal statute outlawing guns at places that sell alcohol didn’t list an exception for restaurants that also serve alcohol.
Expand Louisiana “Stand Your Ground” Law
Under current law, a person who kills an intruder coming into his car or house is given the benefit of the doubt and can use self-defense as a lawful reason for the killing. But the same self-defense argument could not be legally applied to situations where a person hurt, but didn’t kill, the intruder.
This law essentially closes a loophole. The belief is that people who end up harming — but not killing — an intruder or a carjacker should not be charged with attempted murder if those who kill those people don’t face those similar consequences.
Restricted Gun Rights for People Convicted of Domestic Battery
The National Rifle Association — which usually fights gun restrictions — remained neutral on the domestic battery provision, which is probably why Jindal agreed to sign the bill.
It has been said that Louisiana leads the nation when it comes to spouses murdering spouses with firearms. I do not know if this is true.
Attorney Elizabeth B Carpenter is a New Orleans Criminal Defense Attorney who represents many people who have been accused of gun crimes.
In 2012, Louisiana voters approved a state constitutional amendment that makes gun ownership a fundamental right. This places gun ownership on the same level as freedom of speech or freedom of religion. This law also requires that any challenges should be held to strict scrutiny which is the most stringent standard of judicial review. In other words, the law should favor the constitutional right or principle more than the government’s interest.
Since this amendment passed, many defense attorneys have challenged prosecutions for Felon in Possession of a Firearm La. R.S. 14:95.1 in state courts. The issue is whether the amendment applies to convicted felons who are barred from having firearms. District Judges in state courts seem to be divided on their interpretation of the law. A couple weeks ago, the Louisiana Supreme Court heard arguments addressing this question.
I am on the edge of my seat waiting for the justices to release their decision. Last year, I had a case where I challenged the prosecution of my client for being a convicted felon with a firearm. Unfortunately, the state court judge ruled against me. I think that he just did not feel comfortable making that call. One problem that I see with Louisiana’s statute restricting firearm possession with respect to felons is that the law is too broad. I also think that the sentencing range is too harsh — 10 to 20 years. As written, the law does not even permit someone who has been convicted of a small felony, such as theft of $500.00, to possess a rifle to go hunting.
I know that I will revisit this topic when the justices release their decision.
If you or a loved one has been arrested for a violation of a Louisiana gun law, it is imperative that you hire an attorney who defends firearm offenses. Contact attorney Elizabeth B Carpenter for a consultation.
New Orleans Weapons Crimes Attorney
The Louisiana News Bureau has just announced a proposed bill that aims to create the crime of unlawful storage of a firearm. This is House Bill 4 by Rep Norton.The proposed law provides that it is unlawful to keep or store a firearm unless it is in a locked container or is equipped with a lock to render the firearm inoperable.
The law proposes the following penalties:
First violation of a fine of not more than $300.
Second or subsequent violation of a fine of not more than $500, imprisonment for not more than six months, or both.
Proposed law creates an exception if the firearm is on the person or is in use.
With all due respect to Rep. Norton, I think that this is the most ridiculous piece of legislation. I would like to understand the purpose of it. Will this make the public safer? In light of the recent gun related tragedies in Colorado and Connecticut, I think that we are going to see a lot of proposed frivolous legislation such as this. Again, I think that this in a legislative intent to fix a symptom instead of a problem. What was the real issue in the recent massacres in Co. and Ct? The lack of sufficient funding and options for mental health treatment in this country.
If you have been accused of a gun or weapons crime in the New Orleans area, contact Elizabeth B. Carpenter to schedule a consultation. We are ready to take action and stand by your side.
New Orleans Weapons Crimes Defense Attorney
If you are being criminally charged with Possession or Dealing Firearms With Obliterated Mark, contact Elizabeth B. Carpenter Law for a consultation. We are ready to defend you and protect your rights!
Possession or Dealing Firearms With Obliterated Mark — 14:95.7
No person shall intentionally receive, possess, carry, conceal, buy, sell, or transport any firearm from which the serial number or mark of identification has been obliterated.
This Section shall not apply to any firearm which is an antique or war relic and is inoperable or for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade, or which was originally manufactured without such a number.
Whoever violates the provisions of this Section shall be fined not more than one thousand dollars and imprisoned as follows:
First Offense — not less than 1 yr no more than 5 yrs.
Second or Subsequent Offenses — not less than 2 no more than 10yrs.
Criminal Defense Attorney New Orleans
Elizabeth B. Carpenter, Esq. – Serving clients in Orleans, Jefferson, Terrebonne, Tangipahoa, St. Bernard, St. Charles, St. Tammany, St. John, Assumption and Plaquemines Parishes.
Fake Explosive Device La RS 14:54.5
It shall be unlawful for any person to manufacture, possess, have under his control, buy, sell, mail, send to another person, or transport a fake explosive device, if the offender knowingly and intentionally:
(1) Influences the official conduct or action of an official or any personnel of a public safety agency; or
(2) Threatens to use the fake explosive device while committing or attempting to commit any felony.
A “fake explosive device” means any device or object that by its design, construction, content, or characteristics appears to be or to contain an explosive, an explosive compound or mixture with a detonator or initiator, or both, but is, in fact, an inoperative facsimile or imitation of such a destructive device, bomb, or explosive as defined in R.S. 14:54.3.
A “public safety agency” means the Department of Public Safety and Corrections, a fire department, an emergency medical or rescue service, a law enforcement agency, or a volunteer agency organized to deal with emergencies.
Whoever violates the provisions of this Section shall be imprisoned at hard labor for not more than 5 years and shall be fined an amount equal to the costs of any law enforcement investigation or emergency response which results from the commission of the offense.
This shall not apply to authorized military, police, and fire operations and training exercises.
Elizabeth B. Carpenter, Esq. — Defending Misdemeanors and Felonies in Orleans, Jefferson, St. Bernard, Plaquemines, St. Bernard, St. John and St. Charles’ Parishes.
Unlawful Sales of Weapons to Minors — La RS 14:91
Unlawful sales of weapons to minors is the selling or otherwise delivering for value of any firearm or other instrumentality customarily used as a dangerous weapon to any person under the age of 18. Lack of knowledge of the minor’s age shall not be a defense.
Whoever commits the crime of unlawful sales of weapons to minors shall be fined not more than $300.00 dollars or imprisoned for not more than 6 months, or both.
This is a Misdemeanor.
If you are being criminally charged with Possession of Firearm or Carrying Concealed Weapon by a Person Convicted of Certain Felonies, contact Elizabeth B. Carpenter Law for a consultation. We are ready to defend you and protect your rights!
Possession of Firearm or Carrying Concealed Weapon by a Person
Convicted of Certain Felonies — La R.S. 14:95.1
It is unlawful for any person who has been convicted of a crime of violence which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense, to possess a firearm or carry a concealed weapon unless to felony conviction has been set aside.
This law applies to people in Louisiana who are in possession of hunting rifles / firearms.
Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than 10 nor more than 20 years without the benefit of probation, parole, or suspension of sentence and be fined not less than $1,000.00 nor more than $5,000.00.
Whoever is found guilty of attempting to violate the provisions of this Section shall be imprisoned at hard labor for not more than 71/2years and fined not less than $500.00 nor more than $2,500.00
This crime is a felony.
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 10 years or more from the time of arrest.
New Orleans Weapons and Gun Crimes Defense Attorney
If you or a loved one is facing the charge of Illegal Carrying and Discharge of Weapons, please contact the Elizabeth B. Carpenter a New Orleans Weapons and Gun Crimes Defense Firm for a consultation.
You need to speak with a criminal defense attorney as soon as possible. Many legal rights have time-specific deadlines and legal matters will become harder to manage successfully the longer they are left unattended.
Illegal Carrying and Discharge of Weapons — 14:94
Illegal use of weapons or dangerous instrumentalities is the intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
Generally, whoever commits the crime of illegal use of weapons or dangerous instrumentalities shall be fined not more than $1,000.00, or imprisoned with or without hard labor for not more than 2 years, or both.
Generally, on a second or subsequent conviction, the offender shall be imprisoned at hard labor for not less than 5 years nor more than 7 years, without benefit of probation or suspension of sentence.
A second or subsequent offense occurring more than 5 years since the time of the commission of the last offense for which the defendant has been convicted shall be treated as a first offense. In other words, the sentence to be imposed in such event shall be the same as may be imposed upon a first conviction.
Whoever commits the crime of illegal use of weapons by discharging a firearm from a motor vehicle located upon a public street or highway, where the intent is to injure, harm, or frighten another human being, shall be imprisoned at hard labor for not less than 5 nor more than 10 years without benefit of probation or suspension of sentence.
Whoever commits the crime of illegal use of weapons by discharging a firearm while committing, attempting to commit or intimidating another person to commit a crime of violence or violation of the Uniform Controlled Dangerous Substances Law, shall be imprisoned at hard labor for not less then 10 years nor more than 20 years, without benefit of parole, probation, or suspension of sentence.
If the firearm is a machine gun or is equipped with a firearm silencer or muffler the offender shall be sentenced to imprisonment for not less than 20 years nor more than 30 years, without benefit of parole, probation, or suspension of sentence.
Upon a second or subsequent conviction, offender shall be sentenced to imprisonment for not less than 20 years.
Upon second or subsequent conviction, involves the use of a machine gun or a firearm equipped with a firearm silencer or muffler, such offender shall be sentenced to imprisonment for life without benefit of parole, probation, or suspension of sentence.