The New Orleans Gun Confiscation -- A Response to David Kopel:
In a provocative post below, my co-blogger David Kopel argues that the confiscation of firearms in New Orleans is "blatantly illegal" under the Louisiana statute governing states of emergency, 14 La. Stat. § 329.6. He contends that the state, local, and federal officers have committed "perhaps a criminal act" by participating in the confiscation, and that they can be sued for this under 42 U.S.C. 1983 or perhaps impeached. (Fortunately, David does not advocate that the officers should be "shot on sight," so I suppose I should count my blessings.) I disagree with David's legal analysis, and thought it might be useful to explain why I disagree.

  The core of David's argument hinges on the meaning of the power to "regulat[e]" the possession of firearms. The statute states that officials are empowered to make orders "[r]egulating and controlling the possession, storage, display, sale, transport and use of firearms, other dangerous weapons and ammunition[.]" David argues that the confiscation of firearms is not within this authority:
  The emergency statute creates authority for "prohibiting" some things, and for "regulating" other things. The statute uses "prohibiting" in subsections (A)4, 5, and 9. The statute uses "regulating" in sections (A)3, 6, 7, and 8. Quite clearly the legislature meant to distinguish "prohibiting" authority from "regulating" authority. In the context of the statute, it is not plausible to claim that "prohibiting" means the same as "regulating."
  "Prohibiting" authority applies to the sale of alcohol, presence on public streets, and the sale of goods or services at excessive prices. "Regulating" authority applies to firearms, flammable materials, and sound devices (such as megaphones). The "regulating" authority is undoubtedly broad. But it is not equivalent to "prohibiting."
  The problem with this analysis is that the statute creates more than the power to "regulat[e]" the possession of fireams. It expressly creates the power to "regulat[e]" possession and the power to "control the possession" of firearms. Even if the power to regulate does not encompass the power to prohibit — a conclusion that seems plausible but not obvious, especially in the absence of any cases construing these terms — an order that individuals must give up possession of their firearms does seem to me to fall within the plain meaning of "controlling the possession" of firearms. It's not free of doubt, I think. But on balance, it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item. That is particularly likely because the statute grants the power to control possession in addition to the power to regulate possession; presumably the legislature intended control to be something beyond mere regulation.

  Let's move on to the procedural question. David argues that any confiscation order cannot be effective because particular procedural requirements have not been met:
  According to subsection B, emergency orders must be published in a newspaper in the jurisdiction; the Times-Picayune is heroically publishing on-line, but I did not find any evidence, on Friday night, of any publication of the gun confiscation order, whose implementation had already begun on Thursday. According to subsection C, an emergency order must also be filed with the court in the relevant parish (impossible under current conditions), and with the Secretary of State (whose office in Baton Rouge is entirely functional). The Secretary's website gives no indication that a gun confiscation order has been filed.
  I have a few problems with this analysis. First, the statute says nothing about the legality of emergency orders being contingent on the satisfaction of these procedural requirements. Second, the point about publishing the orders in a newspaper only dictates that the orders should be "published as soon as practicable in a newspaper of general circulation in the area." Given that the city is mostly under water and has no power, and thus no Internet access, I don't think there are any "newspapers of general circulation in the area" right now. As for Subsection C, the statute apparently does not say when the order must be filed with the Secretary of State. I'm not sure why the failure to file it so far (assuming it has not been filed) forbids the order from being effective now. Indeed, it would be a bit odd if the law governing emergency orders required those orders to be filed first with the Secretary of State before the emergency orders became effective. It's possible, but I'm not seeing it in the text of the statute.

   Finally, my understanding is that 42 U.S.C. 1983 is inapplicable. That law provides a private right of action against state officials for violating federal rights, not a private right of action against officials for violating state rights. See, e.g., Maine v. Thiboutot, 448 U.S. 1 (1980).

   Importantly, I have no sense of the remaining legal issues that David mentions. David suggests in his post that the confiscation may also violate a bunch of other laws, and I am certainly open to those arguments. Nor am I eager to defend the confiscation order on ground of policy: I don't know enough about the facts to have a good sense of whether the order was appropriate. But with those caveats made, I don't think I agree that the confiscation order violates 14 La. Stat. § 329.6. That's my tentative sense of the law, anyway. As always, comments and corrections welcome.

  UPDATE: I made minor substantive amendments to this post shortly after posting it, as I realized I misread one aspect of David's post.
Dilan Esper (mail) (www):
I did a long post, in the comments to Professor Volokh's earlier post on this issue, that speaks to a lot of the constitutional issues that Kopel briefly raised in his post, and Professor Kerr briefly responded to. Rather than reposting that analysis, here's the link:

9.10.2005 2:18am
Dilan Esper (mail) (www):
Oops, the link didn't post.

Here's the URL:
9.10.2005 2:19am
Jeremy (mail):
I feel obligated to point out that, however one views the legal niceties of the issue, many will resist these gun confiscations with violence. Were I in the zone of danger, I would certainly resist; whether or not I would use violence would depend on the context of the situation. No one will deprive me of my right to defend myself and my family. I am a law abiding citizen who scrupulously follows every gun law and a concealed weapons permittee. Citizens are not obligated to obey unlawful orders of the police.

Further, what a court will later say about the meaning of the Second Amendment or any Louisiana statute is of little relevance to those who are being forcibly deprived of their property without any process. These people have a clear right, secured by our Constitution, to keep and bear arms in defense of themselves and their homes in what is essentially a war zone.

God help the police officers who attempt to enforce this ridiculous order. My suspicion and hope is that this idiotic order will not actually be enforced against any law-abiding citizens.
9.10.2005 3:51am
Matt22191 (mail):
As to the prohibiting/controlling distinction, I note that 14 La. Stat. 329.6(A)(1) grants the power of "Establishing a curfew and prohibiting and/or controlling pedestrian and vehicular traffic . . . " If we construe "controlling" to mean "prohibiting," as you suggest, Prof. Kerr, then one of the two words in this section of the statute is surplusage. That's supposed to be a no-no in statutory construction. The "and/or" clause makes it doubly clear that the two words are not synonymous in (A)(1).

Another canon of statutory construction holds that identical terms within an act must be presumed to have the same meaning, although this presumption can be overcome by evidence that the legislature intended otherwise. Accordingly, we must presume that "controlling" means the same in (A)(6) (the firearms provision) as it means in (A)(1) (the curfew/traffic provision). While we may not know precisely what "controlling" means in (A)(1), we've already established that it doesn't mean "prohibiting."

Of course there may be some evidence that the Louisiana legislature intended "controlling" in (A)(6) to mean the same as "prohibiting" in (A)(1). Even if there isn't any such evidence, for every rule of statutory construction there's some countervailing rule that a court can call upon when it wishes. I tend not to think that Louisiana courts are going to be inclined to interpret this statute in a way that penalizes state officers for their arguably lawful actions in the wake of a hurricane. But there's clearly an argument to be made here.

You're almost certainly right that section 1983 is not available to enforce state rights. This is arguably dictum in Thiboutot, but it's expressly stated in Williams v. Treen, 671 F.2d 892 (5th Cir. 1982), and every federal court of appeals I've found that has considered the issue has agreed. (Of course I haven't looked at all the cases.) In fact, I can't think of any basis for federal court jurisdiction over violations of state rights, except as a pendent or ancillary matter. It'd require a federal statute making violation of state rights a federal question (since such rights clearly don't "aris[e] under the Constitution . . . of the United States"). Off the top of my head, I can't think of a constitutional "hook" for such a statute, at least as a general matter.

Furthermore, section 1983 isn't available against agents of the federal government, at least when acting under color of federal law, even if they violate federal constitutional rights. (If it were, the Supreme Court wouldn't have had to invent Bivens actions.) This presumably means that a 1983 suit can't succeed against members of the active military (such as the 82nd Airborne, or against members of the National Guard, for actions taken while operating under federal control. I'm not sure what the result would be if the defendant were a federal agent of the preceding were acting under the control of state officials, but I tend to doubt that's happening in NOLA. If nothing else, I'd think bureaucratic territoriality would prevent it.

I think any legal remedy for a violation of a state right, whether statutory or constitutional, will have to come from a Louisiana court and arise under Louisiana law. That includes any alleged violation of a constitutional right to arms, which I think will have to be based on the Louisiana Constitution unless the plaintiffs to swing for the fences and use this as a test case to try and get the Second Amendment incorporated via the 14th. In that vein, it bears mentioning that the 5th Circuit is the only federal court of appeals to have explicitly held that the 2nd Amendment secures an individual right. At least the plaintiffs wouldn't have to clear that hurdle.

Illegal house-to-house searches are a different matter. Assuming they're illegal, they could form the basis for a section 1983 suit against state officers, and a Bivens action against federal officers.

However, qualified immunity is available as a defense in both 1983 and Bivens actions. Qualified immunity is available unless the right that was allegedly violated was "clearly established" at the time of the alleged violation, and a reasonable person in the defendant's position would have known that his conduct violated that right. Although the general right to be free from unreasonable searches and seizures is clearly established, I think there's a good argument to be made that house-to-house searches may not be "unreasonable" under the current conditions in NOLA. I'm not sure anybody really knows, because I'm not aware of this issue having previously arisen under similarly dire circumstances. That being the case, I'm not convinced that a "reasonable person" could know that house-to-house searches violate the Fourth Amendment under these circumstances. Given the Supremes' willingness to carve out exceptions to the supposed presumption that warrantless searches are unlawful, I don't think we can honestly characterize it as a bright-line rule. Thus I think the qualified immunity defense might well fly on these facts.

The same may be true of any alleged 5th/14th amendment due process violation or 5th Amendment uncompensated taking, as well. There is no requirement that the government compensate the owners of contraband that it seizes, and I'm frankly not sure that any due process other than a valid prohibition on possession is required prior to such a seizure. (E.g., the government doesn't have to pay the erstwhile owners for illegal drugs that it confiscates, and it can confiscate such drugs without first holding any sort of hearing.) Assuming that firearms have been declared contraband in NOLA by executive fiat -- that's my impression -- there would seem to be an open question about whether such a declaration satisfies due process. But precisely because that would seem to be an open question, there's probably a very viable qualified immunity defense to any 5th/14th Amendment claim. (I note that I don't recall ever having seen a 1983/Bivens action based on an uncompensated taking. Isn't this normally if not always raised as an inverse condemnation claims?)
9.10.2005 5:09am
Student (mail):
I don't want to get this thread off-topic; but regarding the house-to-house searches - but could these be thought of as reasonable under administrative search caselaw? They're not primarily designed to search for evidence of criminal activity, but to protect public safety.
9.10.2005 6:18am
Windypundit (www):
I'm not a lawyer, so this fancy legal stuff just confuses me, but the New Orleans gun confiscation just smells bad. Under what other circumstances (besides taxation and eminent domain) can a government just take stuff from you? My point is that if New Orleans had simply outlawed all firearms, the residents would have had the option of removing their guns from New Orleans rather than turning them in. But by combining the confiscation with the forced evacuation, the government seems to be just stealing their property.
9.10.2005 7:51am
erp (mail):
... it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item.

A "state of emergency" is in the eye of the beholder. The reason citizens need to be armed is to prevent anyone from doing exactly what you posit as the reason to do it.

BTW - Talking about the eye of the beholder, contrary to Crazy Mail above, I've been thinking that VCers are distancing themselves from their former strong stance on conservative issues.

It's really too bad because there are ever so many liberal legal opinionists and so very few first rate minds to refute them.
9.10.2005 8:20am
What if the authorities decided water was contraband? Could they kick doors down and confiscate water? Guns are protected (seemingly in our imagination) but water is not.

BTW, CNN found a judge to issue a temporary order and hear their request for a permanent injunction .
9.10.2005 9:06am
Well the one avoided clause brought up was "may request the governor to proclaim a state of emergency". Has the governor so declared such a state? It was my understanding that she refused to do so because it would give the President some authority to go along with the absolute responsibility he is being assigned currently.
9.10.2005 9:09am
Adam (mail) (www):
Well the one avoided clause brought up was "may request the governor to proclaim a state of emergency". Has the governor so declared such a state?

A state of emergency was declared on August 26, 2005, before the hurricane hit.
9.10.2005 9:23am
nk (mail) (www):
The obverse of the constitutionality question. Insofar as this is an "administrative" rule and not a duly enacted penal statute, I cannot imagine that as long as firearm owners do not flaunt their guns and then forcibly resist the police -- that is, if they keep them out of sight, with a "Gun, what gun?" attitude -- that they could constitutionally be charged with a crime punishable by imprisonment or more than a $500.00 fine just for not turning them in. What do you think?
9.10.2005 9:32am
Henry Bowman:
I don't know why Kerr thinks that the officers carrying out this horrible order shouldn't be shot -- the New Orleans police have made it clear that they are very interested in preserving their own lives. After a few were shot dead by citizens, the gun confiscation would likely cease.
9.10.2005 9:46am
Charlie (Colorado) (mail):
On the question of whether 42 U.S.C. 1983 is inapplicable, I'm not clear wht violation of the 2nd Amendment to the US Constitution wouldn't apply.
9.10.2005 9:56am
Publicola (mail) (www):
The statutory law questions are interesting, &I do believe Kopel has the stronger argument across the board but...

I have seen nothing in the Louisiana constitution or the federal constitution that allows for the negation of the Right to Arms, even temporarily. What is at issue is whether the statute law is in compliance with the applicable constitutions. Again I think Kopel's argmuents are more persuasive than Kerr's but shouldn't you settle the question of whether it's constitutional before matters of statute construction are argued?

&Mr. Kerr, I believe you intended it as a slight (even if in jest) but using force against government agents who act unlawfully &use force to cause harm is not something to be dismissed out of hand. I am more concerned with keeping material harm from befalling individuals than I am in bowing to the whims of the courts on these matters, but if I'm not mistaken the following is still good law. I refer you to JOHN BAD ELK v. U S, 177 U.S. 529 (1900). I doubt this is the appropriate place for such a discussion but if you wish I will be more than happy to provide you with much material for further attempts at sarcasm as I have a few pieces on the subject at my site (/shameless self plug).

&I cannot express enough my disregard for the incorporation doctrine, or its bastard cousin the presumption of constitutionality. Just because a court was out to lunch does not mean we should keep having to pick up the tab.

With that in mind suits arising under Section 1983 could be brought based upon 2nd amendment grounds. As I noted above I saw nothing in the federal constitution which excepted the 2nd in times of emergency, nor am I persuaded that the congressional intent of the 14th did not include the 2nd.

But while ultimately such matters are interesting to argue about they take a while make any concrete difference. The 2nd was never intended to grant a Right. It merely acknowledged a Right. Whatever the outcome of this discussion about statutory law people like me are going to look down at New Orleans &wonder when we'll be next. Right now we can afford dispassionate reflection, but the folks down in New Orleans (assuming they're still there) are in the presence of an uplifted knife so to speak. With that in mind does anyone have any ideas on filing for injuctive relief of some kind? This is a site filled with lawyers so I figure someone will have an idea of the process for using the courts to stop an illegal activity. Not that I think that's all that can be done, but if nothing else it would make the legal problems for any who survived via forceful resistance a little easier, as well as shoring up cases made against the offending actors for the theft they're committing.

Mr. Esper,
In case you missed it I spoke back to your long post.
9.10.2005 10:00am
Brett Bellmore (mail):
The certainly illustrates the extent to which the legal community has gotten into the habit of resorting to the most amazing sophistries, in order to avoid recognizing when certain civil liberties are being violated. I think you've been doing it so long you don't even recognize anymore that they're nothing but sophistries.
9.10.2005 10:15am
John Jenkins (mail):
Charlie, the argument would be that the 2d Amendment hasn't been incorporated against the states via th 14th Amendment (I believe that it has and that such was the originial intent of the Priviliges or Immunities clause of the 14th Amendment, but that's not the majority view.) I don't think it matters, but I don't know enough about Federal Civil Rights litigation to have an opinion.

I do know that Prof. Kerr's interpretation of the statute is just flat erroneous under the canons of statutory construction for reasons above. Given that the legislature used the word prohibit in the same statute and specifically chose NOT to use the word prohibit in the part relating to firearms, that is strong, if not dispositive, evidence that the legislature did not intend to deprive citizens of firearms.

It might be interesting to see the legislative hisory of the bill to see how it evolved and whether prohibit was ever in that spot. If it was, and was not in the final bill, I would take that as dispositive.
9.10.2005 10:44am
Jeremy (mail):

Orin is right that 42 USC 1983 does not provide a cause of action when only state-guaranteed rights are violated.

His mistake, in my opinion, is his notion that ONLY state rights are violated when the cops break down your door and steal your gun.
9.10.2005 10:45am
Nathan Bauer (www):
Brett, why don't you actually supply some arguments and/or evidence for your views. How does dismissing someone's views as sophistry contribute to the debate?

I'm glad Orin Kerr has opened this issue up for discussion, as two things struck me as curious in David's original post. First, it's rather bizarre that he thinks the policy is "blatantly illegal" when the exact legislation he discusses provides so little sense of the exact scope and meaning of terms like "control" and "regulate". Whether illegal or not, it's hardly blatant!

Second, it might be helpful to consider an example the legislation provides to clarify one of these terms. (7) allows for regulating and controlling the sale of flammable materials, and adds that this can be carried out by the "closing of all wholesale and retail establishments which sell or distribute gasoline and other flammable products". To me, that looks an awful lot like prohibiting the sale of flammable products. So if "regulating and controlling" the sale of such products can include prohibiting their sale, why can't "regulating and controlling" the possession of firearms include prohibiting their possession.

I would also like to respond to Matt22191, who points out that "controlling" can't be identical to "prohibiting" (given the usage: "controlling and/or prohibiting"). This is correct, but Matt then draws the mistaken inference that the two terms must be mutually exclusive. It seems much more natural to read "controlling" as simply a term with broader application -- including "prohibiting" along with weaker actions.
9.10.2005 11:00am
Bruce Hayden (mail) (www):
In Orin's defense, I do like the fact that we actually see both sides of this discussion here at VC.
9.10.2005 11:22am
slowilly (mail):
some here are substituting the word confiscate for control or prohibit or regulate. to take control of or to prohibit use/display etc. or to regulate the possession of are not a grant of authority to permenently deprive the lawful owner of their ownership rights to their guns. if the governmental group/authority is not confiscating for permenent depriving of private property and are only TEMPORARILY taking control then where does this put this discussion ?
9.10.2005 11:27am
zaoem (mail):
On the meaning of "regulating and controlling the possession:" the same phrase is used to explicitly allow for the closing of retail establishments (i.e. the prohibition of the sale of gasoline, see below). Surely, the legislature's word usage is not such that "regulating and controlling" does not allow for prohibition, as Kopel appears to argue in his response to Orin.

Regulating and controlling the possession, storage, display, sale, transport and use of explosives and flammable materials and liquids, including but not limited to the closing of all wholesale and retail establishments which sell or distribute gasoline and other flammable products;
9.10.2005 11:43am
spencere (mail):
You seem to have forgotten the guard and the castle problem.

Could we have the right answer?
9.10.2005 11:46am
slowilly (mail):
the next issue that comes to mind is whether or not one has an unconditional constitutional right of possession or under what conditions can government not just regulate or control but actually prohibit possession if said possession is not otherwise unlawful. this all seems to revolve around what is yet to be fully defined: the right of possession- not just regulated right of ownership.
9.10.2005 12:00pm
Brett Bellmore (mail):
Nathen, you you really want to argue that the Supreme court's Reconstruction era decisions weren't sophistry? And they ARE the only reason the entire Bill of Rights wasn't immediately incorporated, as the 14th amendment was intended to do.
9.10.2005 12:11pm
Charlie (Colorado) (mail):
Sorry, folks, I guess I wasn't clear: I was trying to specifically ask why this isn't a violation of civil rights under the 2nd amendment and therefore if the statute would apply.
9.10.2005 12:22pm
slowilly (mail):
confiscation, whether permenant or temporory, is only lawful if the party doing the confiscation has the lawful right (grant of authority) to:

1) deny right of possession by otherwise lawful owner/possessor

2) deny right of ownership by otherwise lawful owner/possessor

3) right of possession and/or ownership of anothers otherwise lawful owned/possessed private property

the issue of protection of ownership/possessory rights seem to be the real issue we are discussing ?

or should be ?
9.10.2005 12:24pm
John Jenkins (mail):
Gentlemen, the argument about gasoline retail outlets isn't dispositive. Both subparagraphs (7) and (8) have the language "including but not limited to" and then specifically mention certain actions the government can take. If the legislature felt the need to include that language, then it follows that not including it in subparagraph (6) means something. The phrase itself does not "specifically allow for closing of establishments" because the legislature would have been acting vainly in including the additional language, which we presume they do not do.

How easy would it have been to add to sub (6) including but not limited to closing all retail or wholesale outlets dealing in firearms, other dangerous weapons or ammunition? That the legislature did not tells us one of two things; either they believed such power was implied in their language, or they didn't believe so and the language was excluded. Unfortunately, having looked at the text of modifications since 1969, I can't find any evidence either way. I can't find the originial materials online, so I can't do any more research into that.

Of course, there is this little problem: La. Const. Art. 1 § 11:
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.

This has been interpreted to not be absolute, but to allow for reasonable regulation. For example the La. Supreme Court said, "[w]e are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies." State v. Amos, 343 So.2d 166, 168 (LA 1977).

The case recognized that, "such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one." Id. So the question becomes whether this is a reasonable regulation (I'll grant them that they think it's to protect the public; given that we've seen N.O.P.D. looting, I'm not sure that's true, but for the argument I'll grant it).

So, is it reasonable to confiscate the firearms of law-abiding citizens to protect the public health, safety, or morals." I include law-abiding, because it is already established that you can confiscate the weapons of those who are felons. Another question that comes up is, given that N.O. is under a mandatory evacuation order, is anyone who is present acting lawfully?
9.10.2005 12:47pm
John Jenkins (mail):
Charlie: The Second Amendment has never been held to apply to the states. Thus, the states can do things the federal government cannot relative to firearms.
9.10.2005 12:49pm
As I a pretty strong advocate of gun rights, I thought Kopel's argument came off a bit unhinged. But Orin's argument here strikes me as a little disingenous too.

Orin writes:But on balance, it seems to me that "controlling the possession" of an item in a state of emergency would include the authority for the state to take possession of the item.

I don't buy this. Why would the statute differentiate, as David says it does, prohibtion from regulation if regulation can effectively be the same thing? We must necessarily imply that they mean different things because of the statute's construction. Score one for David.

Orin Writes: Given that the city is mostly under water and has no power, and thus no Internet access, I don't think there are any "newspapers of general circulation in the area" right now.

Score one for Orin.

Orin writes: "Importantly, I have no sense of the remaining legal issues that David mentions."

Why do you have "no sense" of the remaining legal issues, such as the violation of the state constitution? You seem more than willing and able to parse a much more complicated statute. Give this a try: "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." Now maybe there is a reasonable interpretation of that clause to allow for emergency confiscation in evacuated areas. But certainly it is as reasonable to view the city's actions (and its prior gun control) as a violation of the state constitution.

Moreover, I am particularly distressed by Orin's rejection of incorporating the Second Amendment. Orin dismissed, without comment, such a right: "Finally, my understanding is that 42 U.S.C. 1983 is inapplicable. That law provides a private right of action against state officials for violating federal rights, not a private right of action against officials for violating state rights." It is an accurate description of current law, but does Orin think Kopel does not know this? I mean, come on! This amounts to nothing more than a petty taunt. There is absolutely nothing wrong with Kopel arguing how he feels the law should be construed.
9.10.2005 1:37pm
"Another question that comes up is, given that N.O. is under a mandatory evacuation order, is anyone who is present acting lawfully?"

Good question. The evacuation seems to support the exceptionality of the circumstances.

However, there are those who have come down to N.O to help find and save people. Many of them are private individuals who brought firearms for their safety. Applying the prohibition to these individuals seems to defy the general logic.
9.10.2005 1:44pm

By "no sense" I mean "no sense." You may be knowledgeable on Louisiana state constitutional law, but I am not. (I can imagine that the Louisiana state courts have interpreted that language in lots of ways, and I don't want to pretend that I know the meaning of that state constitutional provision when I don't.)

As for the distinction between "controlling" and "prohibiting," I address that in my latest post.
9.10.2005 1:46pm
Charlie (Colorado) (mail):
Actually, I'm not quite sure how the "mandatory" part of the evacuation order is enforceable either.
9.10.2005 2:04pm
John Jenkins (mail):
Same statute, subparagraph (A)(2), permits the chief law enforcement officer to designate "specific zones within which the occupancy and use of buildings and the ingress and egress of vehicles and persons shall be prohibited or regulated." There is no obvious reason why the evacuation order is not permitted by the statute. Given that the courthouses are closed by act of nature, there is probably not a 14th Am PI challenge to the statute at this time.
9.10.2005 2:08pm
One caveat on the claim that section 1983 does not provide a private right of action for state actors' violations of state law. It can do so indirectly on the theory that the violation of state law is so egregious and malicious that it constitutes a violation of substantive due process. The bar here is very high, however, and would likely not apply to confiscation of weapons in a time of widely recognized emergency.
9.10.2005 2:12pm
arbitraryaardvark (mail) (www):
I want to add to cmp's point, that City of Gary, an Indiana Supreme Court case I don't have a handy cite for (so it's binding only in Indiana) found that where state law creates a liberty or property interest, there can then be 42 USC 1983 claims based on procedural due process. In City of Gary, the sheriff refused to hand out the forms to apply for a concealed carry license. This was found to violate a procedural due process right based on an underlying state constitutional right to bear arms. But I agree qualified immunity is a problem here; you end up being able to sue the city itslef (Monell) but not the looting cops, unless they have liablity elsewhere under state law (armed robbery? negligence?)
I have mixed feelings, moral and practical, about whether the looting cops should be shot on sight.
I would be interested to know, are federal troops being quartered in private homes in or near New Orleans?
Re the discussion of the statute: I didn't see anything in the statute making it the exclusive authority for responding to emergencies. The state could argue it relied on other express or implied powers than the statute. So I think we are wasting time discussing it, except as an academic exercise which of course this blog is.
9.11.2005 12:43am
Matt22191 (mail):
Nathan said, "It seems much more natural to read "controlling" as simply a term with broader application -- including "prohibiting" along with weaker actions."

I don't think that works; your construction renders "prohibiting" surplus in the statute. Let X = prohibiting, and Y = your "weaker actions." You claim that "controlling" means "prohibiting along with weaker actions." Thus, by your reading, controlling = X+Y. If we plug that into the statute that permits "controlling and/or prohibiting," we get: "X+Y and/or X." This admits of three permissible states of affairs: X+Y (controlling), X (prohibiting), or X+Y+X (controlling and prohibiting). But X+Y+X is redundant; the second X is surplus, because it's already subsumed in X+Y. This is precisely the sort of construction we're supposed to avoid. Your construction would work if the statute permitted "controlling or prohibiting," but it doesn't work given that the statutes permits "controlling and/or prohibiting."
9.11.2005 12:58am
Seems like you should be looking at La. Revised Statutes 29:724 which is scary in the breadth of powers granted to the governor in a declared state of emergency including forced evacuations, forced evictions, commandeering private property, etc. Compare La. RS29:724(D)(8) to Georgia Code 38-3-51(d)(8) concerning powers to "[s]uspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles..." Quite a few other states have enacted similar legislation, which from what I can tell was derived from an early draft of the Model State Emergency Health Powers Act ( The current version dropped any specific mention of firearms apparently in response to criticism generated by fears about the model Act authorizing gun confiscation.
9.11.2005 1:49am