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:
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:
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.
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."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.
"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."
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.
Related Posts (on one page):
- Follow-up to the follow-up to the follow-up:
- A Follow-Up to David's Follow-Up:
- Follow-up for Orin:
- Regulating, Prohibiting, and Controlling:
- The New Orleans Gun Confiscation -- A Response to David Kopel:
- New Orleans Gun Confiscation is Blatantly Illegal:
- Constitutions and Emergencies:
- Taking Away Their Guns in New Orleans:
Here's the URL:
http://volokh.com/posts/1126215739.shtml#18598
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.
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?)
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.
BTW, CNN found a judge to issue a temporary order and hear their request for a permanent injunction .
http://www.cnn.com/2005/LAW/09/10/katrina.media/index.html
A state of emergency was declared on August 26, 2005, before the hurricane hit.
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.
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.
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.
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.
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;
Could we have the right answer?
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 ?
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:
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?
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.
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.
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.
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.
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."