If the New Orleans police chief followed the advice of lawyers as conscientious and creative as Orin Kerr, New Orleans would be a better place. And our discussion of the home invasions and gun confiscation could be more legally precise, because the police chief would actually have promulgated an order, and we could discuss the legal implications of the particular order.
However, we evidently have no order, and hence we have no legal justification for the home invasions and gun thefts. Even if you read the power of “controlling” as expansively as does Orin, the power of controlling is created, pursuant to the statute, only after the chief of police does “promulgate orders.” We can debate the scope of lawful “orders”, but when there are no lawful “orders”, the emergency powers of section 329.6 have never been invoked.
Now let us consider the effects of some orders, under the counter-factual hypothetical that lawful orders had been issued. Orin’s theory is that the power of “controlling” includes the power of seizing all firearms (even though the seizures seem very much like “prohibiting”). So Orin’s theory requires some way to distinguish “controlling” (which in his usage includes the power to completely deprive everyone of the posssession of firearms, megaphones, and flammable material such as gasoline or matches) from “prohibiting.”
His theory is that “prohibiting” means the power to define a criminal offense (predicated on violation of an emergency order) whereas “controlling” does not. So let’s look at his theory in practical application. Let’s imagine that the statute did confer the power of “prohibitting” guns, and that the chief of police did issue a prohibitory order:
Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police is prohibited to to have a gun. I further declare the police may break into anyone’s home without a warrant, to enforce my order.
(one hour later)
Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are under arrest for defying an emergency order issued pursuant to title 14, section 329.6.
Pursuant to Orin’s theory, the above scenario cannot take place, because the police chief does not have the authority to issue an order “prohibiting” guns. Such a scenario could take place for items such as alcohol, which the statute does authorize prohibiting.
Now let’s consider Orin’s theory for how a “controlling” order works.
Chief: I hereby announce an order, and am filing copies of my order with the Secretary of State. Everyone in New Orleans who is not a security guard or police has to surrender their guns to the police when the police tell them to. I further declare the police may break into anyone’s home without a warrant, to enforce my order.
(one hour later)
Police officer: Mister citizen, I have just kicked down your door, and I see that you have a gun. You are not prohibited from having a gun. However, I am controlling your gun by taking it away from you. Give me your gun.
Citizen: No.
Police officer: I am placing you under arrest for defying an emergency order issued pursuant to title 14, section 329.6.
There are some small distinctions between the first scenario and the second scenario, so Orin’s theory is not impossible, as a matter of pure logic. Indeed, his theory may be the best defense that chief Compass and everyone who cooperates in his home invasion and and gun confiscation program will have, if they are sued.
However, I suggest that the distinctions between scenario 1 and scenario 2 are distinctions without a difference. The practical difference between the two scenaorios (and the difference between Orin’s non-prohibitory “controlling” and actual prohibition) is so trivial that it is unreasonable to conclude that the legislature chose such different words to achieve such nearly identical results. Indeed, I suggest that the the only reasonable way to read a statute which authorizes “regulating and controlling” objects X, Y, Z, and authorizes “prohibiting and controlling” objects A, B, and C, is that the chief of police is not granted the power to invade homes and confiscate every single X, Y, and Z.
But of course all the above discussion is premised on the hypothesis that chief Compass is obeying the law. If he were acting pursuant to section 329.6, then his emergency order can last only five days. The gun confiscations having begun last Thursday, the police should begin returning guns to their lawful owners next Tuesday.
Am emergency order can be renewed for five-days periods. Are we to presume that the home invasions and gun seizures on every fifth day constitute the “promulgation” of a new “order” which is “controlling” (but not “prohibiting”) the possession of firearms?
Appendix One: One final anecdote, for those readers who think there is at least a tiny possibility that the NO PD is applying 329.6 with the care and precision which Orin brings to his analysis of the statute. In the spring of 2004, I attended a Louisiana State House of Represenatives committee hearing on several gun bills. Among the people who testified was an officer representing the NO PD. Among the proposed bills was one which would prohibit gun carrying within a certain distance of a parade. A representative asked the NO PD spokesman (who was a uniformed police officer) how the proposed ban would affect people who had concealed handgun permits. The NO PD spokesman replied that there was no problem, since the NO PD did not issue handgun carry permits.
The statement visibly shocked several committee members. One of them explained to the NO PD officer that Louisiana has a law by which all law-abiding adults are entitled to concealed handgun carry permit. In fact, the law had been enacted eight years before, in 1996, and the law took away handgun carry licensing from the local police departments, and gave it to the Department of Public Safety and Corrections.
Perhaps Police Superintendant Compass actually is conscientious about respect for constitutional rights, including the right to bear arms, in Louisiana, and perhaps Superintendant Compass just had the bad luck of picking a legislative lobbyist on gun policy who knew less about Louisiana gun law than would someone who read a newspaper a couple times a week. Or perhaps Superintendant Compass has not even trained his officers to understand the most elemental rules of lawful gun carrying in the state of Louisiana.
And perhaps the government-sponsored home invasions and taking of property which are taking place in New Orleans right now have nothing to do with law (and hence nothing to do with the legal issues that Orin and I have been debating) but are simply the exercise of raw power which has suddenly found itself freed from the checks and balances of a functioning judiciary and other restraints.
Appendix Two: For anyone wondering how the NO PD/National Guard/US Marshals actions stack up against the (probably not legally binding in the U.S.) principles of the Universal Declaration of Human Rights, see articles 3 (security of the person); 12 (arbitrary interference with privacy, family, home); and 17(2) (“No one shall be arbitrarily deprived of his property.”)
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