A Gunman's Paradise: How Louisiana Shields Concealed Handgun Permit Holders While Targeting Free Speech and Why Other States Should Avoid the Same Misfire

• Author: Michael J. Lambert
• Position: J.D./D.C.L., 2015, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 543-579

A Gunman’s Paradise: How Louisiana Shields Concealed Handgun Permit Holders While Targeting Free Speech and Why Other States Should Avoid the Same Misfire TABLE OF CONTENTS Introduction ......................................................................... 544 I. Surveying the Field: Concealed Handgun Permits in America ........................................................................... 547 A. A Rise in Gun Permits Leads to Oversight by Press ..... 549 B. State Legislatures Shield Permit Records ..................... 552 1. Access to Gun Records Denied ............................... 554 2. Attempted Criminalization of the Release of Gun Records ....................................................... 556 II. Locked and Loaded: Louisiana Criminalizes Gun Permit Speech ..................................................................... 558 A. Louisiana Legislature Discusses Proposed Bill ............ 560 B. Louisiana Institutes Ban on Gun Permit Speech ........... 562 1. Keeping Records “In House” .................................. 562 2. Restraining the Rest ................................................ 563 3. Carving Out Exceptions .......................................... 564 III. Ready, Aim, Fire: First Amendment in Crosshairs of the Louisiana Legislature ................................................ 564 A. First Amendment Origins and Development ................ 565 B. Proper Constitutional Context ....................................... 568 C. The Daily Mail Principle and Bartnicki ........................ 569 D. Applying Jurisprudence to Louisiana’s Ban on Gun Permit Speech ................................................... 570 IV. Damage Control: Stopping the Criminalization of Gun Permit Speech .............................................................. 575 Conclusion .......................................................................... 578 544 LOUISIANA LAW REVIEW [Vol. 75 INTRODUCTION Debra Wills feared for her life. 1 One night in May 2011, Debra called the Union County, North Carolina, police for protection from her threatening, estranged husband, Ricky. 2 While the police were speaking with Debra inside of her home, Ricky, who lived just a few hundred feet away, drunkenly stumbled over to Debra’s house and began shooting at the home. 3 As a result of the night’s events, Ricky was convicted and sentenced to jail on two counts of assault. 4 After Ricky’s conviction, the Union County sheriff was compelled by law to revoke Ricky’s concealed handgun permit, but the sheriff initially failed to do so. 5 Eventually, North Carolina authorities rescinded Ricky’s concealed handgun permit—but only after the New York Times informed the local sheriff’s office of Ricky’s criminal convictions and outstanding permit. 6 A New York Times investigation revealed that from 2007 to 2011, Ricky was one of about 200 convicted felons in North Carolina with a concealed handgun permit that should have been revoked or suspended by the sheriff—at least 10 of whom committed murder or manslaughter. 7 Media in other states have uncovered similar flaws in state handgun-allocation systems where handgun permits remained in the hands of unqualified individuals, including felons and the mentally ill. 8 As alarming as these stories may be, the media was at least able to publicize the identities of unqualified handgun permit holders and advocate for change in the North Carolina permit system. Copyright 2014, by MICHAEL J. LAMBERT. 1. Michael Luo, Guns in Public, and Out of Sight , N.Y. TIMES (Dec. 26, 2011), http://www.nytimes.com/2011/12/27/us/more-concealed-guns-and-some-are-in-the-wrong-hands.html?pagewanted=all, archived at http://perma.cc/Q3CK -JPE7. This story is based on an actual event that occurred in North Carolina in 2011. Id. 2. Id. 3. Id. 4. Id. 5. Id. See also N.C. GEN. STAT. ANN. § 14-415.18(a1) (West 2013) (“The sheriff of the county where the permit was issued or the sheriff of the county where the person resides shall revoke a permit of any permittee who is adjudicated guilty of or receives a prayer for judgment continued for a crime which would have disqualified the permittee from initially receiving a permit.”). A felony conviction of assault with a deadly weapon is a crime that would have disqualified Ricky from initially receiving a permit; therefore, the sheriff should have revoked Ricky’s permit after his conviction for assault with a deadly weapon. Id. § 14-415.12(b)(1). 6. Luo, supra note 1. 7. Id. 8. See infra Part I.A. 2014] COMMENT 545 This would not be the case in Louisiana. 9 Even if a whistleblower uncovered similar discrepancies in Louisiana’s concealed handgun system and revealed them to a newspaper, the newspaper could not inform its readers by exposing the errors of the government. 10 This is the result of a new law passed in Louisiana in 2013 making it illegal for a newspaper or other media outlet to publicize such governmental mistakes. 11 If a media outlet releases any information concerning the identification of a concealed handgun permit holder, the state could fine the media outlet $10,000, and the media outlet’s employees could face up to six months in prison. 12 During the 2013 Legislative Session, the Louisiana Legislature amended its concealed handgun statute, Louisiana Revised Statutes section 40:1379.3, to include section 40:1379.3(A)(3). 13 The amendment makes it unlawful for “any person” to “intentionally release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit.” 14 Violators of the law could face a $10,000 fine and could be imprisoned for up to six months. 15 The new law is referred to throughout this Comment as “Louisiana’s Ban on Gun Permit Speech.” The Legislature passed Louisiana’s Ban on Gun Permit Speech, the first of its kind in the nation, in response to the release of an online map by The Journal News , 16 a New York newspaper, in 9. See LA. REV. STAT. ANN. § 40:1379.3(A)(3) (Supp. 2014). As will be discussed at length in this Comment, under Louisiana Revised Statutes section 40:1379.3(A)(3), it is a crime to “intentionally release, disseminate, or make public in any manner any information contained in an application for a concealed handgun permit or any information regarding the identity of any person who applied for or received a concealed handgun permit.” See id. 10. See id. 11. See id. § 40:1379.3(A)(3)(a). 12. See id. § 40:1379.3(A)(3)(b)(i). “Any person who violates the provisions of this Subparagraph shall be fined ten thousand dollars and may be imprisoned for not more than six months.” Id. 13. Id. 14. Id. 15. Id. 16. See generally Hearing on H.B. 8 Before the H. Comm. on Admin. of Criminal Justice , 2013 Leg., 113th Reg. Sess. (La. 2013) [hereinafter House Hearing ]. During a Hearing of the House Committee on Administration of Criminal Justice, Louisiana legislators discussed the fact that Louisiana’s Ban on Gun Permit Speech was the first in the country. The bill’s sponsor, Representative Jeff Thompson, said, “If Louisiana . . . is the only one in the nation [to criminalize publishing gun permit information], I’m okay with that.” Id. Additionally, Thompson said his bill was intended to prevent law abiding 546 LOUISIANA LAW REVIEW [Vol. 75 December 2012 that identified the names and addresses of thousands of citizens with concealed handgun permits in the New York area. 17 In the months following the publication of the map, constituents around the country voiced fears that their privacy could be invaded by other media outlets publishing their identities and addresses. 18 Responding to these concerns, state legislatures have considered passing laws similar to Louisiana’s that criminalize speech on gun permits, and this trend will likely continue. 19 However, given the probable unconstitutionality 20 and dangerous effects of Louisiana’s Ban on Gun Permit Speech, similar laws should not be enacted in other states. Instead, Louisiana’s Ban on Gun Permit Speech should serve as a cautionary example. This Comment argues that Louisiana’s Ban on Gun Permit Speech violates the First Amendment to the United States Constitution and Article I, Section 7, of the Louisiana Constitution. 21 A court should citizens from being demonized as they were when The Journal News released a map of citizens with concealed handgun permits. Id . 17. See Dwight R. Worley, The Gun Owner Next Door: What You Don’t Know About the Weapons in Your Neighborhood , THE JOURNAL NEWS (Dec. 23, 2012), http://www.lohud.com/apps/pbcs.dll/article?AID=2012312230056&ncli ck_check=1, archived at http://perma.cc/E4XH-8GWL; Map: Where are the Gun Permits in Your Neighborhood? , THE JOURNAL NEWS (Dec. 22, 2012), http://www.lohud.com/interactive/article/20121223/NEWS01/121221011/Map-Where-gun-permits-your-neighborhood-, archived at http://perma.cc/4R29-TJH5 [hereinafter The Journal News Map ]. The map displays all pistol permit holders in Westchester and Rockland counties. Id. Each dot on the map represents a permit holder who is licensed to own a handgun. Id. The website goes on to explain that The Journal News acquired the data by submitting Freedom of Information Act requests for the names and addresses of all pistol permit holders in the New York counties of Westchester, Rockland, and Putnam. Id. 18. Jim Malewitz, Lawmakers Move Swiftly to Block Release of Gun Permit Records , STATELINE (Mar. 7, 2013), http://www.pewstates.org/projects/stateline /headlines/lawmakers-move-swiftly-to-block-release-of-gun-permit-records-85899457096#story, archived at http://perma.cc/BEJ2-MCEY. Malewitz references various state legislators echoing the views of their constituents that “releasing the information in bulk will put people at risk.” Id. Malewitz cites Maine Governor Paul LePage who said, “I have serious concerns that...