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. § 40:13 79.3(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