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
 
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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

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