“Trust me, I’m a federal prosecutor.” You can almost hear the words come from his mouth. Sure enough, with his latest initiative, U.S. Attorney Louisiana Kenneth Polite is asking us for a great deal of trust.
Polite recently announced a bold plan for reducing gun violence in New Orleans. He proposed a joint effort between his office, Bureau of Alcohol, Tobacco, Firearms and Explosives, the New Orleans Police Department, Orleans Parish Sheriff’s Office, and Crimestoppers, to investigate and prosecute federal gun crimes.
At first blush, this sounds like exactly what gun-rights advocates have been crowing for. Authorities often seem to be asleep at the wheel when it comes to enforcing existing gun laws, leading to calls for more burdensome regulation.
Alas, it rapidly became clear that Mssr. Polite’s plan is not something that law-abiding gun owners will be sanguine about.
“In particular, the federal gun free school zone statute makes it a crime to unlawfully possess a firearm within 1,000 feet of every elementary and secondary school,” a press release from Polite’s office explained.
“The statute is narrowly tailored, and does not forbid otherwise lawful possession: on private property, by law enforcement officers acting in their official capacity, or by individuals licensed to carry firearms by the state of Louisiana.”
“This is an underutilized federal statute that will assist us in removing illegal firearms from our streets, particularly as we are seeing spikes in violent crime,” Polite was quoted as saying in the release. “It carries a maximum punishment of 5 years in prison, which must be served consecutively to any other term of imprisonment.”
This all sounds good at first blush. So what’s the problem? Well, the problem is that one part about the statute being “narrowly tailored” and not “forbid[ding] otherwise lawful possession.”
That part? Well, that was a fetid load of horse excretions.
Some background: The federal Gun-Free School Zone Act, codified at 18 U.S.C. § 922(q), stands out as an obscenely overbroad piece of legislation. Originally passed in 1990, it was struck by the U.S. Supreme Court in 1995 for exercising powers beyond the federal government’s constitutional authority under the Commerce Clause. However, Congress amended the law the following year to require a nexus with interstate commerce, thus providing a fig leaf of constitutionality.
The reinitialized statute provided, as did the original law, that possession of guns would be banned within 1,000 feet of any school. The only exceptions made were those listed in Polite’s press release: 1) for those on private property; 2) for those with a Louisiana-issued concealed-carry permit; and, 3) for on-duty law enforcement acting in an official capacity.
Another minor exception was made for firearms being otherwise legally transported – but those guns have to be unloaded and locked in a box or gun rack.
Now, in Louisiana it is a state constitutional right for a citizen to carry a firearm in a motor vehicle or carry openly on public property, whether or not one is a police officer. Private security also have some express authorization to carry firearms.
Louisiana does have its own “firearm free zone” law, La. Rev. Stat. § 14:95.6, but it makes clear exceptions for these activities and only charges the offense as a misdemeanor punishable by a maximum of six months in Orleans Parish Prison, not a felony that can net five years in Beaumont Penitentiary. That, dear readers, is at least arguably narrow-tailoring.
However, the federal statute trumps all state laws, including state constitutional protections. And the federal law neither features an exception for firearms that are being otherwise carried or transported legally, nor does it exclude off-duty police officers.
What all this means is that if you simply cross the sidewalk on your way to your car with a firearm – which is your constitutional right under state law – you can do five years in a federal prison. Likewise, if you simply drive within a few blocks of a school with a firearm, and it isn’t unloaded and locked up, you’re potentially staring down felony charges.
Worst of all, every member of every single security patrol in the City of New Orleans could be charged under this law, whether they’re New Orleans Private Patrol or off-duty NOPD. Those off-duty officers that have been patrolling the Quarter on Sidney D. Torres’ dime? They all routinely violate the Gun-Free School Zones Act. Even an NOPD officer who drives his car home after a shift is technically in violation.
It would have behooved Polite to consider that, perhaps the reason that the Gun-Free School Zones Act is an “underutilized federal statute” is because it is poorly-drafted, overbroad dreck that’s largely redundant to state laws, many of which are more reasonable.
This issue is actually personal to me, because I live well within 1,000 feet of a school. Heck, half the city is within a firearm-free zone. The reason why people aren’t prosecuted is at least partly because the NOPD has heretofore been employing state law, which is more permissive. Accordingly, they don’t whip out measuring tape every time they make a traffic stop and the driver has a firearm.
Polite’s plan would seem to spell a great departure from this. While he could argue that he will enforce the federal ban very selectively (i.e., “only against bad guys, I promise”), he’s under no obligation to do so. Hell, he could push his luck and have the ATF round up the entire Garden District Security Patrol if he really wanted to.
The bottom line is that the Gun-Free School Zone Act is a dangerous law with excessive discretion; Polite should continue in the path of his predecessors and use it sparingly, if at all.
Right now, though, it seems that Polite may be heading down a very treacherous road. Let’s hope we can trust him.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.