                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #035


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 1st day of July, 2014, are as follows:



BY HUGHES, J.:


2013-KK-2306      STATE OF LOUISIANA v. CHRISTOPHER EBERHARDT (Parish of St.
                  Tammany)(Constitutionality JAMAL C. TAYLOR AND KELIN A. STEVENS
                   STATE OF LOUISIANA v.      of LSA-R.S. 14:95.1))
C/W                (Parish of Jefferson)
                  STATE OF LOUISIANA v. JAMAL C. TAYLOR AND KELIN A. STEVENS
2014-KA-0209      (Parish of Jefferson)

                  For the reasons assigned, we reverse the judgment of the
                  Jefferson Parish district court, rendered in favor of the
                  defendants, Jamal C. Taylor and Kelin A. Stevens, which declared
                  LSA-R.S. 14:95.1 unconstitutional and granted these defendants’
                  motions to quash.    We further affirm the judgment of the St.
                  Tammany Parish district court, rendered in favor of the State of
                  Louisiana, which upheld the constitutionality of LSA-R.S. 14:95.1
                  and denied the motion to quash filed by Christopher Eberhardt.
                  TWENTY-FOURTH JUDICIAL DISTRICT COURT JUDGMENT REVERSED; TWENTY-
                  SECOND JUDICIAL DISTRICT COURT JUDGMENT AFFIRMED.
07/01/14


                      SUPREME COURT OF LOUISIANA

                                NO. 2013-KK-2306

                            STATE OF LOUISIANA

                                     VERSUS

                        CHRISTOPHER EBERHARDT

   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL
       DISTRICT COURT FOR THE PARISH OF ST. TAMMANY

                            CONSOLIDATED WITH

                                NO. 2014-KA-0209

                            STATE OF LOUISIANA

                                     VERSUS

               JAMAL C. TAYLOR AND KELIN A. STEVENS

   ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
           COURT FOR THE PARISH OF JEFFERSON


HUGHES, J.

      In 2012 by a seventy-three percent majority the people voted to amend

Article I, Section 11 of the Louisiana Constitution, effective December 10, 2012,

which now provides:

      The right of each citizen to keep and bear arms is fundamental and

shall not be infringed. Any restriction of this right shall be subject to strict

scrutiny.

      Prior to its amendment this article provided that, “The right of each citizen

to keep and bear arms shall not be abridged, but this provision shall not prevent the

passage of laws to prohibit the carrying of weapons concealed on the person.”

      The purpose of the amendment is to strengthen and protect from government

intrusion the right of our citizens to keep and bear arms. While many have always
considered the right fundamental, that has now been made clear, and any

restriction may occur only after the highest level of review, “strict scrutiny.”

      Some arrested or convicted of crimes involving firearms have attempted to

show that the laws under which they were charged do not withstand strict scrutiny

and are thus unconstitutional.

      In these consolidated cases we now reject those arguments.              Our law

proscribing the possession of firearms by convicted felons is not affected by the

amendment and withstands a strict scrutiny analysis. Such laws are effective,

time-tested, and easily understandable, and do not violate the constitution.

Common sense and the public safety allow no other result.

                    FACTS AND PROCEDURAL HISTORY

      In the case of State v. Eberhardt, the September 17, 2012 St. Tammany

Parish felony bill of information charged Eberhardt with:           (1) one count of

possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:95.1,

alleging that, on or about June 27, 2012, he illegally possessed a firearm, having

been previously convicted of the unauthorized entry of an inhabited dwelling, a

violation of LSA-R.S. 14:62.3, on June 11, 2007 in St. Tammany Parish; (2) one

count of theft, a violation of LSA-R.S. 14:67, alleging that, between March 6, 2012

and June 25, 2012, he misappropriated or took over $1,500 worth of property

belonging to Faye Eberhardt; and (3) one count of cyberstalking, a violation of

LSA-R.S. 14:40.3(B)(1), alleging that, on or between November 7, 2010 and

August 30, 2011, via electronic mail or electronic communication of words or

language, he threatened to inflict bodily harm to a person or such person’s child,

sibling, spouse, or dependant, or physical injury to the property of a person, or for

the purpose of extorting money or other things of value from a person. Eberhardt

was also charged by a September 17, 2012 misdemeanor bill of information with



                                           2
one count of first offense possession of marijuana, a violation of LSA-R.S.

40:966(C) and (E)(1), which occurred on or about June 26, 2012.

       In the case of State v. Taylor, a May 10, 2012 Jefferson Parish grand jury

indictment charged defendants Taylor and Stevens, each, with one count of second

degree murder, a violation of LSA-R.S. 14:30.1, alleging that, on January 6, 2012,

the defendants committed the second degree murder of “a Known Juvenile (DOB

2/23/2000).”1

       In addition to the charge of second degree murder, Taylor was also charged

with: (1) five counts of possession of a firearm by a convicted felon, violations of

LSA-R.S. 14:95.1, alleging that, on June 21, 2011, August 2, 2011, November 22,

2011, January 6, 2012, and January 9, 2012, he illegally possessed a firearm,

having been previously convicted of possession of cocaine in the United States

District Court for the Eastern District of Louisiana; (2) one count of attempt to

commit the second degree murder of Derrick Ford on November 22, 2011, a

violation of LSA-R.S. 14:27 and 14:30.1; and (3) one count of possession with

intent to distribute cocaine, a violation of LSA-R.S. 40:967(A).

       In addition to the charge of second degree murder allegedly committed with

co-defendant Taylor, Stevens was also charged with two counts of possession of a

firearm by a convicted felon, a violation of LSA-R.S. 14:95.1, alleging that, on

June 8, 2011 and January 6, 2012, he illegally possessed a firearm, having been

previously convicted of second degree battery, a violation of LSA-R.S. 14:34.1,

and of possession with intent to distribute marijuana, a violation of LSA-R.S.

40:966(A).

       Eberhardt, Taylor, and Stevens all filed motions to quash the felon-in-

possession charges against them, in their respective district court proceedings,

1
 On July 12, 2012, a third co-defendant, Brandon J. Smith, was joined, along with Taylor and
Stevens, in the second degree murder charge; however, Smith was not charged with LSA-R.S.
14:95.1 and did not join in contesting the constitutionality of LSA-R.S. 14:95.1.

                                             3
asserting the unconstitutionality of LSA-R.S. 14:95.1, which they contend

impermissibly infringes on their fundamental right to keep and bear arms, as set

forth in LSA-Const. art. I, § 11. The Jefferson Parish district court ruled in favor

of Taylor and Stevens, granting these defendants’ motions to quash, and the State

appealed the declaration of the ruling of unconstitutionality as to LSA-R.S.

14:95.1. The St. Tammany Parish district court denied Eberhardt’s motion to

quash, and he filed a writ application with this court, which was granted. See

State v. Eberhardt, 2013-2306 (La. 2/14/14), ___ So.3d ___. These cases were

consolidated for review in this court as they present the same issue, i.e., whether

LSA-R.S. 14:95.1 is unconstitutional, as violative of LSA-Const. art. I, § 11.

       In appealing the ruling of unconstitutionality rendered in State v. Taylor,

the State asserts in its assignments of error that the Jefferson Parish district court

erred in finding that: (1) felons are entitled to the right conferred by LSA-Const.

art. 1, § 11; (2) LSA-R.S. 14:95.1 is facially unconstitutional; and (3) LSA-R.S.

14:95.1 is unconstitutional as applied to the defendants. In conjunction with his

application for supervisory review, Eberhardt contends the St. Tammany Parish

district court erred in failing to hold LSA-R.S. 14:95.1 unconstitutional.

       A motion by the Louisiana District Attorneys Association (“LDAA”)

seeking to file an amicus curiae brief in this court was granted, and the LDAA has

submitted arguments in support of the constitutionality of LSA-R.S. 14:95.1.

                                 LAW AND ANALYSIS

       Our standard of review in determining the constitutionality of a statute, a

question of law, is de novo.2 See State v. Webb, 2013-1681 (La. 5/7/14), ___


2
  These consolidated cases present no factual issues, as the rulings under review were made
following hearings, in the respective district court proceedings, on the defendants’ motions to
quash. A motion to quash is essentially a mechanism whereby pre-trial pleas, which do not go to
the merits of the charge, are urged. See State v. Byrd, 96-2302 (La. 3/13/98), 708 So.2d 401,
411, cert. denied sub nom. Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146
(1998).

                                              4
So.3d ___, ___; State v. Draughter, 2013-0914 (La. 12/10/13), 130 So.3d 855,

860; City of Bossier City v. Vernon, 2012-0078 (La. 10/16/12), 100 So.3d 301,

303.    A de novo review means the court will render judgment after its

consideration of the legislative provisions at issue, the law, and the record, without

deference to the legal conclusions of the tribunals below. City of Bossier City v.

Vernon, 100 So.3d at 303.

       The defendants herein have challenged the validity of the charges against

them under LSA-R.S. 14:95.1, which makes it unlawful for any person convicted

of certain felonies to possess a firearm or carry a concealed weapon. Because the

right to keep and bear arms is a fundamental right, as described in LSA-Const. art.

I, § 11, a statute restricting that right (here, LSA-R.S. 14:95.1) must survive the

test of “strict scrutiny,” a test which is mentioned in LSA-Const. art. I, § 11, but

not defined. See State v. Webb, ___ So.3d at ___.

       Under strict scrutiny the government bears the burden of proving the

constitutionality of the regulation by showing: (1) that the regulation serves a

compelling governmental interest, and (2) that the regulation is narrowly tailored

to serve that compelling interest. State v. Draughter, 130 So.3d at 862. Strict

scrutiny requires a careful examination by our courts, keeping in mind that the

fundamental right at issue is one where some degree of regulation is likely to be

necessary to protect the public safety. State in the Interest of J.M., ___ So.3d at

___ (quoting Grutter v. Bollinger, 539 U.S. 306, 327, 123 S.Ct. 2325, 2338, 156

L.Ed.2d 304 (2003), which stated that in a strict scrutiny analysis “context

matters”).

       The defendants contend, and the Jefferson Parish district court ruled, that

LSA-R.S. 14:95.1 is unconstitutional on its face, as violative of LSA-Const. art. I,

§ 11. The defendants further contend that LSA-R.S. 14:95.1 is unconstitutional as

applied to their individual circumstances.

                                          5
      Revised Statute 14:95.1 provides:

            A. It is unlawful for any person who has been convicted of a
      crime of violence as defined in R.S. 14:2(B) which is a felony or
      simple burglary, burglary of a pharmacy, burglary of an inhabited
      dwelling, unauthorized entry of an inhabited dwelling, felony illegal
      use of weapons or dangerous instrumentalities, manufacture or
      possession of a delayed action incendiary device, manufacture or
      possession of a bomb, or possession of a firearm while in the
      possession of or during the sale or distribution of a controlled
      dangerous substance, or any violation of the Uniform Controlled
      Dangerous Substances Law which is a felony, or any crime which is
      defined as a sex offense in R.S. 15:541, or any crime defined as an
      attempt to commit one of the above-enumerated offenses under the
      laws of this state, or who has been convicted under the laws of any
      other state or of the United States or of any foreign government or
      country of a crime which, if committed in this state, would be one of
      the above-enumerated crimes, to possess a firearm or carry a
      concealed weapon.

            B. Whoever is found guilty of violating the provisions of this
      Section shall be imprisoned at hard labor for not less than ten nor
      more than twenty years without the benefit of probation, parole, or
      suspension of sentence and be fined not less than one thousand dollars
      nor more than five thousand dollars. Notwithstanding the provisions
      of R.S. 14:27, whoever is found guilty of attempting to violate the
      provisions of this Section shall be imprisoned at hard labor for not
      more than seven and one-half years and fined not less than five
      hundred dollars nor more than two thousand five hundred dollars.

             C. The provisions of this Section prohibiting the possession of
      firearms and carrying concealed weapons by persons who have been
      convicted of certain felonies shall not apply to any person who has not
      been convicted of any felony for a period of ten years from the date of
      completion of sentence, probation, parole, or suspension of sentence.

            D. For the purposes of this Section, “firearm” means any pistol,
      revolver, rifle, shotgun, machine gun, submachine gun, black powder
      weapon, or assault rifle which is designed to fire or is capable of firing
      fixed cartridge ammunition or from which a shot or projectile is
      discharged by an explosive.

      Subsequent to the 2012 amendment of LSA-Const. art. I, § 11, this court

considered the constitutionality of LSA-R.S. 14:95.1 in State v. Draughter, 2013-

0914 (La. 12/10/13), 130 So.3d 855, and the constitutionality challenge to LSA-

R.S. 14:95.1 was rejected in the limited circumstances presented in that case, i.e.,

vis-à-vis a defendant who had been released from the physical custody of the State,

but who continued to be subject to State supervision, on active probation, for his

                                          6
prior conviction. We held that the State has a compelling interest in regulating

convicted felons still under the State’s supervision, and LSA-R.S. 14:95.1 is

narrowly tailored to achieve that interest. This court concluded that LSA-R.S.

14:95.1 survives strict scrutiny and was not an unconstitutional infringement of

Draughter’s right to bear arms, pursuant to Article I, Section 11, as applied to the

narrow fact situation presented in that case. This court’s conclusion in State v.

Draughter was easily reached given that the defendant was still under State

supervision and was serving the probation portion of his criminal sentence, which

necessarily involved an intrusion into the defendant’s life by the State officials

administering the supervision required by his status. The possession of a firearm

by such a defendant was found to be inconsistent with that status and would

subject the individuals tasked with his supervision to an untenable safety risk. We

declined to address the “larger question” of whether the State may dispossess

certain convicted felons of their right to bear arms for a number of years, even after

they have paid their debt to society and fully discharged their sentences, having

determined that precise question was not before the court.             See State v.

Draughter, 130 So.3d at 866-68.

      Since deciding State v. Draughter, we have examined the 2012 amendment

to LSA-Const. art. I, § 11 in State in the Interest of J.M. (with respect to LSA-

R.S. 14:95(A), making illegal the carrying of an intentionally concealed firearm on

one’s person, and LSA-R.S. 14:95.8, making unlawful the possession of a handgun

by a person under the age of seventeen except in certain enumerated

circumstances), and in State v. Webb (with respect to LSA-R.S. 14:95(E), making

unlawful the possession of a firearm while in the possession of or during the sale or

distribution of a controlled dangerous substance). In both State in the Interest of

J.M. and State v. Webb, this court upheld the challenged statutes against the

defendants’ claims that these statutes unconstitutionality violated LSA-Const. art.

                                          7
I, § 11, concluding that each of the challenged statutes was enacted pursuant to

compelling government interests and that each was narrowly tailored to achieve

legitimate government purposes.

       While the status of the defendants in the instant consolidated cases differs

from those at issue in State v. Draughter, in that the Draughter defendants were

still under State supervision at the time of their arrests and the instant defendants

had completed all aspects of their prior sentences and were no longer under State

supervision when they were arrested on subsequent offenses, we nevertheless

uphold the validity of LSA-R.S. 14:95.1.

       We begin our analysis of the current LSA-Const. art. I, § 11-based

challenges to LSA-R.S. 14:95.1 by pointing out that we recognized in Draughter

that the right to bear arms has always been considered fundamental. The 2012

amendment to LSA-Const. art. I, § 11 merely sought to ensure that the review

standard of an alleged infringement of this fundamental right was in keeping with

the refinements made to constitutional analysis that developed since our decision in

State v. Amos, 343 So.2d 166 (La. 1977).3 See State v. Draughter, 130 So.3d at

863. The 2012 amendment of LSA-Const. art. 1, § 11 did not, therefore, effect a

change in the nature of the right by adding the term “fundamental” to describe the

right to keep and bear arms. State v. Webb, ___ So.3d at ___ n.3



3
  State v. Draughter further recognized that the 2012 amendment to LSA-Const. art. I, § 11 was
prompted in part by the slim 5-to-4 Supreme Court majority decisions in the recent cases of
District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (holding
that the Second Amendment’s right to keep and bear arms extended beyond participation in a
citizen militia to “law-abiding, responsible citizens to use arms in defense of hearth and home”
and invalidating the District of Columbia’s total ban on the possession of handguns and the
requirement that citizens keep their firearms inoperative, as the requirement made it impossible
for citizens to use firearms for the core lawful purpose of self-defense), and McDonald v. City
of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (holding that the Second
Amendment’s individual right to bear arms, recognized in Heller, is a right fundamental to our
scheme of ordered liberty and fully applicable to the states through the Due Process Clause of the
Fourteenth Amendment). Partly in response to Heller and McDonald, Louisiana legislators
introduced legislation that ultimately resulted in the 2012 amendment of the State constitution,
with the stated intention being to secure and protect Louisiana citizens’ right to bear arms under
the Louisiana Constitution from possible future judicial or legislative erosion.

                                                8
      As we recognized in State v. Amos, the right to keep and bear arms, like

other rights guaranteed by our State constitution, is not absolute. Further, the

Supreme Court described a similar understanding of the nature and limitations of

the right to bear arms in the analogous Second Amendment, in District of

Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 2816, 171 L.Ed.2d 637

(2008), stating, “From Blackstone through the 19th-century cases, commentators

and courts routinely explained that the right was not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever purpose.” See

State in the Interest of J.M., ___ So.3d at ___.

      This court concluded in State in the Interest of J.M. that the voters’

ratification of strict scrutiny as a standard of review to be applied to alleged

infringements on the right to keep and bear arms was not meant to invalidate every

restriction on firearms, whether in existence at the time the amendment was ratified

or yet to be enacted. Rather, the strict scrutiny standard adopted by the voters is

“designed to provide a framework for carefully examining the importance and

sincerity of the reasons advanced by the governmental decisionmaker” for firearm

regulation within the context of the fundamental right to keep and bear arms. State

in the Interest of J.M., ___ So.3d at ___ (quoting Grutter v. Bollinger, 539 U.S.

at 327, 123 S.Ct. at 2338).

      A measure of ambiguity was created by the fact that the legislature, in its

2012 amendment of LSA-Const. art. I, § 11, omitted from its prior text the phrase

“but this provision shall not prevent the passage of laws to prohibit the carrying of

weapons concealed on the person” and by calling for “strict scrutiny” of any

restriction on the right to keep and bear arms. Therefore, consideration of the

legislative history is appropriate. See Louisiana Federation of Teachers v. State

of Louisiana, 2013-0120 (La. 5/7/13), 118 So.3d 1033, 1061.



                                          9
      A discussion of the proposed amendment to LSA-Const. art. I, § 11, by

Senate Bill No. 303 (later passed as 2012 La. Acts, No. 874), took place on the

Senate floor, which is instructive on the issues before this court. 4 During the

Senate discussion, the bill’s sponsor, Senator Riser, answered questions about the

meaning and effect of the bill, raised by Senators Claitor, Thompson, Donahue,

Appel, and Long. Senator Riser stated that the purpose of the act was to reinforce

the Second Amendment in Louisiana law, so that Louisiana would have the

strongest Second Amendment law in the nation should the amendment pass. The

aim of the legislature in amending LSA-Const. art. I, § 11 was described by

Senator Riser as protecting the fundamental right of individuals to keep and bear

arms, in light of the Supreme Court’s narrow 5-to-4 majority opinions in District

of Columbia v. Heller and McDonald v. City of Chicago. However, when

specifically questioned about the effect the proposed act would have on existing

gun laws, Senator Riser stated, “[T]his [act] defines . . . how laws are judged . . . .

[W]e roughly have close to forty gun laws right now and those laws will stay in

effect.” Senator Riser further stated, “Any [weapon] law on the books right now is

on the books [and] they are going to stay there . . . . You’ll have to follow the

current statute[s].” From these discussions, we can conclude that, in passing Act

874, the legislature did not intend to invalidate existing weapons laws.

      As declared by this court in State v. Amos, it is beyond question that the

statute challenged in the instant case, LSA-R.S. 14:95.1, was passed in the interest

of the public and as an exercise of the police power vested in the legislature. Its

purpose is to limit the possession of firearms by persons who, by their past

commission of certain specified serious felonies, have demonstrated a dangerous




4
  The recorded April 9, 2012 Senate discussion is archived on the Louisiana Senate website
(http://senate.la.gov/sessioninfo/Archives/2012/rs.htm at 01:57:44).

                                           10
disregard for the law and present a potential threat of further or future criminal

activity. State v. Amos, 343 So.2d at 168.

       State v. Amos further acknowledged that LSA-R.S. 14:95.1 is addressed to

persons who are citizens of this State by virtue of the termination of state or federal

supervision following their convictions, pursuant to LSA-Const. art. I, § 20.5

These persons have previously been convicted of serious criminal offenses, and

restoration of citizenship cannot erase this fact.              The State v. Amos opinion

recognized that the verbatim transcripts of the constitutional convention debates

indicated that neither LSA-Const. art. I, § 11 nor LSA-Const. art. I, § 20 were ever

intended to preclude the type of legislation disputed herein. We are satisfied that it

is reasonable for the legislature in the interest of public welfare and safety to

regulate the possession of firearms, for a limited period of time, by citizens who

have committed certain specified serious felonies. Courts of other states having

statutes and constitutional provisions comparable to our own have similarly

concluded that such regulation is constitutionally permissible as a reasonable and

legitimate exercise of police power. See State v. Amos, 343 So.2d at 168. We

conclude that the precepts set forth in State v. Amos continue to be valid and

applicable today.

       We also note that in District of Columbia v. Heller the Supreme Court, in

evaluating the analogous Second Amendment right to bear arms, stated that

“nothing in our opinion should be taken to cast doubt on longstanding prohibitions

on the possession of firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and government buildings,


5
  Article I, Section 20 provides, in pertinent part: “Full rights of citizenship shall be restored
upon termination of state and federal supervision following conviction for any offense.”
Nevertheless, this court held in State v. Adams, 355 So.2d 917, 922 (La. 1978), that LSA-Const.
art. 1, § 20 restores only the basic rights of citizenship, such as the right to vote, work, or hold
public office. See State v. Selmon, 343 So.2d 720, 721-22 (La. 1977). See also U.S. v.
Dupaquier, 907 F.Supp. 951, 953-57 (M.D. La. 1995).

                                                11
or laws imposing conditions and qualifications on the commercial sale of arms.”

District of Columbia v. Heller, 554 U.S. at 626-27, 128 S.Ct. at 2816-17. See

also McDonald v. City of Chicago, 561 U.S. at ___, 130 S.Ct. at 3047; U.S. v.

Yancey, 621 F.3d 681, 685 (7th Cir. 2010) (“[S]omeone with a felony conviction

on his record is more likely than a nonfelon to engage in illegal and violent gun

use.”).

       We conclude that LSA-R.S. 14:95.1 serves a compelling governmental

interest that has long been jurisprudentially recognized and is grounded in the

legislature’s intent to protect the safety of the general public from felons convicted

of specified serious crimes, who have demonstrated a dangerous disregard for the

law and the safety of others and who present a potential threat of further or future

criminal activity. See State v. Amos, 343 So.2d at 168. Further, the law is

narrowly tailored in its application to the possession of firearms or the carrying of

concealed weapons for a period of only ten years from the date of completion of

sentence, probation, parole, or suspension of sentence, and to only those convicted

of the enumerated felonies determined by the legislature to be offenses having the

actual or potential danger of harm to other members of the general public.6 Under

these circumstances, we find “a long history, a substantial consensus, and simple

common sense” to be sufficient evidence for even a strict scrutiny review. State in

the Interest of J.M., ___ So.3d at ___ (quoting Burson v. Freeman, 504 U.S.

191, 211, 112 S.Ct. 1846, 1858, 119 L.Ed.2d 5 (1992)).

       Furthermore, to challenge a legislative act as unconstitutional on its face is

the most difficult challenge to mount successfully, since the challenger must


6
  We note that Louisiana’s LSA-R.S. 14:95.1 felon-in-possession law is less restrictive than the
comparable federal law, which encompasses nearly all felonies and has no ten-year cleansing
period. Pursuant to 18 U.S.C.A. § 922 (g): “It shall be unlawful for any person ... who has been
convicted in any court of a crime punishable by imprisonment for a term exceeding one year ...
to ... possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign commerce.”

                                              12
establish that no set of circumstances exists under which the statute would be valid.

Prejean v. Barousse, 2012-1177 (La. 1/29/13), 107 So.3d 569, 571-72; City of

New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 2005-2548

(La. 10/1/07), 986 So.2d 1, 19; State v. Brown, 94-1290 (La. 1/17/95), 648 So.2d

872, 875 (citing United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095,

2100, 95 L.Ed.2d 697 (1987)). Generally, the legislature may do anything that the

constitution does not prohibit. The task is to determine whether the challenged

statute is so inconsistent with our constitution that there exists no set of

circumstances under which the statute would be valid. See Prejean v. Barousse,

107 So.3d at 572. See also Washington State Grange v. Washington State

Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 1190, 170 L.Ed.2d 151

(2008) (“[A] plaintiff can only succeed in a facial challenge by ‘establish[ing] that

no set of circumstances exists under which the Act would be valid,’ i.e., that the

law is unconstitutional in all of its applications.”). No such showing can be made

in the instant case; as seen in State v. Draughter, circumstances clearly exist

where LSA-R.S. 14:95.1 is valid. Therefore, we find no merit in the defendants’

facial challenge to LSA-R.S. 14:95.1.

      We also reject the defendants’ argument that LSA-R.S. 14:95.1 is

unconstitutional as applied to their individual circumstances.

      Each of the three defendants reoffended within a relatively short period of

time following the completion of previously imposed State supervision. Stevens

was released from State supervision on his prior conviction for possession of

marijuana on May 18, 2011, and he was charged with committing a violation of

LSA-R.S. 14:95.1 on June 8, 2011, only three weeks later. Eberhardt was released

from State supervision on his prior conviction of unauthorized entry of an

inhabited dwelling on May 30, 2010, and he was charged with committing a

violation of LSA-R.S. 14:95.1 on June 27, 2012, approximately two years later

                                         13
(though we note that the third count of the indictment against Eberhardt charged

him with cyberstalking, which had allegedly commenced on or about November 7,

2010, only twenty-three weeks after completion of his prior State supervision).

Taylor completed his prior federal sentence for possession of cocaine and was

released from federal supervision on June 1, 2007, and he was charged with

committing a violation of LSA-R.S. 14:95.1 on June 21, 2011, approximately four

years later.

       These three defendants illustrate, rather than show exceptions to, the

principles underlying felon-in-possession laws such as LSA-R.S. 14:95.1, i.e., that

certain convicted felons have demonstrated a dangerous disregard for the law and

present a potential threat of further or future criminal activity and are more likely

than nonfelons to engage in illegal and violent gun use. These cases demonstrate

that convicted felons are not only at risk to reoffend, but are at risk to reoffend

using firearms.

       In the case of Taylor and Stevens, a firearm was used in the second degree

murder for which they are charged as co-defendants in this case. This is exactly

the type of offense LSA-R.S. 14:95.1 was enacted to prevent.

       In Eberhardt’s case, his weapon possession offense does not appear to be

connected to his other charged offenses of cyberstalking and theft. Eberhardt

further suggests that his prior offense of unauthorized entry of an inhabited

dwelling had no connection to possession of a firearm and that, therefore, as

applied to his circumstances, LSA-R.S. 14:95.1 is not narrowly tailored to ensure

public safety. We find no merit in Eberhardt’s argument. While Eberhardt might

not have armed himself before committing unauthorized entry of an inhabited

dwelling, the entry by an unauthorized person into the residence of another

presents a situation of potential harm to the occupant who may resist the intrusion,

in that the offender may nevertheless acquire a weapon on the premises and use it

                                         14
to cause harm to others. Moreover, some inhabited dwelling offenders go on to

reoffend with a weapon. See State v. Wiggins, 2013-0649 (La. App. 1 Cir.

1/31/14), ___ So.3d ___ (wherein the defendant was previously convicted of

simple burglary of an inhabited dwelling and subsequently reoffended with a

firearm and attempted to kill his victim); State v. Shepherd, 2008-1556 (La. App.

3 Cir. 6/3/09), 11 So.3d 729 (wherein the defendant entered the residence of the

victim, without authorization, and then armed himself with the victim’s weapon

and shot the victim in the chest). We do not find as applied over-inclusiveness in

Eberhardt’s case. The offense of unauthorized entry of an inhabited dwelling

carries such a high potential for harm to innocent bystanders that its inclusion by

the legislature within the ambit of LSA-R.S. 14:95.1 is clearly warranted.

Furthermore, it is impossible for the legislature to predict with complete certainty

which offenders will reoffend with a firearm, and including those offenses that

demonstrate a serious disregard for the safety of others within LSA-R.S. 14:95.1’s

felon-in-possession prohibition is appropriate given the compelling state interest in

protecting the public.7



7
  Eberhardt also cites the first offender pardon he received from the Department of Public Safety
and Corrections (“DPSC”) after completing his probation; the June 24, 2010 DPSC notice stated
that Eberhardt had completed his sentence for unauthorized entry of an inhabited dwelling and
had met all of the requirements for an automatic first offender pardon, under LSA-R.S.
15:572(D), and further stated: “[A]s provided by Article 1, Section 20, and Article 4, Section
5(E)(1), of the Louisiana Constitution, this will certify that effective May 30, 2010,
CHRISTOPHER EBERHARDT has discharged his/her sentence for the above stated offense(s)
and that all rights of citizenship and franchise are restored in Louisiana.” However, the
“verification of first offender pardon” received by Eberhardt also notified him that “[t]he right to
receive, possess or transport a firearm may not be restored unless all legal provisions are met and
should be determined through the local law enforcement agency.” At the time the June 24, 2010
notice was sent to Eberhardt, LSA-R.S. 14:95.1(C) provided that, in addition to the ten-year
cleansing period, a convicted felon who had completed his sentence, probation, parole, or
suspension of sentence could apply to the sheriff of the parish in which he resided for a permit to
possess a firearm; this discretionary sheriff’s permit procedure was repealed by the Louisiana
Legislature by 2010 La. Acts, No. 942, § 1, effective August 1, 2010. There is no indication that
Eberhardt applied for a sheriff’s permit to possess a firearm between his date of eligibility, May
30, 2010, and the date that the repeal of the sheriff’s permit provision became effective, August
1, 2010. In the absence of such a permit, the restoration of citizenship rights accorded by an
LSA-R.S. 15:572(D) automatic pardon to first offenders does not exempt such an offender from
the application of LSA-R.S. 14:95.1. See State v. Wiggins, 432 So.2d 234, 236-37 (La. 1983);
State v. Riser, 30,201 (La. App. 2 Cir. 12/12/97), 704 So.2d 946, 949-50.

                                                15
      We find no merit in the as applied challenges asserted by these defendants.

                                 CONCLUSION

      We conclude that LSA-R.S. 14:95.1 is not unconstitutional as violative of

LSA-Const. art. I, § 11.

                                    DECREE

      For the reasons assigned, we reverse the judgment of the Jefferson Parish

district court, rendered in favor of the defendants, Jamal C. Taylor and Kelin A.

Stevens, which declared LSA-R.S. 14:95.1 unconstitutional and granted these

defendants’ motions to quash. We further affirm the judgment of the St. Tammany

Parish district court, rendered in favor of the State of Louisiana, which upheld the

constitutionality of LSA-R.S. 14:95.1 and denied the motion to quash filed by

Christopher Eberhardt.

TWENTY-FOURTH JUDICIAL DISTRICT COURT JUDGMENT
REVERSED; TWENTY-SECOND JUDICIAL DISTRICT COURT
JUDGMENT AFFIRMED.




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