Comment by Jason Napoleon Thelen
A difficult situation arises when a person makes the decision to carry a concealed handgun for self-defense. As a general rule, carrying a firearm concealed on one's person is illegal in Louisiana. But some Louisiana residents choose to flaunt the law and carry the weapon illegally. Echoing a popular sentiment, one firearms instructor stated, “You may be breaking the law by carrying the gun illegally . . . but you're still alive when the shooting stops.” While some citizens may independently choose to break the law, it could be an ethical violation for an attorney to recommend such an option.
The legal option for those wishing to carry a concealed handgun is to apply for a permit that authorizes it. As discussed below, the application process is complicated, costly, and time consuming. Once a permit has been issued, problems still exist. Essentially, a permit grants the privilege to engage in an otherwise illegal activity, but only under certain circumstances and in certain places. Any error or misjudgment as to when or where one is allowed to carry a concealed handgun results in a criminal act. Thus, even with a permit, a person carrying a concealed handgun must constantly walk a thin line between legality and illegality. The Louisiana permit issuing agency distributes a short booklet containing selected statutes and administrative rules, but permit holders [permittees] desiring more guidance must either wade through the statutes themselves or consult an attorney.
With more permits being issued under the new statutory system every day, Louisiana attorneys increasingly will be called upon to understand this relatively new and changing area of the law. Practitioners may need to advise clients on the application process for a concealed handgun permit, or to interpret the intricate relations among the different statutes, such as the potential conflicts between firearm-free zones and concealed handgun permits. Criminal defense attorneys may be retained to defend a permittee who inadvertently took his handgun into the wrong area, or who had to use the weapon in self-defense during an attack. Prosecutors and law enforcement officials may have to make decisions on whether to charge citizens who were striving to obey the law but inadvertently violated it, or who have acted in self-defense. Judges may have to preside over trials of individuals who choose to kill attackers rather than submit to their own murders. Legislators may have to respond to the powerful and well-funded lobbying groups that lie on either side of this issue. Regardless, the burden falls upon attorneys to interpret the new statutory system surrounding concealed handguns, the justifiable use of defensive force, and the related civil liability.
This Comment will address three related questions. First, it will examine when a Louisiana resident may carry a concealed handgun and how he or she may obtain a permit to do so. Second, it will evaluate the conditions under which one may use that weapon in self-defense or defense of another. Third, it will discuss the criminal and civil implications stemming from the use of a concealed handgun in self-defense or defense of another.
Because of the recent amendments to the Louisiana statutes, there are few cases that address this subject. Therefore, courts and practitioners must start from the beginning in fashioning a body of law to control this area.
About the Author
Jason Napoleon Thelen. B.A. 1996, University of Virginia; J.D. candidate 1999, Tulane Law School.
Citation
73 Tul. L. Rev. 331 (1998)