Tulane Law Review November, 1998
Comment [p.331]
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

"MIDNIGHT STOLE MY IMPALA, SO I SHOT HIM" [a1]:
HANDGUNS AND PERSONAL DEFENSE IN LOUISIANA
Jason Napoleon Thelen [b1]

Copyright © 1998 Tulane Law Review Association; Jason Napoleon Thelen

I. Introduction ........................................................................................ 332

II. Concealed Handgun Permits .............................................................. 333

A. Concealed Weapon Permits in America ............................................. 333

B. Social Aspects of Concealed Weapons .............................................. 335

1. Taking the Law into One's Own Hands ............................................... 335

2. Moral Issues ...................................................................................... 335

3. Public Safety ...................................................................................... 337

4. Peace of Mind .................................................................................... 339

5. Gun Control ........................................................................................ 339

C. Concealed Handgun Permits in Louisiana ............................................ 340

1. Recent Reforms .................................................................................. 341

2. Background and History Requirements ................................................ 341

3. Training and Proficiency Requirements ................................................. 342

4. Costs .................................................................................................. 343

5. Code of Conduct ................................................................................ 343

III. Circumstances Justifying Defensive Use of a Concealed Handgun ....... 344

A. Nonlethal Injury Inflicted on Attacker ................................................. 345

B. Lethal Injury Inflicted on Attacker ....................................................... 345

1. Justifiable Homicide in Louisiana .......................................................... 346

2. "Shoot the Carjacker" ......................................................................... 347

C. Defense of Property ........................................................................... 348

D. Duty to Retreat .................................................................................. 349

IV. Civil Liability Resulting from Defensive Use of a Concealed Handgun . 349

V. Conclusion ......................................................................................... 351

[p.332]

I. Introduction

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. [1] But some Louisiana residents choose to flaunt the law and carry the weapon illegally. [2] 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." [3] While some citizens may independently choose to break the law, it could be an ethical violation for an attorney to recommend such an option. [4]

The legal option for those wishing to carry a concealed handgun is to apply for a permit that authorizes it. [5] 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. [6] 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, [7] 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 [p.333] 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.

II. Concealed Handgun Permits

A. Concealed Weapon Permits in America In most states, carrying a concealed weapon has only recently become illegal. [8] Until the statutes were enacted, citizens were entitled to hide weapons without fear of criminal consequences. States originally criminalized the carrying of concealed weapons as a method of prohibiting black citizens from carrying arms; the statutes were seldom enforced against white citizens. [9] Later, the [p.334] recognition that some citizens would need to carry a concealed weapon prompted most states to enact permit systems. [10]

There are three types of systems used by states in the process of issuing concealed weapons permits (often referred to as "CCW permits"). [11] Discretionary statutes vest the decision whether to grant a permit in a sheriff, judge, or bureaucrat; the decision is not governed by express statutory provisions. [12] Mandatory statutes require the permit to be issued if the applicant is not disqualified. [13] The difference is frequently found in language such as "shall issue," which normally signals a mandatory system. [14] Abuse of discretion is common in the former type of system, but much less prevalent in the latter. [15] A third type of system bans concealed weapons completely, providing no means for citizens to obtain permits. [16] One state, Vermont, has no restrictions on carrying concealed firearms; therefore, permits are unnecessary. [17]

The current trend among states has been to switch from discretionary statutes to mandatory statutes. [18]

Florida ignited the reform trend in 1987 by enacting a mandatory, "shall issue" system. [19] In fairly rapid succession, states have adopted mandatory concealed weapon permit systems. [20] More than thirty states have now adopted laws that allow concealment of a weapon. [21]

[p.335]

B. Social Aspects of Concealed Weapons

The carrying of firearms as a defensive measure has an overtone of moral, social, and safety issues, and the situation becomes more embroiled if a citizen uses a handgun in self-defense. Gun control activists and the firearms lobby both produce mountains of propaganda aimed at banning or encouraging concealed weapons.

Several of these social issues are worth discussion.

1. Taking the Law into One's Own Hands

The lawful use of handguns in self-defense is often criticized as "taking the law into one's hands." [22] This characterization is incorrect. Because using deadly force to defend against a violent felony is legal in all fifty states, using such force has been analogized to other lawful choices, such as signing a contract. [23] By violating the law and imposing a threat that justifies the lawful use of deadly force, criminals are the group truly taking the law into their own hands. [24] One commentator has stated that "[w]hen law-abiding citizens react by using or threatening force to stop the law- breaking act, they are merely taking the law back from the criminals, restoring the law to its rightful owners--law-abiding citizens." [25]

2. Moral Issues

Philosophically, citizens are morally justified in using deadly force in lawful self-defense. In Leviathan, Thomas Hobbes embarked on a discussion of the "Natural Laws." [26] The first law of nature was called jus naturale, or the "right of nature." [27] The right of nature is the "liberty each man hath to use his own power as he will himself for the preservation of his own nature; that is to say, of his own life; and consequently, of doing anything which, in his [p.336] own judgement and reason, he shall conceive to be the aptest means thereunto." [28] Hobbes' first law indicates that man's natural right is to defend himself against an aggressor who pursues unjust violence. He went on to state that "every man ought to endeavour peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek and use all helps and advantages of war." [29] Such a sentiment supports the view that self-defense is morally justified if there is no alternative course of action.

Blackstone stated that killing in self-protection constituted excusable homicide. [30] He believed that self-defense excused homicide based on the "'great universal principle of self-preservation, which prompts every man to save his own life preferably to that of another, where one of them must inevitably perish."' [31]

Blackstone's theory links ideas about the nature of man to the concept of justifiable homicide under the common law.

Social justice also lends credence to the use of deadly force in lawful self- defense. [32] This is reflected in our criminal statutes, which recognize that a defendant who acted in the interest of his own physical protection should not be criminally liable. [33] Society makes a "universal judgment that there is no social interest in preserving the lives of aggressors at the cost of those of their victims." [34] Scholars have advanced several theories that could justify the use of deadly force in self-defense: the right to resist unlawful aggression, the right to preserve personal autonomy, and the moral forfeiture of the right to life by the aggressor. [35]

[p.337]

3. Public Safety

The effect of CCW laws on public safety is a hotly debated topic. Some critics say that easing the permit process reduces violent crime, while others contend that the permits do more harm than good.

In 1995, Clayton Cramer and David Kopel undertook an empirical analysis of the effects CCW laws have on violent crime and public safety. [36] The study focused on the concern that more CCW permits would lead to more needless killings. [37] They "conclude[d] that concealed carry laws can be enacted by states with little fear that such laws will compromise public safety. In some cases, such laws may even enhance public safety." [38] Other studies have shown that violent crime has dropped in every state with concealed weapons laws. [39] Additionally, accidental death rates remained stable after the laws were passed, indicating that permittees do not pose a significant threat to themselves or to innocent bystanders. [40]

This drop in violent crime may be attributable to the deterrent effect that the increased prevalence of concealed weapons may have on criminals. [41] "Shall issue licensing might reduce crime by deterring criminal offenders. Criminals generally wish to avoid victims who may be carrying guns. Knowledge that many citizens have concealed weapons could discourage attempts at crime, especially crimes against strangers and crimes in public areas." [42] When felony prisoners in ten states were interviewed, fifty-six percent said that a criminal would not attack a potential victim whom he knew to be armed. [43] Critics refute such arguments by maintaining that mandatory systems increase the number of weapons on the street and the number of persons with easy access to handguns. [44]

Assuming that Cramer and Kopel are correct, states run little risk in enacting such laws and possibly reap the reward of [p.338] decreased violent crime. Therefore, the logical result would be to give individual citizens the option to carry concealed handguns as a defensive measure.

Evidence indicates that permittees are able to use handguns safely. An applicant must demonstrate competence with small arms to receive a permit, and this requirement ensures that evaluations have been made of an applicant's ability to handle and use a handgun safely. [45] Louisiana is ahead of other states, some of which do not demand proof of competence. [46] In the states that have adopted CCW systems, permittees generally may be trusted to use a firearm successfully and safely to defend themselves and others. [47]

In Louisiana, it is difficult to determine the effects that the new law has had or will have on public safety. During 1997, violent crime rates in Louisiana dropped significantly. It is unclear, however, whether any of that change is attributable to the changed CCW and justifiable homicide systems. [48] At nearly the same time the new statutes went into effect, large-scale reforms were enacted in the New Orleans Police Department [NOPD], which coincided with a significant drop in crime. [49] The NOPD claims credit for the decreased violent crime rate, making it nearly impossible to attribute any changes to the new statutory system. [50]

Regardless of whether any positive gains have been achieved, no harm has resulted in Louisiana because of the new system. In the most recent annual report issued to the state Senate by the administrative agency in charge of state CCW permits, the agency stated that "[t]he Department has not received any reports of [p.339] accidents or injuries involving permittees." [51] Additionally, the five permit revocations and nine suspensions that took place before December 15, 1997 were based on either alcohol or drug problems, or on criminal convictions. [52] There is no evidence that the suspensions and revocations were linked to any conduct by the permittees that involved wrongful use of their handguns. Permittees are required to report immediately any handgun related accident, injury, or death in which they are involved, [53] and there have been no such reports. [54] The absence of evidence of incidents affecting public safety yields a conclusion that the revised statutory system has not had an adverse impact on Louisiana.

4. Peace of Mind

An additional benefit that is cited by proponents of CCW systems is that the permits provide peace of mind to citizens. [55] From a utilitarian point of view, "if people feel safer because they carry a gun and in turn lead happier lives because they feel safer and more secure, then the carrying of guns makes a direct and nontrivial contribution to their overall quality of life." [56] Of course, it is likely that gun control advocates would respond by saying that their feelings of safety are decreased by the knowledge that more citizens are arming themselves.

5. Gun Control

Handguns have become the center of a debate focused on gun control and Second Amendment rights. Some proponents of gun control have broadened their objectives to include the banning and confiscation of all handguns, restrictive licensing of other firearms, and eventual elimination of private firearms possession. [57]

Several European countries, including Great Britain, have already [p.340] embarked on such a course. [58] For some Americans, banning handguns is the "psychological equivalent of government-imposed castration." [59] A popular bumper sticker among gun owners states: "When guns are made criminal, only criminals will have guns." [60]

Those opposed to gun control point to a problem that exists with the proposed laws of the gun control groups: "the very persons who have no compunction about perpetrating violent crime will also have no compunction about illegally carrying guns." [61]

C. Concealed Handgun Permits in Louisiana

As a general rule, carrying a concealed weapon in Louisiana is not allowed. [62] The applicable statute is Section 14:95 of the Louisiana Revised Statutes, which governs illegal carrying of weapons. [63] Illegal carrying of weapons includes "[t]he intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one's person . . . ." [64] A violation is a misdemeanor for the first offense, but subsequent convictions can be punished as felonies, with penalties of up to ten years in prison for a third offense. [65] This statute does not cover firearms which are carried but are not concealed. [66] Therefore, one who is not forbidden from carrying weapons, such as a convicted felon, [67] can lawfully carry an unconcealed handgun. Visible holsters and weapons kept in glove compartments of automobiles would not be covered under the statute. [68]

If a Louisiana resident desires to legally carry a concealed handgun, then he or she has two choices. A discretionary system allows parish sheriffs to issue permits, but the permits are only valid inside that parish, and a substantial bond may be required. [69] [p.341]] A new system allows the state to issue permits that are valid for a period of four years, and are effective in all parishes. [70]

1. Recent Reforms

The Louisiana legislature recently adopted a mandatory system to govern statewide permits. [71] Before the reform, persons desiring to carry a concealed handgun could only apply to the sheriff of each parish, and the permit was only effective in the parish in which it was issued. [72] It should be noted that the new permit system only allows for the concealed carrying of handguns. [73] The permits do not allow for the concealed carrying of "sawed-off" shotguns or rifles, which are longer, shoulder-fired weapons that have been altered by shortening the barrel. [74]

According to the revised statute, the "Department of Public Safety and Corrections shall issue a concealed handgun permit to any citizen who qualifies. . . ." [75] Applicants are subject to background and training requirements, which are governed by both statutes and administrative rules. [76] Permit holders are also required to follow a code of conduct; violations can result in suspension or revocation of the permit, [77] as well as a seizure of the handgun if the carrying is negligent. [78]

2. Background and History Requirements

An applicant for a CCW permit in Louisiana must pass a criminal background and history investigation and must be at least twenty-one years old. [79] A prior felony conviction will disqualify an applicant, as will a misdemeanor drug conviction. [80] Felony convictions are the most common reason for denial of applications; nearly twice as many are denied for felonies as are denied for [p.342]] alcoholism, the next most common reason. [81] Chronic and habitual use of alcohol will also result in disqualification. [82] The statutes further provide for disqualification if an applicant displays mental infirmity, [83] displays mental deficiency or committal to a mental institution, [84] uses controlled substances, [85] makes a false statement on the application, [86] or has been convicted of any crime of violence in the last five years. [87] The most recent statistics indicate that approximately 0.4 percent of applications are denied for problems with the background and history requirements. [88] The application lists the reasons for denial of a permit, so the majority of disqualified persons probably never bother to return a completed application. [89]

3. Training and Proficiency Requirements

The statute imposes training and proficiency requirements, but there are several ways to qualify or to waive out of the requirements. [90] Completion of a National Rifle Association handgun safety course is one method of demonstrating proficiency. [91] An applicant may demonstrate proficiency with a handgun by other methods, such as a current parish CCW permit or small arms training in the military. [92] The majority of permittees qualify by either NRA courses or military training. [93]

The loophole allowing parish permit holders to waive out of the proficiency requirements has drawn criticism. [94] Because the [p.343]] parish system is discretionary, there is no guarantee that the parish permittees have any training. [95] The Louisiana State Police is looking to close the loopholes, and to require all applicants to undergo some form of handgun or small arms training. [96]

4. Costs

The fees and costs of obtaining a permit can be quite expensive. The cost of the permit itself ranges from one hundred to one hundred fifty dollars, depending on how long the applicant has resided in Louisiana. [97] Other costs include the tuition and ammunition for a training course, fingerprinting fees, and notary public fees. [98] Presumably, permit holders wish to purchase a handgun, which results in a substantial additional cost. It is not difficult to imagine a person spending over one thousand dollars to be able to legally carry a concealed handgun. [99]

5. Code of Conduct

Once an applicant has received the permit, he or she must abide by a statutory code of conduct. [100] A permittee must carry the permit while armed and must notify any police officer who approaches the permittee in an official manner that he is lawfully carrying a handgun. [101] The permittee is forbidden from carrying a concealed handgun while under the influence of alcohol or controlled substances. [102] Permittees must report any change in circumstances which tends to affect their ability to hold a CCW permit, such as arrests or address changes. [103] At present, there [p.344]] does not seem to be a problem with permittees obeying the code of conduct. [104]

A permit holder may not carry a concealed handgun within certain areas. Some locations are statutorily designated as "firearm-free zones," and criminal penalties apply to violations of those zone restrictions. [105] Such firearm-free zones include areas within one thousand feet of schools and universities. [106]

The law is unclear as to whether a CCW permit holder is allowed to carry a handgun within a firearm-free zone. [107] A logical interpretation of the statutes indicates that if one is lawfully carrying a handgun under any type of CCW permit, then he or she should be able to enter a firearm-free zone. [108]

A violation of the code of conduct can result in a suspension or revocation of the permit. [109] There do not seem to be significant problems requiring revocations; only nine permits have been suspended and five revoked out of the over two thousand issued. [110]

III. Circumstances Justifying Defensive Use of a Concealed Handgun

The State of Louisiana advises permit holders that "[t]he concealed handgun permit . . . authorizes you to carry a handgun concealed on your person. It does not authorize you to use that [p.345] handgun." [111] Even though a person may possess a valid permit, other statutes govern when a permittee is allowed to discharge the weapon. [112] Presumably, if the discharge of the weapon is not justified by self-defense or defense of another, a criminal charge could result, such as homicide. [113]

The applicable statute hinges on whether the use of the handgun against another person results in a homicide. [114] If the incident in question merely results in bodily injury, then section 14:19 of the Louisiana Revised Statutes controls. If homicide occurs, then section 14:20 is applicable. [115] The standard used to determine whether the action is justifiable differs between the two statutes. [116]

A. Nonlethal Injury Inflicted on Attacker

For a nonlethal injury, justification exists if one acts for the purpose of preventing a forcible offense against his person or a forcible offense or trespass against his property. [117] The force used in retaliation must be reasonable and apparently necessary to prevent the offense. [118] Therefore, one is allowed to defend property lawfully in one's possession, but killing the attacker may not be allowed under the heightened standard that applies to a homicide. [119] For example, if Robber X tries to grab A's purse on the street, A would be justified in using pepper spray on him to prevent the theft. Without some additional threat to her life, rather than just to her property, she would not be justified in killing X with her concealed handgun.

B. Lethal Injury Inflicted on Attacker

If the attacker is killed, then the justifiable homicide statutes control. [120] As the discussion below indicates, one's ability to justifiably defend property is circumscribed when a death results, [p.346] but not if the incident occurs in a dwelling, place of business, or motor vehicle. [121]

1. Justifiable Homicide in Louisiana

The statute governing justifiable homicide was recently amended. [122]

The revised statute attempts to address the problem of motor vehicle theft while the owner is present, known as "carjacking." [123] As revised, section 14:20 renders a homicide justified if it is committed during a carjacking. [124]

The old statute provided that a homicide was justified if: committed by a person lawfully inside a dwelling or a place of business against a person who is attempting to make an unlawful entry into the dwelling or place of business, or who has made an unlawful entry . . ., and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises. [125]

Under the Louisiana statutory system in place until the summer of 1997, an individual who was lawfully in a dwelling or business could use lethal force to defend himself if he reasonably believed the use of deadly force was necessary to prevent entry or to compel the intruder to leave. [126] Defense of another was authorized if used against a person whom one reasonably believed to be likely to use any unlawful force against a person present in a dwelling or place of business. [127]

The old statute allowed for expanded self-defense and defense of another rights in certain areas, including a dwelling or place of business. [128] The rights would be more circumscribed if the homicide were committed outside the enumerated areas, such as on [p.347] the street or in a motor vehicle. [129] For example, if a Citizen A was accosted on the street by Robber X, who only wanted to steal A's purse, homicide would not be justified. Yet, if X was attempting to break into the A's house to steal the same purse, A would be justified in the use of deadly force to prevent the entry. Thus, the system effectually allowed for defense of property in the home or business, but not elsewhere.

After the revised statute took effect in the latter half of 1997, individuals gained an increased sphere in which they are protected from prosecution for homicide. Act Number 1378 amended Louisiana Revised Statutes section 14:20(3) and (4), which address justifiable homicide. [130] The new statute provides that a homicide is justifiable: When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle . . ., against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, . . . and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle. [131]

If the homicide is committed outside of the areas that are given extended protection, then the person acting in defense must reasonably believe that he is in "imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger." [132] A homicide is justified to prevent a violent or forcible felony involving danger to life or great bodily harm, but the defender must have a reasonable belief that the offense is about to be committed and that the force is necessary to prevent it. [133] Defense of another is justifiable if it is reasonably apparent that the person attacked could have used the force to defend himself and that the intervention was necessary. [134]

2. "Shoot the Carjacker"

The amendments extended the self-defense rights and protections of the home and business to include motor vehicles. [135] [p.348] Thus, the legislature seems to regard vehicles as analogous to dwellings for the purpose of assigning rights of protection and defense. There is no requirement that the individual be in fear of bodily harm or death. All that is needed is a reasonable belief that the deadly force is necessary to prevent unlawful entry or to compel the intruder to leave. [136] The revised statute eliminates the "imminent danger" requirement that would normally be necessary for use of deadly force that results in a homicide. [137]

The revised justifiable homicide statute was a popular reform measure that was aimed at combating the recent surge in carjacking incidents. [138] While in the legislature, the bill was sponsored by fifty-six representatives and thirteen senators, [139] which probably indicates a bipartisan effort. The new statute received a great deal of attention from the media. The amendment has been called a "license to kill" by its opponents. [140] Opponents of the statute also point to the fact that, even before the amendment, victims acting in self-defense were excused from consequences under the justifiable homicide statute. [141]

One of the purposes of the revised statute is to prevent those victims who have been forced to retaliate with deadly force from having to defend themselves again in a criminal trial. Under the old system, a sheriff might have to arrest the would-be victim, who then must present his justifications to a grand jury. [142]

C. Defense of Property

The result of the new statutory system is to allow defense of property to justify a homicide, but only if the property is inside a dwelling, business, or motor vehicle. If the incident occurs outside of those areas a permittee can use reasonable force to defend his or her property, but not necessarily deadly force. [143] A permittee would not be wise to use his or her concealed handgun to defend [p.349] property outside of the three protected areas because use of a firearm could violate the limit of "reasonable force." [144] Use of a handgun could be deadly force, even if the permittee does not intend to kill the attacker.

The present system could produce results that do not hinge on the value of the property. A man can kill to defend his decrepit car even though it is only worth a few hundred dollars, but a merchant walking to the bank with several thousand dollars cannot use deadly force to defend that money. [145] If the distinction which allows defense of property is not based on value, it becomes difficult to discern upon what it is based. Perhaps the legislature is focusing on the right of an individual to be secure while on private property. One unlawfully intruding upon that private property forfeits the right to be protected against homicide. Conversely, a person in his own home gains the right to kill to prevent unlawful entry.

D. Duty to Retreat

Under both the old and the new statutes, a person using deadly force in self- defense or defense of another has no duty to retreat if he is lawfully present in a dwelling, business, or motor vehicle. [146] Therefore, even though a means of egress exists, there is no duty to attempt to flee from the attacker. If the homicide occurs outside of those areas, then a means of escape could negate the necessity element of section 14:20(1), which would result in the homicide being unjustified. [147]

IV. Civil Liability Resulting from Defensive Use of a Concealed Handgun

Even if one is cleared of criminal charges following a defensive shooting, the matter may not be closed. An injured attacker or the family of an attacker who is killed can bring a civil [p.350] action in tort. [148] It is not unheard of for the attacker or his family to recover damages from the defending victim. [149]

In Louisiana, the general rule is that a plaintiff cannot recover if he is shown to be the aggressor, because he is at fault. [150] Under Article 2315 of the Louisiana Civil Code, "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." [151] Article 2315 stands for the proposition that one who is at fault for damage caused is under an obligation to pay damages for which he is responsible. [152] Therefore, a determination that the plaintiff was at fault as the aggressor results in the defendant not being liable, or in his award being reduced by the amount of his apportioned fault. [153] A determination of plaintiff fault can defeat the civil suit even if the defendant was not legally justified. [154]

The comparative fault system found in Article 2323 modifies the strict application of Article 2315, so that if one acting in self-defense is negligent, then the pure-comparative fault system will apportion losses between the parties. [155] If the attacker is the only party at fault, then comparative fault would not apply. [156]

A defendant using force in self-defense under a reasonable apprehension of danger is not liable in a civil action to one he believes is his assailant, even if he is mistaken. [157] Louisiana courts have held that the privilege of self-defense exists in tort actions. [158] Some factors affecting the outcome include "the relative size, age and strength of the parties, their reputations for violence, who was the aggressor, the degree of physical harm reasonably feared and the presence or absence of weapons." [159]

Thus, a plaintiff who was the aggressor would have brought about the defensive shooting by his own fault, so his fault could bar recovery. Each case depends on its own facts, but it is likely [p.351] that there is little fear of being held civilly liable if one is criminally justified in using force in self-defense.

A potential problem may arise if a burglar or carjacker is killed in defense of property under either the "shoot the burglar" or "shoot the carjacker" laws. At least one Louisiana case has held that a property owner defending against an unarmed trespasser may not resort to the use of deadly force. [160] The same case, though, did go on to recognize that a property owner has the right to defend and protect his property against aggression, and in doing so, he will be protected by the law. [161] The pivotal factor in the case seemed to be the lack of a weapon and of evidence that a serious crime had been committed. [162]

A plaintiff would also have a difficult time proceeding against the State of Louisiana or employees of the permit issuing agency. Aside from the problem regarding plaintiff's fault, the statute purports to exonerate the state and its employees. [163] An exception exists if the deputy secretary of public safety services or the permit employee had "actual knowledge at the time the permit was issued that the permittee was disqualified by law from carrying a concealed handgun." [164] Therefore, a plaintiff would have the difficult burden of proving actual knowledge on the part of the employee or the deputy secretary. A search for cases holding the state or its employees liable revealed nothing as of September 1998.

It would also be difficult for an injured permittee to proceed against the state. The permit application packet contains an "Indemnification and Hold Harmless Affidavit" that must be signed and notarized by the applicant. [165] The way the application is structured, no permit can be issued without the affidavit being signed. [166]

V. Conclusion

The amended permit system provides more uniformity and certainty to citizens, attorneys, and courts. With the exception of a [p.352] few contradictions brought about by the statutory change, the Louisiana legislature has been quite accommodating to those people who wish to obey the law by obtaining a permit. The criminal code seems to understand that life in a society where crime is prevalent often produces difficult choices. The statutes recognize that those choices must be made in a fraction of a second, and that they sometimes have deadly consequences.

Violent crime in Louisiana has forced citizens to make changes in both lifestyle and mental outlook. Statutes have had to evolve to keep pace with the altered situation. The Louisiana statutory system strikes a balance between rights of individuals, public safety interests, and crime deterrence. It also seeks to understand the human right of self-preservation. The statutes have even gone so far as to allow deadly force to be used in defense of property under certain circumstances. Overall, Louisiana provides a well- balanced and unified system for those wishing to carry concealed handguns, and the state is fair to those who have been forced to use those weapons in personal defense.

a1. The quote in the title is part of a statement made by a victim of a carjacking to the author. The carjacking occurred in New Orleans, Louisiana, in October 1996.

b1. B.A. 1996, University of Virginia; J.D. candidate 1999, Tulane Law School. I would like to thank Professor George Strickler of Tulane Law School for his assistance and comments, the members of the Tulane Law Review for their labor and dedication, and my parents for not leaving me to be raised by wolves.

1. See La. Rev. Stat. Ann. §14:95 (West 1997).

2. See Ed Anderson, Packing Heat, New Orleans Times-Picayune, Nov. 17, 1996, at A1, A24.

3. Id. at A24 (quoting Nina Kay Brown, an instructor with Dynamic Training Resources in River Ridge, Louisiana).

4. See Model Rules of Professional Conduct Rule 1.2 cmt. 6 (1997) (stating that "a lawyer may not knowingly assist a client in criminal or fraudulent conduct"). An attorney should advise a client of the criminal charges that could result from carrying a handgun illegally. See id.

5. For an in-depth discussion of this subject, see Part II of this Comment.

6. See La. Rev. Stat. Ann. §14:95 (West 1997).

7. See Department of Pub. Safety & Corrections, Louisiana Concealed Handgun Permit Laws, Administrative Rules and Selected Statutes (1996) [hereinafter Handgun Permit Laws].

8. See Clayton E. Cramer & David B. Kopel, "Shall Issue": The New Wave of Concealed Handgun Permit Laws, 62 Tenn. L. Rev. 679, 681 (1995).

9. See Watson v. Stone, 4 So. 2d 700, 703 (Fla. 1941) (en banc) (Buford, J., concurring specially).

Justice Buford stated that "[t]he statute was never intended to be applied to the white population and in practice has never been so applied." Id.

10. See Cramer & Kopel, supra note 8, at 681.

11. For an up-to-date guide to state firearms laws, see National Rifle Ass'n, NRA State Firearm Law Summaries (visited Sept. 1, 1998) <http:// www.nra.org/NRA-FALAWS.html>.

12. See, e.g., Ind. Code § 35-47-2-3(e) (1995); N.Y. Penal Law § 400.00 (McKinney 1989 & Supp.

1997).

13. See, e.g., Idaho Code § 18-3302 (1997); Va. Code Ann. § 18.2- 308(D) (Michie 1996).

14. See id.

15. See Cramer & Kopel, supra note 8, at 682. A mandatory system does not guarantee no abuse of discretion will occur. For example, in Virginia, permit applicants in the counties surrounding the District of Columbia must often spend thousands of dollars in legal fees to force courts to issue permits according to the statute. See id. at 695.

16. See Raneta Lawson Mack, This Gun for Hire: Concealed Weapons Legislation in the Workplace and Beyond, 30 Creighton L. Rev. 285, 291 (1997).

17. See Cramer & Kopel, supra note 8, at 682. In Vermont, it is illegal to carry a concealed firearm "with the intent or avowed purpose of injuring a fellow man ...." Vt. Stat. Ann. tit. 13, § 4003 (1997).

18. See id. at 685.

19. See Fla. Stat. Ann. § 790.06 (West 1997); see also David McDowall et al., Easing Concealed Firearms Laws: Effects on Homicide in Three States, 86 J. Crim. L. & Criminology 193-94 (1995) (discussing Florida's amended system).

20. See Cramer & Kopel, supra note 8, at 685-86.

21. See Anderson, supra note 2, at A1.

22. See Cramer & Kopel, supra note 8, at 722.

23. See id.

24. See id.

25. Id. Cramer and Kopel provide an excellent analysis of the moral, social, and religious issues surrounding concealed handgun permits.

26. See Thomas Hobbes, Leviathan, in 23 Great Books of the Western World 39, 86 (1952).

27. See id. at 85. Hobbes may be more famous for his description of the State of Nature, in which men are forced to live without other security than what they can provide with their own strength and invention. In such a state, man would live in continual fear and danger of violent death, and the life of man would be "solitary, poor, nasty, brutish, and short." Id.

28. Id. at 86.

29. Id. (emphasis removed). This is analogous to the common statutory system which denies the right of self-defense to an aggressor. See, e.g., La. Rev. Stat. Ann. § 14:21 (West 1997) (stating that an aggressor cannot claim self- defense unless he makes a good faith effort to withdraw).

30. See Joshua Dressler, Cases and Materials on Criminal Law 418 (1994) (quoting 4 Blackstone, Commentaries on the Law of England 186 (1769)).

31. Id.

32. See James Wilkinson, III, Comment, Self-Defense in Louisiana--The Criminal Law and the Tort Law Compared, 16 Tul. L. Rev. 609, 609 (1942).

33. See id. at 610.

34. Herbert Wechsler & Jerome Michael, A Rationale of the Law of Homicide: I, 37 Colum. L. Rev.

701, 736 (1937).

35. See Nancy M. Omichinski, Comment, Applying the Theories of Justifiable Homicide to Conflicts in the Doctrine of Self-Defense, 33 Wayne L. Rev. 1447, 1447-53 (1987).

36. See Cramer & Kopel, supra note 8, at 680.

37. See id.

38. Id.

39. See Anderson, supra note 2, at A1, A24-A25. A University of Chicago study revealed that overall violent crime fell in the states that enacted such laws: homicide fell by 8.5%, aggravated assault by 7%, rape by 5%, and robbery by 3%. See id. at A25.

40. See id.

41. See Cramer & Kopel, supra note 8, at 686.

42. McDowall, supra note 19, at 195 (footnote omitted).

43. See Cramer & Kopel, supra note 8, at 686.

44. See McDowall, supra note 19, at 195-96.

45. See La. Rev. Stat. Ann. § 40:1379.3(D) (West Supp. 1998). A possible loophole exists: under subsection (D)(1)(d), competency can be shown by possession of a valid parish permit. Because the parish system is discretionary, there is no guarantee that a parish permittee's competence has ever been tested.

46. See, e.g., Va. Code Ann. § 18.2-308(D)(G) (Michie 1996) (making proficiency requirements discretionary). In Virginia, the issuing authority is vested in the individual circuit courts, and the circuit court judges have the option of whether they may require proof of competency. See id. § 18.2- 308(D).

With such a decentralized system, there can be little uniformity of handgun competence.

47. See Cramer & Kopel, supra note 8, at 733-34.

48. See Jeff Wilson, Murders Plunge in Several Big Cities: Denver, Detroit Buck the Trend, New Orleans Times-Picayune, Dec. 30, 1997, at A4.

49. See Eric Brady, A Crime Consultant with an Arresting Style, USA Today, Dec. 1, 1997, at 17A.

50. See id.

51. Report from Sergeant Michael D. Noel, Jr., Louisiana State Police, Concealed Handgun Permit Section, to the Louisiana Senate Judiciary Committee 2 (Mar. 25, 1997) [hereinafter Report to Senate].

52. See Letter from Trooper First Class Kenneth Martin, Louisiana State Police, Concealed Handgun Permit Section, in Response to Public Records Request, Jason N. Thelen, 2 (Dec. 17, 1997) (on file with the Tulane Law Review) [hereinafter Public Records Request].

53. See La. Admin. Code tit. 55, § 1313(B)(8) (1997).

54. See Report to Senate, supra note 51, at 2.

55. See Cramer & Kopel, supra note 8, at 721-22.

56. Id. at 722 (footnote omitted).

57. See Don B. Kates et al., Guns and Public Health: Epidemic of Violence or Pandemic of Propaganda, 62 Tenn. L. Rev. 513, 514 (1995).

58. See id.

59. Gavin de Becker, The Gift of Fear: Survival Signals that Protect Us from Violence 309 (1997).

60. Of course, another popular bumper sticker is: "You can have my gun when you pry it from my cold, dead fingers." The wisdom of bumper stickers is doubtful.

61. Cramer & Kopel, supra note 8, at 738.

62. See La. Rev. Stat. Ann. § 14:95 (West 1997 & Supp. 1998).

63. See id.

64. Id. § 14:95(A)(1).

65. See § 14:95(B)-(D).

66. See § 14:95.

67. See § 14:95.1.

68. See id. An open holster does not conceal the weapon, and a glove box does not conceal the weapon "on one's person." See id.

69. See La. Rev. Stat. Ann. § 40:1379.1 (West 1997).

70. See La. Rev. Stat. Ann. § 40:1379.3 (West Supp. 1998).

71. See id. For an analysis of the constitutional ramifications of the new statute, see Nicole Montagnet Smith, Comment, Packing Heat in Louisiana: An Analysis of Louisiana's New Concealed Handgun Legislation and Its Possible Constitutional Ramifications, 43 Loy. L. Rev. 239 (1997).

72. See La. Rev. Stat. Ann. § 40:1379.1(F). The parish permit system has not been abolished, so Louisiana residents are now given a choice between a parish or state permit.

73. See § 40:1379.3(J)(1).

74. See id.; see also La. Admin. Code tit. 55, § 1305 (1997) (defining "pistol").

75. § 40:1379.3(A).

76. See Handgun Permit Laws, supra note 7.

77. See § 40:1379.3(I),(R).

78. See § 40:1382(B).

79. See § 40:1379.3(C).

80. See § 40:1379.3(C)(6)-(7), (10).

81. See Public Records Request, supra note 52, at 1-2. As of December 15, 1997, 25applications had been denied for prior felony convictions, but only 14 for alcoholism. See id.

82. See § 40:1379.3(C)(8).

83. See § 40:1379.3(C)(5).

84. See § 40:1379.3(C)(13).

85. See § 40:1379.3(C)(7),(12).

86. See La. Admin. Code tit. 55, § 1307(B)(13) (1997).

87. See § 40:1379.3(C)(9).

88. See Report to Senate, supra note 51, at 2. As of the date of the report, 2,244 permits had been issued, while nine applications had been denied. See id.

89. See Louisiana Dep't of Pub. Safety & Corrections, Concealed Handgun Permit Application (Form DPSSP 4645), at 2-3 (1997) [hereinafter Handgun Permit Application].

90. See § 40:1379.3(D).

91. See § 40:1379.3(D)(a).

92. See § 40:1379.3(D)(d),(g).

93. See Report to Senate, supra note 51, at 10. For the applications granted as of March 18, 1997, 37.8% had received military small arms training, while 34.8% took NRA Courses. See id.

94. See Vicki Hyman, Gun Applicants Say They're Evening Field, New Orleans Times-Picayune, Nov.

17, 1996, at A24.

95. See id. (quoting Sergeant Michael D. Noel, Jr., of the Louisiana State Police, Concealed Handgun Permit Section).

96. See id.

97. See La. Admin. Code tit. 55, § 1307(B)(15) (1997).

98. See Handgun Permit Application, supra note 89.

99. This could result in a form of discrimination against those persons having the greatest need for a permit. If we assume that crime occurs most frequently in lower-income areas, the residents of those areas would be in the greatest danger. Yet, they would also have the burden of producing the significant costs from a comparatively lower salary. It may not be realistic to expect a minimum wage worker to spend over a month's worth of wages to obtain a CCW permit.

100. See La. Admin. Code tit. 55, § 1313 (1997); see also La. Rev. Stat. Ann. § 40:1379.3(I) (West Supp. 1998) (serving as a statutory basis for the administrative rules that govern the code of conduct).

101. See tit. 55, § 1313(B)(1)-(2).

102. See id. § 1313(B)(3). A Blood-Alcohol Concentration (BAC) of .05 or above is considered "under the influence," and any confirmed presence of a controlled substance is sufficient to temporarily suspend the privilege to carry a concealed handgun. See id.

103. See id. § 1313(B)(4)-(10).

104. See Public Records Request, supra note 52, at 2. As of December 15, 1997, 11permits have been suspended or revoked for violation of section 40:1379(C)(8), which forbids chronic or habitual alcohol use. See id. A conviction for driving while intoxicated can result in a suspension or revocation under that subsection. Two permits have been suspended or revoked for felony arrests or convictions. See id.

105. See § 14:95.2(C)(4)-(5). The statute recognizes that constitutionally protected exceptions exist for firearms kept in private residences or in motor vehicles. See id.

106. See § 14:95.2(a).

107. There is some conflict between the statutes in this area. Section 14:95.2(C)(4) states that the firearm-free zone statute does not apply to permits issued pursuant to section40:1379.1, which governs parish permits. If one reads the wording literally, parish permit holders are exempt from firearm- free zones, but state permit holders are not exempt because state permits are issued under section40:1379.3. When the new permit system was passed, the firearm-free zone statute was not amended to include the new section creating the conflict. Section 1379.3(M) may or may not resolve the problem by stating that permits are not valid in firearm-free zones. Because the original intent of the firearm-free zone statutes exempted CCW permittees, the more logical result is to allow concealed carrying within those zones. Additionally, the apparent intent is to increase criminal penalties for illegal handgun possession, rather than to punish otherwise legal CCW conduct.

108. See §§ 14:95.2(C)(4), 40:1379.3(M).

109. See § 40:1379.3(F).

110. See Public Records Request, supra note 52, at 2. The suspensions or revocations have all been for alcohol or drug abuse, or for felony convictions. See id.

111. Handgun Permit Laws, supra note 7, at 1.

112. See, e.g., § 14:18 to:22.

113. See § 14:29.

114. See §§ 14:18 to:20.

115. See §§ 14:19 to:20.

116. Compare § 14:19 with § 14:20.

117. See § 14:19.

118. See id.

119. See id.

120. See § 14:20.

121. See § 14:20(4).

122. See La. Rev. Stat. Ann. § 14:20(3)-(4) (West 1998).

123. See id. While the act does not specifically use the term "carjacking," the popular press referred to the statute as the "Shoot the Carjacker Law." See Ed Anderson, Carjack Defense Clears Panel, Drivers Could Use Deadly Force, New Orleans Times-Picayune, Apr. 24, 1997, at A5.

124. See § 14:20(4). Subsection (3) deals with defense of another person, while subsection (4) is aimed at simple self-defense. The two subsections contain substantially the same elements, but differ as to the person in danger. When the person in danger is the one committing the homicide, subsection (4) applies. When the person committing the homicide is acting for the protection of another, subsection (3) is applicable.

125. La. Rev. Stat. Ann. § 14:20(4) (West 1997), amended by 1997 La. Acts 1378.

126. See id.

127. See § 14:20(3).

128. See § 14:20(3)-(4).

129. See id.

130. See 1997 La. Acts 1378.

131. La. Rev. Stat. Ann. § 14:20(4) (West Supp. 1998) (emphasis added to indicate amended text).

132. § 14:20(1).

133. See § 14:20(2).

134. See § 14:22.

135. See § 14:20(4).

136. See id.

137. Compare § 14:20(1) with § 14:20(3)-(4) (West. Supp. 1998); see also Stephanie Grace, Carjacker Law Debated As Too Much, Too Little, New Orleans Times-Picayune, Nov. 8, 1997, at A14 (quoting a report from Jefferson Parish District Attorney Paul Connick Jr.'s office).

138. See Ed Anderson, Carjack Defense Clears Panel, Drivers Could Use Deadly Force, New Orleans Times-Picayune, Apr. 24, 1997, at A5.

139. See Baton Rouge Advoc., Aug. 6, 1997, at 531.

140. See Anderson, supra note 138, at A5.

141. See § 14:20 (West 1997).

142. See Stephanie Grace, Lee: Carjack Shooting is Clear-Cut: Jeff Case Getting National Attention, New Orleans Times-Picayune, Nov. 6, 1997, at B2.

143. See § 14:19.

144. See id.

145. The line between defense of property and self-defense may frequently be blurred. For example, a robbery victim might reasonably be in fear for his life, even though the true intent of the robber was only to steal the victim's property.

146. See § 14:20(3)-(4) (West 1997 & Supp. 1998). Subsection (3), dealing with defense of another, provides that "[t]he homicide shall be justifiable even though the person does not retreat from the encounter." Subsection (4), dealing with self-defense, provides that "[t]he homicide shall be justifiable even though the person committing the homicide does not retreat from the encounter." Id.

147. See § 14:20(1).

148. See La. Civ. Code Ann. arts. 2315, 2323 (West 1997).

149. See, e.g., Bethley v. Cochrane, 77 So. 2d 228, 231 (La. Ct. App. 1955) (holding a property owner liable for injuries inflicted when he shot a trespasser).

150. See Wilkinson, supra note 32, at 615-16.

151. Art. 2315.

152. See Wilkinson, supra note 32, at 615.

153. See art. 2323; see, e.g., Wilkinson, supra note 32, at 615-16.

154. See Wilkinson, supra note 32, at 616-17.

155. See Watson v. State Farm Fire & Cas. Ins. Co., 469 So. 2d 967, 971 (La. 1985).

156. See id.

157. See Patterson v. Kuntz, 28 So. 2d 278, 282 (La. Ct. App. 1946).

158. See Roberts v. American Employers Ins. Co., 221 So. 2d 550, 554 (La. 1969).

159. Id.

160. See Bethley v. Cochrane, 77 So. 2d 228, 231 (La. Ct. App. 1955).

161. See id.

162. See id. at 230-31. The trespasser was unarmed and was picking up pecans in the defendant's yard at the time of the shooting. See id. at 231.

163. See La. Rev. Stat. Ann. § 40:1379.3(G) (West Supp. 1998).

164. Id.

165. Handgun Permit Application, supra note 89, § C.

166. See id.