Did a Louisiana first-offender pardon alone restore firearm possession or concealed-carry eligibility?

Plain-English summary

Representative Nancy Landry asked about firearm possession after a nonviolent felony and first-offender pardon, concealed-carry eligibility, and a 2014 background-check amendment. In December 2015, the Attorney General said a first-offender pardon alone did not remove the firearm disability imposed on the felonies listed in La. R.S. 14:95.1. For that statute’s ten-year exception, time ran from completion of sentence, probation, parole, or suspension of sentence without a new felony, rather than the date of conviction or offense.

The opinion also discussed federal law. Relying on a Fifth Circuit decision, it said a person who could no longer be prosecuted under the Louisiana ten-year provision for a prior Louisiana conviction could not be prosecuted under the cited federal felon-possession provision for possession in Louisiana on that conviction. It stressed that a person still ineligible to possess a firearm could not qualify for a concealed-carry permit merely because of a first-offender pardon. Act 221 added a background-check inquiry but did not change the permit review standard, in the AG’s view.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the ten years run from the felony conviction date?

No. The AG read La. R.S. 14:95.1(C) as starting the period on completion of the sentence, probation, parole, or suspension, with no new felony conviction during the period.

Did an automatic first-offender pardon itself allow possession?

No. The opinion said that pardon did not displace the listed-felony restriction under La. R.S. 14:95.1.

Did the opinion treat federal firearm law as identical to Louisiana’s?

No. It described a broader federal conviction definition and then discussed the federal civil-rights-restoration provision, as interpreted by the Fifth Circuit for a prior Louisiana conviction and possession in Louisiana.

Was a separate court order needed to impose the felony restriction?

The AG said no. It described the statutory restriction as arising by operation of law from a listed conviction.

Did Act 221 change who qualified for a statewide concealed-handgun permit?

The AG said the act added an inquiry to the National Instant Criminal Background Check System, but did not change the standard used to evaluate qualification or review a denial.

Background and statutory framework

The opinion analyzed La. R.S. 14:95.1 alongside 18 U.S.C. §§ 921 and 922, then considered the permit qualifications in La. R.S. 40:1379.3. It distinguished Louisiana’s automatic first-offender pardon from the expiration of the state statute’s ten-year bar and discussed a federal court ruling on restored civil rights. Its answers concerned the law as stated in 2015 and the specific conviction and permit questions posed.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/15-0154

Original opinion text

~tate of 1fiouisiana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE

JAMES D. "BUDDY" C.... LDWELL
70604-9005
ATIORNEYGENERAL

December 17, 2015
OPINION 15-0154

16 CRIMINAL LAW - Crimes & Offenses 47-A FIREARMS & FIREWORKS

La. R.S. 14:95.1; La. Consl. art. IV, § 5; La. R.S. 15:572;
18 U.S.C. § 922
The Honorable Nancy Landry
Louisiana Revised Statute 14:95.1 prohibits certain listed Louisiana House of Representatives, felons from possessing firearms until ten years have
District 31
passed since the date of completion of their sentence,
probation, parole, or suspension of sentence without the
P.O. Box 53529
conviction of any new felony. This prohibition is unaffected
Lafayette, Louisiana 70505
by the receipt of a first offender pardon under La. Canst.
art. IV. § 5(E)(1) and La. R.S. 15:572(D). Once a felon cannot be prosecuted by virtue of La. R.S. 14:95.1(C), his civil rights have been restored as they pertain to a prior Louisiana conviction such that the felon cannot be proseculed under 18 U.S.C. § 922(g).

Dear Representative Landry:

This office is in receipt of your request for an opinion of the Attorney General regarding issues related to gun possession. Specifically, you questions are:

(1) Can a person who was convicted of a non-violent felony offense more than ten years ago and who has received a first offender pardon possess or purchase a firearm under Louisiana or federal law?

(2) Are felons who receive a first offender pardon excluded from eligibility for qualification to obtain a concealed handgun permit if they are not restricted by court order from owning a firearm?

(3) Did.Act No. 221 of the 2014 Regular Session change the standard of review regarding background checks with respect to the purchase of firearms?

Regarding the first question, certain felons are prohibited from possessing firearms in Louisiana under Louisiana Law by virtue of a prior conviction of a felony. Those felonies are listed in La. RS. 14:95.1(A). Although those felonies include all crimes of violence (as defined in La. RS. 14:2(B)), the prohibition extends to some non-violent felonies, such as a simple burglary.

Your first question asks about a person convicted of a non-violent felony more than ten years ago who has since received a first offender pardon. Under La.
RS. 14:95.1(C), Louisiana's prohibition upon possession of firearms by felons

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OPINION 15-0154
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does "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." Neither the date of the underlying offense nor the date on which the defendant is sentenced is relevant to the running of the ten-year period.

The receipt of an automatic first offender pardon by the State of Louisiana is also irrelevant to this inquiry. See State v. Eberhardt, 2013-2306 (La. 07101/14), 145 SO.3d 377, 387, n. 7 (discussing, inter alia, State v. Wiggins, 432 SO.2d 234, 236-37 (La. 1983); State v. Riser, 30,201 (La. App. 2nd Cir. 12/12/97),704 SO.2d 946, 949-50; La. Const. art. IV, § 5(E)(1); La. R.S. 15:572(0)); see also United States v. Washington, 544 F. App'x 365, 366-68 (5th Cir. 2013); La. Atty. Gen. Op. No. 03-0176; La. Atty. Gen. Op. No. 92-654. These cases and opinions show that a first offender pardon does not allow a person to possess a firearm if they are subject to the prohibitions contained within La. R.S. 14:95.1.

Federal law contains a broader prohibition upon felons from possessing firearms in Louisiana. The statute, 18 U.S.C. § 922(g)(1), states:

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 ship or transport in interstate or foreign commerce, or 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.'

This statute applies to any crime where the possible imprisonment exceeds one year, but does not include "Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices... " 18 U.S.C. § 921(a)(20)(A). Notwithstanding this narrow exception, the federal prohibition is quite broad: "both an armed robber and tax evader lose their right to bear arms on conviction under § 922(g)(1)." United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010).2

t Note that the definition of a felony under 18 U.S.C. §922(g)(1) differs slightly from Louisiana state law, which defines a felony as "any crime for which an offender may be sentenced to death or imprisonment at hard labor." La. R.S. 14:2(A)(4); see also 18 U.S.C. § 921 (a)(20)(8) (noting that if a state classifies a crime as a misdemeanor and is punishable by a term of imprisonment of two years or less, 18 U.S.C. §922(g)(1) would not prohibit that person from possessing a firearm). 2 Note that felons are not the only persons disqualified from fireann possession in Louisiana. For example, La. R.S. 14:95.10 and 28 U.S.C. § 922(g)(9) contain prohibitions upon firearm possession for persons who have committed certain misdemeanors related to domestic violence.

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This federal prohibition has an important limitation. A portion of 18 U.S.C. § 921 (a)(20) exempts certain felons from its firearm prohibition:

Any... [person who] has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms,"

In United States v. Dupaquier, the Fifth Circuit Court of Appeals considered whether a felon who possesses a firearm in Louisiana, but can no longer be prosecuted by operation of La. R.S. 14:95.1(C), has had his civil rights restored such that he cannot be prosecuted under 18 U.S.C. § 922(g)(1). 74 F.3d 615, 617-19 (5th Cir. 1996). The Court found that, if a felon in possession of a firearm can no longer be prosecuted under state law because of La. RS. 14:95.1(C), then he cannot be prosecuted under federal law for possessing a firearm in Louisiana because his civil rights have been restored under 18 U.S.C. § 921(a)(20).ld.

Finally, with respect to your first question, possession and purchase go hand-in­ hand. Federal law prohibits a federally licensed firearms dealer "from selling a gun to anyone it knows, or has reasonable cause to believe," that the buyer would be prohibited from purchasing the firearm by 18 U.S.C. § 922(g), which includes "felons, drug addicts, and the mentally ill, to list a few." Abramski v. United States, 134 S.C!. 2259, 2263 (2014) (discussing, inter alia, 18 U.S.C. § 922(d)). Louisiana state law more broadly prohibits persons from illegally supplying felons with firearms and ammunition. See, generally, La. R.S. 14:95.1.1; La. RS. 14:95.1.2; La. R.S. 14:95.1.3.

Your second question is related to the first. Louisiana law allows persons to obtain permits to carry a concealed firearm statewide if they qualify under La. R.S. 40:1379.3. The receipt of a first offender pardon does not change the requirements of the statute, such as La. R.S. 40:1379.3(C)(6), which prohibits persons from qualifying for a permit if they are ineligible to possess a firearm by virtue of having been convicted of a felony. See, e.g., La. RS. 14:95.1 and 18 U.S.C. § 922(g)(1). If a person is not allowed to possess a firearm by virtue of a felony, that person cannot qualify to carry a concealed firearm.

3 Again, the language here concerning pardons would not apply to Louisiana's first offender pardon. Riser, 704 So.2d at 950 ("What is now clear, however, is that the Wiggins decision holds that La. R.S. 14:95.1 is applicable to individuals, like this defendant, who have received the automatic, first offender pardon pursuant to [La. Canst.] Art. 4, § 5(E)(1)."); see also Washing/on, 544 F. App'x at 366-67.

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Louisiana also allows the sheriff of any parish to issue a permit for persons to carry a concealed firearm within that parish, as well as within any contiguous parish with which the sheriffs have a reciprocity agreement. See, generally, La. RS. 40:1379.1.1(A) and (B). A first offender pardon does not change the requirements for the issuance of such a permit. La. R.S. 40:1379,1.1 (A); see also La. R.S. 40:1379.1.1 (C)(2).

Your second question implies that restrictions upon a felon's ability to carry a firearm emanate from a particular court order. However, the restrictions upon felons from possessing firearms contained in La, RS. 14:95.1 exist by operation of law, predicated upon the fact of a conviction of a felony listed in the statute."

Finally, Act 221 of the 2014 Regular Session of the Louisiana Legislature added the following language to La. RS. 40:1379.3(K) and (T) with respect to background checks:

K. The department shall execute a thorough background investigation, including a criminal history check, of every applicant for the purpose of verifying the qualifications of the applicant pursuant to the requirements of this Section. For purposes of this Subsection, a background check shall be defined as a computer check of available on-line state records, and, if warranted, the fingerprints may be forwarded to the Federal Bureau of Investigation for a national criminal history record check, In addition, the department shall submit an inquiry on every applicant to the National Instant Criminal Background Check System of the Federal Bureau of Investigation.
• • •
T. (1) Possession of a current and valid concealed handgun permit issued pursuant to this Section shall constitute sufficient evidence of the background check required pursuant to 18 U,S.C, 922(t) provided that the appropriate waiver has been granted by the Bureau of Alcohol, Tobacco, Firearms and Explosives ...

La. Legis. 2014 Reg. Sess. Act 221, § 1 (H.B. 1066) (italics indicate additions),

You asked whether this language changes the standard of review. It does not. The language requires the Department of Public Safety and Corrections to take additional steps prior to the issuance of a permit to carry a concealed firearm (i.e. submitting an inquiry to the National Instant Criminal Background Check

4A court order, however, can restrict persons from possessing firearms who are ineligible to possess them by virtue of a mental illness, See La. R.S. 28:57(A).

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System). The review process will now include additional information to help the department determine whether the applicant is qualified for a statewide permit to carry a concealed firearm. However, the department is still responsible for evaluating whether the applicant is qualified to receive a permit. See La. R.S. 40:1379.3(A)(1) and (H)(2). The review process for a person who is denied a permit was not changed by Act 221. See La. R.S. 40:1379.3(P).

We trust that this adequately answer the questions that you have posed. Should you have any further questions, or concerns, please do not hesitate to contact this office.

Very truly yours,

JAMES D. "BUDDY" CALDWELL
ATIORNEY GENERAL

BYU' VC
COLIN CLARK
­
ASSISTANT ATIORNEY GENERAL