Firearms Divestiture Procedures

Sheriff Craig Webre, Lafourche Parish

2015 Domestic Relations Seminar LOUISIANA JUDICIAL COLLEGE

August 13-14, 2015 • New Orleans, Louisiana

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Firearm DivestitureImplementing a Practical Process

Sheriff Craig WebreLieutenant Valerie MartinezLafourche Parish Sheriff’s Office

Firearm Divestiture

While laws establish the prohibition of firearm possession,

the law does not specify a firearm divestiture process

in Louisiana.

Firearm Divestiture

This presents the opportunity for creativity and innovation

to develop a safe, effective, and practical mechanism in which

to divest.

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Presentation Overview

• Review Firearm DivestitureLegislation

• Implementation of Legislation• Detailed View of L.P.S.O. Process

Firearm Possession Prohibitions

FEDERAL• 18 U.S.C. § 922(g)(8)

– Qualifying Protective Orders• Exception for military and law enforcement

• 18 U.S.C. § 922(g)(9)– Domestic Abuse Convictions

• NO exception for military and law enforcement

Firearm Possession Prohibitions

LOUISIANA• R.S. 46:2136.3 (CIVIL)

– Qualifying Protective Orders

• R.S. 14:95.10 (CRIMINAL)– Domestic Abuse Convictions

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Firearm Possession Prohibitions

• R.S. 46:2136.3 (CIVIL) – Qualifying Protective Order

• Defendant poses credible threat to physical safety

• Involves specific relationship to victim(s)• Defendant allowed to participate in

contradictory hearing• Prohibition is identified in Protective Order • Defendant must be lawfully served

Firearm Possession Prohibitions

• R.S. 46:2136.3 (CIVIL) – Period of Prohibition:

• Duration of the Protective Order

• Enforcement:– Contempt of Court (R.S. 46:2137)

• Up to 6 months in jail and/or $500 fine– Violation of a Protective Order (R.S. 14:79)

R.S. 14:79 Penalties

• Fines and/or Jail• Enhanceable up to a Felony• Battery is a factor

– 3rd violation involving battery within 5 years:• 1 year min. / 5 years max.

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Firearm Possession Prohibitions

• R.S. 14:95.10 (CRIMINAL)– Required Elements:

• R.S. 14:35.3 conviction• Defendant represented by counsel or knowingly

waived right • Jury trial or defendant knowingly waived right

– Period of Prohibition:• 10 years upon completion of sentence, probation,

parole, or suspension of sentence.

Firearm Possession Prohibitions

• R.S. 14:95.10* (CRIMINAL)– Penalty:

• Incarceration: min. 1 year / max. 5 years • Fine: min. $500 / max. $1,000

*NOTE: Also prohibits concealed weapons.

Implementation of Laws

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Groundwork for Divestiture

1. Identify all defendants subject to laws2. Inform those defendants of the laws3. Offer assistance with divestiture4. Enforce the laws5. Monitor prohibited possessors

Collaboration

• Courts / Judges• District Attorney’s Office• Clerk of Court• Law Enforcement Agencies

Courts / Judges

• For R.S. 14:95.10, ensure defendant is:– represented by counsel or waives right– tried by a jury or waives right (if applicable)

• Ensure protective orders meets statutory requirements

• Suggestions:– Inform defendants about prohibition laws– Enforce compliance with prohibition laws– Identify source(s) of divestiture assistance

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District Attorney’s Office

• Prosecute domestic abuse charges • Ensure convictions are for R.S. 14:35.3 -

Domestic Abuse Battery• Give notice to law enforcement of R.S.

14:35.3 convictions – Utilize a Domestic Violence Prosecutor

• Assist Judges to ensure compliance with R.S. 14:95.10 (right to counsel & jury trial)

Clerk of Court

• Per R.S. 46:2135, must expeditiously send to Law Enforcement (by end of next business day)

– Any Protective Order issued / modified / extended / dismissed

– Any Stay-away Order issued as a bond restriction

• Provide 24-hour access to conviction minutes

Law Enforcement Agencies

Overview

• Facilitate divestiture• Identify and “flag” prohibited

possessors• Monitor / Investigate• Enforcement

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L.P.S.O. Process

L.P.S.O. Process

• STEP 1: Create new case for each defendant– Qualifying protective orders

• via Clerk of Court– Domestic Abuse convictions

• via District Attorney– Scan documentation into electronic case

file

Law Enforcement Data System

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Case Overview

Document Scans

Conviction Minutes Protective Order

L.P.S.O. Process

STEP 1: Create a new case for each defendant• STEP 2: Serve notice of laws to each

defendant– Notification/Acknowledgement Form– Assist with firearms divestiture

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Firearms Acknowledgement Form

1. Informs defendant of state and federal laws

2. Asks defendant whether he/she possesses firearms

3. Lists consequences for non-compliance and for failure to return form

Do You Possess Firearms? YES

• Offer to assist with third-party transfer– Ensure third party can lawfully possess – Outline duties/responsibilities of third party

• Indicate consequences for allowing defendant to take possession

*PRIMARY BENEFIT:*Ensuring physical separation of the defendant

from the firearm.

Do You Possess Firearms? YES

• Law Enforcement Safekeeping/Holding – Protect integrity of the weapon

• Storage charge or damage waiver– Facilitate legal sale/transfer to third party– Accept irrevocable donation– Handle abandonment of weapon

• R.S. 15:41 (property seized in criminal proceeding)

• R.S. 33:2333 (stolen, seized, or relinquished property)

• Repurpose/Sell

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Do You Possess Firearms? YES

• Facilitate a legal sale/transfer to third party

• Accept irrevocable donation

Do You Possess Firearms? NO

• If defendant DOES NOT possess firearms:– Case is closed but monitored

L.P.S.O. Process

STEP 1: Create a new case for each defendant STEP 2: Serve notice of laws to each defendant• STEP 3: Track/Monitor prohibited

possessors– Simplify the process for officers in the field– Remove the “guess-work”

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Tracking Prohibited Possessors

• Color-coded alerts:– RED: Domestic Violence Convictions

– GREEN: Qualifying Protective Orders

– BLUE: Federally Prohibited Possessors

Tracking Prohibited Possessors

Tracking Prohibited Possessors

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Tracking Prohibited Possessors

Tracking Prohibited Possessors

Tracking Prohibited Possessors

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Monitoring Prohibited Possessors

Current numbers of defendants with alerts:

• STATE (D.V. Convictions): 300

• STATE (Protective Orders): 138

• FEDERAL: 454

Legal Enhancements

• Require firearm possession declaration– Declare in open court

• Self-incrimination• Establish effective date/time of prohibition

– Declare to law enforcement• Require proof of firearm divestiture

Legal Enhancements

• R.S. 14:95.10 – Interruption of 10-year prescriptive period

• Mandate legal repository• Release of weapons

– Judicial authorization

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Our Goals

• Move for statewide consistency • Offer training in “best practices” to law

enforcement agencies