Louisiana law makes the unlawful possession or use of firearms a felony offense. Illegal weapons may include:
- Firearms with the serial number removed
- Ghost guns
- Unregistered firearms
- Illegally modified firearms
- Stolen weapons
- Certain types of swords or knives
In some instances, the crime results from modifications made to the firearm itself. For example, possessing a firearm that has been illegally modified by filing off the serial number or sawing off the barrel of a shotgun may make the gun illegal to possess, carry, or use. Modifying the firearm with a Glock switch or auto sear that can make a handgun a fully automatic weapon capable of firing multiple rounds with a single trigger pull may result in criminal charges. Sometimes, even possessing uninstalled parts may violate the law.
In other instances, the crime results from the status of the person who possesses, carries, or uses the firearm as a convicted felon. In others, a felony charge may result from possessing, carrying, or using a firearm while committing a crime of violence or possessing, using, or distributing a controlled dangerous substance. Other crimes in which a firearm is used or brandished, such as assault, robbery, or theft crimes, can lead to more serious charges with increased penalties. Finally, the manner in which a firearm is carried may result in a felony charge. In Louisiana, it is unlawful to carry a concealed firearm without a concealed carry permit.
Possessing, carrying, or using firearms and other dangerous weapons such as knives, swords, spears, num-chucks, or brass knuckles may increase the severity of a charged offense and might land you in jail for years. You may also be required to pay fines or make restitution, which could harm your finances both now and in the future. In Louisiana, allegations of unlawful carrying or use of a firearm is a serious felony offense with significant penalties.
David E. Stanley, APLC, represents clients accused of unlawfully possessing, carrying, or using firearms in Baton Rouge and throughout Louisiana. If you have been charged with one of these firearms offenses, contact David E. Stanley, APLC, to discuss your options and let him formulate a strong defense strategy for you.
What Constitutes Possession of a Firearm or Weapon
In Louisiana criminal law, there are two types of possession: actual possession and constructive possession. The State can prove possession of a firearm or other dangerous weapon by either actual or constructive possession.
Actual possession is easy to understand because it is what most people think of when being accused of possessing firearms or drugs. Actual possession involves having the firearm or weapon in one’s possession or on one’s person in such a manner as to have direct physical contact with and control of the firearm or weapon. For example, holding a firearm in your hand or having it tucked into your waistband is actual possession.
Many people charged with possession of a firearm or dangerous weapon believe, and will often state when talking about the facts of their case, that I did not possess the firearm because they did not find it on me when they searched me. However, that is not the end of the issue of possession. This is because the state is not required to prove, or limited to proving, actual possession. Evidence of constructive possession is also sufficient.
Constructive possession is established when the state shows that the firearm was subject to the defendant’s dominion and control. A defendant’s dominion and control over a firearm or weapon constitutes constructive possession, even if it is only temporary in nature and even if control is shared with other individuals. So, suppose the police arrive with a search warrant to search a motel room, and the defendant is the only person present in the room during their search of the room. In that case, he may be found to be in constructive possession of any firearm recovered during the search because he had dominion and control of the firearm as the only person in the room when the police arrived and during their investigation.
However, the mere presence of a defendant in the area of the firearm or weapon seized does not, standing alone, prove that he exercised dominion and control over it and, thus, had it in his constructive possession. The State must prove that the defendant was aware that a firearm was in his presence and that he had the general intent to possess the firearm. Guilty knowledge may be inferred from the specific circumstances. Whether the evidence is sufficient to establish possession, either actual or constructive, will depend on the specific facts of each case.
So, in the previous example of the search of the motel room, if the defendant could prove that another person owned the firearm, and that person rented the room before he did, and the firearm in the room by mistake when he checked out of the motel, and, further, that the defendant was not aware it was left in the room, then the state may be unable to prove that he had the required general intent to possess the firearm. The general intent is present when the circumstances indicate that the defendant, in the ordinary course of human experience, must have called his attention to the fact the illegal criminal consequences were reasonably certain to result from his act or failure to act. The defendant’s awareness is a factor that overlaps both of the elements of possession and intent. Awareness is used to prove possession because awareness must exist for the defendant to have the required intent.
Illegal Use of Weapons
Illegal use of weapons occurs when there is an intentional or criminally negligent discharging of any firearm or the throwing, placing, or other use of any article, liquid, or substance where it is foreseeable that it may result in death or great bodily harm to a human being. Examples of illegal use of weapons may include celebrating by randomly firing a weapon into the air because it is foreseeable that it may result in the death of another person or cause great bodily harm to that person. Likewise, shooting a firearm into a crowded area or intentionally discharging a firearm during a burglary or a robbery would also constitute illegal use of a weapon.
One way to make sure you have the defense you need throughout the legal process is to work with a knowledgeable attorney who focuses on unlawful use of firearms defense. Your chances of a just outcome may significantly increase with his help.
Penalties for Using a Weapon Illegally
A person who commits the crime of illegal use of weapons or dangerous instrumentalities will be fined not more than one thousand dollars, or imprisoned with or without hard labor for not more than two years, or both. A second, or subsequent conviction, will result in imprisonment at hard labor for not less than twenty years. nor more than thirty years, without the benefit of probation, parole, or suspension of sentence. This enhanced penalty for a second and subsequent conviction is not applicable in cases where more than five years have elapsed between the expiration of the maximum sentence of the previous conviction and the date of the commission of the last offense for which the defendant was convicted. In that situation, the sentence imposed will be the same as for a first conviction.
A person who commits the crime of illegal use of weapons by discharging a firearm from a motor vehicle located upon a public street or highway, with the intent to injure, harm, or frighten another person, will be imprisoned at hard labor for not less than five nor more than ten years without benefit of probation or suspension of sentence.
Any person who commits the crime of illegal use of weapons by discharging a firearm while committing, attempting to commit, conspiring to commit, or soliciting, coercing, or intimidating another person to commit a crime of violence, or a violation of the Uniform Controlled Dangerous Substances Law, will be imprisoned at hard labor for not less than ten years nor more than twenty years, without benefit of parole, probation, or suspension of sentence.
If the firearm is a machine gun, or is equipped with a firearm silencer or muffler, upon conviction, the offender will be sentenced to imprisonment for not less than twenty years nor more than thirty years, without benefit of parole, probation, or suspension of sentence. A second or subsequent conviction will result in the offender being sentenced to imprisonment for not less than twenty years. If the violation, upon a second or subsequent conviction, involves the use of a machine gun or a firearm equipped with a firearm silencer or muffler, the offender will be sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence.
Illegal Carrying of Weapons
According to Louisiana law, illegal carrying of weapons includes the intentional concealment of any firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon on one’s person, except that it does not apply to a person with a valid concealed handgun permit. It also does not prohibit a person with a valid concealed handgun permit from carrying a concealed firearm or other instrumentality customarily used or intended for probable use as a dangerous weapon on his person unless otherwise prohibited by law.
Illegal carrying of weapons also includes the ownership, possession, custody, or use of any firearm or other instrumentality customarily used as a dangerous weapon by an enemy alien. It also includes the ownership, possession, custody, or use of any tools, dynamite, nitroglycerine, explosives, or other instrumentality customarily used by thieves or burglars at any time by any person with the intent to commit a crime.
The intentional possession or use of a dangerous weapon by any person on a school campus during regular school hours or on a school bus also constitutes illegal carrying of weapons. In this case, “school” means any elementary, secondary, high school, or vo-tech school in this state, and “campus” means all facilities and property within the boundary of the school property. “School bus” means any motor bus being used to transport children to and from school or in connection with school activities. However, these provisions do not apply to a peace officer in the performance of his official duties, a school official or employee acting during the normal course of his employment, a student acting under the direction of a school official or employee, or any person having the written permission of the principal or school board and engaged in competition or in marksmanship or safety instruction.
The prosecution must prove beyond a reasonable doubt that the defendant carried the firearm with full awareness and with the intention to do so. Often, a charge of unlawful carrying of weapons results from concealing a firearm improperly without a concealed weapon permit. In cases involving possession of controlled, dangerous substances or the commission of a crime of violence, the prosecutor must also prove beyond a reasonable doubt the alleged drug possession or that the defendant was carrying the firearm while committing or attempting to commit the charged crime of violence.
Penalties for Illegal Carrying of Weapons
Upon conviction of the crime of illegal carrying of weapons, the offender will be fined not more than five hundred dollars, or imprisoned for not more than six months, or both. However, a person who commits the crime of illegal carrying of weapons with any firearm used in the commission of a crime of violence will be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not less than one year nor more than two years, or both. Any sentence for illegal carrying of weapons, and any sentence for the crime of violence, must be served consecutively. This means that the sentence for one crime must be completed before the sentence begins for the second offense. In other words, the time served for each offense is not served at the same time but, rather, one after the other. A second conviction will result in the offender being imprisoned with or without hard labor for not more than five years. On a third, and subsequent conviction, the penalty will be imprisonment with or without hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
Any person who uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while (1) committing or attempting to commit a crime of violence; or (2) while unlawfully possessing a controlled dangerous substance, except the possession of fourteen grams or less of marijuana, during the unlawful sale or distribution of a controlled dangerous substance, will be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the benefit of probation, parole, or suspension of sentence. A second or subsequent conviction, will result in imprisonment at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence. But, the enhanced penalty for a second, third, and subsequent conviction is not applicable in cases where more than five years have elapsed since the expiration of the maximum sentences of the previous convictions, and the time of the commission of the last offense for which the offender has been convicted. Under those circumstances, the sentence to be imposed will be the same as may be imposed upon a first conviction.
Because it is difficult to clear your name after a serious criminal accusation like illegal carrying of weapons that may inflict harm and devastation, you should seek the assistance of a tenacious and highly skilled lawyer who can help you clear your name. David E. Stanley, APLC handles these claims, knows what to look for, and how to effectively and efficiently combat charges involving firearms.
Some Defenses Available to the Accused
Here are some of the factual and legal defenses that may arise if a defendant is found to be in possession of a weapon:
- The defendant possessed a license to carry a concealed firearm, so the concealed carry was lawful
- The weapon was lawful to own, possess, and carry, it was not hidden or concealed, and the defendant was lawfully open carrying the weapon when stopped by police
- The firearm was lawful to own, possess and carry, it had not been illegally modified or altered in any way, and was being carried in a lawful manner
- The accused did not have dominion and control over the firearm and, therefore, was not in actual or constructive possession of the firearm
- The criminal statute at issue is either unconstitutional on its face or unconstitutional in the manner or method in which it is being applied to the defendant
- The defendant was in possession of less than 14 grams of marijuana when found with the firearm
- The defendant was unaware of the existence and location of the firearm prior to its seizure and he lacked the general intent to possess the firearm
- The defendant was suffering from insanity at the time of the offense.
Manufacture and Possession of a Bomb
It is unlawful for any person, without a proper license, to knowingly and intentionally manufacture, possess, or have under his control any bomb. A bomb is defined as an explosive compound or mixture with a detonator or initiator, or both. It also includes any of the materials present in an unassembled state but which could, when assembled, be ignited in the same manner as is described in Subsection C of the statute, when possessed with intent to manufacture or assemble a bomb. The term “explosive” means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (except electric circuit breakers), detonators, and other detonating agents, smokeless powders, and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.
It does not include small arms ammunition. It also does not apply to fireworks lawfully possessed within the meaning and contemplation of La. R.S. 51:650 et seq.
Upon conviction, a person who knowingly and intentionally manufactures, possesses, or has under his control any bomb will be fined not more than ten thousand dollars or be imprisoned at hard labor for not more than twenty years, or both.
Manufacture and Possession Delayed Action Incendiary Devices
According to Louisiana law, it is unlawful for any person, without proper license as required by R.S. 40:1472.1 et seq., to knowingly and intentionally possess, or have under his control, any instrument, device, chemical, or explosive substance which is arranged, manufactured, mixed, or so made up as to be a device or substance which, when exposed to heat, humidity, air, or foreign elements, will after the extension of the duration of time, burst into flame, ignite, cause to be ignited, or explode. This does not apply to fireworks possessed within the meaning and contemplation of La. R.S. 51:650 et seq. Anyone who violates this section will be fined not more than ten thousand dollars or be imprisoned at hard labor for not more than twenty years, or both.
Frequently Asked Questions:
What Constitutes Illegal Use of a Weapon?
Illegal use of a weapon occurs when there is an intentional or criminally negligent discharging of any firearm, or the throwing, placing, or other use of any article, liquid, or substance, where it is foreseeable that it may result in death or great bodily harm to a human being.
What is the Legal Definition of Explosive?
The legal definition of explosive, according to Louisiana legislation, means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (except electric circuit breakers), detonators, and other detonating agents, smokeless powders, and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.
What Constitutes Possession of a Firearm?
There are two types of possession: actual possession and constructive possession. To prove possession, the state is not required to prove, or limited to proving, actual possession. Evidence of constructive possession is also sufficient.
Actual possession involves having the firearm or weapon in one’s possession, or on one’s person, in such a manner as to have direct physical contact with, and control of, the firearm or weapon.
Constructive possession is established when the state shows that the firearm was subject to the defendant’s dominion and control. A defendant’s dominion and control over a firearm or weapon constitutes constructive possession even if it is only temporary in nature and even if control is shared with other individuals.
Speak with a Baton Rouge Firearms and Weapons Defense Attorney
Finding a reliable Baton Rouge firearms and weapons defense attorney is essential because Louisiana laws prohibit and severely punish the illegal carrying and illegal use of firearms and weapons. David E. Stanley, APLC is experienced, knowledgeable, and well acquainted with state of the art defense tactics when fighting charges of illegal carrying or use of firearms and weapons. He will aggressively defend your rights, oppose the prosecution, and formulate a compelling defense strategy. He knows that a conviction for the unlawful use of a firearm would have highly significant repercussions that may adversely affect you or cause permanent damage to the quality of your life. You risk being sentenced to jail, receiving hefty penalties, and losing your constitutional right to own and possess firearms. Therefore, he will use every effort to preserve your freedom and your gun rights. Contact him now if you’ve been charged with illegal carrying or illegal use of a firearm or any other illegal weapons offense in Louisiana.
Looking for A firearms and weapons defense attorney? David E. Stanley, APLC is a seasoned and trusted criminal defense attorney who can help and guide you through your legal battle. We serve the following areas:
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David E. Stanley, APLC
1055 Laurel St #2, Baton Rouge, LA 70802, United States
225-926-0200