NEW ORLEANS - One of the most senseless and tragic acts of violence ever to strike Carnival in New Orleans hit the city 2004, when gunfire erupted on the Muses parade route.
Two rival groups of teenagers crossed paths along St. Charles Avenue and shots rang out, killing Latasha Bell, the 20-year-old mother of a newborn son, and wounding three others.
The outcry that followed sparked a new law, RS 14:95.2.1, designed to prohibit guns at parades and enhance the penalties when those guns are used.
But according to Orleans Parish District Attorney Leon Cannizzaro and others, there have been no convictions under the statute.
In fact, no cases under the eight-year-old law have ever been accepted for prosecution.
Cannizzaro said the law has never hit the courts because it is fatally flawed, doomed by poorly conceived legal language that renders the law useless.
The flaw, Cannizzaro said, stems from the Constitutional prohibition on double jeopardy, trying a person twice for the same crime based on the same set of facts.
With the parade gun law, the double jeopardy risk stems from the fact that the statute requires the gun to be used “in the commission of a crime of violence.”
Law professor Dane Ciolino said the wording puts prosecutors in the position of choosing whether to prosecute the gun law or the underlying violent crime, because trying them both would result in double jeopardy.
“It sets a potential trap for the unwary prosecutor,” Ciolino said. “And that trap is, no doubt, one of the reasons prosecutors have been gun-shy about bringing prosecutions under this statute.”
Because the applicable violent crimes all carry a steeper penalty than the five-year maximum under the parade gun law, prosecutors like Cannizzaro have invariably decided to prosecute the crime with more teeth. Those crimes of violence include murder, attempted murder, manslaughter, armed robbery and aggravated battery.
“I can’t try you twice for the same crime. And that’s essentially what this law asks me to do,” Cannizzaro said. “You really aren’t going to be able to try the person for the crime of violence and the concealed weapon on a parade route at the same time. You just can’t do it because I think the laws of double jeopardy and the Constitution prevent that.”
Looking at the history of the bill, authored by then-State Sen. Diana Bajoie and adopted overwhelmingly, it appears that the original language matched the intent of keeping guns away from parade routes.
But, according to the legislative history, the crime of violence language was added as an amendment.
New Orleans Police Chief Ronal Serpas said nobody ever notified his office of the double jeopardy problem.
“We understand that this is a law that available for us to use,” Serpas said. “And then, as it becomes part of a prosecutor’s decision, we respect that decision. We’re not attorneys over here.” And the NOPD has used the law frequently, making dozens of arrests since the statute was adopted. But for all those arrests, including 11 during the 2013 Carnival season, there isn’t a single prosecution to show for it.
“The Louisiana criminal code is littered with little used and sometimes useless crimes that are duplicative of other crimes,” Ciolino said. “Perhaps this is one of the crimes that will end up in the dustbin of unused statutory provisions.”
But Serpas said the law is still useful from a policing perspective, enabling officers to remove guns – and would-be shooters – from parade routes.
“The way we look at that is, we took guns off the street. That we removed a potential risk of people trying to enjoy Mardi Gras,” Serpas said. “So we’re going to tell the officers, charge everything that you think you have an element you can prove. Then you bring it over to the district attorney, and then they do what they do, which is very different and separate and apart from what we do.”
Cannizzaro agreed that having the law on the books may be useful for police. But he also said it is time to go back to the Legislature to amend the law to make it usable in court.
“I think the law as originally drafted, which required that a person be in possession of a gun within a certain distance of a parade route, made a lot of sense,” Cannizzaro said. “And I’d like to see that law put back on the books. The amendments, in my opinion, have made it very, very useless for us in this office.”
According to court records, most of the suspects booked under the law have ultimately been prosecuted for illegal possession of a firearm, a misdemeanor with a maximum 6-month sentence.
We tried to contact Bajoie to find out how the amendment was tacked onto her bill, but she did not return our telephone calls.