Under the Fifth Amendment to the United States Constitution, you have the right to refuse questioning or to make any statement that might incriminate yourself. You’ve no doubt heard of someone “pleading the fifth,” which means they are invoking their constitutional safeguards against self-incrimination. If you have been detained or are subject to police questioning in the state of Louisiana, it is very important that you know your rights under the law.
Anything you say to police can be used to secure a conviction against you in court. When you make a statement to provide information to law enforcement that may harm your defense, this is considered self-incrimination. This can happen directly by you making a statement during interrogation or indirectly by simply letting information slip voluntarily. Either one will hurt you in court.
As a way of ensuring you have been informed of your rights, law enforcement is required to read you your Miranda rights at any time you are in custody or being subjected to questioning. You do not need to have been formally arrested to be read your Miranda rights.
• You Have the Right to Remain Silent
This is at the heart of what the Fifth Amendment protects. Under the constitution, you can refuse to answer any questions or provide any statements. You cannot be punished for keeping silent, and you cannot be compelled to incriminate yourself. That said, police have many tactics for getting around this right and convincing you to talk. Police can tell you anything, lie, cheat, manipulate, or otherwise convince you to talk to talk and it's legal. It’s important to know that you are under no obligation to speak, and the only word you should ever say to a cop is "lawyer.".
• Anything You Say Can and Will Be Used Against You in a Court of Law
An extension of your right to remain silent, this portion of the Miranda warning makes it clear that any statements you give, no matter how benign, are potential building blocks of the prosecution’s case against you. Whether you are innocent or guilty, securing that conviction is what matters most to law enforcement, and they are not afraid to twist or misconstrue what you say to paint you in the most guilty light.
• You Have the Right to Speak with an Attorney and Have Them Present During Questioning
Even if you are completely innocent of any wrongdoing, it is highly advantageous to have an attorney present whenever speaking with law enforcement. As mentioned, the police will try to twist your words against you. They will do whatever it takes to secure a conviction. An attorney is crucial protection and defense against these tactics.
• If You Cannot Afford an Attorney, One Will be Appointed to Represent You
The judicial system is required to provide any potential defendant with an attorney, generally a public defender. If you can’t afford a private attorney, this is an option. Having someone in your corner with experience is always going to work better in the long run.
Throughout the entire criminal legal process, there are different burdens that the prosecutor and the police have to meet in order to stop you, arrest you, and then to prove your guilt at a trial.
When officers stop you, there must be reasonable suspicion. Reasonable suspicion must be supported by specific, observable facts and circumstances, not just a vague feeling or hunch. Before they arrest you, they’ve got to have probable cause. There, there must be a reasonable probability or substantial chance of criminal activity. This standard Is often widely Interpreted by the courts.
Then, when you get to motions hearing where your attorney might argue for suppression of Identification or evidence or statements, there are specific pieces of evidence and facts and points of law that we have to prove and the judge rules what comes In.
It’s when we get to a trial, either a bench trial or a jury trial, that we talk about the State having the burden of proving their case beyond a reasonable doubt. What that means is that if a juror has any doubt whatsoever that they think it didn’t happen, or it didn’t happen the way the prosecutor said it did, they can come back and find not guilty.
Though there is a technical presumption of innocence for all accused persons under the law, once the cops arrest you, they already believe you’re guilty. What we’re able to do by looking at the evidence, collecting our own evidence, and attacking the state’s discovery is to present the case In such a way that the State cannot meet its burden.
From the time that you’re arrested until the time there’s some sort of an ending to your case can be anywhere from a couple of weeks to several years. When you’re charged with a crime, you instantly start thinking, “What’s the end point going to be? Is it going to be a trial? Is it going to be a plea deal? Is it going to be dismissed?”
There are advantages and disadvantages to each of these options.
Obviously, dismissal is the best outcome. The charges are dismissed and there are no convictions attached.
Another good option would be a favorable plea bargain, which Is a negotiation between the prosecutor your defense attorney to resolve the case.
There's also trial. We practice on what we call "dual tracks." We are always pursuing dismissal or another beneficial outcome, while always staying ready for trial if needed. From the very beginning of your case, we’re thinking of that ending, of taking this all the way through. To clear your name, to fight for you, to do everything possible to beat the case.
When you’re thinking about who to hire to defend you on a criminal charge, you really want someone that sees the whole picture.
November 7, 2023
On Tuesday, the Supreme Court of the United States heard oral argument in a critical case that could shape gun ownership rights and the ability of the Government to prosecute individuals for possessing guns across the country. In 2022, following the Supreme Court's seminal ruling in New York State Rifle & Pistol Association v. Bruen, a panel of the United States Court of Appeals for the Fifth Circuit struck down a federal law prohibiting individuals with protective orders from possessing a gun. The Government appealed and the Supreme Court agreed to hear the case.
Every day in courtrooms across America, individuals accused of domestic violence are stripped of their Second Amendment right to bear arms—not due to a felony conviction, but simply because of an allegation. Title 18 U.S.C. § Section 922(g)(3) prohibits a person subject to a domestic violence restraining order from possessing a firearm. An overt action isn’t even required, but "anyone who . . . threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms." Congressional Record, p. S11878, September 30, 1996.
Additionally, according to the New York Times, 32 states and the District of Columbia all have similar laws that prevent people with domestic violence protection orders from possessing firearms. While the federal counterpart does not apply to partners who don’t live together, in Louisiana, the law expands widely to dating partners.
Last year, the Supreme Court of the United States decided in Bruen that a New York law requiring a person to show a special need for self-protection to receive an unrestricted license to carry a concealed firearm outside the home was unconstitutional. The Court held that the right to carry a gun in public for self-defense is deeply rooted in history, and gun restrictions are only constitutional if there is a history of such restriction. The decision relied on "historical analogues," which became the hot topic of the newest gun case to reach the highest court in the land.
Zackey Rahimi now hopes to expand SCOTUS’s ever-widening gun rights protections. The 1994 law at issue made possessing a gun while under a protective order punishable by up to 10 years in prison; it has since been raised to 15 years. Rahimi entered in a domestic violence restraining order after a court found that there had been a physical assault, someone had attempted to intervene, and Mr. Rahimi fired a gun into the air. While subject to that order, he became a suspect in another crime and upon a search of his home, firearms were found. He was later sentenced to prison time for violating the restraining order by possessing weapons in his home.
Rahimi is before the Supreme Court on a writ from a Fifth Circuit decision, which rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic violence orders. The panel noted that there were “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, according to the court, from domestic violence orders, which make case-by-case judgments about a particular individual’s dangerousness.
In oral argument before SCOTUS today, Justices Thomas and Jackson both questioned the government on their historical reliance on principles that excluded Native American and enslaved people, to which the Government responded that at the time of founding, those groups of people were politically separated and not granted Second Amendment or other basic rights. Justice Jackson also repeatedly questioned whether there could be flaws within the "history and tradition framework" because it goes all the way back to the founding, when so many peoples were excluded from fundamental rights.
The Government argued that under precedent set by Heller and McDonald, Congress can disarm individuals who are not “law- abiding, responsible citizens.” When questioned by Justice Thomas, counsel for the Government categorized someone who is not “law-abiding” as a person who has committed a serious crime defined by felony level punishment. Alternatively, someone who is not “responsible” is anyone whose possession of firearms would pose an unusual danger to themselves or others. The Government argued that disarming “dangerous people” is grounded in our nation’s history and tradition, and that the Second Amendment does not prohibit legislatures from doing so. In fact, the solicitor general argued that this is actually consistent with the Second Amendment. Some groups of people, such as minors and the mentally ill, are “inherently dangerous,” according to the Government, even if they don’t intend to be, and have restricted gun ownership rights as a result.
Importantly, according to the solicitor general, the “dangerous” categorization only applies to those deemed to be not responsible, not to those who are not law-abiding. Additionally, the Government suggests there is a felony versus misdemeanor line, which is especially important when domestic abuse claims in Louisiana so often fall under the misdemeanor statute, but the allegations can result in the loss of firearm rights. Likely because of this, the Government is relying instead on the notion of "responsibility" in saying that the law was constitutional. However, when Justice Barrett asked if this created a law-abiding/responsible person test, the Government rejected that notion.
There was also a lot of discussion around whether due process rights were implicated here, and some scholars believe the due process argument gives the conservative justices a way to dispose of the law without looking to be siding with those accused of domestic violence. Justice Barrett pointed to the fact that Mr. Rahimi, pursuant to the protective order, was forbidden from communicating with his family and going within two-hundred feet of his residence, triggering due process rights. Justice Sotomayor appeared to challenge that view by stating that due process rights aren’t at issue here and are subject to a separate challenge, a sentiment echoed by Justice Gorsuch. Another subject of debate was whether self-defense was implicated here, as in Bruen. When Gorsuch questioned the Government about a domestic abuser who needs a gun for the purposes of self-defense but that is not aimed at the subject of a protective order, the solicitor general urged the court not to delve into that question because this case is about a facial challenge to the statute, and the defendant in question, Rahimi, isn’t raising those issues. Gorsuch seemed to adopt that reasoning, repeatedly raising the nature of the facial challenge in further questioning of Rahimi's counsel.
But unlike in Bruen, Mr. Rahimi was keeping a firearm in his own home, one of the most sacredly held constitutional rights. And while counsel for Mr. Rahimi conceded that there may be extreme circumstances wherein an individual can be separated from the ability to keep a firearm, he argued that this case looks to whether someone can be punished for that behavior. Mr. Rahimi was imprisoned for simply keeping a gun in his own home while under a protective order that he entered into without counsel and without the ability to pay for an attorney.
Conservatives on the Court look to be laying the groundwork for expanding gun ownership. It appears that after Bruen—and emphasized in argument today— even if the Court upholds the federal ban on those accused of domestic violence, the new legal benchmark is whether a regulation is rooted in historical tradition, and no longer whether the law serves a public good.
Other Second Amendment challenges have already begun since Bruen came down last year. Challenges to permanent bans on felons possessing firearms, and the prosecution of the removal of serial numbers from guns, are now being raised because there’s no exact historical analogue, as could be required. When Justice Barrett was seated on the Seventh Circuit Court of Appeals, she wrote that “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons, but it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.”
In this case, Mr. Rahimi made what is called a facial challenge to the federal statute. In facial challenges, a party must show that the law at issue is unconstitutional in all circumstances. Based on the argument, it seems likely that SCOTUS will vacate the Fifth Circuit decision because this is facial challenge and there are circumstances where the statute could be valid. While the justices seem to believe that there is a historical precedent for keeping guns from “dangerous” persons, perhaps some also believe that not all felons should be withheld of that right. However, the Justices then went on to point out that such a ruling would not prevent any person—including Mr. Rahimi— from going back to court to argue the law is unconstitutional as applied to their specific case. Such a ruling would open up numerous new avenues for challenging state and federal gun restrictions whether an individual is charged with a crime or someone is seeking to have their gun rights restored.
One theme that rang throughout arguments today is that there is chaos in the courts as a result of the Bruen decision. If you or your loved one has been accused of domestic violence, felon in possession, or any other crime, you need an informed team of attorneys on your side who know the law and will fight for you. Contact us today.