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Baton Rouge man who beat a gun case gets his Ruger back. DA notes holes state's gun laws

The Advocate - 11/13/2023

Nov. 13—Four years ago, after weapons were drawn during a confrontation at a Baton Rouge Walmart, authorities seized Robert Earl Tucker Jr.'s gun as evidence in his criminal investigation.

Tucker, 48, was one of two men involved in the August 2019 incident, which put him on the radar of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

He later caused controversy when he was hired at an East Baton Rouge elementary school in August 2021 after stating on his resume and application that he didn't have a criminal conviction, despite spending time in federal prison, according to school officials.

ATF agents investigating whether Tucker should have his right to own a firearm stripped due to mental illness pulled Louisiana Department of Health records that showed he was involuntarily committed to a mental health facility in November 2011. A doctor who evaluated Tucker during that stay diagnosed him with paranoid schizophrenia and declared him a danger to himself and to others, according to federal court records.

Prosecutors from the East Baton Rouge District Attorney's Office intended to introduce those medical reports during a hearing in state court last week, when Tucker sought the return of his seized semi-automatic Ruger SR9 model 9mm pistol and two 16-round magazines.

Citing a 2022 opinion from the U.S. 5th Circuit Court of Appeals, which overturned his conviction in federal court and vacated his sentence, Tucker successfully argued that despite the physician's diagnosis, no judicial official has ever determined he should be prohibited from owning or possessing a gun because of mental health concerns.

"The Fifth Circuit made a determination that any type of adjudication for a mental defect must be a court ruling, not just that you read a medical record and you determined that I was mentally deficient," Tucker told District Judge Will Jorden during the hearing Wednesday inside the 19th Judicial District Courthouse. "We're not allowed to just make assumptions about a person's mental deficiency without a court ruling."

Louisiana has no so-called red flag laws that allow state judges to order mentally ill individuals to temporarily turn over their weapons if they're deemed dangerous to themselves or others. Jorden noted that fact when he ordered authorities to return Tucker's gun to him.

"You're asking me to take his gun. ... The issue is: Under whose authority can I do anything?" the judge asked state prosecutors during the hearing. "You want me to do something that I have zero authority to do."

District Attorney Hillar Moore agreed that Jorden's hands were tied and he made the only ruling he legally could under current law. In an age when mass shootings have become increasingly commonplace, Moore said, Tucker's case is emblematic of the delicate balancing act prosecutors and law enforcement officials must maneuver when dealing with gun owners who have a documented history of mental illness.

"We do believe there are limited circumstances where someone forfeits their rights to possess weapons, whether by an intentional act or some other thing beyond their personal control like mental health or substance abuse," Moore said during a phone interview Friday.

"It is a line that we have to walk and eventually, the Legislature of Louisiana is going to have to decide if and when you can temporarily prohibit or dispossess someone of a weapon under quick circumstances, to be followed by a court hearing," he added.

The saga of a seized Ruger

Robert Tucker's brush with the law began when was arrested following the August 2019 incident, which unfolded just three days after a gunman stormed into a Walmart in El Paso, Texas, and killed 23 people and injured 22 others. With the nation on edge from that mass shooting, the clash at the Baton Rouge Walmart along Burbank Drive hit too close to home. It was originally reported as an active shooter situation, one that provoked a stampede of panicked shoppers fleeing the store followed by swarms of responding officers from several agencies.

It proved to largely be a false alarm after the dust settled. Tucker and another man named Jacob Bess got into an argument while standing in the customer service line. According to a federal arrest report, Tucker told officers at the scene he drew his pistol when he heard somebody yell "gun" then saw Bess rushing toward him. He said he lowered the weapon when he saw Bess was unarmed. No shots were fired.

Both men were charged with disturbing the peace. The state dismissed Bess' charge in September 2020, according to court records. A year later — after Tucker rejected a plea offer — prosecutors enhanced Tucker's criminal charge to aggravated assault with a firearm, a felony punishable by up to 10 years in prison.

While that case played out in state court, Tucker fought separate indictments in the U.S. Middle District Court of Louisiana. ATF investigators determined Tucker was adjudicated mentally defective after the coroner's office signed off on an examining physician's 2011 report that said he was suicidal, homicidal, violent, dangerous to himself and others, gravely disabled and unable to seek voluntary admission due to mental illness.

In a five-count indictment, investigators alleged Tucker lied on a firearms screening application — known as ATF Form 4473 — when he tried to buy a .38 caliber revolver in June 2020. Tucker filled out the form three days after ATF agents went to his Baton Rouge apartment and issued him a warning letter, telling him he was prohibited from owning, possessing or purchasing a firearm.

Tucker answered "No" to a question asking if he'd ever been adjudicated mentally defective or been committed to a mental health institution. The application was denied.

Tucker was tried and eventually found guilty in federal court of possessing a firearm and ammunition after being declared mentally deficient and three counts of making false statements to a federally licensed firearms dealer. He spent about 10 months in federal custody before being released in April 2021, court records indicate.

But Tucker, who represented himself through most of his state and federal cases, appealed his conviction and got it reversed. In an August 2022 opinion vacating Tucker's sentence, the 5th Circuit federal appellate court said there wasn't sufficient evidence to support the guilty verdict in his trial.

While federal law generally prohibits anyone who's been involuntarily committed to a mental institution from possessing a firearm, the commitment must be formally ordered by a court, board, commission or other lawful authority. Likewise, if a mental health adjudication is based solely on a medical review, as it was in Tucker's case, it doesn't hold weight in court and a can't infringe on a person's right to bear arms.

The Fifth Circuit ruled that the distinction between a physician's diagnosis and a legal adjudication following a hearing in court "is no trivial detail." The panel of judges cited a ruling in a landmark 1973 gun control case that opined, "If it is the desire of Congress to prohibit persons who have any history of mental illness from possessing guns, it can pass legislation to that effect."

The U.S. Attorney's Office in Baton Rouge has not brought new charges against Tucker.

Tucker, a U.S. Army veteran, argued in several court filings that sheriff's deputies violated his Fourth Amendment constitutional rights by illegally seizing his gun without a warrant.

His charge in state court was dismissed Sept. 18 after prosecutors determined it was a weak case, 19th JDC records indicate.

Jorden said during last week's hearing the case fell apart because surveillance footage from the Walmart incident didn't show Tucker pointing his gun or corroborate other allegations investigators included in their report. The judge originally told the East Baton Rouge Sheriff's Office to release Tucker's Ruger to him in an Oct. 10 order.

Wednesday's hearing was a chance for the state to voice its objections to his motions in court. Assistant District Attorney Quoc-Huu Vincent Nguyen brought up Tucker's paranoid schizophrenia diagnosis, which was presented to jurors as an exhibit during his federal trial.

Moore said prosecutors hoped to call Tucker to the stand to cross-examine him about his mental health history. But Jorden doubled down on his Oct. 10 ruling and once again ordered that the gun be returned before that could happen.

"I think the judge made the only decision under the law that he was allowed to make," Moore said. "But we wanted to bring it to everyone's attention that this is something that we are now required to do by law, not that we chose to do."

Protecting the public vs. preserving rights

At least 20 states have adopted red-flag laws, otherwise knows as "extreme risk" statutes, according to the Everytown for Gun Safety Support Fund, an advocacy group aimed at beefing up gun violence prevention measures. Florida is the lone southern state on that list.

State Sen. Royce Duplessis, D-New Orleans, introduced a bill in March that would've given district courts in Louisiana authority to seize firearms from people who threaten violence or pose a risk of imminent danger after a contradictory hearing is held in court.

"This is a common sense step to try to save lives," Duplessis said during a May 2Senate Judiciary Committee meeting. "This is a step that we can take as a state to try to reduce preventable gun deaths."

It was at least the second consecutive session such a measure was proposed in the Louisiana Senate. The bill never made it past the judiciary panel.

Lewis White, a U.S. Air Force combat veteran who suffers from post-traumatic stress disorder and severe depression, spoke against the proposal during the May meeting.

Worried that he'd be the type of person targeted by a red flag law because of his mental illnesses, he cautioned against government overreach.

"Having broken no laws, I would have to go prove my right under the Second Amendment as to why I can keep my weapon," White said. "This is a slippery slope. ... You start saying it's okay to take a gun away because (someone) made a comment. What comments nowadays are not acceptable and won't offend anybody? Who's going to be able to keep a gun?"

Members of Moms Demand Action, a grassroots group of gun safety advocates, pointed to Tucker's case as a clear example of the deliberate protections already in place that preserve gun owners' rights.

"The other side will say that guns will be taken from everyone for every reason, but it's not that simple," said Angelle Bradford, a legislative lead for Moms Demand Action's Louisiana chapter. "Even when an (extreme risk protection order) law is in place, there is due process. These are all necessary tools for protecting the public, communities and even law enforcement."

Tucker had his teaching certification revoked in December 2021. After last week's hearing, he said he's still fighting to get it back and is scheduled to go before the LouisianaBoard of Elementary and Secondary Education next month.

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