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LICENSE TO CARRY
CONCEALED WEAPONS
PROVISIONS
And
OTHER CHANGES
Update for
MISSOURI WEAPONS AND SELF-DEFENSE LAW
11 January, 2008
Copyright
Kevin L. Jamison
Attorney at Law
2614 NE 56th Terr
Gladstone Missouri 64119-2311
(816) 455-2669
FAX (816) 413-0696
e-mail KLJamisonLaw@earthlink.net
www.KLJamisonLaw.com
CAUTION
The following, and the book, list a number of cases. Prior success does not necessarily indicate future success. It doesn't have to make sense, its just the law.
CREDENTIALS
I am an instructor certified by the National Rifle Association and the American Association of Certified Firearms Instructors. For thirteen years I taught the legal section of the personal protection course offered bythe by Western Missouri Shooters Alliance. I have concentrated in weapons and self-defense law for over twenty years.
COPYRIGHT LIMITED USE AUTHORIZED
Instructors are authorized to use this supplement with course materials so long as there is no addition to or subtraction from this supplement. I reserve the right to ban use of this material from any specific use. Any other commercial use is NOT authorized.
Sheriffs and other Law Enforcement Officers or government agencies may use this supplement in the course of their duties or as will aid their office. If it will create a problem for the office to distribute the order form for the book, then sheriffs and other Law enforcement offices or government agencies may delete that page (although I wish that they would not).
On 11 September, 2003, the Missouri Senate overrode the veto of License to Carry. The bill was scheduled to become law thirty days thereafter.
A lawsuit delayed and altered implementation of the law. On 26 February, 2004 the Missouri Supreme court ruled that the law is constitutional, summarily rejecting the plaintiff's constitutionality argument and predictions of disaster. The Court ruled that the law is an "unfunded mandate" under the Hancock Amendment to the Missouri Constitution. This means that the four counties which presented evidence in the lawsuit do not have to take applications for licenses unless they want to (three of them subsequently voluntarily began taking applications). While the law authorizes sheriffs to charge up to $100 for the license, the Court ruled that sheriffs could not charge more than their actual costs or it would be an unconstitutional tax. The plaintiffs asked for a reconsideration of the constitutionality of the law. On 30 March, 2004 the Court reaffirmed its earlier decision. The Court republished its earlier decision, in what it ruled was not a new decision but made one significant change. It ruled that the $100 fee was not raised by the parties and therefore the Court did not issue an opinion on the matter. The fee is therefore a user fee, until someone paying the fee objects. Most sheriffs are handling this by requiring a check or money order in the amount of $38 to cover the fingerprint fees by the Highway Patrol, and another check or money order to cover their costs (up to $62).
The Missouri legislature has passed a Hancock fix to the LTC law. Governor Matt Blunt signed the bill on 12 July, 2005. This forced St. Louis city and St. Louis county, the only holdout jurisdictions, to begin issuing licenses.
The bill identified the licensing section as RSMo 571.094; however, the Reviser of Statutes has it as RSMo 571.111; it doesn't have to make sense, it's just the law. These and other updates to MISSOURI WEAPONS AND SELF-DEFENSE LAW are available at www.KLJamisonLaw.com.
This is a “shall issue” law. If the applicant fulfills all the qualifications, the sheriff must issue the license. The applicant must take a firearms safety course and pass a background check.
The License to Carry (LTC) statute exempts license holders from the provisions of the ban against concealed carry in RSMo 571.030. There are other sections of law which restrict concealed carry or possession. The statute does not limit the type of weapon which can be concealed by licensees. One could carry a bowie knife in a boot, a pistol in a pocket, or a shotgun under a coat. As in any self-defense weapon, the more exotic the weapon, the more likely the licensee’s conduct will be examined. The law requires training with revolvers and semi-automatic pistols. This does not prevent the licensee from carrying one or two barreled deringers, although why one would want to remains a mystery. The law does not authorize possession of switchblades (see MISSOURI WEAPONS AND SELF-DEFENSE LAW page 20). While a collector or other authorized switchblade owner, or a licensed owner of an automatic weapon or sawed-off shotgun might carry such a weapon, this is not a good idea from a public relations standpoint, which is where many criminal cases begin. The prosecutor's association and at least one trial judge contends that the LTC law only allows carrying handguns. They are wrong. The law exempts license holders from the CCW provisions of RSMo 571.030. This means ALL weapons. The statute refers elsewhere to handguns, but the exemption is for "weapons". It is a basic rule of statutory interpretation that the defendant gets the benefit of the doubt.
A licensee may carry as many weapons as desired. This may be considered to be evidence of some enthusiasm for gunfights, by persons who file criminal charges and serve on juries. Many will claim that the second gun is a "throwdown" to justify a questionable shooting, even if never used as such. Use of a weapon easily traced to the owner through federal or state purchase records will reduce the effect of this claim. Many police officers carry backup guns for the same reason as they carry spare tires; in case the primary gun is disabled. Due to weapon focus guns, are sometimes disabled by criminal gunfire. It has also been discovered that it is quicker for an individual to draw a second gun than to reload the primary gun. Drawing a second gun is refered to as a "New York reload". A backup gun also allows an individual to provide a weapon to a companion.
The use of magnum ammunition should be discouraged (but is not illegal) due to problems of over-penetration. The statute licenses the person, not a specific weapon. It does not limit the licensee to a specific weapon. One may carry any weapon, or as many weapons at the state of dress or degree of threat demands.
REQUIREMENTS
Applicants must appear at the sheriff's office in their county of residence, or a police station to which the county sheriff has delegated licensing responsibility. The statute uses the term "residence", not "domicile" or "primary residence" as often seen in Missouri statutes when a restrictive definition is sought. While one may have only one domicile or primary residence, some have multiple residences. However, RSMo 1.020 defines residence as where a person's family is, or where he or she "generally lodges". This would indicate that a part-time residence is not sufficient. Some persons separate in the context of a divorce. All too often this context requires self-defense considerations. Under Nichols v Nichols 538 S.W.2d 727 (Mo App. K.C. Dist 1976) a separation in contemplation of divorce is sufficient for a change of residence.
The applicant must bring with him or her:
1. Proof of training from a qualified instructor
------(This MUST have been done before filling out the application)
2. Valid Missouri state-issued identification or
-------Military identification and
-------Orders stationing the service member in Missouri
3. Up to $100 in check, cash or money order
-------Some sheriff's require money orders
-------The fee is not refundable under any circumstances
-------The amount of the fee depends on the sheriff's costs to administer the program
-------May require separate checks for
-----------Fingerprints ($38)and
-----------Costs
Some sheriffs may demand further proof of residency in the county such as voter's registration, personal property tax receipt, or utility bills. The statute does not demand it, but sheriffs might.
COURSE
Administrative
All instructors must be firearms safety instructors certified in one of five ways:
1. By the National Rifle Association holding a rating as a personal protection instructor or pistol marksmanship instructor
2. Certified in a firearms safety instructor’s course offered by a local, state, or federal governmental agency
3. Certified as a firearms safety instructor approved by the Missouri Department of Public Safety
4. Completed a firearms safety instructor course given by or under the supervision of any state, county, municipal, or federal law enforcement agency
5. Is a certified police officer firearms safety instructor
The American Association of Certified Firearms Instructors (AACFI) has been certified by the Missouri Department of Public Safety to certify instructors for the Missouri LTC course. The ASCFI can be reached at PO Box 131254, St. Paul, Minnesota 55113 (612) 730-9895 www.aacfi.com. The AACFI provides a canned course of instruction covering the required subjects.
The NRA instructor does not have to be law enforcement qualified. Certified instructors have certificates stating their area of training. The NRA will provide names of current instructors; (703) 267-1000. The Missouri Field Representative for the NRA can be reached at (573) 761-5466. Certifications must be updated yearly.
There is no time frame for law enforcement training. Retired officers could use firearms safety training obtained before retirement. There is no blanket license for retired officers. It is advisable that retired law enforcement officers and other who may have qualified years ago take a Missouri LTC class. This will fill in any changes in the law, and if the worst thing happens, demonstrate diligence in learning the rules of self-defense and safety.
The LTC course taken by the citizen must be approved by his or her county sheriff. The sheriff's authority to pass judgment on the course is open to question. However, under their statutory authority to make such investigation as they see fit, all Missouri sheriffs have taken the position that they must investigate the quality of LTC courses. Typically the instructor must provide:
1. A copy of the lesson plan
2. Copies of all certificates held by trainers
3. A copy of the certificate provided to students on completion of the course
4. Where records will be kept and available for inspection by the sheriff's office
5. Location of the classroom and range
There is no requirement that the sheriff approve the course outline. However, as a practical matter it may save trouble later if the area sheriffs provide written approval of the course outline, stating that persons passing the course are qualified to apply for the background investigation. Copies of this letter can be provided to graduates, who may be from other counties where the sheriff is not familiar with the persons giving the course.
Some sheriffs require a complete lesson plan, not just an outline. The Clay county Sheriff's office, for example, wants a lesson plan that anyone can pick up and teach from. Instructors are understandably reluctant to create a training program and then turn it over to outsiders. As a practical matter, the student should ensure that his sheriff has approved the training course he plans to take.
The National Rifle Association Personal Protection and Pistol Marksmanship courses do not exactly match the requirements of the LTC law. This requires additions to these NRA courses to cover the extra material. The resulting course is not an NRA course. The NRA prohibits the use of the NRA's name or the use of NRA titles such as "NRA Certified Instructor" unless a clear disclaimer is made stating that a course is not NRA-approved. This disclaimer must be the same size letters as the title.
Many students will want an NRA certificate for use in other states or other purposes. The solution is to provide the NRA course and NRA certificate, then the additional material required by law. The NRA and non-NRA material must be identified as such. Certificates for the entire LTC course can be obtained by approved instructors from the sheriff's office.
The National Rifle Association has insurance for instructors. At present teaching only the NRA course will qualify for the NRA insurance. The LTC specific requirements are not covered by the NRA insurance and a separate policy will be required for the entire LTC program, including the NRA portion. It appears that when two policies cover portions of the same course, the respective companies argue over which is responsible for any injury, forcing the instructor to obtain his own attorney, which defeats part of the purpose of insurance.
The NRA Endorsed Insurance Program can be reached at PO Box 410679, Kansas City, Missouri 64141-0679 (877) 487-5407. The AACFI has a program with Joseph Chiarello & Co Inc., 31 Parker Road, Elizabeth, New Jersey 07208-2118 (908) 352-4444 or (800) 526-2199. Policies for each individual instructor range from $300 to $450.
Some instructors have set up a business and operated under a business insurance policy. An independent insurance agent can advise on relevant policies.
There is a policy for individuals who may act in self-defense. It insures personal property or bodily injury resulting from an act of self-defense. It also covers legal defense in a civil suit, and reimburses the defendant for costs of a criminal defense, but only if acquitted or the charges are dropped. The policy is available only to NRA members through Lockton Risk Services, PO Box 410679 Kansas City, Missouri 64141 or (877) NRA-3006.
Instruction Requirements
There cannot be more than forty (40) students in a classroom portion of the course. There cannot be more than five (5) students per range officer engaged in range firing. It is not clear if all “range officers” must be certified instructors, or must only be supervised by a responsible certified instructor. However, the safe course of action would be to have all range officers certified as instructors.
Instructors must make the applicant’s course records available to the sheriff on request. Since some sheriffs may demand to see these records, a copy of the student's records should be given the student. Records on all students must be kept for at least four (4) years from the date of course completion. Knowingly giving the sheriff false information concerning an applicant’s performance in the live fire exercise or written test is a class C misdemeanor.
Course Requirements
The course does not have to be taken in the county where the applicant lives. It does not even have to be taken in Missouri. It is only required that the instructor be qualified and all topics be taught.
Instructors should require photo identification for all students to prevent applications by persons who feel themselves above actually taking the course.
The course must be at least eight (8) hours long. However, ALL topics specified in the statute must be adequately taught. Many experienced instructors believe that this can take up to ten hours. So long as the required topics are taught, sheriffs cannot demand a longer course. Required topics are:
1. Handgun safety in the classroom, home, firing range, and while carrying the firearm. This should include holsters with retention straps or the equivalent. The student should be taught how to draw a loaded firearm with the finger OFF the trigger to avoid premature discharge.
2. Physical demonstration by the applicant demonstrating ability to safely load and unload a revolver and a semiautomatic pistol. The applicant must demonstrate marksmanship with both. This could be in conjunction with the live fire exercise at number 9 below.
3. The basic principles of marksmanship. There are schools of “point” and “aimed” marksmanship with convincing arguments for each. The “point” technique teaches quick “instinctive” firing. Aimed marksmanship teaches sight alignment. This is the technique taught in the military and police academies. Legislators, judges, and sheriffs are familiar, if at all, with aimed techniques. This is probably what was intended. This is what should be taught.
4. The statute requires instruction on the “care and cleaning of concealable firearms”. There is no difference between cleaning concealable or non-concealable firearms. However, if the course syllabus does not use the statutory language, there may be a question, and thus a delay.
5. Safe storage of firearms at home. This can cover the various degrees of security offered by various storage devices.
6. Missouri’s requirements for getting a license to carry.
7. The laws relating to firearms in chapter 571 of the Revised Statutes of Missouri. This involves the transfer of firearms, who can possess firearms, and what firearms are prohibited or restricted.
8. Laws relating to “justifiable use of force as prescribed in chapter 563, Revised Statutes of Missouri”. This involves teaching the legal limits of self-defense.
9. A live fire “exercise” for each applicant to fire a handgun “from the standing position or its equivalent”. This would appear to allow persons who cannot safely stand for extended periods to shoot from a sitting position. Applicants must shoot fifty (50) rounds, of any caliber, from any handgun, at a B-27 silhouette target “or an equivalent target”. The target must be seven (7) yards away during this exercise. This is different from the live fire “test” at #10 below.
10. A live fire “test” with the certified instructor present of twenty (20) rounds from a standing position or its equivalent at a B-27 silhouette or equivalent target at a range of seven yards. The applicant must hit the silhouette portion with fifteen (15) of the twenty rounds. This is another indication of a difference between certified instructors and range officers.
It is not required; however, a portion of the course should cover manners. It is considered very bad manners to “flash” or display a concealed firearm. It is not illegal for a concealed firearm to be exposed. In the course of reaching for wallets and cell phones, a certain amount of display is inevitable. If this display is unintended it does not violate the open carry bans of certain cities (see MISSOURI WEAPONS AND SELF-DEFENSE LAW at 115). It must be remembered that a number of people feel threatened by the mere presence of a firearm; sometimes by the mere thought of a firearm. During a radio debate on this law, the prohibitionist accused me a brandishing a firearm to intimidate those present. I did not have a firearm, and asked the media representatives present to vouch for this. They refused to do so (which teaches us several lessons). These people vote on gun issues, and influence other persons to vote. They also call the police with claims of brandishing and disturbing the peace. Neither course is good for license holders as a group. Complaints will be used against license holders on this and other firearms issues. The best way to stay out of trouble is to exhibit excruciatingly polite behavior, and to tolerate boorish behavior from others. Good manners will keep you out of trouble better than a Philadelphia lawyer can get you out.
Passing the Course
The statute defines only what constitutes failing the course, which consists of:
1. Does not follow the orders of the instructor or range officer. This determination is completely within the discretion of the instructor. This also differentiates between instructors and range officers, indicating that range officers do not necessarily have to be instructors. However, it would be best if they were qualified instructors.
2. Handles a firearm in what the instructor believes is an unsafe manner. This is completely within the discretion of the instructor.
3. Fails to hit the silhouette portion of the target with at least 15 out of 20 rounds.
No written test is required. A written test should be used to demonstrate that the students were taught the required subjects and knew them when they left.
The statute requires an “affidavit” that the applicant passed the course. Giving a false statement to the sheriff is a misdemeanor.
It is not necessary or especially wise to keep more detailed records. Data showing that a student scored fifteen out of twenty shots and therefore "barely" qualified or scored twenty of twenty shots and therefore was a "deadly shot" can only be used against the licensee. Records showing that the student was "qualified" are sufficient.
There has been some speculation that the NRA training counselors may place "ringers" in an instructor's courses to ensure that standards are met. This is probably not necessary. The students themselves are quick to complain when they are shortchanged. The Cincinnati Enquirer for 9 April, 2004 reports that an instructor for the Ohio law cut corners in his course. After complaints by students, he was arrested. A Kansas City TV station conducted an "expose'" of a local LTC course. The students report that the instruction was satisfactory and covered all required materials. The "expose'" as broadcast revealed that the eight hour course required by statute did not spend as much time on a subject as a sixteen hour course offered by the police academy. They were surprised that there is more time in sixteen hours than in eight hours.
Qualified instructors from the gun community are the gatekeepers for license applicants. During the course of instruction there will be opportunities to observe behavior and listen to comments. This is the place to weed out those few who might ruin things for the rest.
LICENSE
Qualifications
The license applicant must be at least 23 years of age. The applicant must have resided in Missouri for at least six months. The statute does not require that Missouri be the applicant’s only residence, or even permanent residence. The applicant can also be in the military or the spouse of a military member who is on orders to be stationed in Missouri. There are some persons stationed at Ft. Leavenworth, Kansas who reside in Missouri. These individuals will have to live in the state for six months before application.
The applicant must have a clean criminal record with no felonies of any kind no matter how long ago. He or she cannot have been convicted of a misdemeanor which prohibits the purchase of firearms in Missouri, or a misdemeanor crime of violence in the last five (5) years. Domestic violence is certainly a crime of violence, and as a practical matter, persons with such convictions are forever barred by federal law from possessing a firearm. The applicant cannot have been convicted of two (2) driving while intoxicated charges in the last five (5) years. The statute says driving while intoxicated, not the lesser charge of driving under the influence often used in cases of drug intoxication or when the blood alcohol level cannot be determined. The applicant cannot have been convicted of possessing a controlled substance (they mean drugs) in the last five (5) years. The applicant cannot be charged with any of the above offenses at the time of application.
The applicant cannot have been dishonorably discharged from the military. There are several less than honorable discharges in the military, but only a dishonorable discharge disqualifies the applicant. See the “Prohibited Persons” section at page 79 in MISSOURI WEAPONS AND SELF-DEFENSE LAW.
The statute also prohibits applications by persons adjudged mentally incompetent or committed to a mental health facility in this or any other state. The adjudication or commitment must have been following a hearing at which the defendant was represented by counsel or a representative. The statutes uses the language “or for five years prior to application”. This may indicate that the applicant must have been restored to sanity more than five years prior to application, in any case, it certainly should. As a practical matter, such persons are prohibited under state and federal law from receiving firearms or ammunition.
There is also a provision barring persons who have “engaged in a pattern of behavior, documented in public records, that causes the sheriff to have a reasonable belief that the applicant presents a danger to himself or others". This is the “naked man” provision. A person in the habit of getting naked and howling at the moon may not be dangerous, but may raise questions. A series of restraining orders, transportation for psychiatric observation, or a number of charges for disturbing the peace may raise questions. Anyone exceptionally eccentric or irresponsible can be barred.
Procedure
The applicant must demonstrate knowledge of firearms safety training. This is done by passing a safety course or one of two alternatives.
There are two alternative to taking the training. One is a firearms safety course given by or under the supervision of any state, county, municipal or federal law enforcement agency. This does not specifically approve military service unless connected to military law enforcement.
The other alternative is to be a qualified firearms safety instructor.
After demonstrating knowledge of firearms safety, the applicant takes a copy of his course affidavit to the county sheriff. The City of St. Louis is not part of any county, is not part of St. Louis County, and has its own sheriff; it doesn't have to make sense, it’s just the law. The applicant will give the sheriff a sworn statement providing identifying information and that he or she is qualified. The sheriff cannot add requirements to those set forth in the statute. The sheriff will take a copy of the safety certificate, a non-refundable filing fee, take the fingerprints of the applicant and run the applicant through state and federal databases.
The Missouri Supreme Court issued two opinions on the LTC law. The first ruled that the sheriff couldn't charge more than his actual costs of issuing the license. After a demand for reconsideration of the constitutionality of the law, the Court issued the same decision except that it ruled that as no one had complained about the amounts the sheriff charged, therefore it was not ripe for a ruling by the Court. This means that sheriffs can charge up to $100, at least until someone complains. In order to complain the plaintiff must have paid a fee in excess of the sheriff's actual costs. It was intended that the sheriffs profit from this program; but this is America, someone will complain.
Missouri sheriffs have three unfunded mandate record programs. One is the "Racial Profiling database under RSMo 590.650. This requires that records be kept of the racial group of persons stopped for traffic violations, along with information regarding the reason for the stop. Sheriffs must also keep records and take fingerprints of sex offenders living in or coming into their counties under RSMo 589.400. These records may be deemed a public service but sheriffs are not paid the administrative costs of the program, in violation of the Hancock Amendment to the Missouri Constitution. The Missouri Supreme Court has ruled that the License to Carry program is also an unfunded mandate. A sheriff could place these duties in a special section as they all involve data processing and taking fingerprints in two of the programs. He could then bill the state for the costs of this section. Since this section is separate from other law enforcement duties, the state would have very little room for argument over the bill, but one must expect that it will.
The sheriff has three working days to submit the fingerprints to the FBI. Forty-five calendar days later, if there is no adverse report, he must issue a certificate authorizing the applicant to carry a concealed weapon. The sheriff must issue the certificate within three working days of receiving a favorable report. The applicant must take the certificate to the Department of Revenue Drivers License Bureau within seven (7) days. The Department will place an LTC endorsement on the Licensee's driver's license or state identification card. It is not clear if the sheriff's certificate is effective as a license between the time the applicant receives the certificate and the time he or she receives the license. Since the license is only a convenient memorial of the sheriff's certificate it would not appear to be illegal to carry concealed on the way from the courthouse parking lot to the Department of Revenue. However, it is not wise to take chances after coming so far.
The sheriff will post the applicant’s license on the Missouri Uniform Law Enforcement System (MULES). This provides the information to all Missouri Law Enforcement agencies. It is a Class A misdemeanor to reveal the applicant’s information to persons outside the MULES system.
Some have demanded to know who has licenses; exactly what they intend to do with this information is not stated. When Ohio passed its License to Carry law the lists of license holders was available only to newspapers. The Cleveland Plain Dealer announced on 8 January, 2004 that it would publish the list of license holders. Again, there was no indication of what people can do with this information. The Fort Wayne News-Sentinel considered posting a list of license holders, but announced on 24 March, 2004 that it would not. They did not base this on any privacy consideration, but on the grounds that a woman had gone to great lengths to hide from her abusive ex-husband. She used false names and addresses in all public records. However she was required to use her own name and home address for her license to carry. It is unknown how many obsessive stalkers would use such a list, but it is certainly too many. In the discussion over wording Missouri's law, this provision was considered to be a privacy matter. There have been enough problems with identity theft; we do not need to provide a target population. Secondly, the law also allows citizens to bring Small Claims Court actions to revoke licenses. From past experience with prohibitionists there is a real danger that harassing actions would be filed based on such a list.
The Department of Revenue will place a license to carry endorsement on the applicant's driver's license or non-driver's license. Since driver's licenses last for six years, and carry licenses for three, it may be more convenient to obtain a non-driver's license with the carry endorsement. This also precludes the potential problem of "flashing" an LTC endorsement when paying by check or otherwise showing identification. Police have other access to lists of licensed persons. There is no provision to remind license holders when their license expires.
The license is valid throughout the state. Local government may restrict open carry, but not concealed carry by license holders.
Reciprocity
Missouri, under the LTC law, must recognize carry licenses issued by other states; just as it recognizes driver’s licenses. The respected web site www.Handgunlaw.US has researched the statutes of other states and found that Missouri’s license will be recognized in 34 states (as of December, 2007) See the web site for specific states and specific rules for those states. Alaska and Vermont do not require any license to carry concealed weapons (although Alaska has a licensing system for Alaskans who visit the lower 48). The reciprocity and unique rules of these states should be checked before traveling through them as these things may change.
Any licensee who is anywhere near a state line should stop, unload the gun, and lock it up. It would be awkward to become lost, and be arrested while asking a policeman for directions back to Missouri. Under 18 US Code section 926A, a person can carry a gun in any state if it is unloaded and in a locked container. The glove compartment and console do not qualify even if they are locked. It doesn’t have to make sense, it’s just the law.
Missouri will recognize any license issued by any other state. Subsection 20 of the License to Carry law states: "A concealed carry endorsement issued pursuant to this section or a concealed carry endorsement or permit issued by another state or political subdivision of another state shall authorize the person in whose name the permit or endorsement is issued to carry concealed firearms on or about his or her person or vehicle throughout the state". Since some states do not require residency to issue licenses, a number of Missouri residents and adjoining states already have licenses or can get licenses. These licenses are valid even if issued to persons below the 23 year old age limit of the Missouri law. These licenses are valid even if the issuing state does not recognize Missouri licenses.
Some states issue licenses to out of state residents only if the other state does not issue its own licenses. Pennsylvania licenses became popular in Missouri after the lawsuit was filed to enjoin issuing our own licenses. Pennsylvania requires a copy of the home state license to carry if the home state issues licenses. After unknown thousands of such licenses were issued, Pennsylvania recognized Missouri as an issuing state and stopped issuing licenses. This had no effect on licenses which had already been issued. An 8 April, 2004 letter from the Pennsylvania Attorney General's Office states: "a concealed carry permit issued by a Pennsylvania sheriff is good for a period of 5 years, unless revoked at an earlier time by the sheriff. Permits are not automatically revoked under any circumstances." This letter is posted at www.WMSA.net.
Out of state license holders are subject to the restrictions of Missouri law regarding banned areas and self-defense. It is advisable to take a Missouri specific course before carrying on an out of state license.
Changes
The license holder must notify the sheriff if he moves. If he moves to a different county, he must notify the sheriff of both the old and the new county. If a license holder changes his or her name, he or she must notify the sheriff. The license holder must also notify the sheriff if the license is lost or destroyed, even if the license holder does not intend to ever use the license. The license becomes invalid within thirty (30) days if the sheriff is not notified. The best course of action is to provide written notification, sent certified with return receipt, and a copy of the letter should be kept in a safe place.
Renewal
There is no procedure to notify license holders before their licenses expire. There is no specific time frame in which to apply for renewal; although there is a penalty for late renewal. Only an application and a $50 renewal fee are required. No fingerprints or investigation are required. Given that the applicant’s license would have been revoked if the applicant had committed a crime or been committed while licensed, no investigation would appear to be necessary. The same application form used in the original application will be used for renewals.
Contact With Law Enforcement
A license holder is required to display his or her permit if asked by any law enforcement officer under any circumstances. In effect, if the officer asks if you have a license, you must display it. This information is available to the officer through the MULES and Department of Revenue systems, so there is no point in being evasive.
Places Cannot Carry
License holders are prohibited from carrying in government, quasi-government, heavily regulated business, certain gatherings of people, or where especially vulnerable persons are found. The specific banned areas are:
Place--------------------------Management Authorized
Law Enforcement office-----------possible
w/in 25 ft of polling place------no
Adult or juvenile prison---------no
Courthouse or court offices------no
Government meeting---------------only officials
Government Bld (posted)----------no
Bars-----------------------------possible
Airport controlled area----------no
Banned by Federal Law------------no
Post Office----------------------no
Any school or college------------possible
Child Care Facility--------------possible
Riverboat Gambling---------------possible
Amusement Park-------------------no
Church or similar----------------possible
Posted property------------------possible
Sports arena/stadium-------------no
Hospital-------------------------no
Bus Terminal---------------------no
Bus------------------------------no
Train----------------------------no
The LTC law only exempts licensees from the provisions of RSMo 571.030, which criminalizes carrying concealed weapons. It has no effect on other statutes (such as relate to buses and bus terminals) or federal statutes. Weapons cannot be taken into bus terminals or buses under RSMo 578.305 or 578.320; see page 115 of MISSOURI WEAPONS AND SELF-DEFENSE LAW. The use of “terminal” does not extend the ban to bus stops, but this is of little use, one cannot get onto the bus, any bus, with a weapon. Weapons cannot be taken into federal facilities under 18 U.S. Code section 930; this includes post offices. The term "facility" does not appear to include parking lots.
The language of the federal statute bans firearms in federal facilities except when "incident to hunting or other lawful purpose". Some have argued that self-defense is a "lawful purpose" under the federal statute. This is an excellent point; however federal and especially postal authorities disagree. Anyone seeking to make a test case needs to get a 55 gallon drum. Stuff this drum with hundred dollar bills; cram them in as tightly as possible. Wheel the drum into my office, and then we can talk about it. Of course, flunking a test case means going to prison.
The (federal) National Park Service prohibits carrying firearms in its parks. The USDA Forest Service, on the other hand, respects the concealed carry laws of the states in which the forests are located. It doesn't have to make sense; it's your tax dollars at work.
Under federal law, trains follow the same general procedures as air travel; see Missouri Weapons and Self-Defense Law page 120. The few light rail systems in Missouri intend to ban license holders from carrying concealed weapons.
The prohibited places portion of the statute only prohibits carrying concealed “firearms”. Carrying other types of weapons is not specifically prohibited by this statute, but may be prohibited by other areas of the law (buses and post offices for example). The individual may also be charged with tresspass. See the “Prohibited Places” section in MISSOURI WEAPONS AND SELF-DEFENSE LAW.
Carrying a concealed weapon is legal in the parking lots of the above places so long as it is not removed from the vehicle or brandished while the vehicle is on the premises. The only exception is for places banned by federal law.
Carrying a weapon of any kind into a government building, office, or facility is already illegal. This does not change. The law makes it an infraction for license holders. The General Assembly and the courts may issue rules concerning carrying concealed weapons in their buildings, but cannot make it a crime. During meetings of the General Assembly or local government, members of that governing body who are part of the meeting and only those members may carry concealed weapons if licensed. Governor Holden has, by decree, banned license holders from bringing weapons into state buildings. His authority to do so under the statute, however, is questionable. Anyone seeking to make a test case of this issue needs to get a 55 gallon drum.
For one-hundred and twenty-five years only criminals carried weapons into city buildings. The moment honest citizens gained the right to carry concealed Kansas City's Mayor Pro Tem Alvin Brooks warned of "kooks". Councilwoman Saundra McFadden-Weaver declared that she would not come to work until the city acquired metal detectors ["KC bans firearms from city buildings" Kansas City Star 5 March, 2004 page B-1 clmn 6]. The city has banned concealed weapons from all city-owned buildings and vehicles. If that works they may ban potholes. Most cities seem to have passed similar ordinances.
As of this writing, several cities are trying to stretch this provision into a ban on licensed carry in city parks. This stretches the term “building” which means “inside” to also mean “outside”. If this was the intent of the law, the city could also ban licensed carry on streets and sidewalks; this was not the intent of the law.
Some cities have suggested bans on licensed carry in public zoos. This is not specifically allowed by the law, but arguably could be considered an “amusement park”. Thus a city might ban licensed concealed carry; if that works it might then ban illegal concealed carry. At a town meeting on the bill a representative of Worlds of Fun Amusement Park quoted a portion of the bill, and asked if that meant they could post their parking lots as well. The prosecutor said that it did. However, the representative was quoting from an early version of the bill. The final version stated that it did not apply to parking lots, only to "gated areas" However, (again) a property owner can set his own rules for any property he owns.
Licensees cannot carry into bars. This does not apply to the owner of the bar, and prior law allows persons who have “dominion or control” over the premises to carry concealed. This provision also does not apply to restaurants with dining facilities for at least fifty (50) persons and also receives at least 51% of its gross annual income from the dining facilities by the sale of food. The statute does not indicate how one might know this without first entering the premises and auditing the books.
There are street fairs where alcohol is served. The statute does not bar entry to such street fairs. The statute refers to "establishment" which is defined by the alcohol license granted to the booth selling alcohol. As long as the license holder doesn't "belly up to the bar", it will not be an infraction. It is a felony to carry a weapon when intoxicated, and a misdemeanor to carry an unloaded firearm when intoxicated.
Any private business may post itself off limits to concealed firearms by conspicuous display of an eleven (11) by fourteen (14) inch sign with letters thereon of not less than one inch. The statute does not specify what the sign must say, but “No Guns” or “Off Limits to Guns” would seem to get the message across. Private property owners have a perfect right to set conditions for their customers, just as they declare “No Shirt, No Shoes, No Service”. In other states these signs were common after passage of a license to carry law; gun owners avoided such places, criminals did not. The signs then began to come down. As a matter of good manners, gun owners shall spend their money elsewhere and with excruciating politeness inform the store of their decision. Cards to this effect can be obtained from www.LearnToCarry.com. Copies of these "No Guns No Money" cards can be printed out using samples at any Kinkos.
In many areas local government has supplied free "No Guns" signs. They have refused, however, to supply "Guns Welcome" signs. This contributes to the general hysteria over implementation of the law, which may be the purpose of the exercise.
In some states business owners posted non-conforming signs, which were therefore of no legal effect. This gave the business the advantage of satisfying the hoplophobes (persons with an unnatural fear of weapons), and not offending the gun owners. Since the Missouri law is not specific in language, only its size can make it non-conforming. There is some question about the decals of a revolver with a red slash through them. Assuming the size of the decal is correct; the argument is that there are no "letters" to be at least one inch high. It may also be argued that letters are only symbols representing a sound. The ban symbol represents an idea. It stretches the idea of "letters" but it is not worth buying a 55 gallon drum over.
Many businesses post these signs in the belief that it will reduce their liability. The contrary is more likely. Denying customers the right to carry the implements of self-defense is akin to the captain of the Titanic refusing to allow passengers to bring aboard their own lifeboats. To do so forces the passengers to rely on the captain's ability to avoid icebergs. When a business forces the customer to rely on the business's security, the business becomes the guarantor of the customer's safety. Parking lots which take the customer's keys and park the car guarantee the security of the car by doing so. Parking lots where customers park their own cars and take the keys do not. When a business takes exclusive charge of security, it takes exclusive liability for a lack of security. If the business takes no action, there will be no change in liability for security.
Licensees cannot carry in any sports arena or stadium with a seating capacity of 5,000 or more. The critical question is capacity, not how many show up for the game.
Licensees cannot carry in any hospital accessible by the public. It is a rare hospital which is not accessible by the public. There are areas of hospitals which are accessible by the public, and areas which are not. This may, therefore, not apply to employees of hospitals in those non-public areas, but this is not clear. Since other barred areas allow for permission by the management, and the hospital provision does not, a more restrictive interpretation might be made.
It has been widely claimed that it is no longer a felony to carry weapons into schools. This is not entirely true, in the sense that there is absolutely nothing true about it. It remains a felony under federal and state law to bring a weapon to any school function, on or off school grounds. The only exception is for license holders for whom it is an infraction and probably a trespass charge. The definition of school includes colleges which may own theaters, halls, or other facilities not necessarily part of the school. The statute actually bans license holders from carrying firearms in any "school facility"; this would appear to include a host of facilities including the school's sewage plant. Under 18 U.S.C. section 922q(2)(B) holders of licenses issued by a state are exempt from the federal "Gun Free School Zone Act". In a 17 April, 2002 letter, the Bureau of Alcohol Tobacco and Firearms has taken the position that this exemption only applies in the same state in which the license is issued. Their reasoning does not seem compelling, and a court might rule otherwise, or might not.
Employers may be more restrictive than state law. They may, for example, ban the possession of firearms anywhere on company property, including the parking lot. It will not be illegal to violate company policy, but it may get a licensee fired. Missouri is an employment at will state, the will largely being that of the employer. The boss can fire all gun owners in the company and get away with it, at least until the picket line starts.
Certain librarians have claimed that under the LTC law, they have more authority to eject gum chewers than pistol licensees. One would expect a librarian to read the law more carefully. Under RSMo 571.107.1(15) private property owners "or any other organization, entity, or person" may prevent license holders from carrying on premises owned by the entity. If libraries are not government buildings, they are certainly entities.
Penalties
In other states with similar laws nearly all "crimes" committed by license holders involved inattentively entering prohibited places with a weapon. In drafting Missouri's statute it was decided to remove these places from the list of crimes. Entering one of the above areas with a concealed weapon is not a crime. It is an infraction. However, it is not even an infraction unless the licensee is asked to leave the premises, refuses to leave, and a peace officer is summoned. The licensee may then be issued a summons carrying a $100 fine. If a second citation for a similar violation occurs within six (6) months, the fine will be $200 and his or her license to carry shall be suspended for one year. A third citation for a similar violation within one year of the first citation carries a fine of $500 and the license to carry shall be revoked. The person cannot re-apply for a license for three years. The licensee may also be arrested and charged with trespass. Some prosecutors have an unseemly desire to put licensees in jail, even briefly.
Missouri has struggled too long to get this law, to endanger it with stubborn, boorish behavior. Robert Heinlein wrote that an armed society is a polite society. This is our best defense.
NICS
The National Instant Check System (see page 98) provides a benefit for licensees in most other states, but not Missouri. Under 18 U.S.C. section 922(t)(3)(A) a license holder is exempt from the need for NICS checks when buying a firearm, having been more extensively checked for his or her license. There is even a block on the 4473 form filled out by federally licensed dealers for details regarding the buyer's carry license as an alternative to the NICS check. However, (the eternal however) this only applies to states where the issuing authority can determine that possession of a firearm by the licensee would not be in violation of law. The Missouri LTC law demands a background check. However, (again) the BATF says that Missouri's law does not specifically exempt license holders from NICS. They have told Minnesota dealers that Minnesota carry license holders are not exempt from NICS because their law does not mention persons convicted of adult abuse. This appears to be two radically different reasons for the same result. This also does not appear to be what the federal statute says. This will require further attention.
An LTC license does NOT exempt persons from Missouri's permit system for buying handguns, either from dealers or private parties.
ADDITIONAL CHANGES
As of 28 August, 2007 it will be illegal for the state of local government to confiscate legally owned and used firearms during an emergency. This is a reaction to the seizure of guns from citizens of New Orleans during the Katrina emergency.
As of 28 August, 2007 it will no longer be required to get a Permit To Acquire (PTA) from the sheriff before buying a handgun. The federal NICS check is all that is required. For private sales it may be adviseable to transfer it through an FFL.
As of 28 August, 2007 Missouri will have a pure "Castle Doctrine". If an intruder is found in one's home or a person refuses to leave when told to, the homeowner is entitled to believe that the intruder does not have his best interests at heart and can use force. Lethal force is allowed if a forcible felony is threatened. A forcible felony includes burglary. A "home" is broadly defined to specifically include tents and other temporary residences. It also includes vehicles.
The same bill which provides for License to Carry makes other changes in who can carry concealed and where anyone can carry. Courts have made other changes.
TASER STUN GUNS at page 64
Taser anounces that Tasers are illegal in the District of Columbia, Massachusetts, Rhode Island, New York, New Jersey, Wisconsin, Michigan, Hawaii, and "certain cities and counties." There are "restrictions" in Connecticut; see www.taser.com. This may be due to hysteria over persons who died after being shocked with tasers. These incidents are more likely to be attributed to drugs or psychosis. There are fifty five thousand (55,000) uses of taser on people who otherwise would have been shot. About 75 to 100 died afterwards. There are eight known autopsies which "could not rule out" the taser as the cause of death see Ayoob "Taser" Shotgun News 3 October, 2005 at 45.
PROHIBITED PERSONS
CONVICTED
Municipal Court
All municipal court convictions are misdemeanors. All misdemeanors involving firearms, silencers and (poison) gas guns permanently bar the individual from buying handguns in Missouri. However, the statute only bars state court convictions. Municipal court convictions are not state convictions, they are convictions under city ordinances. I have had some success arguing this distinction in circuit courts to overturn Permit To Acquire denials. However there is no appellate court decision as yet.
Foreign Convictions
On 26 April, 2005 the U.S. Supreme Court ruled on SMALL v UNITED STATES. Gary Sherwood Small was arrested in Japan for attempting to smuggle firearms and ammunition into Japan. Mr. Small did not have meaningful access to counsel either before or during trial. Mr. Small spoke no Japanese. His lawyer spoke little English and his consultation was limited to urging a guilty plea. A translator was provided but Mr. Small did not have meaningful access to him during the trial. After four or five days of trial, spread over thirteen months Mr. Small was convicted and served five years in prison. On his return to the United States Mr. Small purchased a handgun from a dealer. He filled out the required BATF form 4473 which asks, among other disqualifying questions, if he had ever been convicted of a crime punishable by more than a year in prison. Mr. Small answered "no" and was subsequently arrested for being a felon in possession of firearms under 18 U.S. Code Section 922(g) and making a false statement to a firearms dealer under Section 922(g)(6). He was convicted, and the conviction was upheld by the Third Circuit Court of Appeals. There was evidence from Amnesty International, the United States Department of State and the Japanese Federation of Bar Associations that Mr. Small's trial was typical of the Japanese system.
The Court appears to have been concerned about the lack of due process of law in Mr. Small's case, and that actions which are crimes in foreign countries are not crimes in the United States. It is possible, but unlikely, that this decision will apply to immigrants. American immigration law makes it unlikely that aliens with criminal records will be given visas for the United States. In twenty-one years of practicing immigration law I have had only one client with a foreign conviction (other than asylum cases). The individual had an old British conviction for the sale of what might be called "ordinary" pornography, the sort that is no longer a crime in the United States or Britain. After proving the nature of the old crime, he received residency based on marriage to an American citizen. It remains a crime for illegal aliens to possess firearms, or for alien students or visitors to possess firearms. it is not against the law for aliens to possess large aircraft.
MENTAL DISEASE OR DEFECT
Federal law under 18 U.S. Code section 922(g) and (h) forbids firearm or ammunition sales to or ownership by persons who have been committed to a mental institution or have been adjudicated a mental defective. The problem is that in writing this law, Congress did not define adjudication as a mental defective, or even the term mental defective. Various courts have created different definitions, mostly focusing on how dangerous the person in question might be. They have often found that the intent of the Gun Control Act was to deny firearms to anyone who was the least bit questionable. The Eighth Circuit Court of Appeals, which covers Missouri, has taken a different approach. It defined the term “mental defective” as "mental retardation" in U.S. v Hansel, 474 F.2d 1120 (Ct. App. 8th Cir 1973) at 1123. This makes some sense, as children are not allowed to have guns and retardation artificially gives an adult the mentality of a child. This was a criminal case and gave the benefit of the doubt to the defendant.
The Code of Federal Regulations at 27 CFR 178.32(d)(4) prohibits the sale of firearms or ammunition to, or the possession of firearms or ammunition by, persons who have been “adjudicated” as “mentally defective”. The definition of “adjudicated” is at 178.11 which refers to a determination by a “court, board, commission, or other lawful authority”. The “court, board, commission, or other lawful authority” must find that as a result of “marked” subnormal intelligence, or mental illness, incompetency, condition or disease that the individual is a danger to himself or to others OR that he lacks the mental capacity to contract or manage his own affairs.
The “other lawful authority” language gives the authority to ban gun ownership to an entire world of administrative agencies. Such authority should be limited to agencies that determine mental disabilities and take evidence of mental fitness. The decision should also reflect a current disability. In one case a veteran was adjudicated incompetent because of past drug use, a habit he had beaten.
This authority has come up in the context of persons who received disability ratings from Social Security or the Veteran’s Administration for mental problems. In one such case an individual was determined to have various mental defects including paranoia. However, he was not found to be a danger to himself or others or to lack the mental capacity to contract or manage his own affairs. He was not prohibited from owning firearms. In such circumstances, the individual must consider if it is a good idea to exercise his rights. Mental problems often get worse rather than better, and given a diagnosis of paranoia, even a completely justified self-defense shooting would be open to many questions leading to criminal and civil actions. Family members and psychiatrists should discuss this potential problem.
In one Clay County, Missouri case an individual attempted to commit suicide by running his car in the garage. He failed but his family responded by seizing his guns; they left the car. The family contacted the individual’s attorney and asked if what they had done was legal. People often ask this question after the fact, if at all. What they had done was not legal. They had taken someone’s property and transferred several handguns without first getting a Missouri Permit to Acquire (when such permits were requires). Such informal seizures often result in the guns disappearing into the black market, to the detriment of the legal owner. The family was convinced to leave the guns with the individual’s lawyer, which also was not legal put preserved the property. The attorney then obtained a restraining order requiring him to keep the guns until further order of the court.
Congress has just passed and the President has signed a bill which makes it possible to extract oneself from an adjudication of mental incapacity. More on this later.
DIVERSION SENTENCING page 77
Some sheriff's departments have argued that persons with a suspended imposition of sentence cannot purchase a gun if the SIS was the result of a guilty plea. This is wrong on two counts. Nearly all suspended imposition of sentences are the result of a plea. Secondly, the Missouri Supreme Court case which ruled that an SIS was not a conviction involved a petitioner who had pled guilty in exchange for the SIS; YALE v CITY OF INDEPENDENCE, 846 S.W.2d 193 (Mo. 1993).
WHILE INTOXICATED
The penalty for carrying a firearm while intoxicated has been raised to a Class A misdemeanor punishable by a year in jail if the firearm is unloaded, or a Class D felony punishable by 4 years in prison if the gun is loaded. Anyone who might drink should lock up the gun and leave it there. Some prosecutors are salivating with desire to lock up license holders; it is best not to give them the slightest opportunity. See MISSOURI WEAPONS AND SELF-DEFENSE LAW at page 81.
EXPUNGEMENT OF RECORD page 88 and 297
Equitable expungement through the courts is no more. The U.S. Supreme Court ruled in UNITED STATES ET AL v BEAN 537 U.S. 71 2002 that district courts could not expunge criminal records. Mr. Bean had applied to the BATF under 18 U.S. Code section 925 to expunge his criminal record. Congress has refused to fund this activity. Without the money to buy a piece of paper on which to write such an expungement, much less to do the investigation, the BATF rejected the application. The Court ruled that this did not amount to a denial and therefore Mr. Bean could not appeal to the courts.
On 31 May, 2005 the Missouri Supreme Court ruled on IN RE: THE MATTER OF SCOTT DYER that circuit courts do not have the power to grant equitable expungements of criminal records. Their reasoning was that such power was not mentioned in the very limited expungement statute.
It would appear that courts can order taxes, run school districts, break up industries, determine voting proceedures, decide monumental questions of Constitution, custom, privacy, and public policy, as well as send individuals to their death; they cannot decide if the corrections department has done its job and reformed an individual.
PERMIT TO ACQUIRE HANDGUNS REPEALED!
Page 92
As of 28 August, 2007 it is no longer necessary to get a permit from the sheriff before buying a handgun. If an individual buys a handgun from a licensed dealer, the dealer will run the buyer through the National Instant Check System (NICS). That is all.
If an individual buys a gun at a gun show, the dealer will run the buyer through NICS. People will say differently, they are lying.
If an individual inherits a handgun within Missouri, the executor of the estate only needs to give the gun to the heir. If the estate is outside of Missouri, the heir must comply with the laws of the other state. The easiest way to do this is to have a licensed dealer transfer the gun to a dealer in Missouri. Federal law allows the gun to be transferred directly to the heir; however, this is one area where state law can be more complex.
If an individual buys a handgun from an individual, there is no requirement to run a NICS check. The gun is transferred like any other piece of property. It is not legally possible to run a NICS check unless a licensed dealer is transferring the gun. If the buyer and seller do not know each other it would be a good idea to have a licensed dealer transfer the gun. The dealer will place the gun in his books. After the Buyer fills out a 4473 the dealer will then do a NICS check. This gives the Seller a piece of government paperwork showing that he did not sell to a prohibited person. The Buyer gets a piece of government paperwork showing that he was not knowingly buying a stolen gun. If he were knowingly buying a stolen gun, he would not have run it through the dealer’s records. The dealer will charge a fee, but it is cheap insurance.
A bill of sale should be considered minimum documentation of a sale. One of my clients had his gun come to the attention of the police. At some point in its history it had been stolen and placed on the national list of stolen firearms. There were some complications involving handcuffs and a holding cell before he could demonstrate that he did not steal the gun and did not know it was stolen. Documentation helps prove these elements.
I despise practicing law with fill-in-the-blank documents; however the following provides some basics of legal protection.
BILL OF SALE
For $_________ cash and other valuable considerations from buyer, ___________________, Seller, sells, vends, and conveys to ________Buyer, a (Make and Model) _____________________ caliber _______ serial number ______________________.
Dated this ____ day of _______________, 200 __.
_________________ ___________________
Seller ID # __________ Buyer ID #____________
On this _____ day of _____________, 200 __, appeared before me _________________________, known to me to be that person and signed the above as his/her free act and deed.
_______________________
Notary Public
My Commission Expires:
On this _______ day of ___________________, 200 __, appeared before me _________________________known to me to be that person, and signed the above as his/her free act and deed.
___________________________
Notary Public
My commission expires:
Instructions: This is a very basic bill of sale, not a contract. It is not essential that it be notarized, but this proves the identity of both parties and is highly recommended. Date of birth and ID number is not required but helps prove the identity of the persons with whom you do business.
SEIZURE page 100
The police chief of Hazelwood, Missouri has issued an educational memo to the members of his department. The Chief, who was also a plaintiff in the lawsuit to find the License to Carry law unconstitutional, has instructed his officers to seize any firearm carried under this law. This will serve to educate his department about federal lawsuits for depriving persons of property without due process of law. Any policy which provides work for lawyers must be a good thing.
Some departments have instructed officers to confiscate handguns if the owner does not have a copy of the Permit to Acquire obtained when the gun was purchased. This again deprives the citizen of property without due process of law. Law enforcement must have probable cause to believe that a gun was illegally obtained before it can be seized. The fact that a person has a License to Carry makes it less likely that the gun was illegally obtained.
PUBLIC ASSEMBLAGE--RATIONAL pages 106-115
In 1874 the Missouri legislature began to outlaw the possession of weapons in a "public assemblage", but neglected to define the term. Not until 1998 did a Missouri court have occassion to define the term; I was the attorney who advanced the accepted definition. Five years later, as part of the License To Carry law, the Missouri legislature abolished this offense; and with it my role in legal history, and rendered nine pages of my book of historical interest only. On the other hand, they abolished a reason to put people in jail, so I can live with it.
CCW EXCEPTIONS
Law Enforcement Officers Out of Jurisdiction pages 136-7.
By statute all peace officers possessing the duty and power of arrest may carry conceal “whether such officers are within or outside their jurisdictions or on or off duty.”
On 22 July, 2004, President Bush signed the "Law enforcement Officer's Safety Act", 18 U.S. code section 926B. This act allows active duty law enforcement officers, and qualifying retired officers to carry concealed weapons in any state. It does not specifically refer to U.S. possession or territories such a Puerto Rico or Guam. it does not specifically refer to the District of Columbia. It probably does not apply to Indian Reservations or military reservations. It would appear that it was intended to have broad application; however, it took twelve years to pass this measure, indicating a certain amount of opposition. Given this opposition, its extension into unique federal jurisdictions should not be assumed. New York state law allows concealed carry by prison guards; however, in 1987 Julio Marrero, a federal prison guard stationed in New York was arrested, convicted, and the conviction upheld for carrying a concealed weapon; Robinson WOULD YOU CONVICT New York University Press, N.Y. 1999 at 54-77.
The definition of a law enforcement officer consists of an employee of a governmental agency who "is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any persoon for any violation of law, and has statutory powers of arrest; . . . ". The employee must also be authorized by his agency to carry a gun and qualify under his department's standards "if any".
While the definition of law enforcement officer refers to an employee engaged in incarceration, the employee must also have the power of arrest. This indicates that the law does not apply to corrections officers. This is unfortunate. While a criminal may not remember the arresting officer, he is almost sure to remember the guard who monitors his movements in the following years.
The law specifically includes retired law enforcement officers who retired in good standing after a total of fifteen (15) years or retired due to a service-connected disability. The retired officer must also meet, at his own expense, his state's standards for firearms training every twelve months. New York City is reported to have a policy of arresting retired officers and seizing the gun until the individual's retired status is confirmed. This sounds unconstitutional as hell.
There is some complaint that some agencies are refusing to qualify their retired officers. Some agencies also complain that the statute does not answer liability issues. Wisconsin is attempting to answer these questions on a state level, and there is some intention of answering these questions on a federal level. However, good intentions on a federal level are not an encouraging guarantee.
Coroners and Medical Examiners
Coroners, deputy coroners, medical examiners, and assistant medical examiners are exempt from the concealed carry ban. Coroners have always been considered law enforcement officers (see page 246). They are being replaced by medical examiners, medical doctors trained to find evidence from dead bodies. Some counties contract with medical examiners for services as needed. The statute does not differentiate between full or part time employment.
At least one prosecutor has complained that coroners are specifically allowed to carry under the law, but not prosecutors. Prosecutors have much more contact with live criminals, but are not specifically allowed to carry. The reason is simple; the forensic examiners on "CSI" carry guns, and the prosecutors on "Law and Order" do not.
CCW PLACE EXCEPTIONS
Vehicles page 145
Under the statute the right to carry loaded concealed handguns in one’s home is extended to one’s vehicle. This extended right is confined to persons 21 years old or older who lawfully possesses the firearm. This right only applies to “concealable” firearms (they mean handguns). It does NOT apply to rifles, carbines, or shotguns. It doesn’t have to make sense, it’s just the law.
The term "lawfully possess" means that the individual can legally own a handgun. Some persons have privately acquired handguns in Missouri without going through Missouri's mandatory, but lightly enforced, purchase permit system (see MISSOURI WEAPONS AND SELF-DEFENSE LAW at page 92). While these handguns have been unlawfully purchased this does not mean that they are unlawfully possessed.
The handgun may be carried anywhere in the passenger compartment of the vehicle. As in the home, one must be cautious about access by children. People have been charged with endangering the welfare of children by allowing access to guns, and certain prosecutors may take this as a consolation prize.
ADULT ABUSE
Jury Instruction page 169
Since writing the above section, the Missouri Supreme Court has adopted MAI-CR 306.07 as an instruction for the adult abuse defense. It is therefore mandatory for such cases. The Missouri instruction reads:
In order for a person lawfully to use force in self-defense, she must reasonably believe she is in imminent danger of harm from the other person. She need not be in actual danger but she must have a reasonable belief that she is in such danger.
If she has such a belief, she is then permitted to use that amount of force that she reasonably believes to be necessary to protect herself.
But a person is not permitted to use deadly force, that is, force that she knows will create a substantial risk of causing death or serious physical injury, unless she reasonably believes she is in imminent danger of (death) (or) (serious physical injury) (or) (forcible rape) (or) (forcible sodomy) (or) kidnapping).
And, even then, a person may use deadly force only if she reasonably believes the use of such force is necessary to protect herself.
As used in this instruction, the term "reasonable belief" means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. Evidence has been introduced that the defendant as a result of [name of victim's] prior conduct, was suffering from "battered spouse syndrome." If you believe that defendant was suffering from such syndrome, you must consider how the situation would appear to a person suffering from such syndrome. Thus, in determining whether the defendant's beliefs as to her situation were reasonable, that determination should be based on what an otherwise reasonable person who is suffering from battered spouse syndrome would believe. It does not depend upon whether the belief turned out to be true or false.
The instruction also has paragraphs to fit specific situations. If the reputation of either party for peacefulness or violence is in evidence, this can be included in the instruction. There is even a paragraph for situations in which the defendant initiated the violence. This instruction assumes that the defendant will be a woman. However, the statute is gender neutral and the instruction could be used by a man if the evidence fits, and in some cases it will. The instruction contains the evil of referring to the abuser as the "victim", which seems to presuppose an innocent role. However, this shorthand reference is not seen by the jury. The defense is not limited to murder cases; it can be used in any assault or brandishing case. The inclusion of a fear of rape as a reason to invoke the defense will make it useful as marriage is no longer a defense to rape under RSMo 566.030.
CITIZEN'S ARREST AND DETENTION at page 194
Missouri now has a law against slavery at RSMo section 566.206; it only took 140 years. At RSMo 566.203 Missouri statutes specifically outlaw "abusing an individual through forced labor". It is therefore unwise to force the prisoner to clean up after himself; broken glass, urine stains, etc.
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