Concealed Carry: The Law of Unintended Consequences? or Right or Wrong, It's Still Swiss Cheese
Lynn M. Ewing III1
Greetings from the prosecutor's office. I write concerning changes to the criminal law governing the carrying of concealed weapons." This is how I began a letter to the superintendent of my local school district. The letter was the fruit of a review of the concealed carry law.2 The letter morphed into this article. But I get ahead of myself.
Shortly after the legislature overrode the veto of the concealed carry law, I had been asked by the Vernon County sheriff and the school resource officer and the superintendent of schools if I had any thoughts about what signs they should post on school property to keep concealed weapons out of the schools.
Before I made it out the door that Friday afternoon with a copy of the legislation, the county commission, the associate circuit judge, the managing officer of the local probation and parole office, a lieutenant in the local police department, and the local newspaper had all called about concealed carry. "How do we keep guns out of the courthouse?" "Do we need to enact a county ordinance to keep guns out of county buildings?" "We've posted signs, but would you look at them and tell us whether they comply with the law?" "Do you have any comments?"
I headed off to the courthouse on Monday morning with a draft of a letter to the school superintendent. Here is what I told him: Schools and state government buildings, churches and polling places are no longer gun-free zones. Persons who have a concealed carry permit may carry weapons in plain view into your schools.
As discussed below, the provisions of the law granting a right to carry concealed weapons survived constitutional scrutiny in the Supreme Court of Missouri.3 The law was, however, found to violate the Hancock Amendment, and enforcement of the law was enjoined in four Missouri counties.4
I. The Criminal Law Before Concealed Carry
Before the 2003 legislature completed its work, § 571.030, RSMo, made it a crime to carry a concealed weapon in Missouri. The General Assembly passed House Bills 120, 136, 349 and 328, which repealed § 571.030, re-enacting a new § 571.030, and created the concealed carry law in §§ 571.101, et seq. The changes alter the law of concealed carry in several fundamental ways. An understanding of the changes requires a brief review of what was not changed.
The criminal code in Missouri defines 10 acts that constitute the crime of unlawful use of a weapon.5 These 10 acts can be divided into two categories, "carrying" crimes and "overt act" crimes.
1. Four Crimes of "Carrying" Firearms
Things you cannot do:
• Section 571.030.1(1) - carrying a concealed weapon;
• Section 571.030.1(5) - possession of a weapon while intoxicated, whether concealed or not;
• Section 571.030.1(8) - carrying weapons into churches, voting precincts, and government buildings, whether concealed or not;
• Section 571.030.1(10) - carrying weapons into schools, school buses, and premises where school functions are ongoing, whether concealed or not.
2. Six Crimes Involving "Overt Acts" With a Firearm
Things you cannot do:
• Section 571.030.1(2) - set a spring gun;
• Section 571.030.1(3) - shooting into trains, boats, houses or buildings used for assemblies;
• Section 571.030.1(4) - exhibiting weapons in an angry or threatening manner;
• Section 571.030(6) - firing guns within 100 yards of a school, courthouse or church;
• Section 571.030.1(7) - shooting across a public road or shooting into outbuildings;
• Section 571.030.1(9) - drive-by shootings from automobiles.
All 10 of these acts are still crimes if committed by someone without a concealed carry permit. As discussed below, a permit to carry should not insulate the gun owner from prosecution for the overt acts committed with a firearm. Surprisingly, under the concealed carry law, not all of the carrying crimes are crimes if committed by a person with a concealed carry permit. This is, I believe, the unintended consequence of the concealed carry Swiss cheese. The cheese is found in § 571.030.4,7 discussed below.
II. The Law of Carrying Concealed Weapons after Concealed Carry
The changes to § 571.030 and the addition of §§ 571.101 to 571.121 change concealed carry law in several fundamental ways: a person who is 21 years old may carry a lawfully-owned gun concealed in the passenger compartment of the car, whether he has a permit or not; a permit holder may carry a concealed weapon, subject to a panoply of places where, and circumstances under which, even a permit holder can't carry a concealed weapon; and eight of the weapons offenses are not crimes if the permit holder is defending himself or others. These changes make what I believe are some significant unintended consequences to the law of carrying weapons in Missouri.
A. Persons Who Can Carry Without a Permit and Not Violate Acts of "Carrying"
There are some people who can carry concealed weapons, and not violate the carry prohibitions of § 571.030, without the need to apply for and receive a permit under § 571.094. Those who may carry a concealed weapon without a permit are: state, county and municipal law enforcement officers possessing the duty and power of arrest; wardens, superintendents and keepers of prisons, penitentiaries and jails; members of the armed forces or national guard while performing their duties; state and federal judges; persons whose duty it is to execute service of process; state and federal probation officers; certain licensed corporate security officers; coroners and medical examiners.8 This was true before the enactment of the concealed carry law. The only change in the law in House Bill 349 is the addition of county coroners and medical examiners and their assistants to the list of persons who can carry a concealed weapon without a permit.
There are some circumstances where any person can carry a concealed weapon, and not violate the carry prohibitions of § 571.030, without the need to apply for and receive a permit under § 571.101. There are a few changes noted:
• Persons carrying weapons "in a nonfunctioning state," or unloaded without accessible ammunition, or loaded but "not readily accessible." Section 571.030.3. This is not new. This is an exception to § 571.030.1(1) only.
• Persons 21 years old or older carrying "a concealable firearm in the passenger compartment of a motor vehicle, so long" as the person is in lawful possession thereof. Section 571.030.3.9 This is new. This is an exception to § 571.030.1(1) only. So, if you are 21 and the lawful owner of a gun, it is impossible for you to illegally conceal your gun in your vehicle; however, you can be charged with concealing a weapon in your vehicle if the gun does not belong to you.
• Persons 21 or older who carry in plain view "an exposed firearm . . . for the lawful pursuit of game." Section 571.030.3. This is not new. This is an exception to § 571.030.1(1) only.
• Persons who are in their own house, or on their own property which they own or possess or exercise legal control over. Section 571.030.3. This is not new. This is an exception to § 571.030.1(1) only.
• Persons who lawfully possess a weapon and who are "traveling in a continuous journey peaceably through [the] state [of Missouri]." Section 571.030. This is not new. This is an exception to § 571.030.1(1) only.
• Persons who are "traversing school premises for the purposes of" bringing a student to school or picking a student up from school. Section 571.030.3. This is not new. This is an exception to § 571.030.1(10) only.
• "Adult" persons lawfully possessing a gun on school premises "for the purposes of facilitat[ing] a school-sanctioned firearm-related event." Section 571.030.3. This is an exception to § 571.030.1(10) only. Students cannot carry the weapons readily capable of lethal use, used in school events, into the school or on a bus or any other premises where sanctioned school events are taking place. Section 571.030.6. This is not new.
• The prohibition against carrying guns, concealed or in plain view, into "any public assemblage of persons met for any lawful purpose" has been eliminated from § 571.030.1(8).10 Whether you have a permit or not, you may now carry a loaded gun into a public assemblage, so long as it is in plain view, and carry it concealed into the gathering if you have a permit, without risk of criminal prosecution.
B. Carrying Concealed Weapons With a Permit
The legislature's override of the governor's veto, and the Brooks 11decision, grants Missouri citizens 23 years old or older the right to apply for a permit to carry a concealed weapon, and to carry a concealed weapon if granted a permit. The concealed carry law is found at § 571.101.12 The rules for application are spelled out in that section. Persons began applying for permits on October 11, 2003.13 Missouri will honor permits issued from another state or local government subdivision of another state.
The legislature, as part of the law creating the concealed carry law, also made an amendment to § 571.030, the law creating the unlawful use of weapons crimes. The legislature added § 571.030.4,14 which provides:
4. Subdivisions (1), (8), and (10) of subsection 1 of this section shall not apply to any person who has a valid concealed carry endorsement issued pursuant to sections 571.101 to 571.121 or a valid permit or endorsement to carry concealed firearms issued by another state or political subdivision of another state.
Under the plain language of this addition to the weapons crimes statute, it is now no longer a crime for a permit holder to carry a weapon - in plain view or concealed, loaded or unloaded - into any church or place where people have assembled for worship, or into an election precinct on election day, or into any building owned or occupied by any agency of the federal, state or local government, or into a school or a school bus or on facilities where school-sanctioned activities are taking place. Yet it is a crime if a person does so without a permit to carry a concealed weapon. More on this in a minute, patient reader.
The legislature, as part of the concealed carry law, next created a list of 17 exceptions that describe where and when a person with a concealed carry permit cannot carry his concealed weapon. There are also limits on carrying a concealed weapon found by a careful reading of the law, without regard to the limitations of § 571.107.1. It is useful to first describe these "imbedded" limitations in the law:
• The right to carry a concealed weapon is not a right to carry it while intoxicated. The legislature did not exempt permit holders from the prohibition of § 571.030.1(5). If you are going out and you plan on drinking, take your gun out of its holster and leave it at home. Carrying a loaded weapon while intoxicated - concealed or in plain view - has been elevated from a "B" misdemeanor to a "D" felony.16
• The six overt criminal acts made with a gun (§§ 571.030.1(2) to (4), (6), (7) and (9)) still apply to anyone carrying a concealed weapon with a permit; but see the discussion of the application of the new self-defense exceptions to the overt- act weapons crimes, below.
C. Swiss Cheese
Now, back to the 17 exceptions to a permit holder's right to carry his concealed weapon. I have not set forth the 17 exceptions verbatim. I do have a few thoughts on three of the exceptions. The holes in the cheese are caused by the interplay between the exceptions and the addition of § 571.030.4.17
Here's the first piece of cheese. If a permit holder carries a concealed weapon in violation of these 17 exceptions found in § 571.107.1, he does not commit a crime. Violating the law means only that he has to pay a fine, an infraction that never shows on a criminal record.18 Repeated violations could cause the loss of his concealed carry permit.
Slice number two: A permit holder cannot carry a concealed weapon "[w]ithin [25] feet of a polling place on any election day."19 Yet, because of the exemption of permit carriers from the provisions of § 571.030.1(8), it is possible for a permit holder to carry a loaded gun in plain view into a polling place without fear of criminal prosecution.20 Persons without permits cannot do this. If a permit holder carries a concealed weapon in violation of this provision, at worst he faces the loss of his permit. Polling places are no longer gun-free zones.
Slice number three: A permit holder cannot carry a concealed weapon into a "meeting of the governing body of [any] unit of local government; or any meeting of the general assembly" or its committees. The Missouri General Assembly, a county or municipality may by rule or order further restrict the carrying of concealed weapons into its buildings. 21 Yet, because of the exemption of permit carriers from the provisions of § 571.030.1(8), it is possible for a permit holder to carry a loaded gun in plain view into a meeting of, or building occupied by, state or local government, without fear of criminal prosecution.22 Persons without permits cannot do this. If a permit holder carries concealed in violation of this provision, at worst he faces the loss of his permit. The government entity can post a notice to keep concealed weapons out of the building, yet the notice would be ineffective against weapons carried into the building in plain view.
Slice number four: This is the slice I wrote about in my letter to the superintendent of schools. A permit holder cannot carry a concealed weapon into "[a]ny higher education institution or elementary or secondary school facility without the consent of the governing body of the higher education institution or a school official or the district school board."23 Yet, because of the exemption of permit carriers from the provisions of § 571.030.1(10), it is possible for a permit holder to carry a loaded gun in plain view into school facilities without fear of criminal prosecution.24 Persons without permits cannot do this. If a person without a permit does this it is a crime. A permit holder may carry a loaded gun in plain view, and concealed onto a bus, or at school functions not on school facilities, without fear of criminal prosecution. Non-permit carriers cannot do this. If a person without a permit does this it is a crime. Under prior law loaded or unloaded guns - in plain view or concealed - were prohibited in schools, on buses, or at school-sanctioned activities. After the enactment of § 571.107.2,25 permit holders who carry a concealed weapon to schools do not even commit a crime. All they get is the equivalent of a traffic ticket.
As I wrote to the school superintendent, it does not seem to me that schools are made safer after the concealed carry law. Because of the Missouri legislature's poor draftsmanship, the schools are less safe. Schools used to be totally gun-free zones. Because of this law, I cannot prosecute permit holders who carry guns in plain view onto school property, onto school buses, or who appear at school events not on school property. The most that can be done is to ask the permit holder to leave. However, if he doesn't, then he is not even subject to the sanctions of losing his permit under § 571.107.2, because that section penalizes only acts of improper carrying of a concealed weapon! Violating the rules for concealed carry by a permit holder by carrying a concealed weapon into a school facility is not even a crime for which I can prosecute the offender. The most that can be done is to ask the permit holder to leave. If he doesn't, he can be forced to pay a fine as an infraction that is not even a crime and does not make it onto his criminal record Yet, if a non-permit holder does it, it is a crime I can prosecute.
Slice number five: Churches and other assemblies for religious worship find themselves in the same position as schools after concealed carry. A permit holder cannot carry a concealed weapon into "[a]ny church or other place of religious worship without the consent of the minister or person or [board that controls] the religious organization that exercises control [of] the place of . . . worship."26 Yet, because of the exemption of permit carriers from the provisions of § 571.030.1(8), it is possible for a permit holder to carry a loaded gun in plain view into a church or other place where people are assembled for worship without fear of criminal prosecution.27 Persons without permits cannot do this, and can be prosecuted for a weapons offense if they carry a gun into a church. If a permit holder carries concealed in violation of this provision, at worst he faces the loss of his permit. Churches are no longer gun-free zones.
Slice number six: state government buildings. The managing officer of the local office of the Missouri Division of Probation and Parole wanted to know whether the signs he had posted excluding concealed weapons from the state probation office complied with the law. I pointed him to § 571.107.1(6):28 a permit holder may not carry a concealed weapon into any building or portion thereof which is "owned, leased or controlled by" the general assembly, the Supreme Court, a county, or a municipality, where there are notices posted at the entrance to and which "clearly identify" the restricted area. No person can give consent to carry in violation of this section. This exemption specifies that the notice cannot specify any criminal penalty for violating the ban, but may state that the person may be denied entrance or ordered to leave.
I told him that it was not clear to me that the exemption prohibiting concealed weapons applied by its terms to buildings occupied by agencies in the executive branch of Missouri government. The plain language of the exception would not seem to include state property, except that used by the legislature or the courts. Can he even post an effective notice excluding concealed weapons? I suggested that he talk to the division lawyers, as it appears nothing can be done short of an amendment to the concealed carry law to keep permit holders from carrying concealed weapons into his office. And, since permit holders are exempted from the prohibition of § 571.030.1(8), a permit holder can carry a gun in plain view into his offices without fear of criminal prosecution.29 It does not matter whether he has posted a notice excluding guns from the building. Persons who do not have a permit cannot do this.
Can it be said that the local office of probation and parole is "owned, leased or controlled by the general assembly?" What about other state buildings? This may be the biggest hole in the cheese of the concealed carry law.
Can state property be considered "private property" for purposes of § 571.107.1(15)? This section prohibits a person with a concealed carry permit from carrying his concealed weapon into
[a]ny private property whose owner has posted the premises as being off-limits to concealed firearms. . . .The owner, business or commercial lessee, manager of a private enterprise, or any other organization, entity, or person may prohibit per-sons holding a concealed carry en-dorsement from carrying concealed firearms on the premises. . . .If the building or the premises are open to the public, the employer of the business enterprise shall post signs on or about the premises if carrying a concealed firearm is prohibited.30
If so, then perhaps state property in the executive branch can be effectively posted against
concealed weapons. Remember that if the permit holder violates the notice, he does not commit a criminal act. All that can be done is to ask the person to leave. Because of the addition of § 571.030.4, weapons
in plain view can now be carried into state buildings by permit holders without fear of criminal prosecution.
31 Can permit holders be prosecuted with a trespassing charge if they are asked to leave and do not? Section 571.107.2 would seem to preclude prosecution for trespass.
D. Acts of Self Defense, Defense of Others and Defense of Property
The legislature added § 571.030.5, which provides the weapons crimes found in §§ 571.030.1(3)-(10) "shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031, RSMo."32 The section does not include the defense of premises under § 563.036,33 nor defense of property under § 563.041,34 nor to § 563.06135 defense of children by parents, guardians, childcare providers and teachers.
The defenses of § 563.031 are available even if never mentioned in § 571.030.5.36 By including the language it did, has the legislature taken away the prosecutor's ability to charge if the defense might apply under the facts? Obviously a prosecutor would use discretion in these types of cases in deciding to charge or not, if there is evidence of self-defense. What if the prosecutor believes there is no defense and defendant does? Can the prosecutor file charges? Is the prosecutor subject to challenge for filing the charges before the case ever makes it to the finder of facts on the merits of the existence of the weapons crime or the claimed defense?
O.K., I admit I've been at the computer too long. Logically all this means is that the defenses of § 563.031 are available to a defendant. But that's not what the plain language says. By including this section, are the defenses of § 563.031 no longer available to persons who do not have a concealed carry permit? There is no reason or need for § 571.030.5.37 Consider it slice number seven of the Swiss cheese.
III. The Missouri Constitution
The Missouri law authorizing the carrying of concealed weapons does not violate the Missouri Constitution.38 Mr. Alvin Brooks and others filed suit in St. Louis City Circuit Court seeking an injunction to prevent the enforcement of these changes and a declaration that they violated the Missouri Constitution. The circuit court issued its permanent injunction in November 2003.
The case was appealed to the Supreme Court of Missouri in Brooks v. State. The issue before the court was whether art. 1, § 23, in the last clause of the section, prohibited Missouri citizens from carrying concealed weapons.39 The respondents argued that the concealed carry law violated the constitution by: authorizing permit holders to carry concealed weapons, other than firearms, anywhere; authorizing anyone 21 years old or older to carry a gun he or she owns concealed in his or her car; allowing permit holders to carry guns strapped on their hip in plain view anywhere; and decriminalizing the acts otherwise prohibited under § 571.030 for anyone who claims he or she was acting in self-defense - whether they have a permit or not.
The Court handed its decision down on February 26, 2004. The Court held that:
There is no constitutional prohibition against the wearing of concealed weapons; there is only a prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons. Consequently, the General Assembly, which has plenary power to enact legislation on any subject in the absence of a constitutional prohibition, Board of Educ. of City of St. Louis v. City of St. Louis, 879 S.W.2d 530, 533 (Mo. banc 1994), has the final say in the use and regulation of concealed weapons. Accordingly, this Court holds that the Concealed Carry Act is not unconstitutional under article I, section 23.
If the appellants had been correct in their argument, the exceptions in §§ 571.030.2(1) through 571.030.2(9), allowing certain
persons to carry concealed weapons even without a permit would have suffered the same constitutional infirmity. And what about the
circumstances carved out in the law, discussed above, allowing the carrying of concealed weapons without a permit? These statutory provisions would likewise have suffered the same constitutional challenge under the appellant's arguments. Law enforcement officers, parole officers, state and federal judges, and county coroners wouldn't be able to carry concealed weapons.
IV. In Conclusion
Did the legislature intend to allow persons with concealed carry permits to take their guns in plain view into schools, and possibly concealed onto school buses, and to school functions on other property without fear of criminal prosecution? Did they intend to allow permit holders to carry weapons in plain view into or within 25 feet of polling places? Did they intend to allow permit holders to carry their weapons in plain view into churches or other places where people are assembled in worship? Did they intend to allow permit holders to carry their guns in plain view into government meetings and government facilities? Before concealed carry these were gun-free areas. It did not matter if the guns were concealed or in plain view, loaded or unloaded. After concealed carry, under the plain language of the statutes, schools are not safer, churches are not safer, polling places are not safer, and state and local government buildings are not safer.
I suggest that violating the rules for concealed carry, by carrying a concealed weapon into a prohibited area or otherwise in violation of the rules of concealed carry, should be a crime for which I can prosecute the offender. The most that can be done now is to ask the permit holder to leave. If he doesn't, then he can be forced to pay a fine as an infraction that is not even a crime and does not make it onto his criminal record. Ultimately he might lose his carry permit. Carrying a gun in plain view into a prohibited area by a permit holder is not a crime, nor does it even subject the permit holder to the sanctions of § 571.094.21 on his permit. Some have suggested that a person who is asked to leave and does not can be charged with a trespass. It is not clear that remedy is available.
Whether concealed carry is a good idea or a bad idea, some fine tuning by the legislature is in order.
Footnotes
1 Mr. Ewing is the prosecuting attorney for Vernon County. He has also engaged in the private practice of law with Ewing & Hoberock in Nevada since his admission to the bar. He received his J. D. from the University of Missouri-Columbia in 1983, and is licensed in Missouri, Texas and Oklahoma.
2 H.B. 349, 92d Gen. Assem., 1st Reg. Sess. (Mo. 2003).
3 See the Supreme Court of Missouri's decision in Alvin Brooks et al. v. State of Missouri, No. SC85674 (Mo. banc 2004). See note 39.
4 The plaintiffs in the Brooks case, in addition to their challenge under Mo. Const. art. I, § 23, contended the costs associated with the issuance of concealed carry permits constitute an unfunded mandate in contravention of Mo. Const. art. X, §§ 16 and 21, which are provisions of the Hancock Amendment. Section 16 prohibits the state from "requiring any new or expanded activities by counties and other political subdivisions without full state financing, or from shifting the tax burdens to counties and other political subdivisions." See also § 21. The Supreme Court of Missouri agreed, but found only four Missouri counties had presented evidence of the unfunded costs associated with the duties of the county sheriff under the concealed carry law. The "Hancock" claim was found to be ripe for determination only as to these four counties. The injunction prohibiting the issuance of permits in Jackson, Greene, Cape Girardeau, and Camden counties is still in place as of this writing, awaiting a legislative fix.
5 Section 571.030.1, RSMo 2000. Statutory references are to RSMo 2000, unless otherwise noted.
7 Section 571.030.4, RSMo Supp. 2003. See H.B. 349, 92d Gen. Assem., 1st Reg. Sess. (Mo. 2003).
8 Section 571.030.2, RSMo Supp. 2003.
9 Id.
10 Section 571.030.1(8), RSMo 2000.
11 See the Supreme Court of Missouri's decision in Alvin Brooks et al. v. State of Missouri, No. SC85674 (Mo. banc 2004). See, also, Note 39.
12 Section 571.101, RSMo Supp. 2003.
14 Section 571.030.4, RSMo Supp. 2003.
15 Id.
16 Id.
17 Id.
18 Section 571.107.2, RSMo Supp. 2003.
19 Section 571.107.1(2), RSMo Supp. 2003.
20 Section 571.030.1(8), RSMo Supp. 2003. See § 571.030.4, RSMo Supp. 2003.
21 Sections 571.107.1(5)-(6), RSMo Supp. 2003. See H.B. 349, 92nd Gen. Assem., 1st Reg. Sess. (Mo. 2003).
22 Section 571.030.1(8), RSMo Supp. 2003. See § 571.030.4, RSMo Supp. 2003.
23 Section 571.107.1(10), RSMo Supp. 2003.
24 See § 571.030.4, RSMo Supp. 2003. Section 571.030.1(10), RSMo Supp. 2003.
25 Section 571.107.2, RSMo Supp. 2003.
26 Section 571.107.1(14), RSMo Supp. 2003.
27 Section 571.030.1(8), RSMo Supp. 2003. See § 571.030.4, RSMo Supp. 2003.
28 Section 571.107.1(6), RSMo Supp. 2003.
29 Section 571.030.1(8), RSMo Supp. 2003. See § 571.030.4, RSMo Supp. 2003.
30 Section 571.107.1(15), RSMo Supp. 2003.
31 Section 571.030.4, RSMo Supp. 2003.
32 Section 571.030.5, RSMo Supp. 2003.
33 Section 563.036, RSMo Supp. 2003.
34 Section 563.041, RSMo Supp. 2003.
35 Section 563.061, RSMo Supp. 2003.
36 Section 571.030.5, RSMo Supp. 2003. See H.B. 349, 92nd Gen. Assem., 1st Reg. Sess. (Mo. 2003).
37Id.
38 See Mo. Const. art.1, § 23 which provides:
Section 23. Right to keep and bear arms-exception - That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons. (Emphasis added)
39 Id.