The bulk of reported concealed weapons cases involve car stops. Federal law provides a defense for transporting weapons during interstate travel. Within Missouri, the state's preemption of firearms law requires uniform regulation, and hence defenses, throughout the state, with the curious exception of open carry in some few cities. The most significant defense to a concealed weapons charge in Missouri is the travelers' defense. Most motorists are not travelers, but those who qualify for that status may avoid a felony conviction.

Interstate travelers have been arrested for mere possession of certain categories of firearms under unique state laws or possession without state-specific permits. Such persons are protected under 18 U.S. Code § 926A. Under this statute, a person may transport a firearm in all 50 states, the District of Columbia, Puerto Rico and Guam, so long as the gun is unloaded and in a locked container. The gun in question must also be legally owned in the state of origin and destination.

Under §§ 926A, the glove compartment or console of a car is not considered to be a container, even if locked. Obviously, the intent is to force the citizen to carry his or her firearm in the trunk of the car. In cars without trunks, any container of any construction will serve as long as it is locked. A loose container, however, should be kept as far as possible from the driver's compartment on the off chance that a court might rule that it was the functional equivalent of a glove compartment or console.

The federal statute on transportation of firearms is only controlling for travel between states.² For travel from one point in Missouri to another its provisions are not good law, but they are good practice. If the gun is in a container, it is not carried openly. If the gun is in a locked container, it is not readily accessible, and therefore not a concealed weapon.

At one time concealed weapons cases, which had no accompanying charge, were handled as misdemeanors under municipal or county ordinances. In recent years these same offenses have been charged as felonies under § 571.030, RSMo, punishable by up to five years in prison.

The few defendants charged under city or county ordinances still have the advantage of the statutory traveler's exception. The legislature has pre-empted the field of firearms and ammunition regulation under the Uniform Firearms Law.³ Under this statute, local government ordinances cannot be more restrictive than state law. An ordinance that does not specify the travelers' exceptions is either invalid or the exception will be incorporated through the Uniform Firearms Law.

The first tactic in avoiding a concealed carry charge is to not conceal the gun, or to challenge the claim that it was concealed. Carrying weapons is not illegal under state law if the weapon is readily visible by normal observation from more than one standpoint.⁴ The difficulty in this tactic is that a loophole in Missouri's Uniform Firearms Law allows local government to outlaw the open carry of weapons.⁵ There is no central repository of cities that give travelers the choice of breaking the law by carrying openly, or breaking the law by carrying concealed. Cities known to have such ordinances are: North Kansas City, Grandview, St. Louis, and Cape Girardeau. These ordinances can be challenged under Mo. Const. art. I § 23, which states: "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."

Despite this language, the open carry bans of St. Louis and Cape Girardeau have been upheld in the Eastern District. The St. Louis ordinance was not faced with a constitutional challenge, but upheld on the facts of the case.⁶ While the ordinance exempted persons at their own residence, the court ruled this did not exempt guests. The Cape Girardeau ordinance faced a direct constitutional challenge. The court ruled that the city was authorized to ban open carry because § 21.750, RSMo, specifically grants such authority.⁷ The court did not explain how a statute allows a city to violate a constitutional provision. Due to this loophole in Missouri's Uniform Firearms Law, travelers have the option of violating the law by carrying concealed, or violating it by carrying openly. Unlike federal law, there is no safe transport statute in Missouri.

The last sentence of § 571.030(3), RSMo, authorizes concealed carry if "traveling in a continuous journey peaceably through this state". This exemption was part of the original statewide concealed carry ban in 1879.⁸ In a case construing the modern statute, the Supreme Court of Missouri ruled that when the accused raises the defense that he is within an exempted category, the state has the burden of proving he is not.⁹

The term "peaceably" has been defined broadly as "not quarrelsome".¹⁰ Mere transport of arms is not considered a breach of the peace; to rule otherwise would defeat the purpose of the statute.¹¹ In a case involving drug transportation, the Supreme Court of Missouri defined the term to exclude persons engaged in a felony.¹² The Court of Appeals for the Western District further refined the term to exclude journeys for the purpose of committing a felony.¹³ The court assumed a felonious purpose from a party of men in a car with disguises, rubber gloves, and weapons. The court thought it unlikely the group was going to a "Sunday school convention" or "halloween party," and seemingly found all other possible purposes felonious. Without an actual breach of the peace, or at least a presumed felonious intent, a misdemeanor will not make a journey quarrelsome. Speeding has specifically been ruled as not making a driver quarrelsome for the purpose of the statute.¹⁴ Even a drunk driver who caused an accident was held to have been traveling peaceably.¹⁵

The continuous journey need not be entirely continuous; "A traveler is not required to take the shortest or most practical route to be qualified for the exemption."¹⁶ Deviation to obtain the company of a companion or by becoming lost does not remove one from the exemption.¹⁷ In State v Baker, the court found that an evening's sojourn with a girlfriend broke an otherwise continuous journey.¹⁸ The sojourn was in the girlfriend's hometown, and in her company, for purely recreational purposes. From the brief available history, it would appear that any pause in a journey must be directly incident to the journey -- picking up a package, or companion, or fuel for man or vehicle -- to remain within the exception.

Prosecutors have claimed that crossing state lines was necessary to be passing through the state. The word "through" has been construed (in the context of transporting women for prostitution) by the Supreme Court of Missouri as meaning "to indicate movement from point to point within a broad expanse or area."¹⁹ Requiring passage of a state line is not what the statute says, nor what any case has held. However, until 1994, all cases involved some interstate travel, although in Mason the defendant only intended to cross state lines and leave the pistol in St. Louis before he crossed the state line. In 1994, the Western District held that travel completely within the state was sufficient to qualify as a traveler.²⁰ The decision does not give a definition of "traveler" but in a footnote speculates that it must mean more than moving from house to house or street to street in the same neighborhood. Black's Law Dictionary²¹ defines "Travel" as "[T]o go from one place to another at a distance; to journey. Spoken of voluntary change of place." The definition of "Traveler" is "[O]ne who passes from place to place, whether for pleasure, instruction, business or health." These entries provide definitions, but no criteria for the status. As there is no specific criteria in Missouri as to what constitutes "traveling," Missouri can consider the concealed carry laws of other states that also exempt travelers.

The Texas travelers' exception dates to that states' 1871 ban on carrying firearms.²² Unlike the Missouri statute, the Texas courts have a body of decisions defining what constitutes a traveler in the context of cattle drives and ox carts. Certain modern decisions are helpful in analyzing the Missouri exemption.

Despite an impression, even among Texan sources, that the exemption is defined by time, distance, or jurisdictional boundaries, modern decisions have focused on whether or not the defendant intends to spend the night away from his usual abode. In Senters v. State, the court held that moving from one residence to another is traveling.²³ In Allen v. State, the court found that a man going 120 miles to spend the weekend was a traveler.²⁴

The Texas example is helpful, but has not been adopted by any other state. Missouri is a smaller state without a uniform statewide police organization, as seen in Texas. Therefore, a Missouri variation is called for. In State v Van Horne, the Supreme Court of Missouri cited a number of cases from other states in support of the travelers' exception.²⁵ Among the cases cited was Allen v. State (cited above), one of the Texas cases looking to an overnight stay as a test of a traveler. It cites, however, far more cases taking a very different approach; ruling that the statute is applicable to unfamiliar locations, locations where the presence of law enforcement is unknown, and the assistance of friends unlikely.

The Texas rule was rejected by the Supreme Court of Arkansas more than a century ago in favor of a circle of friends test. The court ruled that "[I]n its original acceptation, a journey was a days travel, but in use it has attained a broader, though less definite, meaning . . . it signifies travel to a distance from home, and it is not used in reference to travel in ones neighborhood or among ones immediate acquaintances."²⁶ The court reasoned that when on a journey, the traveler was exposed to possible perils they would not experience when in the circle of their general acquaintances. Considering a postal worker on his daily rounds, the court found that a journey of 30 miles made one a traveler, even when the journey was a daily event, but that there was no unbending rule and the definition of a traveler was a jury question.

The Indiana Supreme Court soon adopted the Arkansas circle of friends rule in a case where the defendant had traveled 15 miles by train to a political meeting. The court ruled that the defendant was not a traveler, but that distance was immaterial to the analysis. To be a traveler, the court ruled, one "must be without the ordinary habits, business, or duties of the person, and at least to such distance from his home as takes him beyond the circle of his general acquaintances, among strangers with whose habits, conduct, and character he is not acquainted."²⁷ The court ruled that this particular journey did not qualify, focusing on the destination political meeting rather than the train trip. It is apparent that the court felt that the convention was the equivalent of friends and acquaintances. The circle of friends rule has been repeatedly used in the Supreme Court of Mississippi.²⁸ These cases involve both regular and unique trips for business purposes, with money and valuable equipment, but focusing solely on the defendant moving beyond a neighborhood where he could call on his circle of friends.

The Supreme Court of Missouri adopted the circle of friends rule in 1981 in a case involving a man who could not travel.²⁹ Elijah Van Horne was an inmate at the Algoa Reformatory when, unreformed and undeterred by the experience, he was found to have a kitchen knife concealed under his pants leg. He was convicted of carrying a concealed weapon, and the state was given an additional two years to influence his conduct. He appealed, claiming that the exception for travelers was an unreasonable and arbitrary classification. The Court ruled that it was not, reasoning "first, that the evil sought to be remedied did not require the application of the prohibitory provisions as to them, and second, because the traveler is not among neighbors and acquaintances, the need for additional means of protection should be recognized."³⁰ The Court found that "[T]he purpose of the exception is to enable travelers to protect themselves on the highways against such potential or unknown dangers as are not supposed to exist among their own neighbors. . . ."³¹

The travelers' exemption was recently denied in the Eastern District when the defendant made a series of routine stops in his own community, which he never intended to leave.³² The assumption appears to be that travelers outside their own community would not be familiar with local danger spots, local law enforcement coverage, response times, or how to contact help.

Even today, not all of Missouri is covered by the 911 system, and there is no map of the places that are not covered (for those who like surprises). In some places the address of the 911 caller is automatically displayed, in others it is not. In some places 911 responses are dispatched to several counties from a single location; in others, calls are routed to the municipality. Some places have the equipment to locate a 911 call from a cell phone to within 75 yards, but most can only narrow it down to the nearest cell phone tower. A cell phone user can dial *55 and be linked to a highway patrol headquarters, but not necessarily the nearest headquarters.³³ The best means to contact local law enforcement, therefore, varies from place to place and cannot be known by the casual traveler.

Outside of a traveler's home community, he or she would not have the immediate assistance of friends. The lack of immediate help makes the traveler vulnerable to opportunistic criminals who prey on stranded motorists. The reasoning in Baker indicates that in an extended stop with a girlfriend, it was the presence of a friend in her home community, rather than the length of the stop, that prevented the defendant from being a traveler.³⁴

The Supreme Court of Missouri reasoned that the need for a concealed weapon is due to the traveler not being among neighbors and acquaintances.³⁵ In parts of Missouri, one may travel as little as 10 minutes, and half that many miles, and no longer be among neighbors and acquaintances while still in the same city limits. The dangers involved in such a brief trip may not be unknown or uncertain, as some cases have asserted; they may, in fact, be sure and certain.³⁶ The circle of friends rule does not provide a bright line between what is permitted and what is punishable by five years in prison. However, as long as Missouri lacks a concealed carry license system, it provides a flexible rule for persons confident of their ability to convince a jury that they are friendless.

© 2000, Kevin L. Jamison

Endnotes

¹ Kevin L. Jamison received his J.D. from UMKC Law School in 1983. He is a solo practitioner in Kansas City concentrating in weapons and self-defense law.

² 18 U.S.C. § 926A (1994).

³ Section 21.750, RSMo 1996.

⁴ However, weapons cannot be carried, openly or concealed in schools, government buildings, churches, polling places on election day, or in a public assemblage (§ 571.030, RSMo 1996).

⁵ Section 21.750, RSMo 1996.

⁶ In the Interest of D.M., 849 S.W.2d 698, 699 (Mo. App. E.D. 1993).

⁷ City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. App. E.D. 1994) at 32.

⁸ State v. Mason, 571 S.W.2d 246, 249 (Mo. banc 1978).

⁹ State v. Purlee, 839 S.W.2d 584 (Mo. banc 1992).

¹⁰ State v. Cooper, 563 S.W.2d 784, 787 (Mo. App. S. D. 1978).

¹¹ Id.

¹² State v. Purlee, 839 S.W.2d 584, 592 (Mo. 1992).

¹³ King v. State, 839 S.W.2d 709, 712 (Mo. App. W.D. 1992).

¹⁴ Mason, 571 S.W.2d 246 (Mo. banc 1978).

¹⁵ State v. Cooper, 563 S.W.2d 784 (Mo. App. S. D. 1978).

¹⁶ Cooper, 563 S.W.2d at 787.

¹⁷ Id.

¹⁸ 639 S.W.2d 617, 619 (Mo. App. S.D. 1982).

¹⁹ State v. Smith, 431 S.W.2d 74, 78 (Mo. 1968).

²⁰ State v. Collins, 879 S.W.2d 585 (Mo. App. W.D. 1994).

²¹ Black's Law Dictionary, 1344 (5th ed. 1979).

²² Tex. Penal Code Ann. § 46.03 (West Supp. 2000).

²³ 648 S.W.2d 30 (Tex. Ct. App. 1983).

²⁴ 422 S.W.2d 738 (Tex Crim. App. 1967).

²⁵ 622 S.W.2d 956, 958 (Mo. 1981).

²⁶ Hathcote v. State, 17 S.W. 721 (Ark 1891).

²⁷ State v. Smith, 61 N.E. 566 (Ind. 1901).

²⁸ Patterson v. State, 170 S.2d 635 (Miss. 1965) and Joseph v. State, 299 S.2d 211 (Miss. 1974).

²⁹ State v. Van Horne, 622 S.W.2d 956 (Mo. 1981).

³⁰ State v. Van Horne, 622 S.W.2d 956, 958 (Mo. 1981).

³¹ Id.

³² State v. Murray, 925 S.W.2d 492, 494 (Mo. App. E.D. 1996).

³³ Author's conversation with 911 Coordinator, Emergency Management Agency, Missouri Department of Public Safety 7 June, 1999.

³⁴ State v. Baker, 639 S.W.2d 617 (Mo. App. S.D. 1982).

³⁵ State v. Van Horne, 622 S.W.2d 956, 958 (Mo. 1981).

³⁶ Some prosecutors have asserted that they do not go into certain neighborhoods to inspect crime scenes without a gun. Prosecutors are not exempt from the concealed weapons statute, neither are defense counsel, but one is more likely to be prosecuted than the other.