http://www.stltoday.com/stltoday/ne...nt&Headline=Gun+ruling+may+lead+to+more+suits
Gun ruling may lead to more suits
By Terry Ganey
Jefferson City Bureau Chief
02/26/2004
The Missouri Supreme Court said Thursday that the state's concealed weapons law was constitutional - but that the way it was funded was not.
The court's decision left so much legal uncertainty that Attorney General Jay Nixon asked county sheriffs around the state to hold off issuing gun-carrying permits until the Legislature fixes the problem.
In a 5-2 ruling, the court said that Missourians over 21 could immediately begin carrying weapons in the passenger area of their vehicles. And in all but four counties, people 23 and over who meet the law's requirements could begin applying for concealed weapon permits that would allow them to carry guns into many public places.
But the court said four counties - Camden, Cape Girardeau, Greene and Jackson - don't have to implement the law because the $100 fee set by the Legislature would not cover the counties' processing costs.
The court's ruling left open the possibility that lawsuits could be filed in each county over the fee issue if its sheriff issues permits. St. Louis lawyer Burton Newman promised fast lawsuits.
"Any county in the state of Missouri that attempts to implement the conceal and carry law will be challenged in the Missouri courts," he said.
Nonetheless, some of the state's sheriffs, such as Lincoln County's, said they planned to begin the process of issuing permits immediately. The sheriffs in St. Louis and the counties of St. Louis, Jefferson, Warren and Franklin said they will wait.
The court's decision threw one of the state's most contentious issues back to the Legislature in the middle of an election year.
State Rep. Larry Crawford, R-California and sponsor of the concealed gun law, has filed a bill that would clarify what sheriffs could do with the $100 fee that applicants will have to pay for a permit. He said he hoped the new wording would fix the problem pointed out by the court.
But eventually, any changes will wind up with Gov. Bob Holden, a concealed weapons opponent. He vetoed the legislation originally and could veto any changes to the law.
Holden said Thursday that he would use administrative action or legislation that would "help provide protections for Missouri citizens." The governor's spokeswoman, Mary Still, would not speculate on whether he would veto any changes to the law.
Proponents of the law praised the court's decision as a clear victory. Crawford said it was a "tortured opinion" but was positive overall.
"We are elated," said Tim Oliver, a gun safety instructor who has been pushing for passage of the law for years. "The most critical issue has been answered. The court said it was constitutional."
Oliver said the court's findings regarding the funding issue was "a little murkier."
"It's clearly a small part and not a big problem," Oliver added.
Jeanne Kirkton, an opponent and a former official of the Million Mom March, said the court's decision "hijacked democracy in this state." She referred to the fact that Missouri voters turned down concealed weapons in a statewide referendum in 1999.
John Thurick of St. Peters said he was ready to pay his $100 permit fee; he's already gone through the eight-hour training course.
"I want to protect my family against violent crime and I want to keep the criminal guessing," said Thurick, who works at a computer company.
The court's highly anticipated decision overturned a ruling issued in October by St. Louis Circuit Judge Steve Ohmer. Gun opponents challenged the law, and Ohmer had ruled that the state constitution said the right to bear arms "shall not justify the carrying of concealed weapons."
Supreme Court Judge Stephen N. Limbaugh, who wrote the majority opinion, said the constitution's language meant "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, has the final say in the use and regulation of concealed weapons," Limbaugh wrote. "Accordingly, this court holds that the concealed-carry act is not unconstitutional."
However, the court said because evidence in the case before Ohmer also raised the issue of whether the $100 fee would cover the cost of processing permit applications, implementation of the law was enjoined in those four counties. They are: Camden (Lake of the Ozarks), Greene (Springfield), Jackson (Kansas City) and Cape Girardeau, where Limbaugh was once the prosecuting attorney.
However, the sheriff's offices in Camden, Greene and Cape Girardeau all said they would begin issuing permits soon.
The Legislature gave sheriffs the job of taking applications for concealed weapons permits. Applicants have to pass a background check, training and pay a $100 fee. The law says sheriffs may use the fee for "training and equipment."
The state's constitutional revenue lid known as the Hancock Amendment provides that when the Legislature imposes added burdens on local governments, it is supposed to appropriate the money to carry them out.
The legal question raised in the concealed weapons case is whether a $100 fee for "training and equipment" covers the cost of processing the permit applications. Ohmer had dismissed the Hancock claims, but the Supreme Court's opinion said it could be a problem.
Limbaugh wrote that it was possible that there would be other costs in counties for carrying out the law beyond training and equipment. If that were the case, he said there would be "unfunded mandates" and the "Hancock" revenue provision would be violated. However, Limbaugh also said that the issue was not ripe for a decision - except in those four counties - giving the Legislature time to fix the problem.
Chief Justice Ronnie White disagreed.
"I would hold that no Missouri county is required to comply with the act as a result of the unfunded mandate for which the state, and only the state, is required to fully finance," White wrote in a dissent. "Full funding means funding from state revenue, and the $100 license fee authorized by the act for county revenue is totally irrelevant."
In addition to Limbaugh, judges who sided with the majority were Duane Benton, Michael Wolff, Laura Stith and William Price Jr. Joining White in the dissent was Judge Richard Teitelman.
Nixon said that while sheriffs could do what they wanted, he would encourage them to wait on issuing permits.
"Our concern is that while the legal right may exist in certain counties, so does the legal right of those who muck us up with another hundred lawsuits," Nixon said. "There is a great and grave potential that jump-starting this process prior to our Legislature acting could get us back . . . in a courtroom somewhere arguing about the Hancock Amendment."
Lawsuits are likely
Nixon said the court's ruling raised the prospect of a "patchwork" system across the state because the same issues that had been raised for the four counties could also be raised elsewhere.
Crawford said he expected lawsuits, especially in urban areas where opposition to concealed weapons is high.
The law could be patched up with broader language that expanded the activities the funds could be used for, Nixon said. Crawford's bill says the $100 fee would go to "any reasonable expenses related to accepting and processing" of permit applications.
"If cooler heads prevail and we are able to work on language over the next few days and get that language to the Legislature, by Monday of next week, they will be able to move forward," Nixon said.
But putting the issue in front of lawmakers raises several issues. Both the House and Senate had to cut off debate and force a vote to pass the concealed weapons issue last session. Then, Holden vetoed it. Lawmakers overrode the veto in September. Revisiting the issue raised the same scenario, which Nixon predicted would happen.
"That wouldn't surprise me," Nixon said.
Holden said he still was opposed to concealed weapons and that they did not make citizens safer.
"This law should have never been enacted over the will of the citizens," Holden said. "It is poorly drafted legislation that will allow any permit holder to carry a weapon into schools, school buses, places of worship, and polling places on election day."
Provisions of concealed weapons law
To get a permit you must:
Be 23 or older.
Be a Missouri resident for at least six months.
Complete an approved eight-hour training course.
Not have certain criminal convictions.
Concealed guns may not be carried in:
Police stations, prisons, courthouses, hospitals, airports, amusement parks and sports arenas that seat at least 5,000.
Concealed guns may not be carried, unless exception is granted, in:
Schools, colleges, child-care facilities, churches, casinos and bars.
Permit-holders who carry guns to off-limit places may:
Be asked to leave the premises.
Be fined $100 if they refuse to leave.
Lose their permit for second and third offenses and face higher fines.
Concealed guns chronology
April 1999: Voters reject Proposition B, a statewide referendum on allowing concealed weapons, 52 percent to 48 percent.
May 2001: Legislature falls short of approving concealed weapons bill.
May 5, 2003: Legislature passes and sends to Gov. Bob Holden a concealed weapons bill.
July 3, 2003: Holden vetoes concealed weapons bill.
Sept. 10, 2003: State Sen. Jon Dolan, R-Lake Saint Louis, takes leave from National Guard duties in Cuba to return to Missouri to cast vote overriding Holden's veto.
Sept. 11, 2003: Legislature overrides Gov. Bob Holden's veto of concealed weapons measure.
Oct. 10, 2003: St. Louis Circuit Court Judge Stephen Ohmer rules that the concealed weapons law is unconstitutional. Ruling comes one day before the law was to take effect.
Dec. 18, 2003: Ohmer refuses to alter his ruling barring the concealed weapons law from taking effect.
Jan. 22, 2004: Missouri Supreme Court hears arguments in concealed weapons case.
Feb. 26, 2004: Missouri Supreme Court upholds constitutionality of concealed weapons law in all but four counties, which showed that the law imposed an unfunded mandate in violation of the state's Hancock Amendment.
Attorney General Jay Nixon asks county sheriffs to not issue concealed weapons permits until the Legislature passes language clarifying potential problems in the law.
The Associated Press contributed to this report.
Reporter Terry Ganey
E-mail:
[email protected]
Phone: 573-635-6178
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