After numerous attempts to get a reply of substance from
anyone for days, a little while ago I sent this e-mail to Chief Dotson, the Circuit Attorney, multiple people at the AG's office, and the press:
(I would appreciate it if those who work for law enforcement officials would pass this on to their employer, because the subject matter below is also directed to them)
Chief Dotson,
After repeated outreach to the Zoo, the Zoo’s attorney, you, and other law enforcement authorities, everyone appears to think that a lack of substantial response, or silence, is going to intimidate me into not fully challenging the Zoo’s “position” or “No Guns” signage posting.
Nothing could be further from the truth.
As I have been unable to ascertain any lawful authority for the Zoo to ban firearms and no one receiving these emails has provided any such authority, I intend to enter the public gated area of the Zoo carrying a sidearm. I expect to do be able to do so peaceably and without disturbance as it is an entirely lawful act.
Regarding the Zoo’s rules and regulations, the Zoo may exclude people who “…willfully violate such rules.” (RSMo 184.362) BUT, the Zoo’s rules must be lawful, and one must “willfully” violate them. To that end, If I’m asked to leave by a Zoo employee or subcontractor, I will first ask what rule it is that I am violating. Assuming it’s related to the fact that I’m carrying a firearm, I will refuse to leave. Law enforcement may be contacted. Once the officer(s) arrive, if I’m again asked to leave, I will politely ask the officer the same question, and I’ll ask that it be noted on the citation I’m issued when I refuse to leave. Once I am given a citation, I will promptly and politely leave the Zoo without further discussion. Except for not leaving prior to being issued a citation, I will comply with all other lawful orders of the officer(s).
I’ll have a recording device running, and I’m sure the media who will tag along will also have theirs.
The analysis below is the understanding of law on which I will rely in order to act in accordance with the law. I’m sure your legal counsel will recognize that the rule of lenity applies.
Further analysis of why the Zoo’s “position”, “No Guns” signage, and potential “rules” violations for carrying a firearm at the Zoo are contrary to Missouri Law
(Any bolding, underlining or coloring below is mine)
RSMo 21.750 preempts political subdivisions in matters relating to firearms thus: “21.750. 1. The general assembly hereby occupies and preempts the entire field of legislation touching in any way firearms, components, ammunition and supplies to the complete exclusion of any
order, ordinance or regulation by any political subdivision of this state.
Any existing or future orders, ordinances or regulations in this field are hereby and shall be null and void except as provided in subsection 3 of this section.”
Subsection 2 of RSMo 21.750 spells out the types of things which are preempted: “2. No county, city, town, village, municipality, or other political subdivision of this state shall adopt any
order, ordinance or regulation concerning in any way the sale, purchase, purchase delay, transfer, ownership, use, keeping, possession,
bearing, transportation, licensing, permit, registration, taxation other than sales and compensating use taxes or other controls on firearms, components, ammunition, and supplies except as provided in subsection 3 of this section.”
RSMO 21.750.3(1) allows any
ordinance of any political subdivision which conforms exactly with 571.010 to 571.070 “…with appropriate penalty provisions, or which regulates the
open carrying of firearms.” The District and Subdistricts existing under RSMo 184 get their
rule/regulation powers from 184.362, and nowhere in 184.362 or elsewhere in Section 184 do they have any authority to write, create or pass an
ordinance - they can only create reasonable
rules and regulations that “may not be inconsistent with the provisions of law”.
If the legislature intended to equate rules and regulations with
ordinances, it wouldn’t have made the distinction between orders, ordinances, and regulations in RSMo 21.750 (1) and (2).
To summarize the above: because of RSMo 21.750 (1) and (2), the Zoo can’t make orders, rules or regulations regarding concealed carry, and because the Zoo can’t create
ordinances in the first place, it can’t regulate open carry either.
Next we come to RSMo 571.107, which lists specific or specific types of places where a concealed carry permit does not authorize a person to carry a concealed firearm. The Zoo doesn’t fit ANY of those places. I’ve already discussed the Zoo’s dubious ploy to identify itself as an amusement park via 571.107 (13). I also mentioned that the Zoo might consider itself a “municipality”, but it isn’t – it’s a subdistrict. AND, it can’t create
ordinances, which are referenced in 21.750 (1), (2), and (3). Simply, the Zoo isn’t, as RSMo 571.107 (6) refers to, the “general assembly, supreme court, county or municipality” - entities which are allowed to post signage barring concealed carry under that subsection. Furthermore, the last sentence of 571.107(6) reads “
The provisions of this subdivision shall not apply to any other unit of government.” The Zoo is an entity created under RSMo 184, not a municipality, and as such can’t post signage or any other concealed carry restriction in buildings or otherwise. (Even though the Zoo doesn’t fit any of the descriptions in subsections 1-17 of RSMo 571.107, it should be noted that nothing in the section restricts open carry in those places)
Finally, let’s look at the subject of open carry restrictions alone. Can the Zoo restrict open carry of firearms and still comply with RSMo 21.750? RSMo 21.750.3(2) states “In any jurisdiction in which the open carrying of firearms is prohibited by
ordinance, the open carry of firearms shall not be prohibited…” Well, the Zoo can’t ban open carry by
ordinance (since it can’t create one), but can it make a rule or regulation to do so? NO. RSMo 21.750 (1) & (2) preempts entities other than the state from addressing firearms “in any way”, and RSMo 21.750 (3) applies only to entities which can create
ordinances, and since the Zoo can’t, it has no power to restrict open carry either. Even if the city of St. Louis, if it chose to disregard Article 1, Section 23 of the Missouri Constitution, were to attempt to enforce its open carry ban on the Zoo premises, it should be noted that anyone with a concealed carry permit/endorsement or its equivalent would be exempt.
Trespass
As established above, the Zoo doesn’t have any authority to post “No Guns” signs or to bar concealed or open carry of firearms in any publicly open area of the Zoo. As such it is impossible for any representative of the Zoo to give a
lawful order not to enter or remain in or at a public areas of the Zoo because someone is carry a firearm or firearm accessory. I strongly suggest that you inform your officers of the totality of the situation, as it’s my assertion that there could be significant legal jeopardy for any officer and their superior(s) if they were to enforce any request they
know, or should have known, to be unlawful.
Per RSMo 184.362. “The use and enjoyment of such institutions and places, museums and parks of any and all of the subdistricts established under RSMo 184.350 to RSMO 184.384 “
shall be forever free and open to the public” and then under RSMo 569.140. “1. A person commits the crime of trespass in the first degree if he knowingly
enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property”, but that is predicated on RSMo 569.010: “As used in this chapter the following terms mean: …(2)
"Enter unlawfully or remain unlawfully", a person enters or remains in or upon premises when he or she is not licensed or privileged to do so.
A person who, regardless of his or her purpose, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he or she defies a lawful order not to enter or remain, personally communicated to him or her by the owner of such premises or by other authorized person”.
In conclusion
If the above understanding or interpretation of the law differs from that of your legal counsel, please contact me ASAP, or have someone deliver a legal brief to me at the Zoo.
I don’t think I have to spell things out further than I have in my repeated communications, Chief. I’ve given you and everyone else ample, repeated notice. I think you recognize the potential civil liability on the part of various individuals and entities for ignoring all that I’ve sent your way. I also think you recognize the potential for a piercing of qualified immunity if your officers, or the officers of a police department which could reasonably be expected to be present issue an unlawful order or otherwise violate my Constitutional rights under the United States or the Missouri Constitution.
I’m planning to leave Cincinnati later this afternoon, and as I told you last Friday, I don’t have all the computing/records access which I do while at home. Please
call or
text me on my cell phone (xxx-xxx-xxxx) if you wish to contact me after 6:00 PM your time this evening..
I’ll close with reference to Article 1, Section 23 of the Missouri Constitution: remember that the protection of the right to keep and bear arms, unalienable, subject to strict scrutiny, and which you and other law enforcement officials are obligated to uphold and protect against infringement, must be part of
your analysis of the legality of my above described course of action.
Cordially,
Me
xxx-xxx-xxxx (until 6:00 PM your time this evening)
Article 1, Section 23 of the Missouri Constitution (colloquially referred to as “Amendment 5)
http://ballotpedia.org/Article_I,_Missouri_Constitution#Section_23
That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned.
The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.
Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a court of competent jurisdiction.
