Concealed weapons ruling spawns legal uncertainty

JEFFERSON CITY, Mo. -- After a failed ballot measure, a gubernatorial veto and other delays, supporters of the decade-long effort to grant Missourians the legal right to carry concealed weapons had hoped a ruling from the state's highest court would finally settle the issue.

But the Missouri Supreme Court's 5-2 decision on the matter Thursday served to create even more uncertainty, potentially opening the door to further litigation or a veto of any proposed legislative fix.

Burton Newman, a St. Louis lawyer who was part of the legal team that challenged Missouri's new conceal-and-carry law, said the debate is far from over.

"I certainly don't think any reasonable person could think this has been resolved, because it has not," Newman said.

Even so, sheriffs in at least two Missouri counties, Lincoln and Carroll, began processing concealed weapons permits Friday. In Southeast Missouri, some sheriffs are tentatively prepared to begin doing so as early as Monday, while others will wait as the situation develops.

Whether the Missouri Constitution flat out bans concealed weapons had been considered the main issue among those following the case. On that point, the court was crystal clear in stating the Missouri Legislature has the authority to allow conceal-and-carry rights.

But the court's finding that the mechanism for compensating local sheriff's departments for processing concealed weapon permits is an unfunded mandate in violation of the constitution's Hancock Amendment sparked confusion about whether sheriffs can begin issuing the licenses.

Attorney General Jay Nixon urged sheriffs to be patient and wait until the law can be refined. Though he acknowledged sheriffs are free to move forward, such action could carry consequences.

"That could spur litigation from those who aren't in favor of this as saying there was an expenditure of money beyond approval," Nixon said. "That side has proved litigious here, folks."

Court's decision

The law authorizes sheriffs to charge applicants up to $100 for a three-year permit. However, it earmarks the proceeds for equipment and training.

The court majority, led by Cape Girardeau native Judge Stephen Limbaugh Jr., said that the permitting process at minimum would cost sheriffs $38 per applicant for fingerprint checks. Since such costs go beyond equipment and training, the court found a Hancock violation.

However, the court limited its ruling to just Cape Girardeau, Camden, Greene and Jackson counties because they were the only ones to provide testimony at the trial level indicating increased costs. Ironically, those sheriffs, with the exception of Jackson County, support the law.

Though it follows that if those counties would incur costs, others would as well, the court declined to speculate on that point without evidence in the record.

Cape Girardeau County Sheriff John Jordan plans to begin processing permits as soon as the county commission authorizes a special fund to cover the fingerprinting costs financed by county revenue sources other than the permit fees.

Cape Girardeau County Prosecuting Attorney Morley Swingle said that while the court ruled the county didn't have to issue permits due to the unfunded mandate, nothing prevents it from choosing to do so.

"I'm not sure we have to go to the county commission," Swingle said. However, since the court's decision suggests seeking county commission approval, local law enforcement authorities will pursue it, the prosecutor said.

However, the court specifically stated that it was offering no opinion on whether counties could voluntarily carry out an unfunded mandate. And it may not be entirely up to counties to make that call.

The Hancock Amendment grants any taxpayer legal standing to bring a lawsuit alleging violations of its provisions. As a result, even if the county commission agrees to pay for the costs of implementing conceal and carry, any Cape Girardeau County resident could sue on the grounds of an unfunded mandate.

The same holds true in counties where the law at the moment is in full effect.

"We believe the Supreme Court decision is a road map for violations of the Hancock Amendment in any county that issues concealed weapons permits," said Newman, the lawyer who argued the case.

Ready on Monday

On Friday, sheriffs in Scott and Stoddard counties said they could be ready to begin processing permits Monday. Perry County was planning to do so on Wednesday or Thursday.

However, those plans could be put on hold because of an advisory opinion issued late Friday by the Missouri Sheriff's Association that urged sheriffs to wait until the legislature has had an opportunity to fix the Hancock problem.

The sheriffs in Mississippi and Butler counties both said they planned to wait for lawmakers to resolve the issue.

"I do not want to see my name on a lawsuit," said Butler County Sheriff Bill Heaton.

Nixon said the law can be easily repaired to take the Hancock issue off the table. All lawmakers need to do, he said, is broaden the statutory language so that counties can use the fee revenue to cover any costs associated with processing permits. State Rep. Larry Crawford, R-California, has already drafted such legislation.

As a believer in the taxpayer protections the Hancock Amendment provides, House Majority Floor Leader Jason Crowell, R-Cape Girardeau, said he finds no fault with the court's decision.

"But being such a strong advocate of conceal and carry, I think we need to immediately address the court's concern as it relates to Hancock to get that issue taken care of," Crowell said.

Although legislative support for concealed weapons is strong and bipartisan, fixing the law may not be a simple task.

In order to enact the original measure last fall, lawmakers had to override Gov. Bob Holden's veto. The governor hasn't taken a stance on how he might act on a follow-up measure.

"There is just quite a long way between point A and point B," said Mary Still, the governor's spokeswoman. "It would be premature to speculate."

mpowers@semissourian.com

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