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Wednesday, July 1, 2015

Missouri Voters Approved Amendment 5 -- But It Took Jeffry Smith to Test Its Limits

Posted By on Wed, Jul 1, 2015 at 8:00 AM

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A sign at the zoo bars visitors from bringing in firearms. - PHOTO BY THEO WELLING
  • Photo by Theo Welling
  • A sign at the zoo bars visitors from bringing in firearms.
Eleven months since Amendment 5's passing, its ramifications have, as predicted, yielded controversial results. In December 2014, a convicted drug dealer attempted to use Amendment 5 to argue that the felony on his record shouldn't disqualify him from owning a gun. Two months later, a St. Louis judge actually tossed out a firearm possession charge on a different case, after ruling that it would be unconstitutional to block a Missouri citizen — even one convicted of a felony — from the unalienable right to keep and bear arms.
In a sixteen-page ruling, St. Louis Circuit Judge Robert Dierker ruled that the law prohibiting felons from possessing firearms fell far short of Amendment 5's strict scrutiny requirement. As Kansas City prosecutor Knight had warned, the judge determined the amendment's exception for "violent felons" had created a critical and unconstitutional ambiguity.

The case involved 55-year-old Raymond Robinson, whom the court described as a partially disabled man with no record of violence or mentally unstable behavior. His previous felony conviction stemmed from carrying a concealed weapon in 2003, which landed him prison. He was arrested last July after police found a .380-caliber pistol in his car.

"The State proffered no evidence that defendant's purpose in possessing the pistol was to commit any illegal act or in furtherance of any criminal conduct, such as distribution of controlled substances," Dierker wrote in his ruling. "Nor is there any reason to find that the defendant presents a demonstrable risk to the safety of any individual or of the public. His single prior felony conviction was (ironically) for carrying a concealed weapon. There is nothing in the record to suggest any misuse of weapons within the last ten years, and his risk of re-offending is low. His age and physical condition militate against undertaking violent offenses such as robbery or assault."

This is the kind of the framework defined by strict scrutiny. Suddenly, the mere fact that Robinson was a felon was no longer a good enough reason to ban him from having a gun.

Robinson wasn't the first defendant to try to use Amendment 5, though he was the first to succeed. But even before Robinson, the Post-Dispatch reported how St. Charles County prosecutors chose not to a file a gun-possession charge against a man with previous felony conviction for property damage. In another case, a Springfield man with felony convictions for drunk driving attempted to use Amendment 5 to toss out his own felon-in-possession charge.

"This is exactly the type of litigation that I and others have warned about," Circuit Attorney Joyce told the Post-Dispatch following Robinson's court victory.

Amendment 5's legislative sponsor, Kurt Schaefer, seemed shocked by the Robinson ruling, insisting to various media outlets that this was not the intended result of the law. He attempted to shift the blame, telling a radio station that if the definition of a "non-violent" felony was unclear, the courts should figure it out.

"The issue is the court is going to have to do the heavy lifting on these, and determine who really meets that criteria and who doesn't," Schaefer said. "That's what the purpose of Amendment 5 was."

However, as if anticipating Schaefer's deflection, Judge Dierker had added a footnote to his ruling:

"The Court is not at liberty to rewrite statutes so as to supply criteria for denying the right to bear arms to persons convicted of non-violent felonies... The problem is that the statute simply does not afford any basis to differentiate among persons convicted of nonviolent felonies."

The stakes were high, then, when Smith announced his second major St. Louis open-carry demonstration — and, inspired by Peyton's interaction, chose the zoo as the place to hold it.

After reading Peyton's forum post about the zoo's weapons policies, Smith had wasted no time. First, he attempted to copy the playbook from his October open carry walk through St. Louis' downtown. He sent flurries of emails, demanding answers from the zoo and the St. Louis Circuit Attorney's Office, but he received little more than restatements of the zoo's policies. No one could tell him, specifically, what laws supported the zoo's signs banning weapons from its premises.

But a rush of media attention spurred the zoo officials to take action. They'd seen Smith's work before, and they wanted no part of it.

On June 12, one day before the planned walk, a St. Louis Circuit Court judge granted the zoo's request a temporary restraining order against Smith and anyone working "in concert" with him. Until a formal hearing could be held, anyone entering the zoo with a firearm would face guaranteed arrest.

In its motion supporting the restraining order, the zoo argued that it qualified as an amusement park, a label that would place it among the types of public spaces where guns could be restricted. The zoo maintained it actually met the criteria for four such categories: educational institutions, day-care facilities, amusement parks and places where a business open to the public chooses to restrict the carrying of firearms by posting signs.

Smith only learned of the restraining order during the drive from Cincinnati to St. Louis.

"They're dodging and bobbing and weaving," he says over the phone. "There is no 'amusement park' definition in Missouri law."

(He's right. Missouri statute does not define "amusement park.")

"Clearly," he continues, "the zoo has some amusement rides, but if you were to take a Six Flags and put some wild animals in it, it wouldn't turn into a zoo."

Thinking on the fly, Smith decides to go through with the protest walk, but with empty holsters. That will still get his message out.

"As far as I'm concerned, the zoo is deceiving people into giving up their rights and privileges. That's what's at the core of all this," he says before hanging up. "The zoo is portraying their signage as legal and valid, and as best as I know right now — it's not."

Jeffry Smith (center) with two fellow gun advocates, packing heat on the Delmar Loop. - PHOTO BY THEO WELLING
  • Photo by Theo Welling
  • Jeffry Smith (center) with two fellow gun advocates, packing heat on the Delmar Loop.

Smith checks his watch again. It's already 2:15 p.m., and Peyton is nowhere to be found. Antsy reporters are starting to ask if this grand demonstration is actually going to happen.

Without a word of warning, Smith makes his move. He approaches the south gate of the Saint Louis Zoo and passes through the turnstile, followed by five or six photographers and confused looks from the other zoo patrons. He walks 50 feet into the park, halting at the fountain containing the zoo's famous seal sculptures.

He takes a sip from his water bottle and stares at the seals. It's a surreal sight: A giant of a man, alone in a zoo, wearing an empty pistol holster and looking at fake seals. Photographers snap away.

Smith takes another sip of water, turns around and walks toward the exist. He's spent all of two minutes inside the zoo gate. Soon after, the reporters and counterprotesters pack up their things and leave.

An hour later, Smith is striding along Delmar Boulevard to grab some lunch. This time, his holster contains a Smith & Wesson .40 pistol. Accompanying him are three other armed men who showed up at the zoo earlier that day. With the exception of one conspicuous double-take, the posse attracts no extra attention from the Loop's outdoor dining crowd.

They arrive at Fitz's, which is packed. Smith and Co. wait near the door until they are seated. No one, including the hostess and nearby wait staff, confronts them or asks about the handguns hanging off their waists.

Though the protest itself fizzled, Smith isn't discouraged by the day's events. He takes a bite of a sizzling burger and drinks from a mug of cream soda.

"This constant question of, 'Why do you need a gun in the zoo?' It's irrelevant," he says. "It's called the Bill of Rights, not the Bill of Needs."

Flippant as Smith may be, he has a point: Adding a new legal framework to the state's constitution appears to have altered the legal rights of Missourians to own and carry firearms. But the specifics remain frustratingly vague.

While the repercussions of Amendment 5 continue to shake out, its legacy will factor into upcoming political races: The measure's architect, Kurt Schaefer, is running for attorney general. Chris Koster, the current attorney general and presumptive front-runner for the Democratic nominee for governor, will have to answer for his support as well.

At the same time, prosecutors expect more felons facing gun charges to use Amendment 5 as a defense.

In fact, St. Louis Circuit Attorney Joyce has opted to keep some gun cases out of state judicial system altogether. This week, the Post-Dispatch reported that Joyce referred 70 such cases to a federal prosecutor, U.S. Attorney Richard Callahan, and that she blames Amendment 5 for obstructing her ability to issue state charges in those cases.

It could be even harder to prosecute gun crimes in the future. This week, the Missouri Supreme Court rejected the last remaining appeal against Amendment 5's ballot language. For better or worse, the justices ruled that the August 5 election results will stand as law.

As for Smith, he has since requested a 60-day continuance to marshal his own legal support to fight the restraining order. He's already floating ideas for another open-carry walk, this time on St. Louis public-transit trains and buses, a move that would certainly bring him back into the crosshairs of St. Louis' government and law-enforcement officials.

But here in Fitz's, as Smith and his jocular group of armed buddies dig into burgers, there's little evidence of the legal tempest tearing through Missouri's courts and governments. There are just four men eating a late lunch amid the clattering of silverware and murmured conversations about weather, the Cardinals and who needs more ketchup and another refill.

No one here cares about Jeffry Smith's gun. That's the way he wants it. Indeed, this is the America of his dreams.

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