Guns and Missouri seniors
In the wake of a recent, controversial event occurring in St. Louis, Missouri involving attorneys Mark McCloskey and his wife Patricia McCloskey, who displayed guns in an attempt to protect their home and lives from trespass and harm, this article does not seek to express a political position on gun ownership and possession. Instead, it seeks to share information relating to how Missouri seniors can approach gun ownership and possession both at their homes and within rental properties. At the time of writing this article, Mr. and Mrs. McCloskey are charged with one felony count of unlawful use of a weapon, a charge that carries a possible penalty from probation to four years in prison. St. Louis Circuit Attorney Kim Gardner, did not order the McCloskeys arrested. Instead, she issued summonses and has indicated she would recommend the McCloskeys for a diversion program enabling the charges to be dismissed if they attend counseling or another remedial course as punishment.
Missouri has a long and proud history of protecting the right to keep and bear arms and its gun laws are some of the most permissive in the country. In his Amicus brief filed in opposition of the criminal charges involving Mr. and Mrs. McCloskey, Attorney General Schmitt points out that Article I, Section 23 of our state constitution “explicitly states that the first and most fundamental component of “the right of every citizen to keep and bear arms” is the right to bear arms “in defense of his home, person, family and property.”” Additionally, the right to keep and bear arms is also guaranteed by the Second Amendment of the United States Constitution which reads “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In January 2017, Missouri enacted further protections to gun owners by passing its version of the Castle Doctrine; more specifically, Sections 563.031 of Missouri’s Revised Statutes, Missouri’s Castle Doctrine reads in part: “…A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person…”
In another act of protecting gun ownership and gun use in Missouri, state lawmakers provided protection from criminal prosecution from any law criminalizing the unlawful use of a weapon as set forth in Chapter 571 RSMo if such use by the alleged criminal is compliant with the Castle Doctrine. The relevant portion of Section 571.030.5 RSMo reads in part: “Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031” (Missouri’s Castle Doctrine).
Not all Missouri seniors may possess a gun. It is a Class D felony in Missouri to possess a gun, other than an antique weapon, if you (1) have been convicted of a felony; (2) are a fugitive from justice; (3) are habitually drunk or drugged, or (4) are legally considered mentally incompetent. You can also be charged with a Class E felony if you give or sell a gun to someone who meets any of the aforementioned descriptions. Missouri law does not criminalize minors (under age 18) who possess guns; however, it is a Class A misdemeanor to sell or give a gun to a minor without the consent of the minor’s parent or guardian.
Missouri law allows a senior to own and possess certain guns in their own home. Additionally, a Missouri senior may use certain guns, even to inflict death upon another when protecting himself or herself when they reasonably believe someone is about to use unlawful force against them. The protection extends beyond protecting just the person and also allows Missouri seniors to use a gun to protect another person and to protect their private property.
Missouri seniors may keep and bear arms in some private property owned by others but not all private property owned by others. “No firearms or weapons allowed on this property” is a phrase written on many signs located in our state at private properties. If such a posted sign exists and is displayed in a conspicuous place of a minimum size of 11” by 14” with the writing in letters of not less than one inch, a gun owner may prohibit guns on its property. This topic is raised most often in apartments or rental properties owned by private parties. Unless your landlord is a government entity, like a city or state agency or public housing, or receives state or federal funding for rental assistance on the property, the Second Amendment and Missouri’s Castle Doctrine is unlikely to apply. While there does not appear to be settled case law on this subject, this prohibition against gun possession in private properties may yet be challenged by someone wishing to assert his or her Second Amendment privilege.
Finally, Missouri Seniors may keep and bear arms in some public properties. If they rent an apartment at public housing, Section 571.510 of Missouri’s Revised Statutes provides that public housing authorities may not prohibit a lessee or lessee’s immediate household or guest from personally possessing firearms within an individual residence, common areas, or from carrying or transporting. But according to a list compiled and published by the Giffords Law Center, there are other publicly owned properties that may prohibit seniors from carrying guns even if the owner has a conceal and carry permit. For example, seniors may not carry a weapon, concealed or otherwise, into any police, sheriff, or highway patrol office or station without the consent of the chief law enforcement officer in charge of that office or station. Other public locations where seniors may not carry a weapon include the following: within 25 feet of any polling place on any election day; within any adult or juvenile detention facility or correctional institution, prison or jail; in a courthouse solely occupied by the circuit, appellate or supreme court, or any courtrooms, administrative offices, libraries or other rooms of any such court, whether or not such court solely occupies the building; into any meeting of the governing body of a unit of local government or any meeting of the general assembly or a committee of the general assembly, except that this shall not preclude a member of the body holding a valid concealed carry endorsement from carrying a concealed firearm at a meeting of the body which he or she is a member; in any establishment licensed to dispense intoxicating liquor for consumption on the premises, which portion of the establishment is primarily devoted to that purpose, without the consent of the owner or manager; in any area of an airport to which access is controlled by the inspection of persons and property; in any place where the carrying of a firearm is prohibited by federal law; in any portion of a building used as a child care facility without the consent of the manager; on any riverboat gambling operation accessible by the public without the consent of the owner or manager pursuant to rules promulgated by the state gaming commission; in any gated area of an amusement park; in any church or other place of religious worship without the consent of the minister or person or persons representing the religious organization who exercise control over the place of religious worship; within any sports arena or stadium with a seating capacity of 5,000 or more persons; or into any hospital accessible by the public.
Todd Miller is a monthly contributor and regularly writes and speaks on various legal topic including estate planning, probate and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been recognized as 2016 Adviser of the Year by GolfInc and Golf Tax Consultant of the Year by Boardroom Magazine three times. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, LinkedIn, and Twitter.