The Missouri Supreme Court will hear arguments next week on whether voters knew enough about a constitutional amendment expanding gun rights before it was approved in 2014.
Amendment 5 passed in August with 60 percent of the vote, winning every county and metropolitan area except for Boone and St. Louis counties, and the city of St. Louis and Kansas City. The measure made it clear that the right to bear arms was "unalienable," and mandated that the state of Missouri "under no circumstances decline to protect against their infringement." In addition, Amendment 5 subjected any restriction on guns to strict scrutiny, meaning the laws have to be shown to support a compelling government interest, and be written as narrowly as possible to accomplish that goal.
Plaintiffs, including St. Louis Metropolitan Police Chief Sam Dotson, want the state's high court to throw out the results of the election. They say that the summary voters saw on the ballot did not provide enough information about how drastically Amendment 5 would affect the state's gun laws. According to the brief from Dotson's attorney:
To entice the “yes” vote, the summary offered the red-caped promise of a new right to bear arms but, like a skilled matador in the bull fighting ring, concealed the sword of strict scrutiny that will strike at the heart of Missouri’s existing gun laws, as well as other substantial changes should the voters take the bait. Missouri law is clear that the cape may not be used to bait the voters and the sword must be openly displayed"
Possible consequences of Amendment 5 are already unfolding. Two individuals charged in the city of St. Louis with owning firearms despite having previous felony convictions are using Amendment 5 to challenge their lifetime ban on gun ownership. There are similar challenges making their way through courts in Springfield, Kansas City and other jurisdictions.
Jean Peters Baker, the prosecutor in Jackson County, said she knew challenges to the felon-in-possession statute were coming as soon as the amendment passed.
"I knew that offenders from every corner from the state of Missouri were going to attempt to reap the benefit of this change," she said. "I'm very concerned. It's just a shame for a prosecutor to lose this kind of tool."
Felon-in-possession is often the only charge available to a prosecutor in an urban area dealing with uncooperative witnesses, Baker said.
"What we learned long ago in cities is that violence begets more violence," she said. "So, if you don't find a way to address it and stem it, there will be acts of retaliation. Whatever charges I can level are critical to me."
Another part of the amendment is causing some uncertainty for St. Charles County prosecutor Tim Lohmar. The amendment reads:
"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 adjudicated by a court to be a danger to self or others as a result of a mental disorder or mental infirmity."
Lohmar said he interprets that to mean that only individuals convicted of violent felonies can face felon-in-possession charges, although not all prosecutors agree with that conclusion.
"The problem with that is that there's no definition for a 'violent offense,'" Lohmar said. "What may be a violent offense to me in St. Charles County may not be a violent offense to a prosecutor in another jurisdiction. As we sit here today, we don't have any guidance on that term."
Impact on the defense bar
Guidance on the meaning of words in legislation comes from court decisions, which means litigation. And the head of the state's criminal defense bar says Amendment 5 has the potential to overwhelm Missouri's public defender system.
"It says the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement," said Kevin Curran, the president of the Missouri Association of Criminal Defense Lawyers. "What's the state of Missouri?"
As Curran interprets it, "state of Missouri" includes public defenders, who are paid by the state. That means a public defender would be required to take a felon-in-possession case all the way to the Supreme Court if the client asked.
"This, to me, is a funding issue with them," Curran said. "They're going to have to have lawyers who have the time, who are properly trained and skilled. They're probably going to need some more appellate lawyers."
The higher workload, Curran said, may leave public defenders with less time to devote to other clients facing equally serious charges. And taken to a logical conclusion, he added, the term "state of Missouri" could also mean private attorneys because they are regulated and licensed by the state.
Matt Huckeby, a public defender in St. Louis who argued one of the two felon-in-possession cases in front of the Supreme Court, called Amendment 5 nothing more than a clarification of an existing right. All it does, he said, is force the state to prove that a law is narrowly drafted enough to meet its public safety goal.
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