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Thread: Legal Opinion ???

  1. #1
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    I emailed Mr. Kevin Jamison, a Missouri lawyer that specializes in defending gun cases, I’m sure most of you have seen his book advertised.

    Here was the main question I asked him:

    “Do you have any legal opinions or court cases concerning open carry gun laws in Missouri?”



    Mr. Jamison’s reply:

    “Open carry is legal under state law, however many cities have ordinances against it. The consensus is that if no ordinance prohibits open carry, the person would be arrested for created a public disturbance[/b].”[/b]
    [/b]
    Kevin Jamison [kljamisonlaw@earthlink.net][/b]



    [/b]Mr. Jamison may or may not approve of Open Carry, I don’t know, he just doesn’t strike me as pro OC.

    Has anyonehere come up with the same "consensus" ???



  2. #2
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    Does this happen in MO? Not that I heard.

    This lawyer is probably unaware that people do OC in the US and in MO and are not usually arrested for any reason, trumped up or not.



  3. #3
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    I live in cape girardeau county out in the country i oc all all the time and in jackson Mo. and i have no problem at all but cape girardeau is a no no.

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    frank wrote:
    I live in cape girardeau county out in the country i oc all all the time and in jackson Mo. and i have no problem at all but cape girardeau is a no no.
    frank, please explain why?

  5. #5
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    The city of cape giardeau has a city ordinces no open carry.sec.17-98(5)openly carries a fiream readily capable of leathal use.

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    frank wrote:
    The city of cape giardeau has a city ordinces no open carry.sec.17-98(5)openly carries a firearm readily capable of leathal use.
    readily capable of leathal use?

    wonder what the heck that means. if it is holstered does that make it not readily capable of lethal use?

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    thank you frank.

  8. #8
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    ilbob wrote:
    frank wrote:
    The city of cape giardeau has a city ordinces no open carry.sec.17-98(5)openly carries a firearm readily capable of leathal use.
    readily capable of leathal use?

    wonder what the heck that means. if it is holstered does that make it not readily capable of lethal use?
    There is a court case (Joyce vs City of Cape Girardeau) that actually determined that if the weapon is loaded or you are carrying ammo on your person, it is "readily capable of lethal use".

    You could just carry the weapon completely unloaded, in which case you would be stopped if observed by a LEO.

  9. #9
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    Mike,

    I have talked to Mr. Jamison before about this very law. He is aware of it and in fact wrote an article on it in the Missouri law journal. He once had a person in North Kansas City get cited for this and the person didn't want to fight the charge. That is bad for two reasons. The Western District is more favorable in court cases on these issues, than the Eastern District and now NKC has precedent.

    I also talked to him (several years back) about filing a lawsuit against Cape Girardeau. Back when I talked to him, he stated it would take, 30k or more to get it in front of the MOSC. I personally don't think it would take that much...but you want somebody that knows what they are talking about, and Mr. Jamison does. I do find it odd that he would make such a statement about "peace disturbance"

    I even went before the Cape Girardeau City Council (2001) and asked for it to be removed, (could have heard a pin drop).I gave court cases that stated they were wrong, etc...Ishowed themhow the JOYCE cases was a bunch of BS. Didn't do any good, but I tried. If this doesn't get changed, it will have to be challenged, but it needs to be done right. We should make sure not to ruinit for everybody with a bad case. If you don't know what you are doing...the COURTS will take your case,and use it against gun rights. Besides, it would take a state or national guns right group to have the deep pockets to fund this. Makes you wonder why their not, doesn't it? They sure will take your money every year.




  10. #10
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    If the city has an ordiance against open carry, then they can enforce it as localities in MO are not yet completely preempted.

  11. #11
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    "I have talked to Mr. Jamison before about this very law. He is aware of it and in fact wrote an article on it in the Missouri law journal. He once had a person in North Kansas City get cited for this and the person didn't want to fight the charge. That is bad for two reasons. The Western District is more favorable in court cases on these issues, than the Eastern District and now NKC has precedent."


    Shawn,

    I would be interested to know what the person in North Kansas City was charged with and if it was a misdemeanor or a felony?

    From the posts I've read on this site and others, very few people have been harassed or arrested on other charges due to Open Carry where it is not prohibited.

    This could stem from the fact that very few people Open Carry, or the ones that do are not seen by LEO.

    I'm only guessing.....no science to back this up.

    I do plan to Open Carry when I get back to Mo after talking to mycounty sheriff.

    CVC





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    Missouri Revised Statutes
    [size=Chapter 71
    Provisions Relative to All Cities and Towns
    Section 71.010
    ][/size]

    [size=August 28, 2006][/size]




    [size=Ordinances to conform to state law. ][/size]

    71.010. Any municipal corporation in this state, whether under general or special charter, and having authority to pass ordinances regulating subjects, matters and things upon which there is a general law of the state, unless otherwise prescribed or authorized by some special provision of its charter, shall confine and restrict its jurisdiction and the passage of its ordinances to and in conformity with the state law upon the same subject.



    [size=Chapter 77
    Third Class Cities
    Section 77.590
    ][/size]

    [size=August 28, 2006][/size]




    [size=Council may make ordinances and rules and regulations and establish penalties for violation. ][/size]

    77.590. For any purpose or purposes mentioned in this chapter, the council may enact and make all necessary ordinances, rules and regulations; and they may enact and make all such ordinances and rules, not inconsistent with the laws of the state, as may be expedient for maintaining the peace and good government and welfare of the city and its trade and commerce; and all ordinances may be enforced by prescribing and inflicting upon its inhabitants, or other persons violating the same, such fine not exceeding five hundred dollars, and such imprisonment not exceeding three months, or both such fine and imprisonment, as may be just for any offense, recoverable with costs of suit, together with judgment of imprisonment, until the fine and costs are paid or satisfied; and any person committed for the nonpayment of fine and costs, or either, may be compelled to work out the same as herein provided; but, in any case wherein the penalty for an offense is fixed by any statute, the council shall affix the same penalty by ordinance for the punishment of such offense, except that imprisonments, when made under city ordinances, may be in the city prison or workhouse instead of the county jail.





    Missouri Revised Statutes
    [size=Chapter 79
    Fourth Class Cities
    Section 79.460
    ][/size]

    [size=August 28, 2006][/size]




    [size=Board may prohibit carrying concealed weapons. ][/size]

    79.460. The board of aldermen may adopt ordinances providing for the prohibition of and punishment for the carrying of concealed deadly weapons, and may also adopt ordinances providing for the prohibition of vagrancy and providing that upon conviction one adjudged guilty may be imprisoned, fined or set to work.

    Missouri Revised Statutes
    [size=Chapter 80
    Towns and Villages
    Section 80.090
    ][/size]

    [size=August 28, 2006][/size]




    [size=Trustees--power to pass certain ordinances. ][/size]

    80.090. Such board of trustees shall have power:

    (1) To pass bylaws and ordinances to prevent and remove nuisances;

    (2) To prevent, restrain and suppress bawdy-houses, gambling houses and other disorderly houses within the limits of such town, or any addition to said town, or any commons thereto attached;

    (3) To restrain and prohibit gambling;

    (4) To license, tax and regulate merchants, peddlers and auctioneers, and to regulate and prohibit the sale or giving away of intoxicating liquors under merchants' licenses in such towns; provided, that druggists and pharmacists may sell upon prescriptions, as is provided by law;

    (5) To provide for licensing and regulating and prohibiting dramshops and tippling houses, public shows, circuses, theatrical and other amusements, to the distance of one-half mile from the corporate limits of such town;

    (6) To prohibit the firing of firearms;

    (7) To prevent furious and unnecessary riding or driving of any horse or other animal within such town, or such part thereof as they may think proper;

    (8) To establish night watches and patrols;

    (9) To erect and maintain calabooses, poorhouses and hospitals;

    (10) To prevent the introduction and spreading of contagious diseases;

    (11) To organize and maintain fire companies;

    (12) To prevent and extinguish fires;

    (13) To establish fire limits and to define the limits within which wooden buildings, stables, manufactories and other structures which may increase the danger of calamities from fires shall not be erected;

    (14) To establish and provide for wells, cisterns and pumps;

    (15) To regulate the construction of chimneys and flues thereof, and to appoint an inspector of chimneys and flues, and to define the duties and fix the compensation thereof;

    (16) To establish and regulate markets;

    (17) To erect and repair bridges and culverts;

    (18) To erect, repair and regulate wharves and the rate of wharfage;

    (19) To regulate the landing and stationing of steamboats, rafts and other watercraft;

    (20) To provide for the inspection of lumber, building material and for provisions to be used or offered for sale in such town, or to be exported therefrom;

    (21) To regulate the storage of gunpowder and other combustible materials;

    (22) To regulate the slaughtering of animals;

    (23) To license, tax, regulate and prohibit ball and tenpin alleys, billiards and pool tables, or other tables upon which games are played for pay or amusement;

    (24) To license, tax, regulate and prohibit all other games for pay or amusement; provided, that no permission shall be given to bet money, property or other thing upon any game, or to license any such game;

    (25) To license, tax and regulate wagons and teams, livery, sale and feed stables, and any vehicle or team kept or let for pay;

    (26) To license, tax and regulate hay, grain and stock scales;

    (27) To levy and collect taxes upon property and the licenses herein provided for;

    (28) To borrow money for the improvement of such town, or to supply the same with water or gas;

    (29) To open and form public squares, avenues, drains and sewers, and to keep the same cleaned and in order;

    (30) To locate and lay out new streets and alleys;

    (31) To establish the grade of streets and alleys;

    (32) To determine and fix the width of sidewalks, and the material of which the same may be built; and

    (33) To widen streets heretofore laid out in such town, and to appoint three commissioners to assess the damages done to property upon which such street or alley may be located, deducting from such damages the amount of benefit, if any, such street or alley, or the widening thereof, may be to the same; but all assessments so made by the commissioners shall be reported, as soon as may be, to the board of trustees, who may approve or reject the same; and all persons aggrieved by such assessment may, within fifteen days after receiving notice of such assessment, appeal therefrom to the next circuit court of the county, by giving notice of such appeal to said board of trustees at least fifteen days before the first day of the term to which said appeal is taken; and the circuit court, on such appeal, shall be possessed of the case and proceed therewith to final judgment, according to law. In all cases of assessment or appeal, the land to be used for or occupied by the street or alley may be taken possession of for the purpose of establishing and improving such street or alley, as soon as the amount of damages so assessed shall be tendered to the owner;

    (34) Also to open, clear, regulate, grade, pave or improve the streets and alleys of such town;

    (35) To provide for lighting the streets and erecting lamps thereon;

    (36) To regulate and prohibit the running at large of dogs, hogs, cattle and horses in the streets and alleys of such town, and to impose and collect tax on dogs not exceeding one dollar each;

    (37) To impose and appropriate fines for forfeitures and penalties for breaking or violating their ordinances;

    (38) To levy and collect taxes;

    (39) To regulate the enclosure of any common field belonging to or within the limits of such town; and

    (40) To pass such other bylaws and ordinances for the regulation and police of such town and commons thereto appertaining as they shall deem necessary, not repugnant to and contrary to the laws of the state.

    Missouri Revised Statutes
    [size=Chapter 82
    Constitutional Charter Cities
    Section 82.300
    ][/size]

    [size=August 28, 2006][/size]




    [size=Certain cities may enact ordinances, purposes, punishments (including Kansas City). ][/size]

    82.300. 1. Any city with a population of four hundred thousand or more inhabitants which is located in more than one county may enact all needful ordinances for preserving order, securing persons or property from violence, danger and destruction, protecting public and private property and for promoting the general interests and ensuring the good government of the city, and for the protection, regulation and orderly government of parks, public grounds and other public property of the city, both within and beyond the corporate limits of such city; and to prescribe and impose, enforce and collect fines, forfeitures and penalties for the breach of any provisions of such ordinances and to punish the violation of such ordinances by fine or imprisonment, or by both fine and imprisonment; but no fine shall exceed five hundred dollars nor imprisonment exceed twelve months for any such offense, except as provided in subsection 2 of this section.

    2. Any city with a population of four hundred thousand or more inhabitants which is located in more than one county which operates a publicly owned treatment works in accordance with an approved pretreatment program pursuant to the federal Clean Water Act, 33 U.S.C. 1251, et seq. and chapter 644, RSMo, may enact all necessary ordinances which require compliance by an industrial user with any pretreatment standard or requirement. Such ordinances may authorize injunctive relief or the imposition of a fine of at least one thousand dollars but not more than five thousand dollars per violation for noncompliance with such pretreatment standards or requirements. For any continuing violation, each day of the violation shall be considered a separate offense.

    3. Any city with a population of more than four hundred thousand inhabitants may enact all needful ordinances to protect public and private property from illegal and unauthorized dumping and littering, and to punish the violation of such ordinances by a fine not to exceed one thousand dollars or by imprisonment not to exceed twelve months for each offense, or by both such fine and imprisonment.

    4. Any city with a population of more than four hundred thousand inhabitants may enact all needful ordinances to protect public and private property from nuisance and property maintenance code violations, and to punish the violation of such ordinances by a fine not to exceed one thousand dollars or by imprisonment not to exceed twelve months for each offense, or by both such fine and imprisonment.



    Missouri Revised Statutes
    [size=Chapter 71
    Provisions Relative to All Cities and Towns
    Section 71.948
    ][/size]

    [size=August 28, 2006][/size]




    [size=Copies of code on file with municipal clerks and open to public. ][/size]

    71.948. At least three copies of the published book shall be kept on file in the office of the municipal clerk and kept available for inspection by the public at all reasonable business hours.

  13. #13
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    Shawn wrote:
    Mike,

    I have talked to Mr. Jamison before about this very law. [ .... ]
    I also talked to him (several years back) about filing a lawsuit against Cape Girardeau. Back when I talked to him, he stated it would take, 30k or more to get it in front of the MOSC. I personally don't think it would take that much...but you want somebody that knows what they are talking about, and Mr. Jamison does. I do find it odd that he would make such a statement about "peace disturbance"
    Mr. Jamison is simply being realistic. About twenty or so years ago, while living near Omaha, NE, I took a course called Law Enforcement 109--Firearms at a local community college. The instructor was an Omaha police officer. The subject of open carry, technically legal in Omaha then, came up. The instructor admitted that while it was legal to carry openly, should you be observed doing so you would likely be arrested for "peace disturbance" because the sight of the gun would create unease among the public, or at least unease on the part of the arresting officer which is all that mattered. Much the same will (has, I've been told, by more than one party) happen should you open carry in Springfield, MO, Kansas City, MO, or several other urban locales where it is technically legal. That, I am sure, is what Mr. Jamison meant.

    I'm aquainted with the man personally and can assure you that he is personally an advocate of Vermont carry but is also eminently practical. As he states repeatedly in his book, "it doesn't have to make sense. It's just the law."



  14. #14
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    brolin_1911a1 wrote:
    Shawn wrote:
    Mike,

    I have talked to Mr. Jamison before about this very law. [ ....]
    I also talked to him (several years back) about filing a lawsuit against Cape Girardeau. Back when I talked to him, he stated it would take, 30k or more to get it in front of the MOSC. I personally don't think it would take that much...but you want somebody that knows what they are talking about, and Mr. Jamison does. I do find it odd that he would make such a statement about "peace disturbance"
    Mr. Jamison is simply being realistic. About twenty or so years ago, while living near Omaha, NE, I took a course called Law Enforcement 109--Firearms at a local community college. The instructor was an Omaha police officer. The subject of open carry, technically legal in Omaha then, came up. The instructor admitted that while it was legal to carry openly, should you be observed doing so you would likely be arrested for "peace disturbance" because the sight of the gun would create unease among the public, or at least unease on the part of the arresting officer which is all that mattered. Much the same will (has, I've been told, by more than one party) happen should you open carry in Springfield, MO, Kansas City, MO, or several other urban locales where it is technically legal. That, I am sure, is what Mr. Jamison meant.

    I'm aquainted with the man personally and can assure you that he is personally an advocate of Vermont carry but is also eminently practical. As he states repeatedly in his book, "it doesn't have to make sense. It's just the law."

    I have open carried MANY times in Missouri localities. I have never been approached or questioned while carrying. Your theory that you can be arrested for "peace disturbance" is ludacris. No county prosecutor would touch that case with a 20 foot pole. I long for the day when I get arrested for what you describe as a peace disturbance. That will be the day I "hit the lottery".

  15. #15
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    brolin_1911a1 wrote:
    Shawn wrote:
    Mike,

    I have talked to Mr. Jamison before about this very law. [ ....]
    I also talked to him (several years back) about filing a lawsuit against Cape Girardeau. Back when I talked to him, he stated it would take, 30k or more to get it in front of the MOSC. I personally don't think it would take that much...but you want somebody that knows what they are talking about, and Mr. Jamison does. I do find it odd that he would make such a statement about "peace disturbance"
    Mr. Jamison is simply being realistic. About twenty or so years ago, while living near Omaha, NE, I took a course called Law Enforcement 109--Firearms at a local community college. The instructor was an Omaha police officer. The subject of open carry, technically legal in Omaha then, came up. The instructor admitted that while it was legal to carry openly, should you be observed doing so you would likely be arrested for "peace disturbance" because the sight of the gun would create unease among the public, or at least unease on the part of the arresting officer which is all that mattered. Much the same will (has, I've been told, by more than one party) happen should you open carry in Springfield, MO, Kansas City, MO, or several other urban locales where it is technically legal. That, I am sure, is what Mr. Jamison meant.

    I'm aquainted with the man personally and can assure you that he is personally an advocate of Vermont carry but is also eminently practical. As he states repeatedly in his book, "it doesn't have to make sense. It's just the law."

    Funny you should mention Nebraska. I travel once a month to Fremont NE (about 30 miles west of Omaha). Since my CCW permit is not recognized (NO state's permit is recognized by Nebraska), I called the police dept in Fremont to inquire about open carry. The officer stated it was indeed legal to open carry, but he also added that they would probably get a "man with a gun" call. He stated they would have to respond but admitted they would be powerless to do anything about it.

  16. #16
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    drur wrote:
    ...Funny you should mention Nebraska. I travel once a month to Fremont NE (about 30 miles west of Omaha). Since my CCW permit is not recognized (NO state's permit is recognized by Nebraska), I called the police dept in Fremont to inquire about open carry. The officer stated it was indeed legal to open carry, but he also added that they would probably get a "man with a gun" call. He stated they would have to respond but admitted they would be powerless to do anything about it.
    Yeah, most of Nebraska is pretty cool about guns. Omaha and Lincoln are the areas where the ruling elite get nervous about armed citizens. I lived in Colon, about 25 miles south of Fremont, just north of Wahoo.

    One of my neighbors had been an Omaha resident before moving to Saunders county. Keith told me how one day he was stopped in Douglas county by an Omaha cop for a busted tail light. The cop saw Keith's unloaded revolver sitting in plain sight on the seat and immediately did a full "felony stop" and called for backup. The shift sgt. showed up and asked what the problem was. Cop said "He's got a gun." Sgt. said Keith had a right to have a gun and told the cop to return it. Keith said the cop went livid but did as he was told.



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