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Thread: Illegal for police officers to open carry in Fenton, MO

  1. #1
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    I contacted the police in Fenton (St. Louis County) at the end of 2008 to ask them about open carry. The Lt. and prosecutor confirmed is was NOT illegal. Well apparently a short time after that email, they made it illegal. Only, in their quickness to stop those evil guns from being carried around to scare the sheeple, they forgot to add exception for police officers, parole officers, prison wardens, members of the armed forces, as well as a few others.

    "SECTION 205.245: WEAPONS -- CARRYING CONCEALED -- OTHER UNLAWFUL USE
    A. A person commits the offense of unlawful use of weapons if he/she knowingly:

    1. Carries concealed upon or about his/her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use;
    2. Sets a spring gun;
    3. Discharges or shoots a firearm;
    4. Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;
    5. Possesses a firearm or projectile weapon while intoxicated;
    6. Openly carries a firearm or any other weapon readily capable of lethal use except in Hunting Heritage Protection Areas as defined in Section 252.243, RSMo.;
    7. Carries a firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use into any school, onto any school bus, or onto the premises of any function or activity sponsored or sanctioned by school officials or the district school board.

    B. Subparagraphs (1), (3), (4) and (7) of Subsection (A) of this Section shall not apply to or affect any of the following:
    1. All State, County and Municipal Peace Officers who have completed the training required by the Police Officer Standards and Training Commission pursuant to Sections 590.030 to 590.050, RSMo., and possessing the duty and power of arrest for violation of the general criminal laws of the State or for violation of ordinances of Counties or Municipalities of the State, whether such officers are on or off duty, and whether such officers are within or outside of the law enforcement agency's jurisdiction, or all qualified retired Peace Officers, as defined in Subsection (10) of Section 571.030, RSMo., and who carry the identification defined in Subsection (11) of Section 571.030, RSMo., or any person summoned by such officers to assist in making arrests or preserving the peace while actually engaged in assisting such officer;
    2. Wardens, superintendents and keepers of prisons, penitentiaries, jails and other institutions for the detention of persons accused or convicted of an offense or crime;
    3. Members of the Armed Forces or National Guard while performing their official duty;
    4. Those persons vested by Article V, Section 1 of the Constitution of Missouri with the judicial power of the State and those persons vested by Article III of the Constitution of the United States with the judicial power of the United States, the members of the Federal judiciary;
    5. Any person whose bona fide duty is to execute process, civil or criminal;
    6. Any Federal Probation Officer or Federal Flight Deck Officer as defined under the Federal Flight Deck Officer Program, 49 U.S.C. Section 44921;
    7. Any State Probation or Parole Officer, including supervisors and members of the Board of Probation and Parole;
    8. Any corporate security advisor meeting the definition and fulfilling the requirements of the regulations established by the Board of Police Commissioners under Section 84.340, RSMo.; and
    9. Any coroner, deputy coroner, medical examiner or assistant medical examiner."








  2. #2
    Regular Member Dreamer's Avatar
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    This is HYSTERICAL!!!

    Has anyone called 911 to make a MWAG report on a Police officer yet, or brought suit against the local DA for not prosecuting the local police for violation of this statute?

    This could make a VERY interesting "test case" that wouldn't cost ANYHTHING.

    Also remember, if any citizen gets charged with violation of this statute, and none of the local police get charged, then it's a pretty easy "Equal Protection" defense, and could become a FEDERAL Civil Rights violation lawsuit REALLY quick.

    The potential settlement/payout for a citizen could be mind-boggling...


    Here is the "official" code, as linked off the Fenton City website:

    http://codes.sullivanpublications.com/fenton-slp/
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
    --Barry Goldwater, 1964

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    Regular Member Superlite27's Avatar
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    So, who's gonna be the guinea pig that calls the cops...on the cops?

    Won't the officers who show up to make the arrest have to do so unarmed?

    (Or at least CC?)

    Has anyone at least called the authorities in Fenton to inquire how the policeare going to comply?

    The usual clichet we get from cops is, "Sorry, I don't make the law. I just enforce it."

    Well? Enforce it, then!

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    I didn't do anything yet, because I thought I would see what you guys think. I also plan to go there and look at the ordinance in person in their code book just to be sure.

    I'm also going to check the state statutes that allow police to carry a weapon. I am 95% sure, the word "openly" is never used. Even if they arrested someone on this ordinance, and claimed that state law allowed the police to carry on their hip, their ordinance would then be in conflict with state law and declared void.

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    Regular Member Superlite27's Avatar
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    ordinance would then be in conflict with state law and declared void.


    Not a pre-emption conflict. State law only pre-empts concealed carry.

    Open carry is fair game for municipalities.

    Edit: Nevermind. I see what you're getting at. Since state law exempts police officers from open carry restrictions and this one restricts it for LEO, the entire municipal law is null, (not just the little "Whoops! forgot the (6)!) since state law supercedes municipal code.

    Since the entire law is null, OC is, therefore, legal in Fenton.



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    Superlite27 wrote:
    ordinance would then be in conflict with state law and declared void.


    Not a pre-emption conflict. State law only pre-empts concealed carry.

    Open carry is fair game for municipalities.

    Edit: Nevermind. I see what you're getting at. Since state law exempts police officers from open carry restrictions and this one restricts it for LEO, the entire municipal law is null, (not just the little "Whoops! forgot the (6)!) since state law supercedes municipal code.

    Since the entire law is null, OC is, therefore, legal in Fenton.

    Right. I'm referring to a statute regarding the power of police officers to carry firearms separate from the concealed carry chapter. The problem, the laws that give police officers' power are scattered throughout the statutes in many different chapters.

    There may not be one that specifically gives police officers the power to "carry a firearm", but I thought I had recalled such a state law. If there is a law that allows them the general "carry a firearm" language, that could (and should IMO) be interpreted to mean in any manner, including openly. In that case only would there be a conflict.

    Of course, in my experience, I would not expect a municipally to apply the law so directly, but instead, in a light that most favors them from the start. This would require one to file a trial de novo and most likely appeal to the Missouri Court of Appeals, where I assume a proper judgment would be made.

    I happen to know the prosecutor there, not personally, but with dealing with him in a few cases in which he seemed reasonable, but probably not enough to acknowledge the flaw within the ordinance and dismiss the charge.

    Municipalities in this state have a clear advantage. When they win, you lose, when they lose, you still lose. They'd just amend the ordinance for the next guy that open carries and you'd be out time and money.

  7. #7
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    I haven't found anything relating to police officers and firearms yet, but I know it is at least granted to parole and probation officers in RsMO 217.710 ( http://www.moga.mo.gov/statutes/c200-299/2170000710.htm ). In that statute, "Probation and parole officers, supervisors and members of the board of probation and parole, who are certified pursuant to the requirements of subsection 2 of this section shall have the authority to carry their firearms at all times".

    That would tend to show a conflict with the Fenton ordinance as they don't allow probation and parole officers to carry a firearm in a way that the state grants them with the general language of "carry their firearms at all times".

    EDIT:
    A municipal ordinance must be in harmony with the general laws of the state and is voidMorrow v. City of Kansas City, 788 S.W.2d 278, 281




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    Has anyone posed this question to the local newspaper?

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    Did you all notice that the cops are exempt from subparagraph (4)?
    4. Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;

    That's just not right, allowing cops to go around waving guns in the air when their pissed and non-LE/Mil folks can't.

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    Task Force 16 wrote:
    Did you all notice that the cops are exempt from subparagraph (4)?
    4. Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;

    That's just not right, allowing cops to go around waving guns in the air when their pissed and non-LE/Mil folks can't.
    Yes. That is a duplication of the state law. They have no restriction on it. About a year ago, a local police officer (off-duty) got into an argument with a parking attendant and pulled his gun on the guy. They were only able to charge him with a misdemeanor assault because of the way this law is written exempting them 100% of the time.

    Now, had one of us done that...

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