License-To-Carry Lawsuit

Timeline of Events (Highlights)

10/06/03
Late in the evening, the fax line in my office rings, and the fax machine starts printing pages of a lawsuit to be filed within 48 hours to block the implementation of the new License-To-Carry Law (which was to go into effect on the 11th).  Lacking any fax header information, I am able to check its authenticity with one phone call.  The source I call provides reliable intel that the lawsuit will be filed at 11 a.m. on 10/08/03 in the St. Louis Circuit Court.  I immediately contact a number of pro-LTC attorneys throughout the state to discuss strategy for our counter-move.

Someone -- an unknown source -- leaked news of the pending lawsuit to media throughout the state.  The media, alerted, started calling the plaintiffs and their attorneys.  Their attorneys were greatly dismayed that their plans got out; they had counted on filing their suit and getting the injunction issued on most or all grounds with only a $5,000 injunction bond set before our side (pro-LTC) even found out.  Their intent was for this to be a very stealthy action.  That did not happen.

10/07/03
As a result of the input from pro-LTC attorneys, I personally retain Peter von Gontard with the St. Louis firm of Sandberg, Phoenix & von Gontard and locate a willing party (Bull's Eye Range, L.L.C.) with "standing" in the St. Louis venue to be an "intervenor" for our side.  Along with Peter, Russell Makepeace and Tiffany Ritchie immediately set to work on the research and the motions to be filed in order to intervene in the case.

10/08/03
Early in the afternoon, plaintiffs file their suit in the 22nd Judicial Circuit Court naming two defendants, the State of Missouri and the Missouri Attorney General (in his official capacity).  The plaintiffs are seeking a permanent injunction to prevent the implementation of the new License-To-Carry Law.  The case will go before Judge Steven R. Ohmer.

A motion to intervene is filed by our legal team from SP&vG.

Attorneys for the plaintiffs and named defendants appear in court before Judge Ohmer this same afternoon, as the plaintiffs had moved for a same-day preliminary injunction. Before taking up plaintiffs' motion, defendants move to transfer the case to its "proper venue" in Cole County.  There is a recess as the judge considers it.  Court reconvenes, the judge appears prepared to grant the change of venue.  Plaintiffs respond with an oral motion to add a third defendant, the Sheriff of the City of St. Louis, arguing that this would take care of any venue issue.  Court is then recessed until the next day.

In their suit, the plaintiffs challenge with five claims:  four that the new law contains "Direct Violations Of Missouri Constitution" (specifically, violation of  [1] Article I, Section 23,  [2] the Hancock Amendment,  [3] Article I, Section 1, and  [4] Article II, Section 1 and Article III, Section 1 - Improper Exercise of Police Power), plus a fifth claim that the new law is "Constitutionally Void for Vagueness." (Violation of Article II, Section 1 is apparently immediately abandoned by the plaintiffs as it is never again referenced in any of their later briefs or arguments.)

10/09/03
Court reconvenes.  Plaintiffs have filed an amended petition which now includes the Sheriff of the City of St. Louis as a defendant; there were no other modifications.  The AG's attorney continues to argue for change of venue, adding that the plaintiffs' inclusion of the Sheriff as defendant is a "pretensive joinder."  The Sheriff's attorney also appears and argues that the Sheriff for the City of St. Louis may not even be an appropriate defendant as he does not enforce the state's criminal laws (unique to the St. Louis Sheriff).

Judge Ohmer rules, denying the motion to transfer venue.  He bases his decision on the addition of the St. Louis defendant.

The court then hears arguments on the motion for preliminary injunction. No evidence was presented by the plaintiffs.  Court recesses until the next day.

10/10/03
Judge Ohmer grants our motion to intervene.  We provide evidence in the form of accounting records from Bull's Eye Range, L.L.C. and testimony from its president, Geri Stevens, regarding the harmful effect an injunction would have on their business.

Arguments are also heard.

Judge Ohmer rules, imposing the preliminary injunction on the License-To-Carry Law based solely on the grounds of the Article I, Section 23 claim.  (Although we feel the case should have been dismissed outright; given the circumstances, four out of five claims dismissed immediately is a good win for our side.)  Judge Ohmer further rules that a secured bond is to be posted by the plaintiffs in the amount of $250,000 (a direct result of our intervention).  The hearing is set for October 23rd.

The plaintiffs appear shocked and dismayed at the size of the bond.  They post part of it immediately ($150K at 4:30 on a Friday afternoon!) and follow up with the remainder ($100K) later in the day.

That evening, the AG's office files a petition for a writ of prohibition in the Missouri Court of Appeals, Eastern District (Case No. ED83562) regarding the denial of the motion to change venue and the imposing of a preliminary injunction.  The Court of Appeals denies the petition.  The AG's office then files a similar petition in the Missouri Supreme Court (Case No. SC85619).

10/13/03
The Missouri Supreme Court denies the AG's petition, stating that extraordinary relief is not available when the law provides a remedy by later appeal.

10/20/03
The NRA files an Amicus Curiae (Friend of the Court) Brief and joins the fray.

10/23/03
At 1 o'clock, our attorneys, along with the attorneys from the Attorney General's office and the NRA, begin a pre-hearing conference in the judge's chambers.  At 2 o'clock, the public hearing begins in Judge Ohmer's courtroom.  The hearing continues until well past 7 o'clock.  Evidence is provided, stipulations are made, witnesses testify, arguments and briefs are presented.  The plaintiffs had filed a motion to amend their pleadings, but the judge denies the motion.

Some quick takes:  The plaintiffs argue that Article I, Section 23 includes within it a complete prohibition of concealed carry; further, they contend this gives them the constitutional right to be free of people carrying concealed weapons!  Plaintiffs' witness, a sheriff, testifies that his costs of administering the new law would not be fully covered; but on cross-examination, he had to face the math; his department would make a very nice income.  Defendants' argue that the new law does not violate the Missouri Constitution; that the Article I, Section 23 language in question plainly and simply states that the "right to keep and bear arms" cannot, in and of itself, be used as the justification for wearing concealed weapons; thus, concealed carry is not constitutionally protected, giving the legislature the freedom to regulate it however they see fit -- as they already have for many years, with courts upholding their authority to do so (cited).

Judge Ohmer advised he would render his decision by November 1st.  Now we wait.

11/01/03
No word yet from Judge Ohmer.

11/07/03
Judge Ohmer finally hands down his ruling.  Again denying all other claims by the plaintiffs, he declares that the License-To-Carry Law violates Article I, Section 23 of the Missouri Constitution and is therefore unconstitutional. He grants the permanent injunction.

Judge Ohmer further rules that, while the individual plaintiffs have standing as Missouri citizens and taxpayers, none of the plaintiffs have standing in their official capacities and, to that extent only, are dismissed with prejudice.  The plaintiff, Institute for Peace and Justice, however, is ruled to have no standing whatsoever and is completely dismissed with prejudice.  Court costs are taxed to the defendants.

Judge Ohmer does not lift the bond (as would commonly be done upon issuance of a permanent injunction); he assumes the case will be appealed.

He assumed correctly.  Notices of Appeal were immediately filed by our lawyers and the AG's office.

11/10/03
The AG's office files a request for an expedited schedule with the Missouri Supreme Court.

11/13/03
Respondents (the plaintiffs) file suggestions in opposition to an expedited schedule (this in contrast to the plaintiffs' early and ongoing push to expedite matters at the Circuit Court level).  They also advise they will be cross-appealing Judge Ohmer's dismissal of their other claims.

11/14/03
Our attorneys file a request to join in and, along with the AG's office, respond with suggestions in support of an expedited schedule.

11/19/03
Our attorneys and the AG's office go ahead and file initial briefs.  The NRA as Amicus Curiae file a motion to file their brief.  Hey, we're ready.

The Missouri Supreme Court responds, splitting the difference between the suggested schedules.  As posted on CaseNet:

The case will be heard by the Missouri Supreme Court on January 22, 2004.

11/20/03
A "MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE, TO AMEND JUDGMENT" is filed by the plaintiffs back in the Circuit Court.  They are asking for a new trial on the Hancock Amendment issue, or, an amended judgment in relation to the Hancock issue.  They also request an amendment of the judgment to release the bond, claiming the bond is "unauthorized."  Finally, they want to change their pleadings and are requesting an amended judgment of the Court's denial of their earlier motion to do exactly that.

11/25/03
The AG's office files "Suggestions in Opposition" with the Circuit Court in response to the plaintiffs' motion to amend their pleadings, obtain a new trial or amend the judgment.

11/26/03
Our legal team also files in opposition to the plaintiffs' motion for a new trial or an amended judgment.

12/2/03
The plaintiffs file a reply with the Circuit Court in further support of their motion for a new trial or an amended judgment.

12/10/03
Although the appeal to the Supreme Court has already been taken up, Judge Ohmer orders a hearing for a new trial!  He sets the hearing for December 18 at 9:30 a.m.

12/15/03
Late in the day, the AG's office and our legal team are finally notified via fax of Judge Ohmer's hand-written Order, which states:

12/16/03
The plaintiffs file a "MOTION FOR CLARIFICATION OR MODIFICATION OF BRIEFING SCHEDULE" with the Missouri Supreme Court.  They state that they "do not seek to delay this case unnecessarily," but that they are in a "unique position" -- their MoSC brief is due "before the [St. Louis Circuit] Trial Court judgment becomes final" -- that, should they file their MoSC brief or cross appeal, it might be considered that they waived Judge Ohmer's jurisdiction. (!)  They point out that the Supreme Court issued an order on November 19 to hear the case and also set the schedule.  They then point out that Judge Ohmer issued an order on December 10 to set a hearing in this case in his court for December 18 -- the day before the plaintiffs' MoSC brief is due.  Amazingly, they go on to state that, while they are "interested in expediting this case in a reasonable manner, this unexpected Trial Court hearing results in uncertainty." (!!)  They claim there would not be enough time to prepare and respond to Judge Ohmer's ruling because their MoSC brief is due.  They claim their post-trial motion to the Circuit Court was timely, but that the Defense appeal to the MoSC was premature.  They claim the plaintiffs will suffer real and substantial harm from the loss of use of their bond money since October 10 while the case continues to be argued, and they're trying to get that released.  (Of course, no mention of the victims of crime who have/are/will suffer real and substantial harm because LTC is under injunction.)  Again amazingly, they claim Judge Ohmer should reconsider his earlier ruling on Hancock -- that they are entitled to his reconsideration -- because the Hancock issue became lost in the "shadow of the other constitutional issues." (!!!)  And, as a final footnote (literally), they point out that one of their attorneys will be on vacation January 9-17 and wouldn't be able to participate in the case before the Supreme Court during that time period!

As my good friend John Ross would say, "I am not making this up."

12/18/03
Our legal team is present in Judge Ohmer's court at 9:30 for the Defense, as are attorneys for the State and AG, the St. Louis Sheriff, and the NRA.  We then wait, being the last to be called that morning.

In front of Judge Ohmer, Mr. Newman (the plaintiffs' attorney) argues their case on the Hancock issue and for the release of the bond.  For the Defense, Paul Wilson (representing the State and AG) goes first.  He presents an impressive argument against the Hancock issue.  Our team is up next, and Peter von Gontard presents an excellent argument against the release of the bond.

Judge Ohmer issues his ruling:  ALL of the plaintiffs' motions are denied!  The plaintiffs are not allowed to amend their earlier pleadings, his ruling on Hancock stands, and the bond is not reduced or released!  This is a Good Day for the Defense.

The path has been cleared -- we're back on track to the Missouri Supreme Court!

. . .

At the Supreme Court level, the AG's office files a response to the motion to modify the briefing schedule.

This afternoon, the Missouri Supreme Court also hands down their ruling on the plaintiffs' motion to modify the briefing schedule:  DENIED!!!

Without a doubt, this has been the best day for LTC since Governor Holden's veto was overridden by the Legislature, September 11, 2003!!!

12/19/03
I receive word from Peter that the plaintiffs (respondents) had filed another motion yesterday to extend their filing time due to their computer system having suddenly crashed.  As a result of this motion, the Supreme Court today granted their request for an extension, but only "in part."  As posted on CaseNet:

ORDER ISSUED:  MOTION SUSTAINED IN PART. RESPONDENTS/CROSS-APPELLANTS' INITIAL BRIEF IS DUE ON OR BEFORE 12:00 NOON ON DECEMBER 24, 2003. APPELLANTS/CROSS-RESPONDENTS' SECOND BRIEF IS DUE ON OR BEFORE JANUARY 9, 2004. RESPONDENTS/CROSS-APPELLANTS' SECOND BRIEF IS DUE ON OR BEFORE JANUARY 20, 2004. ORAL ARGUMENT REMAINS SCHEDULED FOR JANUARY 22, 2004, AT 2:00 P.M.

The deadlines for briefs were pushed back five days, but the date for oral argument was left unchanged.  The plaintiffs' initital brief is now due by noon on Christmas Eve.

12/22/03
An AMICUS CURIAE MOTION TO FILE BRIEF is filed by Jackson County (filing party, Kathleen Ann Kedigh).

12/23/03
The Supreme Court sustains the motion from Jackson County, and their Amicus Brief is filed.  In the brief, the argument for violation of the Hancock Amendment is addressed yet again.

12/24/03
The plaintiffs' (now the respondents') MoSC brief is filed.  Within the lengthy 117-page document, numerous arguments having no bearing on the issues before the Supreme Court are also presented, including claims that parts of the LTC law would have dangerous negative consequences if enacted; however, some of the parts cited as the LTC law are actually current law -- law which has been "on the books" for many years without producing the claimed negative consequences -- while other claims appear to either fail to take into account existing component laws, or are unfounded with regard to the language of the LTC law itself.  (To be expected, the brief is devoid of the fact that the 40-plus states who already enjoy concealed carry have not experienced the dire consequences they trumpet.)

A motion to appear PRO HOC VICE (Visiting Attorney Status) is also filed by Stephen P. Halbrook of the NRA.  The motion is granted.

01/07/04
The plaintiffs finally file their NOTICE OF APPEAL in Circuit Court -- to "cross appeal" the Hancock and other issues dismissed by Judge Ohmer.  (This entry wasn't added to the docket on CaseNet until the 13th.)

01/08/04
The AG's office files a MOTION TO DISMISS THE PLAINTIFFS' "CROSS APPEAL", TO STRIKE PORTIONS OF PLAINTIFFS' BRIEF AND TO ALTER OR AMEND SCHEDULING ORDER FILED WITH SERVICE.

The plaintiffs had failed to file their notice of appeal on time, missing their deadline by several days!

01/09/04
Our legal team and the AG's office both file their final MoSC briefs.

01/13/04
At the Supreme Court level, the plaintiffs (respondents) file their NOTICE OF APPEAL relevant to the NOA filed in the Circuit Court January 7th.  Our legal team then files their motion to dismiss and strike the plaintiffs' cross appeal.

01/14/04
Docket entries at CaseNet, added and dated today, reflect that the AG's and our motions are to be "taken with case."

01/20/04
The plaintiffs file their final brief.

01/21/04
The plaintiffs file a supplemental legal file.  Additionally, they file a motion:  CROSS-APPELLANTS' APPEAL BY SPECIAL ORDER (MOTION FOR SPECIAL ORDER ALLOWING LATE NOTICE OF APPEAL) FILED WITH SUGGESTIONS IN SUPPORT WITH SERVICE.

The plaintiffs' motion is sustained.

01/22/04
Oral arguments are heard by the Missouri Supreme Court.

02/26/04
The Missouri Supreme Court hands down their Opinion.  WE WON!

03/11/04
The plaintiffs file a Post Opinion Motion.  They are requesting a rehearing on the Hancock issues, that the Court erred in their decision.  They are also requesting the State pay their attorneys' fees!

This concludes the Timeline for now.  Further details will be added to the Timeline's more recent events later.  (Please see the main News & Info section for court docs and additional/current information.)