Heidbrink v. Swope

• Decision Date: 10 May 2005
• Docket Number: No. ED 84511.,ED 84511.
• Parties: Paul V. HEIDBRINK, Respondent, v. Tim SWOPE, St. Charles County Sheriff, Appellant.
• Court: Missouri Supreme Court

Page 13

170 S.W.3d 13

Paul V. HEIDBRINK, Respondent, v. Tim SWOPE, St. Charles County Sheriff, Appellant.

No. ED 84511.

Missouri Court of Appeals, Eastern District, Division Four.

May 10, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.

Application for Transfer Denied September 20, 2005.

Joann M. Leykam, St. Charles, MO, for appellant.

Peter G. Bender, Springfield, MO, for respondent.

LAWRENCE E. MOONEY, Presiding Judge.

The Sheriff of St. Charles County appeals from the trial court's judgment, which ordered him to issue a concealable-firearm permit to Paul Heidbrink. Because the trial court erroneously precluded the Sheriff from inquiring into Heidbrink's criminal convictions and military discharge based on Missouri's constitutional right to keep and bear arms, we reverse the judgment and remand the cause for further proceedings.

Section 571.090 RSMo.2000, which appears as an appendix to this opinion, establishes certain procedures and requirements necessary to the issuance of a permit to acquire a concealable firearm. The statute provides that an applicant may be disqualified from receiving such a permit by certain circumstances, including certain criminal convictions or a discharge "under dishonorable conditions" from the United States armed forces. Section 571.090.1(1). In March 2003, Heidbrink filed his application with the Sheriff to acquire a concealable-firearm permit. In this application, Heidbrink conceded that he had received a bad-conduct discharge, but denied any felony convictions. Heidbrink appended a note to the application explaining that the discharge had been the product of negotiation between him and the Navy. He claimed that, although he was now ineligible for veteran benefits, he had not been discharged "under dishonorable conditions." The Sheriff denied Heidbrink's application. Heidbrink filed an appeal of that denial in small-claims court, which also rejected his application for a concealable-firearm permit. Heidbrink then filed for a trial de novo in the circuit court.

In the circuit-court proceeding, which is the subject of this appeal, the Sheriff served Heidbrink with interrogatories and requests for production and admissions. In this discovery, the Sheriff sought information regarding Heidbrink's criminal convictions and his military discharge. Heidbrink objected, stating that he was asserting "his right not to be questioned regarding his bearing of arms under Article 1, section 23 of the Missouri Constitution." The Sheriff filed a motion to compel Heidbrink to respond, which the trial court denied, ruling that the discovery violated Article 1, section 23 because it was an effort to question Heidbrink's right to keep and bear arms.

At trial, Ann Eichler, the Sheriff's employee who processed Heidbrink's permit, testified that her research disclosed that Heidbrink had six arrests. She later determined that five of those arrests were resolved at the "misdemeanor level," but she was unable to determine the disposition of Heidbrink's 1986 arrest for desertion from the United States Navy. She further testified that her inability to determine this arrest's disposition was directly attributable to Heidbrink's refusal to cooperate and submit a request for information to the Navy. When Heidbrink took the stand, the Sheriff's first question was whether Heidbrink had been arrested for desertion in 1986. The trial court sustained Heidbrink's objection, ruling that "the question is an effort to question the right of [Heidbrink] to keep and bear arms, which Article 1, section 23 says shall not be questioned." In an offer of proof, the Sheriff's counsel stated that Heidbrink was arrested in 1986 and "the military discharged him under a dishonorable discharge." Heidbrink was asked no further questions. The trial court then entered judgment for Heidbrink, ruling that no evidence of a statutory disqualification of section 571.090.1 had been admitted. The Sheriff was ordered to issue a concealable-firearm permit to Heidbrink. The Sheriff appeals that judgment.¹

Analysis

"Unless otherwise defined in the text, words used in the constitution are given their plain and ordinary meaning." City of Jefferson v. Mo. Department of Natural Resources, 863 S.W.2d 844, 850 (Mo. banc 1993). In our interpretation of statutes, we ascertain "the intent of the legislature by the plain and ordinary meaning of the law." Elrod v. Treasurer of Mo., 138 S.W.3d 714, 716 (Mo. banc 2004). We will not interpret a statute in such a manner that leads to unreasonable, oppressive, or absurd results. Id. Further, "It is the function of the courts to determine whether a statute purporting to constitute an exercise of the police power has a real and substantial relationship to the protection of the public health, safety, morals or welfare and whether it unjustifiably invades rights secured by the Constitution." State ex rel. Kansas City, Mo. v. Public Service Commission of Mo., 524 S.W.2d 855, 862 (Mo. banc 1975).

Article 1, section 23 of the Missouri Constitution states "That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons." Although this constitutional provision establishes a right to keep and bear arms, such right is neither absolute nor unconditional. For example, Missouri courts have recognized that Article 1, section 23 does not deprive the legislature of the authority to regulate the time, place, and manner of bearing firearms. City of Cape Girardeau v. Joyce, 884 S.W.2d 33, 34-35 (Mo.App. E.D.1994); see State v. Van Horne, 622 S.W.2d 956, 957 (Mo.1981). In addition, "Numerous jurisdictions have recognized that the constitutional right to keep and bear arms under a state constitution is not absolute and that reasonable regulatory control by the Legislature to promote the safety and welfare of its citizens uniformly has been upheld." Mosby v. Devine, 851 A.2d 1031, 1044 (R.I.2004); see 86 A.L.R.4th 931, 1991 WL 741610. To prohibit certain persons who by their previous conduct have demonstrated their unfitness to acquire a concealable firearm is in the interest of the citizens' safety and welfare and is within the scope of the State's police power. E.g., Rohrbaugh v. State, 216 W.Va. 298, 607 S.E.2d 404, 412-14 (2004); People v. Blue, 190 Colo. 95, 544 P.2d 385, 391 (1975). Further, requiring persons to obtain a permit is a reasonable method for the State to exercise this police power. See Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 523-24, 530-31 (1968).

Heidbrink acknowledges the constitutionality and reasonableness of a permitting system for weapons. However, he argues that Missouri's statute, to the extent it requires an applicant to answer questions as to his background, is unconstitutional since such questioning is in derogation of Missouri's constitutional right to keep and bear arms. However, the question of the statute's constitutionality is not properly before us. Heidbrink failed to raise this issue at the earliest opportunity and failed to have the trial court rule on the question of the statute's constitutionality. Sharp v. Curators of the University of Mo., 138 S.W.3d 735, 738 (Mo.App. E.D.2003). In any case, Heidbrink contends, the Sheriff has misconstrued the statute. Heidbrink believes that, once an applicant declares his intent to buy a concealable firearm, the permit must issue, given our Constitution, unless the sheriff can prove, without cooperation from the applicant, a disqualifying circumstance. As a corollary of this contention, Heidbrink posits that the Sheriff's aborted discovery and examination of Heidbrink were unconstitutional. These arguments are meritless for four reasons.

First, the Missouri constitutional provision states that "the right ... to keep and bear arms ... shall not be questioned." This traditionally worded provision is merely establishing that such right is beyond question. It in no way implies that an applicant shall not be questioned.² The interpretation of this provision urged by Heidbrink is contrary to the plain and ordinary meaning of the words of our Constitution.

Second, such interpretation entirely ignores the State's police power, which is an essential attribute of government. State ex rel. Kansas City, Mo., 524 S.W.2d at 865. The right to keep and bear arms does not trump the State's police power. Rather, "It is the function of the courts to determine whether a statute purporting to constitute an exercise of the police power has a real and substantial relationship to the protection of the public health, safety, morals or welfare and whether it unjustifiably invades rights secured by the Constitution." Id. at 862. And Missouri courts have already held that the legislature may reasonably regulate the right to keep and bear arms. Joyce, 884 S.W.2d at 34-35; see Van Horne, 622 S.W.2d at 957. The Sheriff, of course, may then enforce the legislature's reasonable regulations.

Third, Heidbrink fails to consider the wording of Missouri's statute, a law whose constitutionality he failed to effectively challenge. Significantly, the statute denominates a person seeking a concealable-firearm permit as an "applicant." Section 571.090.1. Obviously, an "applicant" is by definition, one who must come forward with information. Further, the legislature mandated that the permit should only issue if all the statements in the application are true. Id. Moreover, the sheriff may require suitable identification from the applicant. Section 571.090.3. Finally, the statute allows for judicial review, with its attendant rights to discovery and examination at trial. Section 571.090.8, .12. Obviously, the...