HOUSE BILL NO. 2176 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE PERKINS.
5453H.01I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 21.750, 563.016, 563.031, 563.041, 563.074, 571.101, 571.104, 571.117, 571.205, and 571.225, RSMo, and to enact in lieu thereof eleven new sections relating to public safety, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 21.750, 563.016, 563.031, 563.041, 563.074, 571.101, 571.104, 2 571.117, 571.205, and 571.225, RSMo, are repealed and eleven new sections enacted in lieu 3 thereof, to be known as sections 1.486, 21.750, 563.031, 563.041, 563.074, 563.085, 571.101, 4 571.104, 571.117, 571.205, and 571.225, to read as follows: 1.486. 1. This section shall be known and may be cited as the "Anti-Red Flag 2 Gun Seizure Act". 3 2. As used in this section, "red flag law" means: 4 (1) Any gun control law, order, or measure that directs the temporary or 5 permanent seizure of any firearm, firearm accessory, or ammunition of an individual, 6 except persons lawfully in custody or persons who have been released after the 7 execution of a bail bond after having been charged with a dangerous felony, as defined 8 in section 556.061; or 9 (2) Any federal statute, federal rule, federal executive order, or federal judicial 10 order or finding, or any state statute, state rule, state executive order, or state judicial 11 order or finding, that: 12 (a) Prohibits a Missouri citizen from owning, possessing, transporting, 13 transferring, or receiving any firearm, firearm accessory, or ammunition, except 14 persons lawfully in custody or persons who have been released after the execution of a
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 2176 2
15 bail bond after having been charged with a dangerous felony, as defined in section 16 556.061; or 17 (b) Orders the removal or requires the surrender of any firearm, firearm 18 accessory, or ammunition of an individual, except persons lawfully in custody or persons 19 who have been released after the execution of a bail bond after having been charged 20 with a dangerous felony, as defined in section 556.061. 21 3. Any federal order of protection, other judicial order issued by a federal court, 22 or federal executive order that is a red flag law or otherwise directs the confiscation of 23 any firearm, firearm accessory, or ammunition from any law-abiding citizen within the 24 borders of this state shall not be enforced in this state by any state agency, political 25 subdivision, or state or local law enforcement agency. 26 4. No state agency, political subdivision, or state or local law enforcement agency 27 shall receive any federal moneys for the purpose of enforcing any federal statute, federal 28 rule, federal executive order, or federal judicial order or findings, or for the purpose of 29 enforcing any state statute, state rule, state executive order, or state judicial order or 30 findings, that would have the effect of enforcing a red flag law against a Missouri citizen. 31 5. No state entity or employee thereof, political subdivision or employee thereof, 32 or other entity or person shall have the authority to enforce or attempt to enforce a red 33 flag law regardless of the red flag law's origin or the authority of the issuing entity. This 34 subsection shall not apply to any agent of the federal government enforcing a federal 35 law or federal order. 36 6. Nothing in this section shall be construed to prevent a firearm, firearm 37 accessory, or ammunition from being seized as evidence by law enforcement in the 38 course of an investigation. 39 7. (1) A political subdivision or state or local law enforcement agency that 40 employs a law enforcement officer who knowingly acts to violate this section and enforce 41 a red flag law under the color of any state or federal statute, rule, executive order, or 42 judicial order or finding shall be liable to the party against whom the red flag law was 43 enforced in an action at law, suit in equity, or other proper proceeding for redress and 44 shall be subject to a civil penalty of fifty thousand dollars per occurrence. 45 (2) Any person injured under this section shall have standing to pursue an action 46 for injunctive relief in the circuit court of the county in which the action allegedly 47 occurred or in the circuit court of Cole County. 48 (3) The court shall hold a hearing on any motion for a temporary restraining 49 order or preliminary injunction within thirty days of service of a petition for the same. 50 (4) In an action brought under this section by a party against whom the red flag 51 law was enforced, a court may order injunctive or other equitable relief, recovery of HB 2176 3
52 damages, other legal remedies, and payment of reasonable attorney's fees, costs, and 53 expenses of the party. The relief and remedies set forth in this section shall not be 54 deemed exclusive and shall be in addition to any other relief or remedies permitted by 55 law. The court may award the prevailing party, if not the state of Missouri or a political 56 subdivision thereof, reasonable attorney's fees and costs. 57 (5) Sovereign immunity shall not be an affirmative defense to any action brought 58 under this section. 21.750. 1. The general assembly hereby occupies and preempts the entire field of 2 legislation touching in any way firearms, components, ammunition and supplies to the 3 complete exclusion of any order, ordinance or regulation by any political subdivision of this 4 state. Any existing or future orders, ordinances or regulations in this field are hereby and 5 shall be null and void except as provided in subsection 3 of this section. 6 2. No county, city, town, village, municipality, or other political subdivision of this 7 state shall adopt any order, ordinance or regulation concerning in any way the sale, purchase, 8 purchase delay, transfer, ownership, use, keeping, possession, bearing, transportation, 9 licensing, permit, registration, taxation other than sales and compensating use taxes or other 10 controls on firearms, components, ammunition, and supplies except as provided in subsection 11 3 of this section. 12 3. [(1) Except as provided in subdivision (2) of this subsection,] Nothing contained in 13 this section shall prohibit any ordinance of any political subdivision which conforms exactly 14 with any of the provisions of sections 571.010 to 571.070, with appropriate penalty 15 provisions, or which regulates [the open carrying of firearms readily capable of lethal use or] 16 the discharge of firearms within a jurisdiction, provided such ordinance complies with the 17 provisions of section 252.243. No ordinance shall be construed to preclude the use of a 18 firearm in the defense of person or property, subject to the provisions of chapter 563. 19 [(2) In any jurisdiction in which the open carrying of firearms is prohibited by 20 ordinance, the open carrying of firearms shall not be prohibited in accordance with the 21 following: 22 (a) Any person with a valid concealed carry endorsement or permit who is open 23 carrying a firearm shall be required to have a valid concealed carry endorsement or permit 24 from this state, or a permit from another state that is recognized by this state, in his or her 25 possession at all times; 26 (b) Any person open carrying a firearm in such jurisdiction shall display his or her 27 concealed carry endorsement or permit upon demand of a law enforcement officer; 28 (c) In the absence of any reasonable and articulable suspicion of criminal activity, no 29 person carrying a concealed or unconcealed firearm shall be disarmed or physically restrained 30 by a law enforcement officer unless under arrest; and HB 2176 4
31 (d) Any person who violates this subdivision shall be subject to the penalty provided 32 in section 571.121.] 33 4. The lawful design, marketing, manufacture, distribution, or sale of firearms or 34 ammunition to the public is not an abnormally dangerous activity and does not constitute a 35 public or private nuisance. 36 5. No county, city, town, village or any other political subdivision nor the state shall 37 bring suit or have any right to recover against any firearms or ammunition manufacturer, trade 38 association or dealer for damages, abatement or injunctive relief resulting from or relating to 39 the lawful design, manufacture, marketing, distribution, or sale of firearms or ammunition to 40 the public. This subsection shall apply to any suit pending as of October 12, 2003, as well as 41 any suit which may be brought in the future. Provided, however, that nothing in this section 42 shall restrict the rights of individual citizens to recover for injury or death caused by the 43 negligent or defective design or manufacture of firearms or ammunition. 44 6. Nothing in this section shall prevent the state, a county, city, town, village or any 45 other political subdivision from bringing an action against a firearms or ammunition 46 manufacturer or dealer for breach of contract or warranty as to firearms or ammunition 47 purchased by the state or such political subdivision. 48 7. (1) Any county, city, town, village, municipality, or other political subdivision 49 of this state that enacts an ordinance that regulates firearms in violation of this section 50 shall be liable to the injured party in an action at law, suit in equity, or other proper 51 proceeding for redress and subject to a civil penalty of fifty thousand dollars. Any 52 person who believes that a jurisdiction in which he or she resides has taken action that 53 would violate the provisions of this section shall have standing to pursue an action under 54 this subdivision. 55 (2) Any person who believes that a jurisdiction in which he or she resides or 56 conducts business has taken action that would violate the provisions of this section shall 57 have standing to pursue an action for injunctive relief in the circuit court of the county 58 in which the action allegedly occurred or in the circuit court of Cole County with respect 59 to the action of the jurisdiction. The court shall hold a hearing on the motion for a 60 temporary restraining order and preliminary injunction within thirty days of the 61 service of the petition. 62 (3) In any action under this subsection, the court may award the prevailing 63 party, other than the state of Missouri or any political subdivision of the state, 64 reasonable attorney's fees and costs. 65 (4) Sovereign immunity shall not be an affirmative defense in any action under 66 this subsection. HB 2176 5
563.031. 1. A person may, subject to the provisions of subsection 2 of this section, 2 use physical force upon another person when and to the extent he or she reasonably believes 3 such force to be necessary to defend himself or herself or a third person from what he or she 4 reasonably believes to be the use or imminent use of unlawful force by such other person, 5 unless: 6 (1) The actor was the initial aggressor; except that in such case his or her use of force 7 is nevertheless justifiable provided: 8 (a) He or she has withdrawn from the encounter and effectively communicated such 9 withdrawal to such other person but the latter persists in continuing the incident by the use or 10 threatened use of unlawful force; or 11 (b) He or she is a law enforcement officer and as such is an aggressor pursuant to 12 section 563.046; or 13 (c) The aggressor is justified under some other provision of this chapter or other 14 provision of law; 15 (2) Under the circumstances as the actor reasonably believes them to be, the person 16 whom he or she seeks to protect would not be justified in using such protective force; 17 (3) The actor was attempting to commit, committing, or escaping after the 18 commission of a forcible felony. 19 2. A person shall not use deadly force upon another person under the circumstances 20 specified in subsection 1 of this section unless: 21 (1) He or she reasonably believes that such deadly force is necessary to protect 22 himself, or herself or her unborn child, or another against death, serious physical injury, or 23 any forcible felony; 24 (2) Such force is used against a person who unlawfully enters, remains after 25 unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully 26 occupied by such person; or 27 (3) Such force is used against a person who unlawfully enters, remains after 28 unlawfully entering, or attempts to unlawfully enter private property that is owned or leased 29 by an individual, or is occupied by an individual who has been given specific authority by the 30 property owner to occupy the property, claiming a justification of using protective force under 31 this section. 32 3. A person does not have a duty to retreat: 33 (1) From a dwelling, residence, or vehicle where the person is not unlawfully entering 34 or unlawfully remaining; 35 (2) From private property that is owned or leased by such individual; or 36 (3) If the person is in any other location such person has the right to be. HB 2176 6
37 4. The justification afforded by this section extends to the use of physical restraint as 38 protective force provided that the actor takes all reasonable measures to terminate the restraint 39 as soon as it is reasonable to do so. 40 5. [The defendant shall have the burden of injecting the issue of justification under 41 this section. If a defendant asserts that his or her use of force is described under subdivision 42 (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a 43 reasonable doubt that the defendant did not reasonably believe that the use of such force was 44 necessary to defend against what he or she reasonably believed was the use or imminent use 45 of unlawful force] There shall be a presumption of reasonableness under this section that 46 the defendant believed such force was necessary to defend himself or herself or a third 47 person from what he or she believed to be the use or imminent use of unlawful force by 48 another person. 563.041. 1. A person may, subject to the limitations of subsection 2, use physical 2 force upon another person when and to the extent that he or she reasonably believes it 3 necessary to prevent what he or she reasonably believes to be the commission or attempted 4 commission by such person of stealing, property damage or tampering in any degree. 5 2. A person may use deadly force under circumstances described in subsection 1 only 6 when such use of deadly force is authorized under other sections of this chapter. 7 3. The justification afforded by this section extends to the use of physical restraint as 8 protective force provided that the actor takes all reasonable measures to terminate the restraint 9 as soon as it is reasonable to do so. 10 4. An armed nuclear security guard may use the following levels of physical force 11 against another person at a nuclear power plant or within a structure or fenced yard of a 12 nuclear power plant if the armed nuclear security guard reasonably believes that such force is 13 necessary: 14 (1) An armed nuclear security guard may use physical force, as he or she reasonably 15 believes is immediately necessary, up to and including deadly physical force to: 16 (a) Prevent an action that would constitute murder in the first or second degree under 17 section 565.020 or 565.021; 18 (b) Prevent an action that would constitute voluntary manslaughter under section 19 565.023; 20 (c) Prevent an action that would constitute assault in the first or second degree under 21 section 565.050 or 565.052; or 22 (d) Defend himself, herself, or a third person from the use or imminent use of deadly 23 physical force; HB 2176 7
24 (2) An armed nuclear security guard may use physical force, as he or she reasonably 25 believes is immediately necessary, up to but not including deadly physical force to prevent an 26 action that would constitute: 27 (a) Assault in the third or fourth degree under section 565.054 or 565.056; 28 (b) Kidnapping in the first, second, or third degree under section 565.110, 565.120, or 29 565.130; 30 (c) Burglary in the first or second degree under section 569.160 or 569.170; 31 (d) Arson in the first, second, or third degree under section 569.040, 569.050, or 32 569.053; 33 (e) Property damage in the first degree under section 569.100; 34 (f) Robbery in the first or second degree under section 570.023 or 570.025; 35 (g) Armed criminal action under section 571.015; or 36 (h) Trespass in the first degree under section 569.140; 37 (3) An armed nuclear security guard is justified in threatening to use physical force or 38 deadly physical force if and to the extent a reasonable armed nuclear security guard believes it 39 necessary to protect himself, herself, or others against another person's potential use of 40 physical force or deadly physical force. 41 5. [Notwithstanding any provisions of section 563.016 to the contrary,] An armed 42 nuclear security guard, employer of an armed nuclear security guard, or owner of a nuclear 43 power plant shall not be subject to civil liability for conduct of an armed nuclear security 44 guard that is permitted by this section. 45 6. The defendant shall have the burden of injecting the issue of justification under this 46 section. 563.074. 1. [Notwithstanding the provisions of section 563.016,] A person who uses 2 force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is 3 justified in using such force and such fact shall be an absolute defense to criminal prosecution 4 or civil liability. 5 2. The court shall award attorney's fees, court costs, and all reasonable expenses 6 incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds 7 that the defendant has an absolute defense as provided in subsection 1 of this section. 563.085. 1. (1) A person who uses or threatens to use force under section 2 563.031 is justified in such conduct and i