FROM THE CIRCUIT COURT OF JOHNSON COUNTY The Honorable
William B. Collins, Judge
W. DRAPER III, JUDGE
Alpert (hereinafter, "Alpert") filed a declaratory
judgment action against th state of Missouri, the attorney
general, and the prosecuting attorney for Johnson County
Missouri (hereinafter and collectively, "the
state"), seeking a declaration the state coul not
enforce section 571.070, RSMo Supp. 2013,  against him
without violating article I section 23 of the Missouri
Constitution and the Second Amendment to the United State
Constitution. This Court holds Alpert's pre-enforcement
constitutional challenges are rip for determination, and
section 571.070 withstands constitutional scrutiny. The
circuit court's judgment is affirmed.
and Procedural History
1970, Alpert pleaded guilty to possession of a controlled
substance in Pettis County, Missouri, and was sentenced to
three years' imprisonment. In 1975, Alpert pleaded guilty
to possession of a controlled substance in federal district
court and received a two-year sentence. Alpert successfully
completed both sentences.
1983, Alpert filed an application pursuant to 18 U.S.C.
§ 925(c) with the United States attorney general to
restore his right to possess a firearm, which was prohibited
due to his felony convictions. Alpert's application was
granted. In 1986, Alpert applied for a federal firearms
license, class 01 (hereinafter, "FFL01 license"), a
three-year, renewable license, permitting one to deal
firearms. After the license was issued, Alpert began buying
and selling firearms. Alpert's license was renewed
2007, Alpert founded Missouri Bullet Company (hereinafter,
"MBC"), a cast bullet manufacturer. In 2008, the
General Assembly amended section 571.070, making it unlawful
for any person who has been convicted of a felony under
Missouri law "or of a crime under the laws of any state
or of the United States which, if committed within this
state, would be a felony, " to possess a firearm. When
Alpert attempted to renew his FFL01 license, he was told he
could not because of the 2008 amendment to section 571.070.
Consequently, Alpert was required to surrender his FFL01
filed a declaratory judgment action raising facial and
as-applied challenges to section 571.070. Alpert sought a
declaration that section 571.070 could not be enforced
against him without violating the Missouri and United States
constitutions. Alpert set forth facts demonstrating his
law-abiding behavior since completing his sentences and
having his federal gun rights restored. Alpert's petition
further alleged he wished to possess two family heirloom
pistols and a rifle he was awarded in 1993. Alpert maintained
his claims were ripe because the facts necessary to
adjudicate the claims were developed fully, section 571.070
affected him in a manner giving rise to an immediate,
concrete dispute, and he lacked an adequate remedy at law.
parties filed competing motions for summary judgment. Alpert
alleged section 571.070 was unconstitutional as applied to
him because it was underinclusive, overinclusive, and its
prohibition barring felons from possessing firearms was not
longstanding. The state countered Alpert's claims were
not ripe because he was not being prosecuted or threatened
with prosecution for violating section 571.070. The state
also argued Alpert, as a convicted felon, categorically was
excluded from Second Amendment protections, and, therefore,
his facial and as-applied challenges must fail.
circuit court sustained the state's motion. The circuit
court rejected the state's ripeness argument, finding it
would be improper to bar Alpert's pre-enforcement action
because it would require him to violate the law before
proceeding. The circuit court held section 571.070 did not
violate the Missouri or United States constitution primarily
because felons categorically are removed from the group of
people who can claim the protections of those constitutional
provisions. Alpert appeals.
Court first must determine whether Alpert's
constitutional claims are ripe. The state argues Alpert's
challenges are not ripe because he failed to present
sufficient facts to establish a fully developed claim, and
section 571.070 does not affect Alpert such that there is an
immediate, concrete dispute. The state further maintains
Alpert has not been charged with violating section 571.070,
he has not been threatened with prosecution, there is no
evidence he currently possesses any firearms, and he has
other remedies at law. Alpert counters the state sought
summary judgment and did not present any disputed facts
requiring further development. Alpert also contends he
demonstrated an immediate, concrete dispute existed because
he was able to possess firearms lawfully from the time his
rights were restored in 1986 until 2008 when section 571.070
stated purpose of the declaratory judgment act is to allow
parties 'to settle and to afford relief from uncertainty
and insecurity with respect to rights, status, and other
legal relations.'" Planned Parenthood of Kan. v.
Nixon, 220 S.W.3d 732, 738 (Mo. banc 2007) (quoting
section 527.120, RSMo 2000). "A declaratory judgment
action has been found to be a proper action to challenge the
constitutional validity of a criminal statute or
ordinance." Tupper v. City of St. Louis, 468
S.W.3d 360, 368 (Mo. banc 2015). However, "[a] court
cannot render a declaratory judgment unless the petition
presents a controversy ripe for judicial determination."
Lebeau v. Comm'rs of Franklin Cnty., Mo., 422
S.W.3d 284, 290-91 (Mo. banc 2014) (quoting Mo. Health
Care Ass'n v. Attorney Gen. of the State of Mo., 953
S.W.2d 617, 621 (Mo. banc 1997)). "A ripe controversy
exists if the parties' dispute is developed sufficiently
to allow the court to make an accurate determination of the
facts, to resolve a conflict that is presently existing, and
to grant specific relief with a conclusive character."
Mo. Health Care Ass'n, 953 S.W.2d at 621.
the challenge involves the constitutional validity of a
statute, "a ripe controversy generally exists when the
state attempts to enforce the statute." Id.
Yet, there are situations in which a ripe controversy may
exist prior to the statute being enforced. S.C. v.
Juvenile Officer, 474 S.W.3d 160, 163 (Mo. banc 2015).
Pre-enforcement constitutional challenges are ripe when: (1)
"the facts necessary to adjudicate the underlying claims
[are] fully developed" and (2) the law at issue affects
the plaintiff "in a manner that [gives] rise to an
immediate, concrete dispute." Mo. Health Care
Ass'n, 953 S.W.2d at 621.
state argues Alpert did not present enough fully developed
facts to establish a claim, only a desire to possess certain
firearms. The state alleges Alpert's mere desire
to possess firearms, coupled with the possibility Alpert may
be charged with violating section 571.070, results in a
hypothetical or speculative situation that is not ripe. The
state analogizes Alpert's claim to several cases in which
pre-enforcement challenges were held not ripe.
support its arguments, the state first relies on Turner
v. Missouri Department of Conservation, 349 S.W.3d 434,
445-46 (Mo. App. S.D. 2011), which held a pre-enforcement
challenge was not ripe because the plaintiff was never
charged with a violation and additional facts needed to be
developed. The court found the plaintiff's challenge was
not ripe because he failed to demonstrate the department
interrupted or prevented a particular course of conduct.
Id. Here, Alpert alleged he was able to possess
firearms legally for more than twenty-five years after having
his rights restored and obtaining his FFL01 license. However,
once section 571.070 was amended, Alpert's previous
conduct was interrupted or prevented because his FFL01
license was revoked and he could no longer possess firearms.
have held the interruption or prevention of previous lawful
conduct supports adjudicating pre-enforcement challenges on
the merits. See Borden Co. v. Thomason, 353 S.W.2d
735, 740 (Mo. banc 1962) (holding a pre-enforcement challenge
was ripe when the plaintiff did not violate the statute, but
alleged it previously engaged in activities now prohibited by
statute and wished to engage in those now-barred activities
in the future); Lincoln Credit Co. v. Peach, 636
S.W.2d 31, 34 (Mo. banc 1982) (finding a justiciable
controversy existed when a business challenged the
constitutional validity of a statute prohibiting the
business' previously lawful activities, even though no
statutory enforcement had commenced); Bldg. Owners &
Managers Ass'n of Metro. St. Louis, Inc. v. City of St.
Louis, Mo., 341 S.W.3d 143, 149 (Mo. App. E.D. 2011)
(holding a controversy was ripe when the ordinance changed
the way business association members had to conduct business,
even though statutory enforcement had not occurred); Mo.
Health Care Ass'n, 953 S.W.2d at 621 (holding a ripe
controversy existed challenging statutes altering the
plaintiffs' way of doing business and subjecting them to
penalties for violating the statutes, even though the
statutes had yet to be enforced).
state also relies on Foster v. State, 352 S.W.3d 357
(Mo. banc 2011), Schweich v. Nixon, 408 S.W.3d 769
(Mo. banc 2013), and J.H. Fichman Co., Inc. v. City of
Kansas City, 800 S.W.2d 24 (Mo. App. W.D. 1990), all of
which rejected pre-enforcement challenges, in part due to
specific, factual, future events that needed to occur before
the controversy was ripe. In Foster, the prisoner
needed to accumulate sufficient funds to trigger the
state's seizure under the Missouri Incarceration
Reimbursement Act. Foster, 352 S.W.3d at 361. In
Schweich, the auditor had to await the fiscal
year's end to determine whether the governor's fund
withholding was an exercise of constitutional authority.
Schweich, 408 S.W.3d at 779. In J.H.
Fichman, the court noted the nature of the
challenger's business and that the pleadings addressing
only certain items banned by the ordinance would not end the
controversy because it would not address items not brought to
the court's attention or subsequently obtained for resale
to the public. J.H. Fichman, 800 S.W.2d at 27.
contrast, Alpert's pre-enforcement constitutional claims
present predominantly legal questions, such as whether
section 571.070 as applied to him violates the Missouri and
United States constitutions' rights to bear arms.
"Cases presenting predominantly legal questions are
particularly amenable to a conclusive determination in a
pre-enforcement context, and generally require less factual
development." Planned Parenthood, 220 S.W.3d at
739 (internal quotations omitted); see also Mo. Health
Care Ass'n, 953 S.W.2d at 622 (holding a controversy
was ripe when "[n]o speculation or additional
fact-finding was required" to determine how the
plaintiffs were affected by the statute); Bldg.
Owners, 314 S.W.3d at 149 (finding a case ripe when the
plaintiff presented largely legal questions needing little
factual development); Tupper, 468 S.W.3d at 370
(finding a red light camera challenge was ripe because it
presented predominantly legal questions not requiring further
factual development); Mo. Alliance for Retired Ams. v.
Dep't of Labor and Indus. Relations, 277 S.W.3d 670,
678-79 (Mo. banc 2009) (holding a pre-enforcement challenge
to workers' compensation exclusivity provisions was ripe
because no factual development was necessary to address the
legal question). Alpert's status as a prior felon and his
desire to possess firearms, despite the statute's
prohibition, need no additional factual development and
present an immediate, concrete dispute, especially given the
revocation of Alpert's FFL01 license after section
571.070 was amended in 2008.
state also contends Alpert needs to possess firearms
illegally, be prosecuted, or be threatened with prosecution
before he can raise his constitutional claims. In that vein,
the state argues Alpert has an adequate remedy in that he can
raise his constitutional claims as a defense if and when the
state chooses to prosecute.
Court repeatedly has rejected the notion a person must
violate the law to create a ripe controversy. For example, in
Tietjens v. City of St. Louis, 222 S.W.2d 70, 72
(Mo. banc 1949), this Court disregarded the argument a
declaratory judgment action was premature when the plaintiff
had not violated the ordinance being challenged because the
ordinance had been duly adopted, it affected the plaintiff,
and it must be assumed the city will enforce its laws.
See also Borden, 353 S.W.2d at 741 (finding even
though the plaintiff failed to identify a single right that
was curtailed or infringed, this Court explicitly held the
fact the plaintiff had not violated the statutes did not make
the action premature).
Nicolai v. City of St. Louis, 762 S.W.2d 423, 425
(Mo. banc 1988), a plaintiff filed a declaratory judgment
action challenging a cat kennel licensing ordinance prior to
being cited with a violation. This Court rejected the
city's argument the plaintiff could raise his challenge
as a defense in a subsequent criminal prosecution.
Id. This Court explained the claim was "ripe
for judicial resolution, and there was no need for him to
await criminal prosecution before seeking a determination of
his rights." Id.; see also Planned
Parenthood, 220 S.W.3d at 738 (holding the
plaintiffs' constitutional claims were ripe even though
neither the attorney general nor the state had attempted to
enforce the statute yet); Bldg. Owners, 341 S.W.3d
at 149 (finding a pre-enforcement challenge was ripe even
though the plaintiffs would be subject to criminal penalties
if they violated the ordinance's provisions);
Tupper, 468 S.W.3d at 370 (stating the
plaintiffs' challenge to the city's red light camera
ordinance was ripe despite neither plaintiff facing
prosecution at the time the challenge was raised).
need not subject themselves to a multiplicity of suits or
litigation or await the imposition of penalties under an
unconstitutional enactment in order to assert their
constitutional claim for an injunction .... Once the gun has
been cocked and aimed and the finger is on the trigger, it is
not necessary to wait until the bullet strikes to invoke the
Declaratory Judgment Act." Planned Parenthood,
220 S.W.3d at 739 (quoting ANR Pipeline Co. v. Corp.
Comm'n of State of Okla., 860 F.2d 1571, 1578 (10th
Cir. 1988)); see also Babbitt v. United Farm Workers
Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60
L.Ed.2d 895 (1979) (a petitioner need not expose himself to
enforcement before challenging a statute). Forcing Alpert to
wait until he violates section 571.070 and is prosecuted or
threatened with prosecution puts him "in a dilemma that
it was the very purpose of the [d]eclaratory [j]udgment [a]ct
to ameliorate." Mo. Health Care Ass'n, 953
S.W.2d at 622 (quoting Abbott Lab. v. Gardner, 387
U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967)).
This Court holds Alpert satisfied the requirements to bring a
pre-enforcement declaratory judgment action to challenge the
constitutional validity of section 571.070.
constitutional validity of a statute is a question of law
this Court reviews de novo. Planned
Parenthood, 220 S.W.3d at 737. This Court will presume
the statute is valid and will not declare a statute
unconstitutional unless it clearly contravenes some
constitutional provision. Id. Alpert's petition
challenged section 571.070's validity under both the
Missouri and United States constitutions.