Federal prosecutors in Kansas City have told police they will issue subpoenas to force their testimony in federal gun cases when cooperation is needed, in an effort to get around the potential constraints of a new Missouri law that blocks local assistance in some federal firearms cases.
The law, which Gov. Mike Parson signed last month, has sparked confusion and concern for federal agents across Missouri who are assessing whether local police will cut ties with them in firearms investigations.
Known as the Second Amendment Preservation Act (SAPA), the law declares “invalid” many federal gun regulations that don’t have an equivalent in Missouri law. These include laws covering weapons registration and tracking, and possession of firearms by some domestic violence offenders.
Local departments are barred from enforcing them, or risk being sued for $50,000. They also are prohibited from assisting federal agents in enforcing “invalid” laws and from hiring former federal agents who had enforced them.
The Star reported July 1 that some law enforcement agencies, including the Missouri State Highway Patrol, have pulled personnel from partnerships with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. The FBI and federal prosecutors in St. Louis were surveying local police departments over the future prospects for cooperation in joint investigations.
Their counterparts in Kansas City took a different approach.
Les Kerr, law enforcement coordinator for the U.S. Attorney’s Office in the Western District of Missouri, wrote in a June 17 email to police in his jurisdiction that the U.S. Department of Justice “does not think this law is a proper legislative act.” The email was obtained by The Star through a public records request.
“There is no doubt that every law enforcement agency in the Western District of Missouri is confused as to how to proceed, and, while we cannot tell you how to proceed, we can let you know that the Department of Justice is taking this very seriously,” Kerr wrote. “Additionally, you should know that in the future, whenever our office needs a TFO to testify before a Grand Jury or in a Hearing in a case that could be impacted by the Missouri SAPA we will compel their presence via subpoena in hopes that compulsory attendance will afford you a measure of protection.”
The second sentence is an apparent reference to local task force officers who work alongside federal agents. Federal agencies run a variety of task forces related to guns and drugs across Missouri, and often provide extra funding for local departments. Last year the Justice Department launched Operation LeGend in Kansas City and St. Louis, in response to record gun violence in Missouri.
In his email, Kerr referred to Missouri’s dispute with President Joe Biden’s Justice Department over the scope of the new law. The matter is also the subject of a lawsuit brought by St. Louis city and county against the state. Jackson County joined the lawsuit this month, arguing it is at unfair risk of liability because of its 87 law enforcement officers “who regularly enforce federal gun laws.”
‘Hoping that everyone comes to their senses’
The law’s sponsor said earlier this month he did not believe police will have to stop working with federal agents unless Congress, at the urging of the Biden administration, enacts stricter federal gun control measures.
The director of the Missouri Sheriff’s Association has raised concerns that the law could create a “chilling effect” on those partnerships, if local police are unsure what role they can legally take in federal investigations where guns are involved.
It is not clear whether any subpoenas have been issued yet to force western Missouri officers’ cooperation in any cases.
Neither Kerr nor a spokesman for the U.S. Attorney’s Office responded to requests for comment for this story.
When asked if he believes assisting a federal gun prosecution at the order of a court would absolve a local office of liability under the Second Amendment law, Schmitt’s office declined to comment, citing the pending lawsuit.
The Second Amendment law only allows local police to assist in federal cases in which the gun crimes charged are similar to Missouri crimes, and those gun crimes are “merely ancillary” to the prosecution of other crimes.
One federal prosecutor is attempting another workaround by apparently diminishing a local police officer’s contact with his office in a gun-related case.
In a second email obtained by The Star, an official in the U.S. Attorney’s Office earlier this month told an Independence Police detective and an FBI agent that he had assigned a case they sent him to a prosecutor.
But he was listing the FBI agent as the case agent to shield the detective from the ramifications of the gun law, wrote Patrick Edwards, Assistant U.S. Attorney for the Western District.
“I am anticipating possible 924(c) charges,” Edwards wrote on July 6, referring to the section of federal law that sets stiffer sentences for certain crimes if the defendant possessed a firearm.
“With Missouri’s Second Amendment Preservation Act in place, having (the FBI agent) as the case agent could protect (the Independence detective) from issues down the road,” he continued. “I’m hoping that everyone comes to their senses.”
He wrote that he did not believe those kinds of gun charges should make local officers liable under the Second Amendment law, “but until we have some finality on the issue, I want to be cautious.”
Prosecutors do not appear to have brought publicly viewable charges in that case yet, according to a search of federal court records with the names the official used in the email.
The Independence Police Department did not respond to an inquiry about whether the law had changed its practices, or whether the move diminished the department’s involvement in the case.
Many departments have continued to work with federal agents, including in Kansas City.
Police spokesman Sgt. Jacob Becchina told The Star earlier this month officers must first be cleared to proceed on a case that involves a gun by specialized investigators who “are well trained in gun laws in the state of Missouri and are keenly aware of the instances where federal provisions still apply.”
“Officers have always had the directive to contact a member of the narcotics and vice division or illegal firearms squad prior to proceeding with a gun related investigation,” Becchina wrote in an email. “There is simply now the added step of the investigator confirming that it involves a state level offense as well.”
The Star’s Mike Hendricks contributed reporting.