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May 21, 2022

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St. Louis Zoo says gun rights activist should pay its legal bills

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ST. LOUIS — The St. Louis Zoo appears to have succeeded in officially becoming a “gun-free zone,” but its yearslong legal fight with a gun rights activist isn’t yet over.

The St. Louis Zoo is pursuing a portion of the estimated $150,000 in attorneys fees billed to taxpayers spent defending the zoo’s gun ban in court. A lawyer for Jeffry Smith of suburban Cincinnati, Ohio, who challenged the firearms ban is criticizing the push for fees.

In May of last year, St. Louis Circuit Judge Joan Moriarty accepted the zoo’s contention that its 90-acre property in Forest Park qualifies as a school and a gated amusement park — two of 17 designations where Missouri’s open carry law forbids firearms.

The judge’s ruling stems from a 2015 lawsuit the zoo filed against Smith after he challenged the zoo’s ban by pledging to march with other activists on zoo property while openly carrying guns. The zoo scrambled to stop him in June 2015 by seeking a restraining order, but Smith came anyway — alone — with an empty holster clipped to his khaki shorts.

Many zoos across the country from Atlanta to Dallas to Seattle do not allow guns on their premises.

The timing of Smith’s protest was key: The year before, Missourians had had approved Amendment 5, which guaranteed an “unalienable” right to bear arms and openly carry guns in Missouri. Smith has said he has led “education walks” in several other states, though none at zoos.

In 2015, gun advocates elsewhere ramped up pressure on zoos to lift their policies banning guns. For example, Texas’s attorney general in 2016 upheld the Dallas Zoo’s gun ban after a lawyer there complained the policy violated state law.

The zoo’s lawyer says the zoo has amassed legal bills of about $150,000 to defend its gun ban and that Smith should pay a portion of those fees because Smith “wholly created” a controversy by threatening to defy a policy that a judge has now upheld.

“I’ve always said that the zoo is an unwilling part in this controversy,” said Adam Hirtz, a lawyer representing the zoo. “The last thing they wanted to be involved in was this argument about the Second Amendment. We’re not opposed to Second Amendment. We just feel like a public events place, it’s a safer environment to not have (guns).”

Smith, 62, referred questions to his lawyer but has previously argued that despite having some rides, the zoo “clearly isn’t an amusement park.”

Smith’s lawyer Jane Hogan labeled the zoo’s attempt to make Smith cover costs of the lawsuit as “ludicrous.” She said in filings that the order upholding the zoo’s gun ban is invalid and that the zoo could have enforced its policy against Smith rather than seek a restraining order against him. She also said the zoo obtained the restraining order against Smith without notice, knowing that Smith posed no threat of “immediate harm” because at the time he was driving to St. Louis to pick up his son at St. Louis University.

“They’re being grossly unfair,” Hogan said.

Smith in October 2014 led a march of about 40 people through downtown St. Louis to assert their rights to carry guns openly in public. Months later, he announced his intent to flaunt the zoo’s no-weapons signage in protest after a man from Springfield, Missouri, claimed zoo security asked him to leave when he showed a guard his empty holster.

Three years later, Smith won an appeal reversing the zoo’s restraining order against him, bringing the zoo’s case back to St. Louis Circuit Court. Last year, Moriarty upheld the zoo’s no-gun policy, ruling the zoo fits Missouri’s definition of a “gun-free zone” because it qualifies as both an educational facility and a gated amusement park. Moriarty noted the zoo’s field trips for school-aged children, preschool, camp, shows, carousel, railroad, theater, concerts and concessions.

“Given these facts, plus the readily apparent underlying public policy of protecting children in educational settings from the dangers and distractions of firearms, this court has no difficulty in concluding that the entire gated campus of St. Louis Zoo constitutes an elementary/secondary ‘school facility,’” Moriarty said.

The case could have ended there. But in August, the zoo sought to force Smith to pay its legal bills, arguing that Smith was responsible for creating a controversy over guns.

“In this case, it is clear that this lawsuit was filed with a goal of protecting the Zoo’s visiting public, and it was a reasonable avenue for attaining that goal, especially given the urgency of the situation,” the zoo said in an Oct. 29 filing.

The zoo argued that courts may award attorney’s fees in “special circumstances” because the zoo’s “visiting public benefited by being protected while on zoo property from the damages and intimidation associated with firearms.”

Smith’s lawyer responded in court filings that Smith believed he was within his Second Amendment right to carry a gun into the zoo, that no special circumstances existed preventing him from doing so and that the zoo could have been represented by the Missouri attorney general’s office instead of a private lawyer.

“‘Special circumstances’ contemplates something more than advocating a position the court finds wrong,” Hogan wrote on behalf of Smith.

The judge has yet to rule on the attorney fees. Hogan said Smith will appeal if he loses.

“It’s asinine,” Hogan said. “First of all, they lost the first case, so they don’t get attorney’s fees for losing. They don’t get to bring a case, lose and then expect someone to pay.”

Zoo spokesman Billy Brennan stressed that the zoo is not anti-gun and that if visitors unaware of the policy do bring guns, the zoo’s security will store the weapons securely during their visit.

“The last thing we want is for them to go and lock up their weapon in a vehicle, and we also don’t want them to not be able to enjoy the zoo,” Brennan said.

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