Billings Man Arrested Under GFSZ Act

[eastbank]

we had a teacher here have a pistol in his car(unlocked) on the school parking lot and he sent a student to get some thing from his car and student looked in the glove box and found the loaded pistol and reported it another teacher, the police were called, but they refused to charge the teacher, its who you know.

[44 AMP]

Do note that it wasn't the local cops who arrested the guy in the OP, it was the Feds.

Specifically agents of the BATFE....

[Nathan]

I thought Mr. Gary Marbut’s email was interesting on this topic. Gary is very knowledgeable about MT state gun laws, Federal gun laws and their interactions. This might be worth a read to you. I considered it very enlightening.

Dear MSSA Friends,

Several you have written me about the media reports of Gabriel Metcalf
of Billings having been arrested and charged with violating the
federal Gun Free School Zones Act. The media has tried to paint
Metcalf as a total wingnut, but I have information in conflict with
that assessment. Maybe the chief complaint about Metcalf came from
the principal of the school across the street from Metcalf's home,
someone who may be anti-gun, or at least unfamiliar with firearms as
he accused Metcalf of carrying a rifle when he carried a single-shot,
20 gauge shotgun.

First, one bill that MSSA got enacted in 1995 exempts law abiding
Montanans from the GFSZA. Here's the current Montana law:

45-8-360. Establishment of individual licensure. In consideration that
the right to keep and bear arms is protected and reserved to the
people in Article II, section 12, of the Montana constitution, a
person who has not been convicted of a violent, felony crime and who
is lawfully able to own or to possess a firearm under the Montana
constitution is considered to be individually licensed and verified by
the state of Montana within the meaning of the provisions regarding
individual licensure and verification in the federal Gun-Free School
Zones Act.

The GFSZA declares that people licensed by the state are exempt from the GFSZA.

Second, Metcalf has an attorney from the federal public defenders
office. They have a reputation for being quite competent. I sent
Metcalf's attorney an email informing him about the Montana statute.
I've not heard back from him.

Third, there is another way to view this situation - as a small cloud
with a large golden lining. Consider ...

Since the SCOTUS Bruen decision and its major change of the 2A legal
landscape, our side has been winning RKBA legal cases all over the US.
The case against Metcalf has serious problems - it is worse than weak.
The current US Attorney for Montana is a solid political leftist.

While I'm not thrilled about the suffering and disturbance that
Metcalf must endure, this is a super opportunity to challenge and
maybe torpedo the stupid federal Gun Free School Zones Act.

Here's how I hope this will progress. Metcalf will move to dismiss
charges based on unconstitutionality the GFSZA under the new Bruen
standard. The federal district court judge will deny the motion to
dismiss (or grant it) based on the Bruen standard. That decision will
be appealed to the Ninth Circuit and from there to SCOTUS. We will
rally all sorts of 2A entities to weigh in with amicus briefs. The
GFSZA will go into the dust bin of history and the gun-grabbing feds
will get another legal drubbing.

So, other than the trouble for Metcalf, I see this situation as more
of a great opportunity for us and a stupid mistake by the feds.

I am watching ...

Best wishes,

--
Gary Marbut, President
Montana Shooting Sports Association
http://www.mtssa.org
Author, *Gun Laws of Montana*
http://www.mtpublish.com

Yes, I specifically asked his permission to repost his email in this thread.

[Aguila Blanca]

First, one bill that MSSA got enacted in 1995 exempts law abiding
Montanans from the GFSZA. Here's the current Montana law:

45-8-360. Establishment of individual licensure. In consideration that
the right to keep and bear arms is protected and reserved to the
people in Article II, section 12, of the Montana constitution, a
person who has not been convicted of a violent, felony crime and who
is lawfully able to own or to possess a firearm under the Montana
constitution is considered to be individually licensed and verified by
the state of Montana within the meaning of the provisions regarding
individual licensure and verification in the federal Gun-Free School
Zones Act.

The GFSZA declares that people licensed by the state are exempt from the GFSZA.

WOW!

That's HUUUUUGE!

Thank you.

[Nathan]

Gary really has a keen eye and works relentlessly to get these little pro-gun laws passed….really creating a strong platform of pro-gun law in MT.

I would love for every state to have a Gary!

[JohnKSa]

The wording of the federal law is very specific. It says:

"...licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license..."

Will the state of Mt saying that he is "considered to be individually licensed" even though they haven't given him any license and haven't verified that he is qualified under law to receive the license they haven't given him, satisfy the wording of the federal law? I wouldn't bet on it, but it will be interesting to see how it plays out.

Frankly, what I hope is that this will result in the GFSZ law being struck down as unconstitutional.

[steve4102]

It’s important to note that the GFSZA only applies to Public property.

Take the map of SF posted above for example, remove all the private property within those 1000ft diameters and what is left?

Streets, sidewalks, parks, public buildings etc.

So discharging a firearm in SD situation within 1000ft of school property on private property like a Walmart parking lot, or a liquor store, or any private property is not subject to the GFSZA.

Makes those School Zone maps a bit smaller

[Aguila Blanca]

Originally Posted by steve4102

It’s important to note that the GFSZA only applies to Public property.

Take the map of SF posted above for example, remove all the private property within those 1000ft diameters and what is left?

Streets, sidewalks, parks, public buildings etc.

So discharging a firearm in SD situation within 1000ft of school property on private property like a Walmart parking lot, or a liquor store, or any private property is not subject to the GFSZA.

Makes those School Zone maps a bit smaller

It doesn't make the zones any smaller, it just means that certain people within the zones are excepted. That's meaningless to the armed citizen trying to legally get from one side of the city to the other if he/she doesn't happen to have a permission slip issued by the state in which the school is located.

[44 AMP]

..even though they haven't given him any license and haven't verified that he is qualified under law to receive the license they haven't given him, satisfy the wording of the federal law? I wouldn't bet on it, but it will be interesting to see how it plays out.

Lets see if I understand this correctly...Fed law exempts people who have a state issued license/permit, BUT requires the state to "verify" the person is "qualified" to obtain such a license/permit.

Does Montana issue such licenses/permits? I don't think so, but don't know for certain.

The law quoted in this thread, so far, indicates they don't, and, to me, says that "if we did, every breathing Montana citizen who is not disqualified from owning a firearm due to legal status, (criminal conviction) is therefore considered qualified.

seems to me that would meet the Fed requirement, though perhaps not in the way the Fed wants it (or assumes it will be) met. Am I missing something??

[Nathan]

Anybody know how his first hearing went?

[JohnKSa]

...seems to me that would meet the Fed requirement, though perhaps not in the way the Fed wants it (or assumes it will be) met. Am I missing something??

Here's the wording of the federal law:

"...licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license..."

1. Is he licensed by the State?
2. Does the state require that before an individual obtains a license that they verify that he is qualified, under law, to receive the license?

I can't say how a federal judge will interpret the law, but here are the most obvious answers to the questions. Both questions must be answered with: 'Yes.'

Answer to #1. No. He is not licensed by the state because they do not issue licenses.

Answer to #2. Since he did not obtain a license from the state, the second question is almost nonsensical, but let's try to answer it anyway. No. Because Montana does not issue licenses, they do not require that law enforcement verifies that an individual is qualified, under law, to receive a license.

We'll have to see how it plays out, but I don't think that he's going to get any help from the Montana law.

[Aguila Blanca]

However, Montana has a statute that says for the purposes of the federal gun free school zone act, anyone who is not legally barred from possessing a firearm is deemed to be licensed.

So Montana says he is licensed -- but by enacting a blanket license that way, Montana doesn't individually verify that each individual is squeaky clean before issuing said license.

It's going to be interesting, and I'm glad I'm not the test case.

[JohnKSa]

They don't get to just "say" that. They have to actually satisfy the requirements in federal law. This isn't about what MT thinks is true, it's about whether a federal judge believes that MT law is consistent with federal law.

MT can say he is licensed, but they didn't actually license him. He has no records to show that he is licensed and neither does the state. Maybe their handwaving in the law will get past that requirement, I don't know.

What will be even harder for them to get past is the requirement in federal law that says that the state must have a law that requires BEFORE the individual obtains a license, law enforcement verifies that the individual is qualified, under law to receive the license.

"...the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license..."

MT very obviously has no law that requires pre-verification of licensees since they don't issue licenses. MT law enforcement very obviously does not have to verify that an individual is qualified, under law, to receive a license because they don't issue licenses. Therefore under the most obvious interpretation of the federal law, MT law fails to satisfy the requirements in the GFSZ law.

Will a federal judge see it that way? There's no way to know for sure, but it doesn't look good to me.

If I were going to bet on the guy getting off (a bet I would not make, by the way), I would say he has a better chance of doing so by having the GFSZ law being declared unconstitutional than by MTs half-hearted attempt to circumvent the provisions of the GFSZ.

Anybody know how his first hearing went?

He was denied bail.

[44 AMP]

...qualified under law to receive the license..."

This seems to be a significant point. "Qualified" under WHO'S law?? (which law???)

State law?? or Federal law??

If I'm reading this right, the Fed says states have to check to see if a person (state resident) is "qualified" to be issued a permit, in order for such a permit to be applicable to the GFSZ law.

Montana doesn't issue permits and states, essentially, that they consider everyone not "disqualified" to be qualified under their law, to obtain a permit, IF they issued permits, which, they don't.

I do agree that deciding if Montana's system meet the requirements of that specific part of federal law will take a court ruling, from which ever court gets the case.

The fellow involved was obviously (and stupidly) "poking the bear" on this issue, and other than the argument that the law is wrong in principle, and unconstitutional in specific, I don't see where he has much of a defense.

[jmr40]

In most places the state, city, or county owns everything from the center of the road for so many feet in each direction. The exact distance varies, but it is usually a pretty fair distance. In my yard the county owns about 15' from the edge of the pavement. I've never seen a private sidewalk unless it was along a private road.

It seems to me that this guy was exercising his 1st amendment rights more than his 2nd amendment rights by trying to make a point. And while we have a right to express our opinions, we don't have the right to force others to listen.

I'm all for 1st and 2nd amendment rights, but this guy went about it the wrong way and I can't have much sympathy for him. What he did was to make us all look bad. He in fact did more to hurt our 2nd amendment rights than help.

It appears local LE bent over backwards to reason with this guy. I'm sure they wanted him off the sidewalk too, but for political reasons didn't have the courage to make the arrest themselves. Someone called the Feds to keep from looking bad in the eyes of some locals.

[Aguila Blanca]

Originally Posted by jmr40

In most places the state, city, or county owns everything from the center of the road for so many feet in each direction. The exact distance varies, but it is usually a pretty fair distance.

That may be true in some places, but I'm pretty certain it is not true in "most" places. It very definitely is not true around here. Discounting private roads and roads over private land that are open to the public by agreement or easement, roads around this neck o' the woods where the municipality or the state owns the right-of-way very often are not located on or along the centerline of the right-of-way. The road width may vary, and the right-of-way width may vary -- not necessarily at the same places.

The only way to know where the property line is is to have a survey made -- or find an existing survey that's on the land records of the jurisdiction.

[44 AMP]

In most places the state, city, or county owns everything from the center of the road for so many feet in each direction. The exact distance varies, but it is usually a pretty fair distance.

Whether it is "most places" or not, by the numbers there ARE places where things are a little different and you need to know if one of those places is where you live, and, if in this case, the location the incident took place is, or not.

What I'm talking about is technical "ownership" of property, and whether or not it is a legal fiction, or an actuality where it matters.

While many people assume the city/county/state "owns" the road and X number of feet to either side, they may, or may not actually "own it". Certainly they have the practical control of it, and the right of easement (or what ever the proper term is), but they may have only that and the actual ownership is private.

To be certain, find out what is in the county tax records for the property in question, and then, find out if what is in the records is what is correct, or not. It may not be.

A few years ago, due to a dispute with a family member/neighbor I had to get my property surveyed. Paid the professionals to do it, got the result and then found I had to pay more to get the correct survey recorded in the tax books, but it was done. Among other things the survey determined was that my property runs to the middle of the county road. I OWN that land, legally, and it IS counted as part of my property for tax purposes.

However (and really, rightly so) the county "owns" the road, and a certain distance from the edge of the road to do with as they please. They don't own the land the road is on, technically but for practical purpposes, they do.

SO, it is possible to be on what is regarded as public property, but is actually private property at the same time. Which one of those will have precedence in a legal proceeding such as the one under discussion here, I do not know and I expect there will have to be a court ruling on the matter, if there is some kind of case where I am violating the law if it is public but not if its private and I own it.

I do not have any idea if it applies to this case of the GFSZ law, or not. I am only pointing out that there might be a place and circumstance where legal ownership of the property might be a deciding factor.

[JohnKSa]

... for political reasons didn't have the courage to make the arrest themselves.

He was not violating any state law. They called in the feds for that reason.

[Aguila Blanca]

Originally Posted by 44 AMP

A few years ago, due to a dispute with a family member/neighbor I had to get my property surveyed. Paid the professionals to do it, got the result and then found I had to pay more to get the correct survey recorded in the tax books, but it was done. Among other things the survey determined was that my property runs to the middle of the county road. I OWN that land, legally, and it IS counted as part of my property for tax purposes.

However (and really, rightly so) the county "owns" the road, and a certain distance from the edge of the road to do with as they please. They don't own the land the road is on, technically but for practical purpposes, they do.

SO, it is possible to be on what is regarded as public property, but is actually private property at the same time.

Yes, it is exactly this type of situation I had in mind when I wrote

Originally Posted by Aguila Blanca

Discounting private roads and roads over private land that are open to the public by agreement or easement,

I think you are correct in that a court would probably have to decide, but the general principal is that you own the land and the municipality or county has an easement allowing them to use your land for a road that is open to the public. It's not a common situation, but it's also not unheard of (obviously, since I have heard of it).

In the town where I live, people who live on several of the old town roads that have existed since colonial times have the unusual burden of being subject to TWO front yard setback requirements: They can't build anything closer than 75 feet from the front right-of-way line OR 125 feet from the centerline of the paved road -- whichever is greater. Modern subdivisions are simple, because the roads and the street lines are all laid out, declared, approved by a zoning board or commission, and recorded with the land record office before anyone can put a shovel into the ground. When dealing with roads and streets and properties that have existed for a hundred or two hundred years, all bets are off.

And even surveyors get it wrong. Maybe 30 years ago my uncle had the property around his house surveyed. He showed me the initial survey map, and he was surprised when I immediately said, "It's wrong."

My uncle lived in a colonial-era house that had been my great-grandmother's. When I was young, there was a porch along the street front of the house, and an 8-foot high wrought iron fence with concrete pillars about ten feet off the house that defined the limits of the road right-of-way. My uncle had removed the porch, the fence, and the pillars, but he left the stone foundation of the porch intact. The surveyor had assumed the stone foundation was an old stone wall that had delineated the r.o.w. line.

oops.

[Nathan]

Anybody know his status? In jail? Out? Charges dismissed?

[JohnKSa]

No updates for awhile.

The last update I saw was that the judge had denied bail. Unless something significant changes, Mr. Metcalf will stay in jail until his trial.

[44 AMP]

When a judge denies bail for a non violent offence (even when a gun is involved) there are two general reasons.

one is that someone is "making a statement" and the other is that there is more than what we know from the press, involved in the case.

One might be that this guy was "flagrantly and intentionally violating federal law with a gun in a gun free school zone, and therefore deserves to stay in jail until trial", and the other might be that there is something about the guy, his history, his attitude, or something that makes the judge consider him a risk to public safety, and we haven't been told what that is.

I think either one could be possible. Both together is not impossible, either.

[JohnKSa]

This is supposedly the explanation of why bail was denied. I can't find it from an official source.

Defendant lives on a busy street in Billings, Montana, across the street from an elementary school. He has been charged with possession of a firearm within a school zone. According to testimony at the detention hearing, Defendant believes possession of the firearm and patrolling the area around his property within the school zone is necessary to protect he and his mother from a perceived threat posed by a former neighbor. Testimony established that he has possessed the firearm on public property within the school zone, and has chased automobiles he believes may be associated with his former neighbor. He has previously been advised that he is prohibited from possessing a firearm within the school zone, but he has stated his belief that the law is unconstitutional and has asserted his right to do so. Given the Defendant’s belief that he has a right to possess a firearm within a school zone, and his belief that possession of a gun is necessary for his protection and safety, the Court finds it is unlikely that he would abide by any condition prohibiting him from possessing a firearm while on pretrial release. Therefore, there are no conditions or combinations of conditions which can be imposed to reasonable assure the safety of any other person or the community if released.

[44 AMP]

Ok, if true (and likely is even if not "officially" released, that does put things in a much different light. This is not a political protest but someone who believes he is under a threat, and has/likely will aggressively respond.

IF there is an actual threat, he's responding in one of the worst ways possible, and if there isn't a real threat he's delusional and therefore a significant risk.

I have No problem with keeping people who demonstrate that in jail until trial.