Montana Gun Free School Zone Case, Continued
Continuing the saga of Gabriel Metcalf (see original article on 8/30/23), who has had his Second Amendment rights abused because he was in possession of a firearm in a "gun-free school zone". As has been observed, the 1,000 feet stipulation from a school remains a blatently absurd rule and when considered as the length of three football fields and change is almost impossible to adhere to for many.
The following are two further articles on the subject and we will post further updates if available.
Criminal Complaint Filed in Montana
Gun Free School Zone Case, Court
Preliminary Appearance on Monday
By Dean Weingarten. Sept 1, 2023
Article Source
A preliminary appearance has been scheduled for Gabriel Cowan Metcalf on the charge of possessing a firearm in violation of the federal Gun Free School Zone Act, in Billings, Montana. The Gun Free School Zone Act is a controversial law which had been found to be unconstitutional in 1994, then was slightly altered. It has not been considered by the Supreme Court since 1994, long before the Heller, McDonald and Bruen decisions. The preliminary appearance will be on Monday, 28 August, at 9 AM. The criminal complaint has been posted.
According to the criminal complaint, Billings Police had received "multiple calls" about Metcalf over a few weeks. Billings Police officers had several contacts with Gabriel Cowan Metcalf, but did not find any reason to arrest him. They tried to negotiate with him to curtail his walking in his front yard and around the neighborhood with a firearm, because they received several complaints of him being in the area with a firearm.
Gabriel Cowan Metcalf called the FBI to complain of Billings Police harassing him. ATF agents called Metcalf's Mother on the phone number they had. She asked the agents to listen to Metcalf's entire story, then she gave a number for them to call Metcalf. The ATF agents called Metcalf and explained they were federal officers. Metcalf told them his story, including how he has researched the law pertaining to firearms. He has not had a happy experience with Billings Police Officers. Metcalf is 49 years old. Metcalf complained about not getting what he considered a proper investigation of his complaints. Much of Metcalf's complaints involved his perceived threats from a neighbor, David Carpenter. Billings Police Officer have an "officer caution" about David Carpenter. To increase officer safety, they would conduct a phone interview with David Carpenter instead of an in person interview.
When asked, Gabriel Metcalf said he had walked on the side walk with a firearm, but had not entered any private property but his own. He said he would survey the area because he was gang stalked and he was protecting his mother and himself. He would specifically look for vehicles which he believes are associated with the gang stalkers. Metcalf told of several disputes he has had with David Carpenter, and called David Carpenter "crazy".
He carries a single-shot Rossi 20 gauge break-action shotgun. He said he preferred to carry a handgun. He does not seem to have the funds to purchase a handgun himself. His mother has a store His mother refuses to purchase a handgun for him to protect the property.
Metcalf told the ATF the Gun Free School Zone Act was unconstitutional. He said he does not have mental problems and does not use drugs.
The criminal complaint makes mention of the fact the Rossi shotgun is imported into the United States, and thus has "traveled in Interstate Commerce" to be possessed in Montana.
Montana passed a statute to protect legal firearms owners from prosecution under the Gun Free School Zone Act, in 1995. Here is Montana Code Annotated 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.
Gabriel Metcalf has been assigned a federal public defender, Russell Alan Hart.
Contacts in the federal system say federal public defenders are a cut above ordinary public defenders.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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No Bail for Gabriel Metcalf,
because he Believes he has a
Right to Keep and Bear Arms in Montana
Modest home in Billings, Montana, where
Gabriel (Gabe) Metcalf lives with his mother
By Dean Weingarten. Sept 2, 2023
Article Source
On Wednesday, August 23, 2023, Gabe Metcalf was arrested by ATF agents outside his home. Metcalf was arrested by federal agents of the ATF for possessing a firearm in a federal Gun Free School Zone in Billings Montana. A search warrant was executed after the arrest. The warrant shows the agents seized a single shot, break-open shotgun, six rounds of ammunition, and a Samsung phone.
Billings police had several contacts with Gabe prior to the arrest by federal agents. It has been reported Billings police stated he was not breaking any state law. From billingsgazette.com:
"We have made contact with him on multiple occasions, and currently he is refusing to stop displaying his firearms while on his property," said police Lt. Matt Lennick. "At this time, he has not done anything illegal and we do not have the authority to arrest him, take his firearms, or force him to stop coming out into his yard."
Gabe has stated he does not have mental problems, he is protecting himself and his loved ones, and he does not do drugs. He has stated he is not a danger to other people or the children at the school. The Billings police did not attempt to have him evaluated for any mental condition. This correspondent has not had contact with Gabe or his court assigned attorney.
The prosecution asked for a pretrial detention order. Pretrial detention is an unusual condition. No bail is set. The defendant is locked up until his trial is over. In the case of a constitutional challenge, this could take years. Magistrate Judge Timothy J. Cavan granted the Order of Detention for Gabriel Metcalf. The only reason checked on the order of detention pending trial form is a box for "History of Violence or Use of Weapons".
This is the first order of detention this correspondent has seen which cites the reason for pretrial detention is the defendant believes he has a right to keep and bear arms, and the federal Gun Free School Zone Act is unconstitutional. From the Order of Detention, pending trial:
Explanation for Order of Detention Pending Trial:
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.
Here is an image of the above, to show the veracity
Click to view full size
This correspondent has not been able to find any history of violence for Gabriel Metcalf. His "use of weapons" appears to be a simple carry of a single shot shotgun without any threats or assaults associated with the carry. In a previous article, this correspondent speculated about the possibility of the prosecution attempting to punish Gabriel Metcalf by asking for exorbitant bail.
The US Attorney may try to punish Metcalf with the process, for example asking for exorbitant bail, and trying to keep him locked up while the case is ongoing, pushing for a plea deal.
The detention order goes far beyond exorbitant bail. It precludes any bail at all. Kyle Rittenhouse killed two people and wounded another in self defense in Kenosha Wisconsin, and had bail set at two million dollars. The Billings Police were unable to find a legal reason to arrest Gabriel Metcalf. If he had assaulted anyone or threatened anyone, such as pointing a firearm at them, he would be subject to arrest. The Billings Police asked the ATF to investigate Gabriel Metcalf because the Billings Police had no reason to arrest him.
Much remains unclear at this time. The Billings Police had flagged the person Gabriel Metcalf said he was defending against, David Carpenter. The police hesitated to talk to David Carpenter in person, for safety reasons, so they used phone interviews to investigate.
Analysis:
The ATF has seized Gabriel's single shot shotgun and his six cartridges. It appears he does not have the means to purchase another firearm. As he is under indictment, he is precluded from legally purchasing another firearm. Yet Judge Cavan writes it is unlikely Gabriel Metcalf would abide by a requirement he have not firearms during his release, quote:
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.
Gabriel's public defender may appeal this decision to hold him without bail until trial. Federal courts have ruled a person can be held without bail for an "important government interest". If belief the Second Amendment protects a persons right to keep and bear arms in public places is one of the conditions for pretrial detention, the fabric of the Bill of Rights is at risk.
Update:
Gabriel's mother, Vivian Young, has set up a GiveSendGo campaign, Young Metcalf Home Defense Fund, in order to aid in his defense and to provide much needed security for their home. Although the ATF had the keys to their home, an ATF agent kicked in the front door anyway.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
