Billings man pleads guilty to illegal gun possession inside school zone

A black tarp flaps during the afternoon on the playground of Broadwater Elementary School in Billings, Montana on Aug. 29, 2023 (Photo by Darrell Ehrlick of the Daily Montanan)

A Billings man who carried a gun in his yard and on the sidewalk across the street from Broadwater Elementary School last year who frightened children, their parents, and school staffers agreed Monday to plead guilty to unlawfully carrying a firearm in a school zone.

In addition to the plea deal, the case also includes an original opinion about how Montana’s gun laws interact with federal gun laws, as the court held that Montana’s individual licensure law is not an exception to federal law identifying who can possess a weapon on school grounds or in a 1,000-foot zone surrounding a school. That means, the judge wrote, that the federal law in Montana can be violated when a person steps off their private property with a gun within a school zone.

Gabriel Metcalf, 49, agreed to plead guilty to one federal count of unlawful possession of a firearm in a school zone.

Metcalf was charged and arrested late last August after he earlier in the month, on multiple occasions, was seen pacing his front yard and walking down the street with a .20-gauge shotgun, sometimes staring into traffic or at Broadwater Elementary School, which is across the street from the home he shares with his mother, according to court documents.

When Billings police talked to him after numerous complaints were made, he told them that his next-door neighbor and others were stalking him and that he believed the neighbor was working to place bombs in his yard.

Metcalf previously was given an “officer caution” notice for Billings police officers to exercise caution around him, dating back to a 2013 incident in which he got agitated with officers while carrying a loaded .22-caliber rifle.

Metcalf said he was conducting patrols to protect his mother, whom he said had a restraining order against the neighbor. Court documents show the neighbor has a pending case for violating a protection order.

When Billings police on Aug. 17 told Metcalf that he was in possession of a gun inside the 1,000-foot school zone that surrounds Broadwater Elementary, he called the FBI to say police were harassing him. He said that he had no mental health issues but declared the Gun-Free School Zones Act to be unconstitutional before the conversation became “unmanageable,” federal prosecutors wrote in an indictment and criminal complaint.

Prosecutors charged Metcalf on Aug. 21, and he was arrested a day later. Federal agents seized Metcalf’s shotgun and six rounds of ammunition.

Attorney argues Second Amendment protects Metcalf’s actions

In October, Metcalf’s attorney filed a motion to dismiss the case, arguing that his actions were both protected by the Second Amendment and fall within the exceptions to the federal school zone law, which include possessing a firearm on his own property.

His attorney cited the 2022 New York State Rifle and Pistol Association v. Bruen Supreme Court decision to say that Metcalf’s right to own a firearm extended to areas outside the home, arguing the government could not regulate guns within a school zone because the government did not historically apply that regulation to firearms dating back hundreds of years.

The attorney also argued that since Montana law grants every person in Montana who is not a convicted felon or otherwise prohibited from possessing a gun under the constitution a license under “individual licensure” exempting them from the federal Gun-Free School Zones Act, that Metcalf was allowed to carry a gun in the school zone while not on his property.

“If Mr. Metcalf stepped from his property onto the public sidewalks while carrying a firearm as the government alleges, he was licensed to do so by the State of Montana at the time,” Metcalf’s attorney wrote. “…And the indictment must be dismissed.”

Judge says Montana’s law does not meet exception requirements

But at the end of January, U.S. District Court Judge Susan P. Watters denied the motion to dismiss, saying that the federal law Metcalf was charged under does not violate the Second Amendment and that Montana’s “individual licensure” law cannot be an exception because a law enforcement officer did not verify that he was qualified to carry a firearm before issuing the license.

Watters said the case involved “an issue of first impression” — a case that presents an issue never decided in that jurisdiction.

She interpreted the Gun-Free School Zones Act as saying that a state “require(s) some kind of process for law enforcement to determine whether a person is qualified to own a firearm before issuing a license.”

She said Montana does not meet the requirement for the exception because it automatically considers everyone in Montana to be licensed, but “claws back” licensure for those who are felons or otherwise prohibited under the constitution. She wrote that the Legislature had effectively declared that “individual licensure” would comply with the exemption requirements on its own.

MCA 45-8-360 states: 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.

“But a state legislature cannot work around federal law by simply proclaiming that a state statute meets the federal requirement. Proclamation of compliance does not override non-compliance on the face of the text,” Watters wrote in the order denying the motion to dismiss.

Watters said this is the first time a party has argued that Montana law does not qualify for such an exemption and said the Department of Justice “is responding to novel challenges to the Act and evolving conceptions of gun control in light of intervening law, namely Bruen.”

“The court finds that, while Metcalf was licensed under Montana law to carry a gun, his license does not exempt him from the requirements of the Gun-Free School Zones Act because Montana’s individual licensure does not comply with federal law,” Watters wrote.

Responding to Metcalf’s attorney’s contention that the Gun-Free School Zones Act is unconstitutional because it extends gun-free zones beyond the physical campus of a school, Watters said the prevalence of school shootings over the past 50 years constitutes an “unprecedented societal concern” that means there is likely not a direct historical analogue because there were only two documented school shootings during the colonial period up through the mid-1850s.

“It is thus highly unlikely that the Founders could have anticipated the prevalence of gun violence today, and a more nuanced analysis of the historical regulations is warranted,” Watters wrote in the order denying the motion to dismiss.

Since the government had only presented examples of gun restrictions on school campuses, Watters said she needed to do her own analysis to find examples where guns were not allowed in a “sensitive place,” which is one of the standards for gun regulations, dating back to a 2008 case, District of Columbia v. Heller.

Watters used polling places as the historical “sensitive place” that schools could be compared to since they historically have had buffer zones where guns are prohibited, dating back to the 1776 Delaware Constitution and continuing on to the years that followed the Civil War.

“The Colonial and post-Reconstruction laws that formed a buffer zone around the location of elections further persuades the court that this nation has a history and tradition of banning firearms within a certain proximity of ‘sensitive places’ in order to hold safe and fair elections. Like voting, the Founders considered education essential for a responsible citizenry,” Watters wrote. “The court’s conclusion under the Bruen analysis ensures that the law protects children from deadly gun violence that threatens to subvert their first duty as citizens—to become educated.”

She said the Founding fathers “did not – and could not” foresee the gun violence happening in schools today and thus couldn’t have anticipated the Second Amendment covering guns near schools, but said keeping guns out of “sensitive places” was not a violation of the amendment historically.

She concluded by saying she felt it was “important to reiterate” that Metcalf did not violate the Gun-Free School Zones Act when he had the gun in his home or yard, but only when he stepped onto the public sidewalk within 1,000 feet of the school.

The two sides had been preparing for a trial in the case through mid-March, when on Monday, Metcalf agreed to change his plea and to plead guilty. As part of the plea agreement, the government will recommend Metcalf get points for accepting responsibility when the judge considers his sentence.

The two sides also agreed to seek probation in the case, according to the agreement. Metcalf would also agree to forfeit his .20-gauge shotgun and the six rounds of ammunition previously confiscated by federal agents.

Metcalf is scheduled to be sentenced on Aug. 2 and faces up to five years in prison and up to a $100,000 fine under the standard sentencing guidelines.

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