The federal case against Gabriel Metcalf in Billings, Montana, under the federal Gun Free School Zone Act of 1990 (GFSZ), has been resolved in Metcalf’s favor. In a split decision, the three-judge panel on the Court of Appeals for the Ninth Circuit has ordered the case remanded to the district court and has ordered the case dismissed. From the Summary by Judge VanDyke (purchased on PACER account):
The panel reversed the district court’s order denying Gabriel Cowan Metcalf’s motion to dismiss an indictment charging him with possessing firearms within 1,000 feet of a school in violation of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A), and remanded with direction to dismiss the indictment.
In a split decision, the three-judge panel found that the District Court in Billings, Montana, had erred by taking the case and that the indictment should never have been issued.
The panel did not find the Gun Free School Zone law of 1990 to be unconstitutional. They found Gabriel Metcalf had a plausible belief that he fell under an exception to the law. The belief should have been taken into consideration, and the case dismissed at the beginning. Once Gabriel Metcalf had been told he would be violating the GFSZ Act by a federal officer, he did not violate the law. More from the opinion summary:
Metcalf argued that he holds a license to possess a firearm within a school zone pursuant to Montana Code section 45-8-360, which qualifies him for the state or local license exception in § 922(q)(2)(B)(ii) of the Gun-Free School Zones Act.
The panel held that Metcalf’s indictment must be dismissed. The Gun-Free School Zones Act excepts from its broad prohibition individuals who hold a license by their state, if “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.” The parties did not dispute that Metcalf holds a license pursuant to section 45-8-360. Instead, they disputed whether Montana’s procedure for issuing this license complied with the requirements set out in § 922(q)(2)(B)(ii). Applying the traditional tools of statutory interpretation, the panel concluded that Metcalf offered at least a plausible reading of the exception in § 922(q)(2)(B)(ii), such that when factoring in the canon of constitutional avoidance and the rule of lenity, Metcalf lacked the appropriate notice to be convicted of violating the Gun-Free School Zones Act. The district court therefore erred by declining to dismiss the indictment. Affirming Metcalf’s conviction would be inconsistent with the principles of fair notice and of not punishing innocent conduct, which underly the presumption in favor of scienter that the Supreme Court addressed in Rehaif v. United States, 588 U.S. 225 (2019).
In the opinion, the Court repeatedly indicates that they are required to resolve the case without resorting to constitutional issues if it can do so.
Using the decision in Rehaif to require dismissal of the case allows the Ninth Circuit to avoid making a direct decision on the constitutionality of the GFSZ Act of 1990. Because the panel concluded that Metcalf’s appeal is resolved by virtue of the absence of fair notice, the panel did not address Metcalf’s argument that his conviction violates his Second Amendment rights. From the conclusion of the opinion:
We do not purport to provide an authoritative exposition on the scope or limits of the license exception in the Gun-Free School Zones Act. We simply hold that the license exception includes at least some ambiguity given the unique facts of this case, requiring that we consider the rule of lenity and the presumption in favor of scienter as articulated in Rehaif. Here, the rule of lenity, the presumption in favor of scienter, and the principles articulated in Rehaif coalesce around one central point: fair notice.8 And Metcalf did not have that fair notice. We therefore conclude that the district court erred by declining to dismiss Metcalf’s indictment.
Accordingly, the district court’s order denying the dismissal of Metcalf’s indictment is REVERSED, and we REMAND this case with direction to dismiss the indictment.
Judge Schroeder dissented. Unfortunately, she makes some mistakes. She says Metcalf was openly carrying a rifle when he was carrying a single-shot shotgun. Schroeder attempts to limit the case to the facts put forward by the plea agreement, which ignores Rehaif. She believes the majority reached an “unjust result” and that now, Metcalf will be free to “frighten the neighbors”. Montana has laws against frightening the neighbors. The local police never attempted to enforce those laws because there was no case for such enforcement.
The prosecution has the option of asking for a rehearing of the case en banc or asking the Supreme Court to hear it. It appears they have 45 days to do so.
It is unlikely the prosecution will ask for a rehearing. They have been able to prevent a ruling on the constitutionality of the GFSZ Act under the Second Amendment. The Trump administration might ask for the Supreme Court to hear the case. If so, the issue would be with the application of Rhaif. The Ninth Circuit Court did not rule on the Second Amendment issues. This makes such an attempt very unlikely.
A more likely possibility is for a civil suit to be filed under the claim that Metcalf’s rights were violated. He has suffered serious harm. One reason he has suffered is the existence of the Gun Free School Zone Act, which is blatantly unconstitutional. Attorneys specializing in such lawsuits may consider whether this case is a good one to bring before the federal civil courts.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
