Update: Notice of Appeal to Ninth Circuit Filed in Montana Gun Free School Zone Case

Vivian and Gabriel’s modest home in Billings, Montana 

A notice of appeal to the Ninth Circuit Court of Appeals has been filed in the Gun Free School Zone case in Billings Montana.  The notice was filed in the United States District Court for the District of Montana, Billings Division. It was filed on August 6, 2024. The case was settled with a plea agreement on August 2, 2024. No fine or prison time was imposed by Judge Susan P. Waters, but Gabriel was sentenced to three years probation. The probation includes paying $75 per month for the costs of administering the probation.

During the court hearings, Gabriel Metcalf preserved the right to appeal through his federal attorney, Russel Hart. From the Notice of Appeal:

NOTICE IS HEREBY GIVEN that Defendant GABRIEL COWAN METCALF, appeals to the United States Court of Appeals for the Ninth Circuit from the Judgment filed and entered against him in the District Court on August 2, 2024.This appeal is from the District Court’s denial of Mr. Metcalf’s Motion to Dismiss Indictment.

The issue was preserved pursuant to a plea agreement that was accepted by the District Court at the time of sentencing.

RESPECTFULLY SUBMITTED August 6, 2024.

Gabriel has a clean record, with no history of violence or criminal activity. He was repeatedly told by Billings police officers, in person, and in media interviews by police officials, that he was exercising his rights when he was outside his home with a single shot Rossi Shotgun. Gabriel and his mother had been stalked by a neighbor who assaulted Gabriel. The neighbor had been convicted of assault and violating a court order of protection.

Part of the plea deal was for Gabriel to forfeit the Rossi single shot shotgun and the six rounds of ammunition which was found when the federal task force served the warrant to search his and his mother’s home.

This case is very clean, without other issues of criminality. It makes for a good challenge to the Gun Free School Zone Act (GFSZA).  Montana and therefore, Billings, are in the Ninth District Court of Appeals, which has a history of defying the Supreme Court on Second Amendment cases.  Gabriel has a chance of winning with a three judge panel in the Ninth Circuit. The record of the Ninth Circuit is such, if a three judge panel rules in favor of the Second Amendment, the case will be re-heard en banc,and the en banc panel will reverse the case. This only leaves an appeal to the Supreme Court.

There is another case challenging the Gun Free School Zone Act playing out in the Fifth Circuit, in Texas.  The case in the Fifth Circuit has attracted the attention of the California Rifle and Pistol Association and the Second Amendment Foundation. They have filed an amicus (friend of the court) brief. Now that the Billings case is being formally appealed, amicus briefs may be filed for it.

The GFSZA was already found to be unconstitutional in 1995, because it was not a valid use of federal power. President Clinton and his Attorney General Janet Reno pushed to have 12 words in the act changed, which some courts have found to render the act acceptable under the Constitution. The current challenge is based on the Second Amendment, not the Commerce Clause.

Gabriel and his mother, Vivian, are barely scraping by in Billings.  Gabriel’s mother, Vivian, has set up a GiveSendGo account to aid in defense of their home and the expenses arising from the case.

 ©2024 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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