[00:00:00] Speaker 05:
it and we'll move on to the next one on calendar which is Metcalf.

[00:00:30] Speaker 05:
Hold on one second Council, we've got some people moving around there.

[00:00:52] Speaker 00:
Morning, Your Honor.

[00:00:53] Speaker 00:
May it please the Court, Russ Hart, myself and Edward Warner.

[00:00:56] Speaker 05:
Could you raise the microphone slightly?

[00:00:58] Speaker 05:
There you go.

[00:00:59] Speaker 05:
Thank you, Your Honor.

[00:01:00] Speaker 05:
Bingo.

[00:01:00] Speaker 00:
Myself, Edward Warner, and the federal defenders of Montana represent the defendant, Appellant Gabriel Metcalf, in this case.

[00:01:07] Speaker 00:
Your Honor, when we step back in this case, big picture, the Gun Free Schools Owns Act tells Gabriel Metcalf you can't have a firearm if you're within a thousand feet of a school.

[00:01:18] Speaker 00:
It says you can have one if you're on private property.

[00:01:21] Speaker 00:
Mr. Metcalf lives within a thousand feet of a school.

[00:01:25] Speaker 00:
He has this dispute with his neighbor, and he begins carrying a gun on his property.

[00:01:33] Speaker 00:
And we get 911 calls saying there's a gentleman near the school on his property with a firearm.

[00:01:40] Speaker 00:
The law also tells Mr. Metcalfe, there's an exception, if he has a license issued from the state in which he resides, in which the school is located.

[00:01:50] Speaker 00:
Montana passes a law that says if you do not have a violent felony and you're not prohibited under the Constitution, you have a license.

[00:02:00] Speaker 00:
Mr. Metcalf, looking at the law, really could not have had any reason to think he'd be prosecuted for what he did in this case.

[00:02:09] Speaker 00:
It was only the case, the law of this case that told him his license was invalid.

[00:02:15] Speaker 00:
When we look at the Tate decision,

[00:02:19] Speaker 00:
This is an issue where the federal government, the Congress, put this directly to the states to implement a licensing procedure, to grant licenses.

[00:02:32] Speaker 00:
The Congress, at the time this was passed, had representatives from Montana in it.

[00:02:37] Speaker 00:
I think it was known to those people that a law like this was likely.

[00:02:43] Speaker 05:
So let me jump in here, because there's

[00:02:46] Speaker 05:
Reviewing this case, I spent a lot of time in this case, I think we all have.

[00:02:51] Speaker 05:
There is a Supreme Court case in 2019, Rahaf, which had to do with whether someone who was in the United States on an expired visa could have a firearm.

[00:03:02] Speaker 05:
And the Supreme Court said that in that case, Rahaf had to know that he was eligible to have a firearm before he could be prosecuted under the 922 offense.

[00:03:15] Speaker 05:
I'm wondering in this case if there isn't a similar problem for the government in that here's a case where he, the question of whether or not he's eligible to have the gun is a legal one because he had a license under Montana.

[00:03:36] Speaker 05:
He talked to local authorities.

[00:03:37] Speaker 05:
They said he could have it.

[00:03:39] Speaker 05:
And then a court after the fact determined that he could not.

[00:03:44] Speaker 05:
I was curious in the way this case was framed in the trial court, was this issue a Rahef-type issue, like a knowledge, like he has to know he's in violation of the law?

[00:03:57] Speaker 05:
Did that ever come up at all?

[00:03:58] Speaker 00:
Was that ever briefed or argued?

[00:04:00] Speaker 00:
Never briefed or argued, Your Honor.

[00:04:01] Speaker 00:
It was considered.

[00:04:03] Speaker 00:
The motion was not filed.

[00:04:04] Speaker 00:
I view that as a trial issue, and we ended up settling this the morning before trial.

[00:04:08] Speaker 00:
Right.

[00:04:11] Speaker 00:
The mens rea element of this, it was not raised in the district court.

[00:04:16] Speaker 00:
It was not raised in this briefing.

[00:04:18] Speaker 00:
And really, when the district court issued its order, that is when that issue really arose in my mind and possibly should have been the subject of further briefing and given the district court and this court a narrower path to relief from Mr. Metcalf.

[00:04:34] Speaker 05:
Now, under the plea agreement in this case,

[00:04:38] Speaker 05:
Could that argument have been made?

[00:04:41] Speaker 05:
The one I just threw out there, under the plea agreement in this case, is that within the narrow waiver?

[00:04:50] Speaker 00:
Well, I guess the waiver carved out and it allowed Mr. Metcalfe.

[00:04:55] Speaker 00:
And Your Honor, I didn't speak earlier.

[00:04:56] Speaker 00:
I'd ask to reserve five minutes of my time for rebuttal.

[00:04:59] Speaker 00:
Sure, sure, sure.

[00:05:00] Speaker 00:
Mr. Metcalfe.

[00:05:03] Speaker 00:
He was allowed to appeal the denial of his motion to dismiss the indictment.

[00:05:09] Speaker 00:
That was not addressed in that motion, but I do think that, and if the court would like further briefing on this, I'd be happy to submit it.

[00:05:18] Speaker 00:
That issue did arise as a result, in my mind, of the judge's ruling, of Judge Waters' ruling on that licensure issue.

[00:05:29] Speaker 05:
And keep going with your argument.

[00:05:29] Speaker 05:
It's just something that's troubled me about this case.

[00:05:32] Speaker 00:
Yes, and I, you know, I view this more as a licensure issue, mental state issue, than a Second Amendment case.

[00:05:40] Speaker 00:
I think that there are narrower grounds to decide this case on than the Second Amendment and Bruin.

[00:05:51] Speaker 00:
You know, the licensing issue in this case, Your Honor, there is one case on point, US v. Tate out of the 11th Circuit, and I think the

[00:06:02] Speaker 00:
The court's appetite in that case was not, it really did not want to step in and tell, I believe it was Alabama, that their licensing scheme was invalid.

[00:06:17] Speaker 00:
And when we look at that, the licensing statute in Alabama

[00:06:23] Speaker 00:
It actually has a proper cause type element.

[00:06:27] Speaker 00:
It has a, I think you have to show good cause that you're in fear for your safety to get a license to carry a gun in the school zone in Alabama.

[00:06:36] Speaker 00:
This is pre-Bruin.

[00:06:38] Speaker 00:
I'm not sure that that would, that may be too restrictive now given a little bit of time.

[00:06:46] Speaker 00:
But Mr. Metcalf,

[00:06:49] Speaker 00:
I think a very interesting thing about this case to me, Your Honor, is just how unrelated the school was to what was going on here.

[00:06:57] Speaker 00:
In Mr. Metcalf's mind, for sure.

[00:07:01] Speaker 00:
This is... I mean, it's a little bit silly, Your Honor.

[00:07:06] Speaker 00:
We have a 50-year-old man who has a 25-year-old neighbor that is picking on him.

[00:07:10] Speaker 00:
That is what got us here.

[00:07:13] Speaker 00:
And what he did was arm himself, which...

[00:07:18] Speaker 00:
Second Amendment, Bruin, the Supreme Court has told him is his right.

[00:07:22] Speaker 00:
He armed himself with the only firearm he had.

[00:07:26] Speaker 00:
It wasn't one that he could conceal.

[00:07:28] Speaker 00:
It was something that was conspicuous when he carried it.

[00:07:30] Speaker 00:
Yes, Your Honor.

[00:07:31] Speaker 01:
Yeah, I just, procedurally, this is a conditional guilty plea.

[00:07:37] Speaker 01:
Yes, Your Honor.

[00:07:38] Speaker 01:
And so what was the issue that you conditioned the guilty plea on, precisely?

[00:07:49] Speaker 00:
It was on the denial of Mr. Metcalfe's motion to dismiss his indictment by the district court.

[00:07:56] Speaker 01:
OK, it was just the overall appeal of that denial.

[00:07:59] Speaker 00:
Yes, and that motion dealt with the license and with the Second Amendment arguments.

[00:08:06] Speaker 01:
Okay.

[00:08:09] Speaker 00:
So Mr. Metcalf, I mean, he's been assaulted by this gentleman.

[00:08:15] Speaker 00:
He has had serious things happen.

[00:08:17] Speaker 00:
They didn't happen on his property.

[00:08:19] Speaker 00:
That happened in the alley as the pre-sentence investigation report in this case details.

[00:08:24] Speaker 00:
The way this law is being applied, Mr. Metcalfe could not leave his private property, and the law says private property, not just his private property.

[00:08:37] Speaker 00:
Mr. Metcalfe conceivably could have trespassed and not gotten onto the sidewalk in this case, and he wouldn't have violated the law.

[00:08:46] Speaker 00:
It was only when he stepped onto the sidewalk that the government argues that he violated the law.

[00:08:52] Speaker 00:
And that was a theory that was put forward for the first time, I would suggest, in this case.

[00:08:57] Speaker 00:
And when we look at the Wolfer decision, the Wolfer decision found that the default rule being flipped did not violate the Second Amendment because those plaintiffs could still carry on public streets and sidewalks.

[00:09:15] Speaker 00:
In this case, the public street and sidewalk becomes the school zone when Mr. Metcalf steps onto it.

[00:09:22] Speaker 00:
And when we look at Heller, when we look at Bruin, Heller, the Supreme Court, determined that an individual has a right to possess a firearm in their home, unconnected to service in the militia, for self-defense.

[00:09:38] Speaker 00:
At issue in that, partially was a law that said firearms stored in the home need to be unloaded, rendered inoperable,

[00:09:45] Speaker 00:
stored in a case, what have you.

[00:09:49] Speaker 00:
Bruin comes along and says that right exists outside the home.

[00:09:54] Speaker 00:
What the government has argued is that Mr. Metcalfe, A, could have gotten a license.

[00:09:59] Speaker 00:
I would submit that he did.

[00:10:01] Speaker 00:
It's the only license available to him to carry this weapon, and it was declared invalid.

[00:10:07] Speaker 00:
They also argue that this is more of a transitory storage requirement.

[00:10:11] Speaker 00:
When he leaves his property, all he needs to do is lock it up and he can leave.

[00:10:15] Speaker 00:
The problem is in Heller, the Supreme Court said that is an act of disarmament.

[00:10:19] Speaker 00:
That cannot happen inside the home.

[00:10:22] Speaker 00:
In Bruin, the Supreme Court said that right exists outside the home.

[00:10:26] Speaker 01:
Is it correct to say that your license is invalid?

[00:10:30] Speaker 00:
I suppose it wouldn't, Your Honor.

[00:10:32] Speaker 00:
I believe what Judge Waters held was that he had a valid Montana license.

[00:10:36] Speaker 00:
It was not sufficient to invoke the... Right.

[00:10:39] Speaker 01:
It didn't qualify to let him patrol up and down the street across from the school.

[00:10:44] Speaker 00:
Yes, Your Honor.

[00:10:45] Speaker 00:
I guess what I am saying is that the law in Montana directly on point for the Gun Free Schools Zone Act was held not to afford him protection.

[00:10:52] Speaker 00:
I shouldn't have said it was invalid.

[00:10:54] Speaker 00:
Thank you.

[00:10:54] Speaker 00:
Your honor, I see that I'm I'm at my five minutes here.

[00:10:59] Speaker 00:
I'd like to reserve the remainder for rebuttal.

[00:11:01] Speaker 05:
Thank you I did have one question for you.

[00:11:04] Speaker 05:
Is mr. Metcalfe in custody right now?

[00:11:05] Speaker 00:
Mr. Metcalfe is not in custody He received a sense of probation in August of last year.

[00:11:10] Speaker 05:
But there was that assault charge.

[00:11:11] Speaker 05:
Has that been dismissed?

[00:11:14] Speaker 00:
I believe it's been disposed of I don't I don't know the okay.

[00:11:17] Speaker 00:
Thank you.

[00:11:17] Speaker 00:
Thank you.

[00:11:18] Speaker 00:
I

[00:11:29] Speaker 04:
May it please the court.

[00:11:30] Speaker 04:
Good morning.

[00:11:31] Speaker 04:
My name is Thomas Godfrey with the District of Montana for the United States.

[00:11:36] Speaker 04:
Looking at this case, I want to start by addressing what the court raised in terms of the mens rea requirement under Rehaef.

[00:11:42] Speaker 04:
There is a mens rea requirement in 922Q2A, and that is that he knows that he's in a school zone.

[00:11:50] Speaker 04:
Much like in how Rehaef has been held to 922G1, someone who's a felon, they have to know that they have the prior felony conviction.

[00:11:58] Speaker 04:
They don't have to know

[00:11:59] Speaker 04:
that them having a prior felony conviction is what makes them in violation of the law.

[00:12:04] Speaker 04:
They have to know about the requirements.

[00:12:06] Speaker 04:
So there was a mens rea requirement here.

[00:12:08] Speaker 04:
And to plead guilty, he had to admit he knew he was in a school zone.

[00:12:11] Speaker 04:
The issue in this case was that Mr. Metcalf did not believe that that law was constitutional.

[00:12:16] Speaker 04:
He told that to law enforcement.

[00:12:18] Speaker 04:
He'd been told he was in violation of federal law and was asked to stop.

[00:12:22] Speaker 04:
And he refused to stop and stated the law was unconstitutional.

[00:12:26] Speaker 04:
Looking at as applied to the facts in this case, Mr. Metcalf went beyond someone who was just on their own private property or transitorily going through a school zone.

[00:12:37] Speaker 04:
He was daily repeatedly patrolling in the street on a crosswalk directly across from the school that students used to go to the school, the sidewalks.

[00:12:45] Speaker 04:
He would stand in the street staring at the elementary school holding a firearm staring into traffic and staring at the school.

[00:12:52] Speaker 04:
That's beyond

[00:12:53] Speaker 04:
You know, these examples of someone who, you know, is far away, can't see the school, just an innocent, you know, homeowner trying to protect themselves with a firearm.

[00:13:01] Speaker 04:
And what we're looking at these cases, the Constitution has applied to these facts.

[00:13:05] Speaker 04:
And so I think it's important to note that Mr. Metcalf and these facts was physically in the street, in the crosswalk, patrolling repeatedly with a gun and exhibiting other concerning behaviors such as, you know, searching his property for landmines, just behaving in extreme, paranoid ways.

[00:13:22] Speaker 05:
I mean look, I wouldn't want this guy across from school either.

[00:13:26] Speaker 05:
I understand why the police intervened.

[00:13:28] Speaker 05:
I understand why law enforcement intervened.

[00:13:30] Speaker 05:
That being said, under Montana law, he is licensed to have that firearm.

[00:13:35] Speaker 05:
Under Montana law... Let's start there.

[00:13:37] Speaker 04:
Sorry, Your Honor.

[00:13:38] Speaker 05:
So let's start there, because I think we don't even get to the Second Amendment brewing question unless you prevail on this question first.

[00:13:45] Speaker 05:
So let's start with that.

[00:13:46] Speaker 04:
Sure, Your Honor.

[00:13:47] Speaker 04:
922Q2B2 does have an exemption where a state can create an exemption where someone can get licensed to possess a firearm in a school zone and be exempt from the federal statute.

[00:13:58] Speaker 04:
Now that exemption requires that before someone is licensed by the state, so before they're licensed, the law enforcements of the authorities of the state verify that the person is qualified under law to receive the license.

[00:14:11] Speaker 04:
So the Montana statute says everyone in Montana is licensed to carry a firearm pursuant to the Gun Free School Zone Act, except for individuals who have prior violent felony offenses and individuals who are not qualified to possess a firearm under the Montana Constitution.

[00:14:30] Speaker 04:
But there is no prior law enforcement verification at all, which is a specific requirement under the federal statute.

[00:14:37] Speaker 04:
So Montana sets up essentially what would be a framework to license someone.

[00:14:41] Speaker 04:
here are the people that we would not want licensed under Montana law to be in a school zone, but does not require the prior law enforcement verification, which is necessary.

[00:14:50] Speaker 04:
And that's very different from Tate, because in Tate and Alabama, the issue was whether the sheriff had to run a

[00:14:58] Speaker 04:
a background check or some sort of what the verification needed to be by prior law enforcement.

[00:15:04] Speaker 04:
But Tate had, you had to go to the sheriff to be licensed, and the sheriff had to determine you were qualified.

[00:15:09] Speaker 04:
So that tracks the federal statute.

[00:15:11] Speaker 03:
You're interpreting verify here as sort of confirm after the fact.

[00:15:17] Speaker 03:
Because verify can mean that, but I think even in Judge Waters' decision, the dictionary definition

[00:15:27] Speaker 03:
I believe Judge Waters had the word assert.

[00:15:31] Speaker 03:
That's another type of verification would be to assert.

[00:15:34] Speaker 03:
You acknowledged that, that verification can mean confirming something out of the fact, but it can also mean verifying something can mean asserting that something is the case.

[00:15:43] Speaker 04:
I wouldn't disagree with that, but I note that the federal statute requires before the licensure occurs.

[00:15:48] Speaker 03:
So I'm just trying to narrow down where your argument is.

[00:15:52] Speaker 03:
I'm not sure that much of your argument depends much on verify because of the fact that

[00:15:56] Speaker 03:
You could call it ambiguity or the breadth of the foot verify.

[00:15:59] Speaker 03:
But you're really relying on the fact that it has to be before.

[00:16:02] Speaker 03:
And you're relying on law enforcement, those two things.

[00:16:05] Speaker 03:
Am I correct in that?

[00:16:06] Speaker 04:
Well, I would also argue that Montana didn't verify under its own statute that he was in compliance, because there was no check that he was a prior.

[00:16:13] Speaker 03:
Well, no.

[00:16:13] Speaker 03:
But if it just means to assert that something is the case, and if you're asserting that you don't have any non-violence, anybody that doesn't have any non-violent felonies

[00:16:23] Speaker 03:
Is has a license then you'd be in you'd be verifying that the the state would be verifying that you have this license They'd be asserting that you have the license if you use the word assert as a synonym I think it would be more interesting in that circumstance if it was no prior violent Felonies in Montana right because then Montana would have its own record, but it's no prior violent felonies that the problem is is your

[00:16:47] Speaker 03:
You're smuggling back in the idea of verifying as confirming but I'm saying verifying can mean to just assert like I say, you know you are Something and I'm just asserting it right.

[00:16:59] Speaker 03:
I'm not not verifying it I'm not confirming it in that sense and then in the confirming sense of verifying but I would be asserting it the same way that a state would say the same way that like a that a court could say you're a member of a bar and

[00:17:12] Speaker 03:
They're just asserting that you're, but you could call that verifying within that.

[00:17:17] Speaker 04:
Well, I think under the federal statute requires that, when you read, actually, what the federal statute has prior to the license being granted, law enforcement authorities verify.

[00:17:26] Speaker 04:
I think it very clearly just states that law enforcement authorities have to do something, right?

[00:17:30] Speaker 03:
You're insisting that the, right, whatever law enforcement authorities is, they have to do something, but that something could be asserting.

[00:17:38] Speaker 03:
I mean, in that sense, your argument's not that different than Alabama's.

[00:17:41] Speaker 03:
Alabama's like, they're not really doing anything.

[00:17:43] Speaker 03:
The sheriff's not doing anything.

[00:17:44] Speaker 03:
You're supposed to be doing a background check.

[00:17:45] Speaker 03:
And the sheriff is just basically asserting after the fact.

[00:17:48] Speaker 03:
That's kind of what their argument was.

[00:17:50] Speaker 04:
No, I think it's very different.

[00:17:51] Speaker 04:
Because in terms of what the state has to do to verify someone, that's left up to the states.

[00:17:57] Speaker 04:
So Montana has a category of people that aren't allowed to be licensed to possess a firearm in a school zone, the prior violent felons and under the Montana Constitution.

[00:18:07] Speaker 04:
I think it would be more interesting if Montana didn't have that category, if Montana had said that everyone in Montana is licensed to possess a firearm.

[00:18:14] Speaker 03:
What you're saying right now is that Montana has asserted, the legislature has asserted, that certain categories of people are licensed and certain categories of people are not.

[00:18:24] Speaker 03:
But that seems to me to fall within the meaning of verify if you understand verifying as including the possibility of meaning assert.

[00:18:31] Speaker 03:
So I'm trying to figure out why you're saying that verify would not encompass that sort of

[00:18:36] Speaker 04:
Well, because I think they have to verify prior to them issuing the license.

[00:18:40] Speaker 04:
And Montana licenses just everyone.

[00:18:42] Speaker 02:
They have to verify prior.

[00:18:44] Speaker 04:
To verify prior to the license.

[00:18:47] Speaker 04:
That's what the federal statute requires.

[00:18:49] Speaker 03:
So then that takes me back to what you're relying on.

[00:18:52] Speaker 03:
There's three different things you could be relying on.

[00:18:54] Speaker 03:
That this is not verifying.

[00:18:55] Speaker 03:
This is not before the timeliness aspect.

[00:18:59] Speaker 03:
And the before thing, as a side, obviously if verify is within the words, then the legislature did this before.

[00:19:06] Speaker 03:
before this conduct because the legislature, so I don't know where before does very much for you.

[00:19:11] Speaker 03:
It seems to me that your strongest and best argument is law enforcement, that the legislature is not a law enforcement authority.

[00:19:17] Speaker 04:
I disagree with that.

[00:19:19] Speaker 04:
My argument is that I think, as an example, if the legislature said, here's the categories of people who can't be licensed to drive, you know, people with various prior convictions, you know, for reckless driving or drugs or alcohol or the like, and said everyone is licensed to drive, but then also said before someone can get that license, we have to verify that they're qualified under law, because that's important, too.

[00:19:41] Speaker 04:
The prior verification is they're qualified under law.

[00:19:43] Speaker 03:
But you just used that last verification was to confirm.

[00:19:46] Speaker 03:
But take that out of your mind for a second.

[00:19:50] Speaker 03:
Are you just disagreeing that verify cannot mean to assert something?

[00:19:54] Speaker 03:
Or do you agree that verify can mean to assert something?

[00:19:57] Speaker 04:
I don't think verify as it's used here in the federal statute can just mean you can say everyone's licensed except these people and it meets the requirements.

[00:20:05] Speaker 03:
So you're saying that's actually important.

[00:20:08] Speaker 03:
And if it did mean that, do you acknowledge that if verify does mean to assert,

[00:20:15] Speaker 03:
So you're saying maybe it can mean to assert, but in this context, it doesn't mean to assert.

[00:20:19] Speaker 03:
That seems to be your argument.

[00:20:20] Speaker 04:
I'll be honest with you, Your Honor.

[00:20:21] Speaker 04:
I'm not entirely sure what.

[00:20:24] Speaker 04:
you know, I think we may be talking about two different things.

[00:20:27] Speaker 04:
I think that just reading the federal statute, you know, and reading the Montana statute, which sets up a framework for who can be licensed but doesn't require prior law enforcement verification, there is no check in the Montana statute.

[00:20:40] Speaker 04:
There is no verification at all that someone is not a felon.

[00:20:42] Speaker 03:
Well, it's odd that you say that because, you know, all the legislators that voted on that, like literally the law says, we pass this law to comply with the verification requirements.

[00:20:52] Speaker 03:
So obviously, a bunch of people in Montana, the lawmakers in Montana, thought that verification could mean something other than the way that you're using verification.

[00:21:00] Speaker 03:
And I understand that you may be saying, well, they were just wrong about that.

[00:21:04] Speaker 03:
But I'm trying to figure out, is your argument at a really high level that verification just can't mean assert?

[00:21:10] Speaker 03:
Or is your argument at a more granular level?

[00:21:13] Speaker 03:
Well, verification can, but here, it doesn't mean to assert.

[00:21:16] Speaker 04:
Well, I mean, federal law governs how we interpret federal statutes.

[00:21:20] Speaker 03:
But there's no definition of verify.

[00:21:21] Speaker 03:
You acknowledge that, right?

[00:21:23] Speaker 03:
I mean, there's no definition in the statute of verify here.

[00:21:25] Speaker 04:
There's not.

[00:21:26] Speaker 04:
But I think when you read the statute saying that prior to an individual obtaining a license, the law enforcement authorities have to do something, verify that they're qualified under law.

[00:21:36] Speaker 03:
You could say prior to you getting to practice law in Montana or Nevada or pick your state, the bar has to verify that you are

[00:21:43] Speaker 03:
a member of, and that could mean two different things.

[00:21:45] Speaker 03:
It could mean that the bar would go through and confirm that you are a member of the bar.

[00:21:50] Speaker 03:
But it might also mean, as I understand it, that the bar could assert that you are, because that's what the bar does.

[00:21:54] Speaker 03:
It's the one who decides whether or not.

[00:21:57] Speaker 03:
And both those meanings fall within the meaning of verify is my understanding.

[00:22:01] Speaker 04:
But I think if the bar had a category of things that would exclude you, such as I have prior convictions or prior ethical problems, and they're saying that that's verifying that there

[00:22:12] Speaker 04:
the prior verification requires the action.

[00:22:15] Speaker 04:
And in this case, it's even more removed from that because it would be, using your bar example, the bar has some sort of investigative authority.

[00:22:22] Speaker 03:
So if the bar had different categories and some of those excluded you, the bar would be verifying that you fell within in the sense of asserting.

[00:22:31] Speaker 03:
But you could have both kinds of verification.

[00:22:34] Speaker 03:
After the fact, you could say, well, is he actually a member of the bar because we think he has a felony?

[00:22:38] Speaker 03:
And the bar could be go and confirm, right?

[00:22:41] Speaker 03:
It seems to me like part of the challenge that we're having here is that when I'm using the word verification, I'm saying, well, it could use mean both.

[00:22:48] Speaker 03:
And every example you're giving me of, no, it can't, you're falling back on the confirmed type of verification.

[00:22:54] Speaker 03:
So I'm just trying to figure out, your position must be, I assume, that verification cannot mean assert.

[00:23:00] Speaker 03:
And I'm not sure why, but I think it's either the context or it must be the context that you're saying that.

[00:23:06] Speaker 04:
The statute requires that law enforcement authorities

[00:23:10] Speaker 04:
verify prior to a license being obtained.

[00:23:13] Speaker 04:
Montana law doesn't require that at all.

[00:23:15] Speaker 04:
It takes that element, that aspect of the exemption entirely out of it.

[00:23:20] Speaker 04:
That's the reason why the district court found that

[00:23:25] Speaker 04:
that licensure doesn't comply with 922QB2 because there's just no law enforcement involvement, whatever, and it has created categories that take people out of it.

[00:23:34] Speaker 04:
So absent that, and again, as I said, federal law determines interpretation of federal statute.

[00:23:40] Speaker 04:
Montana, you know, essentially takes that provision out of it, but by that same token, they can't then license people under the 922Q2B2 exception.

[00:23:49] Speaker 05:
It just... So let me jump in here because

[00:23:52] Speaker 05:
Let's say, and again, this is really splitting hairs, but this is a criminal case.

[00:23:56] Speaker 05:
So let's say I agree with your reading of the statute.

[00:23:59] Speaker 05:
Let's say I think your reading of the Montana statute is better than what Mr. Metcalf's reading.

[00:24:08] Speaker 05:
But this is a criminal case.

[00:24:10] Speaker 05:
And if it's really close and we have, you know, certain axioms about constitutional avoidance, we have certain axioms about lenity, which we don't invoke very frequently, but why isn't this one of those cases where we have a situation where a guy, and look, like I said, that weird lawnmower thing you have with a gun, I don't like that.

[00:24:33] Speaker 05:
I don't like that being near a school.

[00:24:34] Speaker 05:
I don't like that one not near my house either.

[00:24:39] Speaker 05:
The state of the legislature of Montana has said he can have a gun.

[00:24:42] Speaker 05:
The police said he could have a gun.

[00:24:44] Speaker 05:
In a criminal case, isn't that a problem?

[00:24:49] Speaker 04:
Well, I think one, I mean, this is a federal statute.

[00:24:52] Speaker 04:
So whether he was in violation of Montana law or not is irrelevant in this case.

[00:24:57] Speaker 04:
Well, but it's not totally irrelevant.

[00:24:59] Speaker 04:
I'm sorry.

[00:24:59] Speaker 04:
Go ahead, Judge Roeder.

[00:25:01] Speaker 01:
Well, if I understand your position, the statute says that there has to be a verification before there is

[00:25:09] Speaker 01:
issuance of a license and In Montana, I may not understand how this works.

[00:25:14] Speaker 01:
So help me in Montana They don't do anything before issuing the license.

[00:25:18] Speaker 01:
Is that correct?

[00:25:19] Speaker 04:
They don't they don't there isn't a physical license or a licensure Board or you don't go to law enforcement.

[00:25:26] Speaker 04:
There's nothing they just say everyone's licensed except for these people.

[00:25:28] Speaker 01:
It's it's really a back There is not at all

[00:25:33] Speaker 04:
Montana just essentially tries to exempt Montana from that statute.

[00:25:39] Speaker 04:
But then also, which is problematic, creates categories where people can't be exempted from that statute.

[00:25:44] Speaker 04:
So really how this works in Montana is if you're found in, you know, a school zone with a firearm, and then they then later determine that you have these violent prior felonies, you'd be in violation.

[00:25:55] Speaker 04:
So it's back end rather than prior, which is the issue.

[00:25:59] Speaker 04:
But talking about

[00:26:01] Speaker 04:
I completely understand constitutional avoidance and the importance of that, but I don't think the court can do that in this case without entirely writing out that section of the 922 exception, which requires that prior law enforcement verification.

[00:26:14] Speaker 04:
As the district court stated, Montana just can't on its own say its own statute is in compliance with federal law when it doesn't comport with the specific requirements of that federal law.

[00:26:26] Speaker 04:
And there's just no circumstance where what Montana did here with the licensure requirements meets that requirement of prior law enforcement verification.

[00:26:35] Speaker 04:
They essentially just exempt Montana from this entire statute.

[00:26:39] Speaker 05:
And like I said, let's say I agree with you on that.

[00:26:42] Speaker 05:
But again, the inquiry, as I see the inquiry, the inquiry is there's like a civil review of the law, which you've just done.

[00:26:49] Speaker 05:
And let's say I think you're right about that.

[00:26:51] Speaker 05:
But then you have to move this to a criminal case.

[00:26:54] Speaker 05:
And the question is that the defendant have fair notice that this would actually, and that's what Lenity's really about.

[00:26:59] Speaker 05:
It's about fair notice.

[00:27:00] Speaker 05:
So you've got to jump over to that side.

[00:27:02] Speaker 05:
It's not really a clinical reading of the law like a law school exam.

[00:27:06] Speaker 05:
It's in the mind of this defendant.

[00:27:08] Speaker 05:
Why wouldn't we read the law in a way that would favor him in light of the kind of unusual circumstances in this case?

[00:27:20] Speaker 04:
Well, I think the reason the court should apply the law, as I'm arguing, is that is what the federal law requires.

[00:27:26] Speaker 04:
And there's just no way to bend federal law to comport with Montana's licensure requirement being in it.

[00:27:31] Speaker 04:
Two, in terms of the mens rea requirement, he has to know he's in a school zone that is the mens rea requirement.

[00:27:37] Speaker 04:
I note also that issue is not before this court.

[00:27:40] Speaker 04:
That issue wasn't raised at the lower court level, and he didn't reserve that.

[00:27:43] Speaker 04:
But in terms of that, there is a mens rea requirement here.

[00:27:45] Speaker 04:
And two, in terms of the fairness in someone saying they're licensed, Mr. Metcalfe never raised this with

[00:27:52] Speaker 04:
police.

[00:27:53] Speaker 04:
Montana's exemption just exempts everyone.

[00:27:56] Speaker 04:
There's no license.

[00:27:56] Speaker 04:
He didn't go in and get anything like that.

[00:27:58] Speaker 04:
He never said he was licensed to police.

[00:28:00] Speaker 04:
He said the gun-free school zone statute is unconstitutional.

[00:28:05] Speaker 03:
I mean, he lived across the street from the school for... One thing, one kind of any concern there, if you're Mr. Metcalf, and I understand that

[00:28:12] Speaker 03:
This is not your most sympathetic person you want to cry.

[00:28:15] Speaker 03:
But he does have local police officers that keep coming to him because he gets phone calls.

[00:28:21] Speaker 03:
And those police officers just leave and basically don't do anything about it.

[00:28:26] Speaker 03:
So if you're Mr. Medcalf and you're not, you know, you, you, it would not be, um,

[00:28:32] Speaker 03:
too surprising to take away from that, that, oh, what I'm doing does not actually violate law.

[00:28:37] Speaker 03:
Now, we all understand there's federal law and there's state law, et cetera, but I could understand where somebody would

[00:28:43] Speaker 03:
that come to the wrong conclusion there.

[00:28:46] Speaker 04:
May I answer your question, Your Honor?

[00:28:48] Speaker 04:
Well, I think the facts show that that wasn't the case.

[00:28:50] Speaker 04:
He was told repeatedly by law enforcement he couldn't do this, like this assertion that he was told he could do this by the state is wrong.

[00:28:55] Speaker 04:
He was told repeatedly by the state he couldn't do it under federal law, and they were calling the ATF.

[00:29:00] Speaker 04:
And then even when he was told... I thought he called the ATF.

[00:29:03] Speaker 02:
I'm sorry?

[00:29:03] Speaker 02:
I thought he called the ATF, or he called the FBI.

[00:29:06] Speaker 04:
No.

[00:29:07] Speaker 04:
Well, he called the FBI at the same time as, like, Billing's police was calling the ATF and saying, you know, he's saying he's not going to stop.

[00:29:14] Speaker 04:
And then Billing's task force officer with the ATF and the ATF came out and talked to him.

[00:29:20] Speaker 04:
He was calling the FBI because he thought Billing's police were harassing him.

[00:29:23] Speaker 03:
You're kind of being inflexible.

[00:29:26] Speaker 03:
I mean, to Judge Owen's point,

[00:29:29] Speaker 03:
a guy who thinks your points always obviously clear to him that what he's doing was illegal but a guy who thinks he's breaking federal law doesn't usually call the fb i to say hey let me tell you what i'm doing so you can stop these people from acted it doesn't look on the entire record

[00:29:46] Speaker 04:
There's a lot of mental health issues here, as I noted in my response.

[00:29:51] Speaker 04:
He had extreme paranoia.

[00:29:53] Speaker 04:
He essentially failed out of his mental health counseling.

[00:29:57] Speaker 03:
So you have a guy with extreme paranoia calling the FBI to, again, it just doesn't fit with the idea that this fella knew, necessarily knew, which I understand to be your argument, against the rule of limiting constitutional avoidance, at least the rule of limiting.

[00:30:11] Speaker 04:
Well, as far as he was behaving irrationally, he also told law enforcement that he knew he was in a school zone, and he just thought this was all unconstitutional.

[00:30:23] Speaker 05:
All right, we'll hear from Rebuttal.

[00:30:27] Speaker 00:
Thank you, Your Honor.

[00:30:28] Speaker 00:
I want to speak really briefly about the history of the case here.

[00:30:31] Speaker 00:
This case went to a trial March 25th of last year.

[00:30:35] Speaker 00:
The government had some motions that brought before the court concerning the licensure issue and Mr. Metcalfe's previous interactions with law enforcement.

[00:30:47] Speaker 00:
And Mr. Metcalfe, as the court discussed with Mr. Godfrey, several times was confronted by Billings Police

[00:30:55] Speaker 00:
He's often told you are not doing anything illegal.

[00:30:57] Speaker 00:
It was on the front page of the Billings Gazette the day Mr. Metcalfe was arrested as statement from a lieutenant with the Billings Police Department saying he's not doing anything illegal.

[00:31:07] Speaker 00:
We are going to talk to our partners in the federal law enforcement.

[00:31:11] Speaker 00:
But those are the messages that Mr. Metcalfe was getting.

[00:31:15] Speaker 00:
And it that was a police chief Matt Lenick of the buildings police department That was that was printed the day that mr. Metcalfe was arrested because there was media coverage because people are concerned There's a guy with there was a cross with school and they're like, what can we do about it?

[00:31:28] Speaker 05:
And the police chief said well right now we don't think there's anything we can do about it But we're gonna contact the feds to see what they can do about it

[00:31:33] Speaker 00:
Correct.

[00:31:33] Speaker 00:
Your Honor, I didn't come out here to tell you it was normal behavior.

[00:31:36] Speaker 00:
Gosh, I met Mr. Metcalfe in a jail cell.

[00:31:42] Speaker 00:
I've known him for two years now.

[00:31:44] Speaker 00:
This is somebody who was getting harassed by this younger gentleman.

[00:31:50] Speaker 00:
That person has been found guilty of a felony violation of protective order, is a felon because of his conduct against Mr. Metcalfe.

[00:31:58] Speaker 00:
Mr. Metcalf got into a situation where he kept calling the police.

[00:32:03] Speaker 00:
They kept coming out.

[00:32:04] Speaker 00:
They kept telling him, get a video.

[00:32:06] Speaker 00:
He tried to get a video.

[00:32:07] Speaker 00:
Now he's following cars.

[00:32:09] Speaker 00:
He's staring at the school.

[00:32:10] Speaker 00:
They're telling him, you need to get us evidence if you want us to prosecute this guy.

[00:32:15] Speaker 00:
It happened.

[00:32:16] Speaker 00:
And we went into detention hearings, preliminary hearings, and law enforcement came in.

[00:32:21] Speaker 00:
And you would have been forgiven if you thought that this gentleman didn't exist.

[00:32:25] Speaker 00:
This is somebody who is pushed to a pretty extreme place.

[00:32:29] Speaker 00:
And I understand the community concern.

[00:32:32] Speaker 00:
I understand why the 911's calls happen, the media coverage, the social media.

[00:32:37] Speaker 00:
We live in a time where these things can get blown up.

[00:32:42] Speaker 00:
And when we went to court on March 25th, Judge Waters ruled on several motions brought by Mr. Godfrey.

[00:32:49] Speaker 00:
He wasn't going to be allowed to talk about his interactions with law enforcement concerning his mental state.

[00:32:55] Speaker 00:
He wasn't going to be allowed to talk about the fact that he thought he had a valid license.

[00:33:01] Speaker 00:
Those are things

[00:33:02] Speaker 00:
that were ruled upon the morning before trial, and that's how we wound up pleading guilty and reserving this issue.

[00:33:10] Speaker 00:
So, Your Honor, when you talk about rehab and whether

[00:33:14] Speaker 00:
Whether that's been preserved, I do think it looms large over this case.

[00:33:20] Speaker 00:
And if the court cannot find that the license protected him under the Gun Free School Zones Act, I would ask it to consider it in his Second Amendment argument.

[00:33:31] Speaker 00:
That is part of the analysis here.

[00:33:34] Speaker 00:
This is somebody who, looking at those laws, would have no reason to think that by stepping onto the sidewalk,

[00:33:44] Speaker 00:
He was creating, he was committing a federal criminal offense when he wasn't standing two feet in front of it.

[00:33:51] Speaker 00:
And I mean, we get into issues with that, your honor, about, I mean, gosh, how is the sidewalk owned?

[00:33:57] Speaker 00:
Does he own it?

[00:33:57] Speaker 00:
Does the city have an easement?

[00:33:59] Speaker 00:
How much of that is in his head?

[00:34:01] Speaker 00:
I mean, this came out in a DOJ press release this theory.

[00:34:05] Speaker 00:
That was the first time I'd heard this theory, that stepping onto the sidewalk brings you into a school zone.

[00:34:12] Speaker 00:
I don't know there's any way Mr. Metcalfe could have had that in his head.

[00:34:16] Speaker 00:
And Judge Van Dyke, I think when we're talking about the language of that exception,

[00:34:26] Speaker 00:
Well, first of all, the mental state in this is knew or should have known he was in a school zone.

[00:34:32] Speaker 00:
And if we look at the excerpts, I believe it starts at 22 where Judge Waters begins ruling on Mr. Godfrey's motions.

[00:34:45] Speaker 00:
When he pleads guilty, she tells him, it doesn't matter that you knew it was a school zone.

[00:34:51] Speaker 00:
And he agrees with that.

[00:34:52] Speaker 00:
So that is in the record as well.

[00:34:54] Speaker 00:
But the way that this statute, this exception, was worded Judge Van Dyke, they didn't define verify.

[00:35:01] Speaker 00:
That's why Judge Waters, and we gave Judge Waters and Mr. Godfrey a lot to think about in this case.

[00:35:07] Speaker 03:
So as I was mentioning,

[00:35:10] Speaker 03:
to your colleague on the other side, it seems there's three things.

[00:35:12] Speaker 03:
There's the time element before that they're relying on, the verify, which, as I understand it, they're reading verify as confirm, which I think is probably maybe the best reading, but you have this whole issue of, in the criminal context, do you go with the best reading, or is there some real entity constitutional avoidance issue?

[00:35:31] Speaker 03:
But then there's the law enforcement authorities.

[00:35:35] Speaker 03:
Verify and before, it seemed,

[00:35:38] Speaker 03:
If you think verify can mean assert, and if you can allow the legislature to assert, then the legislature obviously asserted this before he had the license in the sense of, so I don't see that very, very challenging.

[00:35:53] Speaker 03:
The charter part is if the legislature counts as a law enforcement authority, which is super not intuitive, and then I think law enforcement authorities have to have investigative

[00:36:07] Speaker 03:
that's defined as having investigative abilities.

[00:36:12] Speaker 03:
And I think the legislature, as you both probably know, because you're in Montana, there's currently a fight between the legislature and the Montana Supreme Court about, and the legislature has said that it has investigative authority.

[00:36:25] Speaker 03:
And so I don't, so why would we interpret the legislature as being a law enforcement authority that has asserted slash verified before?

[00:36:34] Speaker 00:
Well, I think, Your Honor, I think the governor signed it.

[00:36:38] Speaker 03:
What's that?

[00:36:38] Speaker 00:
The governor signed it.

[00:36:40] Speaker 03:
Right.

[00:36:41] Speaker 00:
So the legislature passed that.

[00:36:43] Speaker 03:
So you think the legislature is a law enforcement authority.

[00:36:45] Speaker 03:
Your position is the legislature counts as a law enforcement authority.

[00:36:48] Speaker 00:
No, Your Honor.

[00:36:49] Speaker 00:
I mean, the legislature passed that.

[00:36:50] Speaker 00:
The governor signed it into law.

[00:36:52] Speaker 00:
I think that would be your verification.

[00:36:55] Speaker 03:
I think that's one possible reading, and that would have happened before.

[00:37:02] Speaker 03:
But the legislature and the governor are a law enforcement authority?

[00:37:08] Speaker 00:
It's a tough fact for us.

[00:37:09] Speaker 00:
What's that?

[00:37:10] Speaker 00:
That's a tough fact for us.

[00:37:11] Speaker 00:
You know, I mean, I can't stand here and tell you that Montana, I mean, this law is what it is.

[00:37:18] Speaker 00:
They saw the gun free schools owned act Montana didn't want it.

[00:37:22] Speaker 00:
They passed this law I'm not gonna stand here and tell you that it checks every box on that on on on the Exemption it doesn't I Mean we got a we got to get into wordplay to try to get there We but I mean the way that this statute is worded made judge waters have to go back to the dictionary for verification and all these things and

[00:37:47] Speaker 00:
We still don't know what qualified under law what qualified under law means that's the standard that they have to verify and what Montana did was looked at this and said qualified under law anybody who's not qualified under law, anybody who's had that right taken.

[00:38:03] Speaker 00:
Can't get that license and we want to give that license to everybody That's that's what happened here your honor.

[00:38:08] Speaker 00:
I'm not going to try to paint that as something other than what it is But I do believe that it plays significantly into the broader picture of whether mr. Metcalf ever could have known he was breaking a law Thank you.

[00:38:21] Speaker 05:
All right.

[00:38:21] Speaker 05:
Thank you counsel.

[00:38:22] Speaker 05:
Thanks to both of you for your briefing an argument in this complicated and interesting case this matter submitted