The controversial Gun Free School Zone case where Gabriel Metcalf has been in pre-trial detention for a month has a detention hearing scheduled for 9 a.m. Thursday morning, September 21, 2022.
Russel Hart, the federal public defender for Gabriel Metcalf, asked for the hearing citing new evidence which was not available at the first detention hearing. The hearing was held shortly after Gabriel's arrest by what appears to have been an ATF/Billings Police Task Force. The prosecuting attorney Assistant United States Attorney Thomas K. Godfrey had opposed the re-opening of the detention hearing, indicating Judge Cavan had sufficient information; that no significant new information was offered.
It is likely the hearing will have been held by the time this writing is published on AmmoLand. It takes a some time before results are officially posted. The results should be available by Friday evening.
The maximum penalty for possessing a firearm in federal Gun Free School Zone is five years in prison. The statute says there can be a fine up to $5,000. The initial press release by the United States Attorney's office states the fine could be up to $100,000. Criminal penalties are complex, with many enhancements possible. It appears Gabriel Metcalf's case is a simple, single count of possession of a firearm in a federal Gun Free School Zone outside of private property.
Much about the Gun Free School Zone law is unusual, peculiar. One of the paragraphs states the Gun Free School Zone offense will be treated as a Misdemeanor, except for the potential five year sentence. From 18 U.S.C. §924. Penalties for 922(q):
(4) Whoever violates section 922(q) shall be fined under this title, imprisoned for not more than 5 years, or both. Notwithstanding any other provision of law, the term of imprisonment imposed under this paragraph shall not run concurrently with any other term of imprisonment imposed under any other provision of law. Except for the authorization of a term of imprisonment of not more than 5 years made in this paragraph, for the purpose of any other law a violation of section 922(q) shall be deemed to be a misdemeanor.
Misdemeanors are generally treated with considerable more lenity than felonies. Russell Hart, makes the case that Gabriel Metcalf has been treated considerably more severely than he deserves, because incorrect information was given to the Court.
From the brief by Metcalf's attorney, Russell Hart:
The Court now has the benefit of Doc. 15 and confirmation that Mr. Metcalf did not merely imagine the threat facing him as was stated in earlier proceeding in support of detention. He has no criminal history at 49 years of age and stands accused of a Misdemeanor offense for the first time in his adult life: the Court cannot presume Mr. Metcalf would violate any condition of release, especially one that would constitute a felony offense under 18 USC § 922(d)(1).
It will be of interest to see what the prosecution argues to keep Gabriel Metcalf imprisoned before trial.
Russell Hart does not forget the importance of the Second Amendment in this case. Hart reminds the Court the Bruen decision presumptively protects the conduct of Gabriel Metcalf, as bearing arms outside of his home. This correspondent believes this preserves a Second Amendment challenge to the Gun Free School Zones Act.
The Gun Free School Zone Act was already found to be unconstitutional, in 1994. Eight circuit courts have ruled on the constitutionality of the act since a change in the wording in 1996. Five have ruled the 11 word change cured the constitutional defect, three have held the act remains unconstitutional.
There are several possibilities for Judge Cavan in the Metcalf case. He can keep Gabriel Metcalf in pre-trial detention. He can release Gabriel Metcalf under the conditions outlined by Russell Hart, probably on his own recognizance. He can impose some form of bail or bond, as a condition of release.
We will keep AmmoLand readers informed as this situation develops.
©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.
Gun Watch
Posts
2 comments:
Wow, it sounds like the ATF may have bit off more than they can chew on this one.
What do you think the odds are that they end up dropping the charge?
ATF CANNOT lose a challenge to the GFSZA. They have used this unconstitutional law to infringe on the rights of law-abiding citizens for decades. I suspect their policy folks are quite unhappy with how this is going.
It may be out of their hands already.
However, I suspect the case is meant to curry favor with the Biden administration. The Biden administration has been using the ATF to push the limits of all existing gun law as far as it can be pushed. They are getting some pushback in the courts. This is likely just another of those issues for them.
Post a Comment