Monday, September 18, 2023

MT: Gabriel Metcalf Gun Free School Zone case has a First Amendment Component

 Sign displayed in Gabriel's front yard during his protest. Image by Vivian two weeks after Gabriel's arrest.

On 22 August, 2023, Gabriel Metcalf was arrested for possessing a firearm in a federal gun free zone in Billings, Montana. Gabriel and his mother live across the street from the Broadwater Elementary School. Billings Police officers had previously told Gabriel and his mother, Vivian, Gabriel was not breaking any laws. Some people had complained when they saw Gabriel outside his home with a single shot 20 gauge shotgun. Gabriel had armed himself because of a two year campaign of terror conducted by a former neighbor, David Carpenter, and associates. Over the course of two years, Carpenter was the subject of an restraining order/order of protection, was convicted of five different misdemeanors (including assault against Gabriel, and two involving terroristic threats against another person).  According to Vivian, Carpenter was arrested again, on an outstanding warrant, on July 31, 2023, and almost immediately released on bond, without an ankle GPS monitor. The experience of Gabriel and Vivian has been, when Carpenter faces official sanctions, retaliation against Gabriel, Vivian, their home, plants and pets is imminent.

According to Vivian, the Billings Police were only marginally helpful during this ordeal. Both Gabriel and Vivian had lost faith in the Billings Police to act professionally and to deliver basic service, such as accepting reports of serious threats. Other victims of harassment and assault by people under a court order of protection have had similar complaints.

It is undisputed Billings Police attempted to pressure Gabriel into disarming when he was outside his home. The police reported, in the local media, Gabriel was not breaking any laws. As a protest against police hostility, Gabriel conducted a silent display on his front lawn, kneeling, his shotgun in a scabbard on his reel type lawn mower, and a sign saying: OUR RIGHTS MATTER.  During the protest, Gabriel wore a mask to signify he was being silenced.

Image from a still photograph used in a video report. The image was contributed from a viewer. The image was taken on August 16-18, before school opened on August 22, 2023, according to Vivian. Gabriel was protesting police harassment. The black rectangle in shadow between Gabe and the door appears to be the protest sign. It is about the right size, and is not present in other photographs of the house. Gabriel was never outside his home with the shotgun on the first day of school or afterward,

Neighbors interviewed for KTVQ  said they had sometimes seen Gabriel Metcalf walking in the alley behind his home with the shotgun, "but they never really felt they were in any danger".

This image of Gabriel protesting has accompanied many reports on his arrest. The photograph was taken days before his arrest.

 Image contributed to media by a member of the public, taken several days before school opened.  Gabriel appears to be waving to a person on the sidewalk. It is difficult to see how this protest could be construed as threatening. A woman interviewed about Gabriel's arrest on MTN stated Gabriel had waved to her, indicating to her he was not a threat.

Link to Youtube of MTN video

The sling across Gabriel's shoulder is not attached to the Rossi single-shot shotgun whose stock is visible behind the cup holder. The shotgun is in a homemade scabbard attached to the reel lawn mower Gabriel uses to mow the lawn at his home. The mask is in protest of the police, to symbolically say "the police are silencing me", according to Gabriel's mother.  The image was often posted on media along with the story of Gabriel's arrest.  Gabriel was arrested, unarmed,  in a parking lot dozens of feet from his home, while accompanying his mother. The agents apparently announced themselves as ATF. Gabriel was arrested for possessing a gun in a federally defined gun free school zone. Billings police are on record as saying they turned to federal officers because Gabriel was not violating any local or Montana law.  Gabriel has stated he believed the Gun Free School Zone Act was unconstitutional.

According to Gabriel's mother, school officials never contacted them before putting out an alert on August 21. The alert, asking parents to "be vigilant"  was put out the night of August 21, just before school opened on August 22, according to the leftwing Billings Gazzette.  The alert references "suspicious activity" on the 17th and 18th of August. It is unclear if the school official was referring to Gabriel's protest. Vivian says she left a voice message with school officials, who had never contacted her or Gabriel previous to August 22. On August 22, a school official left a voice message saying he would call back. Gabriel was arrested a few hours later. Vivian never received the promised call back.

Symbolic political speech has long been recognized by the Supreme Court as protected by the First Amendment. Gabriel's protest and carry of his single shot shotgun outside the home is strong, symbolic, protected political speech.   Only unpopular speech requires protection. The Gun Free School Zone Act is a form of prior restraint, forbidden under the First Amendment. The FIrst and Second Amendments are intertwined and protect each other.

Gabriel has been in federal lockup since August 22. His mother, Vivian has to work to pay the mortgage and utilities. Two years of defending against the ongoing threats and attacks, with a recent two months of being ill with covid and pneumonia while Gabriel took care of Vivian, have left them without funds to fight the Gun Free School Zone Act charge.

Gabriel’s mother has set up a GiveSendGo site to help defend their home, the Second Amendment, and work to free Gabriel from this unjust pre-trial detention.


©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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