Saturday, September 16, 2023

MT Gun Free School Zone Case: Freeing Gabriel from Jail


Gabriel Metcalf was arrested in Billings Montana, for violation of the Gun Free School Zone Act, on August 22, 2023. The Assistant United States Attorney (AUSA) Thomas K. Godfrey, asked for pre-trial detention at the preliminary hearing on August 25, 2023. The reason for pre-trial detention is listed in the image. The Magistrate Judge, Timothy J. Cavan, granted the Order of Detention for Gabriel Metcalf.  The reasons checked on the order of detention pending trial form are:  A claim the judge believed the Government had proven, by clear and convincing evidence, that no condition or combination of conditions of release will reasonably assure the safety of any other person and community. A second claim is Gabriel Metcalf has a  "History of Violence or Use of Weapons".  

Both claims rest on extremely shaky and dubious foundations. From the order of detention, Judge Cavan expounds on his reasoning: 

Defendant lives on a busy street in Billings, Montana, across the street from an elementary school. He has been charged with possession of a firearm within a school zone. According to testimony at the detention hearing, Defendant believes possession of the firearm and patrolling the area around his property within the school zone is necessary to protect he and his mother from a perceived threat posed by a former neighbor. Testimony established that he has possessed the firearm on public property within the school zone, and has chased automobiles he believes may be associated with his former neighbor. He has previously been advised that he is prohibited from possessing a firearm within the school zone, but he has stated his belief that the law is unconstitutional and has asserted his right to do so. Given the Defendant's belief that he has a right to possess a firearm within a school zone, and his belief that possession of a gun is necessary for his protection and safety, the Court finds it is unlikely that he would abide by any condition prohibiting him from possessing a firearm while on pretrial release. Therefore, there are no conditions or combinations of conditions which can be imposed to reasonable assure the safety of any other person or the community if released.

The "reasoning" is full of false assumptions and non-sequitur arguments. There is an unstated undercurrent: Metcalf is delusional and threat to others because he does not have a good grasp of reality. This undercurrent was actively promoted in the affidavit in support of criminal complaint, where a couple of Billings Police officers offered their opinions that Gabriel Metcalf was "mental" because he refused to bow down and do what they told him. Gabriel Metcalf insisted on exercising his rights. 

Gabriel Metcalf has no criminal history. Gabriel Metcalf has no history of violence.

Metcalf has been in federal lockup at the Yellowstone County Detention Facility in Billings, Montana for 19 days as of this writing (September 9). His court appointed federal defense attorney, Russel Hart, has filed a motion for a Detention Hearing, which would bring new evidence before Judge Cavan. The motion lists new material as "Professional Observations" of Gabriel Metcalf which are under seal.  It is likely these are a personality evaluation. It is almost certain those observations show Gabriel Metcalf to have an excellent grasp on reality, and his actions were reasonable given verified facts.

This is no surprise to those who have been following the case on AmmoLand.  Believing the possession of a firearm is necessary to the protection of himself and his mother is supported by the police record of complaints against David Lee Carpenter and associates, and the criminal convictions of David Lee Carpenter. Carpenter is still under an active order of protection, and is currently out on bond, facing another trial some time in the future. 

"Chasing automobiles" to obtain evidence of violations of the order of protection, when told by police the only way they could enforce the order of protection was with evidence, is eminently reasonable.

Montana law and case law surrounding the Gun Free School Zone Act (GFSZA) supports a reasonable belief the GFSZA is unconstitutional, and that Gabriel meets the requirement for an exception in the law.

According to the Motion for Detention Hearing, the AUSA objects to setting a detention hearing. 

Steps forward are these, based on procedures  found at

Obtain the detention hearing from Magistrate Judge Cavan. If Judge Cavan refuses,

File a motion for repeal of the order of detention to the District Court.  If the District Court rules against you, 

File a motion for repeal of the order of detention to the Circuit Court of Appeals, (Ninth Circuit).

Freeing Gabriel from the federal lockup is the first step toward an effective defense. Keeping a person in detention is a prosecution tactic. It is harder to mount a legal defense while locked up. It is why the Eighth Amendment bans excessive bail.

Prisoners are more likely to accept a plea bargain if they are locked up. They see they could as easily be serving a prison term, and be released quicker; they know time in jail is harder time than time in federal prison. Pre-trial detention or the inability to make bond is one of the reasons 90% of federal defendants plead guilty. 

Gabriel and his mother, Vivian are poor as church mice, but they value their constitutional rights.

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.

Gun Watch

1 comment:

Anonymous said...

As with the case of Kyle Rittenhouse, Gabriel Metcalf is being Persecuted, not Prosecuted.
This is so very wrong.