September 25, 2023
Lawmakers in at least three state capitals are considering laws to repeal state preemption statutes.
No Bail in Non-Violent Gun Free School Zone Case in Montana

On Wednesday, August 23, 2023, Gabriel Cowan Metcalf was arrested at his home. Federal agents of the ATF arrested Metcalf for possessing a firearm in a federal Gun Free School Zone in Billings, Montana.  Gabriel Metcalf had a Rossi single-shot break action 20 gauge shotgun in a scabbard on his lawn mower. A search warrant was executed during the arrest. The warrant shows the agents also seized six rounds of ammunition and a Samsung phone.

Billings police had several contacts with Metcalf prior to the arrest by federal agents. It has been reported Billings police stated he was not breaking any state law. From

“We have made contact with him on multiple occasions, and currently he is refusing to stop displaying his firearms while on his property,” said police Lt. Matt Lennick. “At this time, he has not done anything illegal and we do not have the authority to arrest him, take his firearms, or force him to stop coming out into his yard.”

Metcalf has stated he does not have mental problems, does not use drugs, and believes he was protecting himself and his loved ones.  He has stated he is not a danger to other people or the children at the school. The Billings police did not attempt to have him evaluated for any mental condition. This correspondent has not had contact with Metcalf or his court-assigned attorney.

The prosecution asked for a pretrial detention order. Pretrial detention is an unusual condition. No bail is set.

The defendant is locked up until his trial is over; in the case of a constitutional challenge, this could take years. Magistrate Judge Timothy J. Cavan granted the Order of Detention for Gabriel Metcalf. The only reason checked on the order of detention pending trial form is a box for “History of Violence or Use of Weapons.” This is the first order of detention this correspondent has seen that cites this reason for pretrial detention. The defendant believes he has a right to keep and bear arms and the federal Gun Free School Zone Act is unconstitutional. From the Order of Detention, pending trial:

Explanation for Order of Detention Pending Trial:

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.

This correspondent has not found any history of violence for Gabriel Metcalf. His “use of weapons” appears to be the simple carry of a single-shot shotgun without any threats or assaults associated with the carry.  In a previous article, this correspondent speculated about the possibility of the prosecution attempting to punish Gabriel Metcalf by asking for exorbitant bail.

The US Attorney may try to punish Metcalf with the process, for example asking for exorbitant bail, and trying to keep him locked up while the case is ongoing, pushing for a plea deal.

The detention order goes far beyond exorbitant bail. It precludes any bail at all. Kyle Rittenhouse killed two people and wounded another in self-defense in Kenosha, Wisconsin, and had bail set at two million dollars. The Billings Police were unable to find a legal reason to arrest Gabriel Metcalf. If he had assaulted anyone or threatened anyone, such as pointing a firearm at them, he would be subject to arrest.  The Billings Police asked the ATF to investigate Gabriel Metcalf because the Billings Police had no reason to arrest him.

Much remains unclear at this time. The Billings Police had flagged the person Gabriel Metcalf said he was defending against, David Carpenter. The police hesitated to talk to David Carpenter in person for safety reasons, so they used phone interviews to investigate.

The ATF has seized Gabriel’s single-shot shotgun and his six cartridges. It appears he does not have the means to purchase another firearm. As he is under indictment, he is precluded from legally purchasing another firearm. Yet Judge Cavan writes it is unlikely Gabriel Metcalf would abide by a requirement to not possess firearms during his release, quote:

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.

Gabriel’s public defender may appeal this decision to hold him without bail until trial. Federal courts have ruled a person can be held without bail for an “important government interest”.  If the belief the Second Amendment protects a person’s right to keep and bear arms in public places is one of the conditions for pretrial detention, the fabric of the Bill of Rights is at risk.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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