Gun Free School Zone Case Continues, Metcalf Trial Date Set


gun free zone iStock-Elisank79 1432356580
Federal Gun Free School Zone Case Detention Hearing Today, gun free zone iStock-Elisank79 1432356580

In the ongoing Gun Free School Zone Act (GFSZ) case in Billings, Montana, the trial date is currently set for March 25, 2024. The process is a long and difficult one for Gabriel Metcalf and his mother, Vivian. Because this is a criminal, not a civil, case. Gabriel’s freedom is at risk. The current judge,  Federal District Judge Susan P. Watters, has ruled the GFSZ to be constitutional, and the Montana Establishment of Individual Licensure law is insufficient to be an exception to the GFSZ.

Going through the process of a challenge to the constitutionality of a criminal charge is much more difficult and punishing than challenging the law through a civil lawsuit. Typically, in a civil lawsuit, the risk of those bringing the case is to their finances. If they lose, they will lose the money they have put into the case. Federal civil rights cases are expensive. However, if you win, you are likely to have your legal fees paid by the government.  When you are charged with a crime and challenge it on constitutional grounds, your freedom and assets are both at risk. If you lose, you can be imprisoned and fined.

In the Gabriel Metcalf case, Judge Susan P. Watters cut off appeals until the case was decided by ruling the law to be constitutional. An appeal will only be possible if Gabriel is found guilty. He will have to undergo a trial and be found guilty before an appeal of the law to a higher court is possible.  In a civil case, the case can be stayed pending an appeal. It is this correspondent’s understanding this is not allowed in a criminal case, once the trial judge has ruled the law is valid.

There is a possibility the serving of the sentence could be stayed until the appeal process is completed. This is sometimes granted if the sentence is likely to be finished before the appeal is adjudicated.

In this case, the prosecution has asked for a ban on constitutional arguments before the jury because the judge has already ruled the law constitutionally valid. This request was granted by the judge. This is common in such cases. The prosecution also asked that a defense based on a belief the action was not criminal because of local law (entrapment by estoppel) be banned. Judge Watters did not grant the request at this time, reserving her power to do so at a later time.

On the defense side, Gabriel Metcalf’s federal defender, Russel Hart, filed a motion to preclude the prosecution from alluding to Metcalf’s mental health. The Government had previously smeared Metcalf with assertions by officers and in the media that Metcalf was acting irrationally.  Hart claimed such opinions were prejudicial, unsupported, and irrelevant to the case. Judge Watters granted the request.

Outside of court, the ATF has denied Gabriel’s mother, Vivian’s petition to stop the forfeiture action of the Rossi single-shot shotgun, which was seized when a search warrant was served on the home of Vivian and Gabriel. Neither Vivian nor Gabriel has been convicted of a crime.

This is a criminal forfeiture case under 18 U.S.C. 924 (d).  This is not a civil forfeiture action. According to 18 U.S. Code § 924 (d), if the owner of the firearm is acquitted, the firearm will be returned to the owner. From the code:

Provided, That upon acquittal of the owner or possessor, or dismissal of the charges against him other than upon motion of the Government prior to trial, or lapse of or court termination of the restraining order to which he is subject, the seized or relinquished firearms or ammunition shall be returned forthwith to the owner or possessor or to a person delegated by the owner or possessor unless the return of the firearms or ammunition would place the owner or possessor or his delegate in violation of law.  Any action or proceeding for the forfeiture of firearms or ammunition shall be commenced within one hundred and twenty days of such seizure.

Gabriel’s mother, Vivian, has set up a GiveSendGo account to aid in the defense of Vivian and Gabriel’s modest home and to meet expenses during the ongoing legal battles.  As part of the legal struggles, they have been successful in having Gabriel released from the county jail and in having a GPS ankle bracelet removed.

There is enormous stress in such a situation, where Gabriel believes, quite reasonably, that he did nothing wrong but now faces up to ten years in prison.  The punishment by process continues.


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 WeingartenDean Weingarten


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