Billings Man Arrested Under GFSZ Act

[steve4102]

A Billings man was arrested for possession of a firearm within a school zone. Apparently he lives across the street from a school and was walking up and down the sidewalk carrying a firearm off and on for days before the ATF showed up and arrested him.

Details here.

https://www.kulr8.com/news/billings...cle_bd1028ec-40a1-11ee-ac24-bb6e2a414da5.html

I have a couple questions about the GFSZ Act.

Does the firearm have to be loaded, I have read yes, and I have read no?

What about discharging a firearm in Self Defence on public property within a school zone?

This is what it says.

(3)
(A)Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.


In a Self Defense shooting, the shooting knows he/she is discharging the firearm.?

 

[steve4102]

One more question, how is the GFSZ Act affected in States that have passed Constitutional/Permit less Carry?

 

[ligonierbill]

Well, in Ohio at least, you can have a gun in your car in a school zone if you have a CHL. Has to stay in the car, though. No CHL, no gun in a school zone, even though we now have constitutional carry.

 

[HiBC]

Before forming an opinion,its worth reading the article.

Despite the Police suggesting he exercise some discretion,over the course of weeks, he insists on parading on the public sidewalk across the street from an elementary school while openly armed.

Sure,we can take either side and argue.

IMO, this guy is not helping RTKBA. He is inspiring more restrictive laws.

We have to use our heads. Cause Parents to fear for their kids they will take action.

 

[Pahoo]

"Loose lips; Sinks ships"

Apparently he lives across the street from a school and was walking up and down the sidewalk carrying a firearm off and on for days before the ATF showed up and arrested him.

The report states that "he" was clearly displaying a firearm and in violation of the law. In short, common sense is not so common. I hope for his sake that the judge, cuts his some slack. .....

We have a local citizen that routinely, open-carries a holstered single action colt. He's legal and a nice guy but not very prudent. ......

Be Safe !!!

 

[ballardw]

I find the local police statement (extract)

We receive multiple calls a day on this individual. We have had contact with him on multiple occasions, and currently he is refusing to stop displaying his firearms while on his property.

Maybe a bit different than the BATF arrest bit

, walking on the sidewalk and around the area carrying a firearm.

possibly of interest.

Maybe not a good idea but if he never left his property there might be something in the manner of a civil protest. Maybe he read a bit into the Bruen decision that hasn't been considered/discussed much yet.

 

[steve4102]

. Before forming an opinion,its worth reading the article.

Despite the Police suggesting he exercise some discretion,over the course of weeks, he insists on parading on the public sidewalk across the street from an elementary school while openly armed.

Sure,we can take either side and argue.

IMO, this guy is not helping RTKBA. He is inspiring more restrictive laws.

We have to use our heads. Cause Parents to fear for their kids they will take action.

Unless he wanted to get arrested in an effort to fight the GFSZ Act in court in order to have it ruled Unconstitutional.

 

[44 AMP]

Lots of points to consider. The first, and biggest one is the fact that news reports and articles, both internet and local may not contain ALL the relevent facts.

Leaving aside, for the moment whether or not his actions were in good taste or how they reflect on lawful gun ownership (which are their own questions) let's just look at whether or not he was actually violating any laws.

He's on his own property....He's on the sidewalk across the street from a school...is he on public or private property under the law???

Apparently he's within the statute distance of "gun free zone" but does that apply on his own private property??

Was he intentionally violating the gun free school zone as an act of public protest? Or, was he simply exercising his Contitutionally enumerated right to bear arms (and, on his own property) ???

Is private property surrounding a residence legally the same as inside the residence?? Is this a situation where one can have guns inside one's home, but step outside the door and you're breaking various laws???

In cases like this, the DETAILS of the law(s) matter a lot. The wording, and how it is applied matters in subtle and not so subtle ways.

That information is not found in headline news articles. It is not found in statements from the local police or from the ATF or any talking head opinion pundit. Some details might be, ALL are almost never there, and it is all the details, taken together that matter.

Discharging a firearm in self defense in a school zone??? The law may not address that well, since, you're not supposed to have a firearm in a school zone in the first place.

Keep an eye on the case and do note not just what he was arrested for, but what he gets actually charged with and what, if anything he gets convicted of...

It might be the court finds him guilty of something. It might also be that while arrested and charged the court tosses the case out, because he was on his own private property. Either or something in between is possible and the news is not a reliable source for sufficient information to determine the truth.

The court might not be, either, but that's our system, and there is an appeals process built in.

 

[Aguila Blanca]

We should probably begin by referring to the actual law. It's found at 18 U.S.C. 922(q)

So, what does it say? Well, subparagraph (2)(B)(i) rather clearly and unambiguously says:

(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;

So, if he was actually on his own property, the law does not apply and the BATFE made a false arrest.

The question hinges on whether the sidewalk in front of his house runs across his property or is withing the public street right-of-way. If the sidewalk is on his property, see above. If the sidewalk is within the public right-of-way, then we have to look deeper. The GFSZ Act applies to guns that have moved in interstate commerce in a school zone:

(2)(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

According to the article:

The sidewalk and streets in front of Metcalf’s residence are public property within 1,000 feet from the school and are a “school zone” as defined in federal statutes.

He screwed himself.

Does the firearm have to be loaded, I have read yes, and I have read no?

The exemption for unloaded firearms is two-pronged:

(2)(B) Subparagraph (A) does not apply to the possession of a firearm—
...
(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;

In other words, basically the same criteria that apply to transportation under the FOPA.

What about discharging a firearm in Self Defence on public property within a school zone?

The law says what the law says. It is unlawful to discharge a firearm in a GFSZ. However, subparagraph (3)(B)(i) has the same exception as above for "on private property." So, unless done recklessly, someone who lives within a GFSZ can plink in their own yard without violating the law. On public property, there is no exception for self-defense. The likelihood of someone being prosecuted under the GFSZ Act for a thoroughly righteous self-defense shooting is probably small, but one cannot count on the feral government being fair, sane, or logical.


I have commented many times in other discussions that the federal GFSZA is a trap for unwary gun owners. This becomes more the case as more states enact permitless carry. Why? Because the GFSZ Act has an exemption for people who have a license issued by the state in which the school zone is located. This means that even residents of the state where the school is located are NOT allowed to possess a firearm within a school zone unless they get a carry license. People who travel from their home state into states that recognize their home state license and who DON'T get a license from the other state are not protected by reciprocity. The GFSZA is clear and explicit that the license must be issued by the state in which the school zone is located.

This is why I have half a dozen non-resident permits -- most are from states that are now permitless carry states, but they have schools in them. Getting permits and renewing every few years is a lot cheaper than paying a lawyer if I were to find myself arrested under the GFSZA.

 

[44 AMP]

a firearm that has moved in or that otherwise affects interstate or foreign commerce

This is boilerplate to cover all firearms commercially sold. Otherwise meaningless, I think.

According to the article:

Quote:
The sidewalk and streets in front of Metcalf’s residence are public property within 1,000 feet from the school and are a “school zone” as defined in federal statutes.

"According to the article.....
The article may, or may not have it legally correct. The author may simply be assuming that since it is a "public sidewalk" it is in fact, public property, and this is not the case, everywhere.

A "public sidewalk" can be on your private property. You are required to allow it, often required to pay for it, and allow public access, but it can still be legally your property. This creates a legal issue about which has precedence, the land that you pay taxes on where the sidewalk is, being your property, vs public domain. Local laws & ordinances can create a twisted situation, and I don't think there is a valid blanket statement covering all possible outcomes.

Look carefully at the laws, and particularly the parts about school property and private property and the boundaries of the gun free school zone.

Again, the details that matter are not clear from the news reports.

 

[Aguila Blanca]

a firearm that has moved in or that otherwise affects interstate or foreign commerce

This is boilerplate to cover all firearms commercially sold. Otherwise meaningless, I think.

It is boilerplate, I agree ... but it's far from meaningless. This particular boilerplate is how our Congress manages to justify enacting laws that the federal government properly has no business adopting. Without that bit of boilerplate, the GFSZA could not exist. In fact, the original version was declared unconstitutional and void over precesely that issue.

"According to the article.....
The article may, or may not have it legally correct. The author may simply be assuming that since it is a "public sidewalk" it is in fact, public property, and this is not the case, everywhere.

But it's not the author of the article who asserts that the sidewalk is public property, it's the charging document filed by the federal government. The man wasn't arrested by the Billings police department, he was arrested by federal agents. It's unlikely that the feds would have made the arrest if the case was so flimsy that all the guy would have to do to beat it is to show that he owns the land under the sidewalk.

Did you know that for much of the United States, the map view of Google Maps shows property lines? By looking up an address and flipping back and forth between the map view and the satellite view, you can see what physical elements are and aren't on a piece of property. Look up 430 Broadwater Ave in Billings. You'll see that the sidewalk and a third to a half of the front lawn are in the public right-of-way.

The guy might have thought he owns the sidewalk. If so, he is wrong. That **might** give him a defense based on the "knowingly" provision in the law, but the basic fact is that he was carrying a firearm where the law says you can't carry a firearm.

He might also beat the charge if he has a carry permit issued by the State of Montana. Montana is a permitless carry state. My guess is that he doesn't have a permit.

[Edit to add] Billings' official GIS shows the property line closer to the street, but the sidewalk is still in the right-of-way:
https://city-of-billings-map-librar...apps/fda8d0c2bb094e27b942987295f358ec/explore

 

[44 AMP]

It's unlikely that the feds would have made the arrest if the case was so flimsy that all the guy would have to do to beat it is to show that he owns the land under the sidewalk.

You have more faith in the accuracy and due diligence of the Feds than I do.

Also. internet maps are not 100% correct and even some "official" maps are not.

Internet satellite photos do show my house, but the map from the same people has the location wrong by several hundred yards (over 1/4 mile!!)

also, having paid over a grand a few years ago to have my property surveyed and CORRECTLY recorded in the county tax books, I can assure you that the general maps showing property lines and boundaries are often not 100% accurate.

So, I assume that since the Feds arrested the guy, he's going to be tried in Federal court???

That's going to be interesting.....

and yes, I completely agree the entire "gun free school zone" is bad law.

 

[JohnKSa]

Sidewalks are generally considered to be public property. I can't find a specific cite in MT law, but I can for other states.

If he had stayed on his own private property, he would have been ok. On public property, the federal GFSZ law applies.

The law is a federal law so he will be prosecuted in federal court, as the article states.

He might also beat the charge if he has a carry permit issued by the State of Montana. Montana is a permitless carry state. My guess is that he doesn't have a permit.

This is a VERY important point that many people don't understand.

The federal GFSZ has an exclusion for qualifying carry permits issued by the state in which the offense takes place.

While it may be legal under STATE law to carry without a permit, and it may be legal to carry with an out of state permit, that will not satisfy the exclusion in the GFSZ.

People carrying without a permit, or people carrying with an out of state license need to avoid the federally defined school zones.

 

[Aguila Blanca]

This is a VERY important point that many people don't understand.

Which is why I periodically mention it.

The federal GFSZ has an exclusion for qualifying carry permits issued by the state in which the offense takes place.

While it may be legal under STATE law to carry without a permit, and it may be legal to carry with an out of state permit, that will not satisfy the exclusion in the GFSZ.

People carrying without a permit, or people carrying with an out of state license need to avoid the federally defined school zones.

In some cities, avoiding all the GFSZs is virtually impossible. The way the law is written, it includes public schools, private schools, parochial schools, nursery schools, and probably several other categories I'm overlooking.

Here's San Francisco, for example:

(Source: www.gunlaws.com -- used by permission, although they took it from the City of San Francisco, so it's not like they can actually claim any sort of infringement if I didn't give them credit)

It's also important to understand that the 1,000-foot radius extends outward from the boundaries of the school property, not from the school building. If the school is surrounded by a large campus and maybe several athletic fields, that can make a significant difference.

 

[JohnKSa]

It makes legal carry almost impossible without a qualifying state issued permit.

Nursery schools/daycares are not included. Here's the definition from federal law.

"The term school means a school which provides elementary or secondary education." That would include K-12, but not pre-K, nursery schools or daycares.

That still accounts for a lot of space in a typical city.

 

[Nathan]

I would suggest he get a hold of a good RKBA lawyer and MSSA soon.

 

[Aguila Blanca]

Nursery schools/daycares are not included. Here's the definition from federal law.

"The term school means a school which provides elementary or secondary education." That would include K-12, but not pre-K, nursery schools or daycares.

You're right -- I looked up the definition after I posted, but I forgot to come back to edit my post. Day care is not included. Pre-K schools, however, could be included if they are actually teaching, not just babysitting.

Private and religious elementary and secondary schools are included, but Sunday schools would appear not to be included.

The result is that trying to stay in strict conformity with the law for someone who doesn't have a carry permit issued by the state would be like trying to thread your way through a minefield.

 

[JohnKSa]

I don't have solid cites to support this, but it's very likely that if a home school registers as an official private school they would fall under this law.

Some states (e.g. KS) require that home schools register as a private school, in other states, doing so can be advantageous.

 

[44 AMP]

but it's very likely that if a home school registers as an official private school they would fall under this law.

SO, does that mean that if you decide to home school your own children, that you're possibly breaking Federal law if you also have guns in your home??

Would you be safe if you had a state issued permit??

how does that square with our rights, both as citizens and as parents???

ok, sure, the simple answer would be not to register as a school, but doing that doesn't resolve the apparent issue, does it?

 

[JohnKSa]

I don't know. It looks like a mess to me. I would definitely want to pay someone for an expert legal opinion if I were in that situation.

Another fun fact. The federal law against discharging a firearm within a federal gun free school zone does not appear to have an exception for lawful self-defense.

Here are the only exceptions for discharging a firearm in a federal gun free school zone.

(i) on private property not part of school grounds;

(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;

(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or

(iv) by a law enforcement officer acting in his or her official capacity.​