On January 31st, Federal District Court Judge Susan Pamela Watters held that there is no right to keep and bear arms within 1,000 feet of every public and private school. And so it should come as no surprise to you that in an order she issued last Monday, she has forbidden Gabriel Metcalf’s Federal public defender from telling the jury that his client has the right to keep and bear arms within 1,000 feet of a school (“school” includes the grounds of the school even if that school is a one-room schoolhouse setting on a square mile section of land).
Mr. Metcalf lives within 1,000 feet of a school and was arrested and prosecuted for openly carrying a single-shot shotgun outside of his home in defense of himself and his mother against a reported gang member against whom they had a restraining order. Unfortunately, Mr. Metcalf, like most Americans, is naive when it comes to government. The local police would not enforce the restraining order and so Mr. Metcalf contacted the Federal government for help.
An exception to the Federal Gun-Free School Zone Act of 1995 is if one has been “licensed” to carry a firearm pursuant to a state background act. In response to the Federal Gun-Free School Zone Act of 1995, the State of Montana enacted legislation to protect its residents, like Mr. Metcalf, from prosecution should they carry a firearm in a Federal gun-free school zone. Mr. Metcalf was licensed to carry his firearm within 1,000 feet of every public and private school by the State of Montana but Judge Watters invalidated that state licensing law.
From her perspective, Judge Watter had to invalidate the state law because if the Montana law licensed Mr. Metcalf then no crime was committed and Judge Watters could not have held that the Second Amendment does not protect the keeping and bearing of arms within 1,000 feet of every public and private K-12 school.
Judge Watters reserved a decision on whether or not Mr. Metcalf will be allowed to raise a defense of “Entrapment by Estoppel” which is a high bar for a defendant to overcome. Not so much evidentiary but procedurally, and of course because of a hostile trial court judge. It is an affirmative defense which means that juries are supposed to be the ones who decide whether or not the defendant has met his burden. But if the trial judge refuses to instruct the jury to consider an entrapment by estoppel defense then the jury, the members of which have no idea that such a thing even exists, won’t be able to acquit him on those grounds and there really isn’t anything the defendant can do other than to object. And forget about your typical juror knowing anything about jury nullification.
Mr. Metcalf does not have to present evidence beyond a reasonable doubt in his defense. His threshold is a “preponderance” of the evidence. That threshold is met by the defendant proving to the jury that his evidence is more convincing than the government’s by the tiniest amount. Judges have likened the meaning of preponderance of the evidence by placing the figurative weight of the evidence on the sides of a scale. If the defendant’s side of the scale weighs more than the prosecution’s side by the weight of the smallest feather the jury can imagine then the defendant has met his threshold of proof,
But Mr. Metcalf is before a renegade judge. Assuming that his public defender overcomes all of the procedural obstacles necessary to present the evidence for the defense of entrapment by estoppel in the first place, he could have a mountain more evidence on his side than the government and Judge Watters will still refuse to include the Entrapment by Estoppel instructions to the jury.
And if Mr. Metcalf fails to object on time or if his objection does not comply with the myriad of constraints judges have imposed on the timing, form, and content of the objection then should Mr. Metcalf appeal his inevitable conviction to the 9th Circuit Court of Appeals the standard of review would be what is called “plain error review.”
Defendants rarely succeed when faced with the plain error standard of review.
Judge Watters is a Federal Judge today because President Obama nominated her, and because neither then Democrat Senators Max Baucus nor Jon Tester blocked a vote on her confirmation, and because: Her nomination was reported by the Senate Judiciary Committee on September 19, 2013, cloture was invoked on her nomination on December 12, 2013, by a 58–39 vote, she was confirmed later that day by a 77–19 vote.
Likewise, Jesse Laslovich, the United States Attorney for the District of Montana (the one who decides who gets prosecuted and for what) could have been blocked by either Montana Senator Jon Tester or Steve Daines from ever being appointed.
But if you boil it down to why she is a Federal judge for the District of Montana, the blame lies entirely with the American voters, particularly the Montana voters.
If Mr. Metcalf takes a plea bargain (or for any other reason) then his motion to change his plea is due by 3/11/2024. His pretrial conference is set for 3/25/2024 at 08:30 AM in Billings, MT before Judge Susan P. Watters. The jury trial is set for 3/25/2024 at 09:00 AM in Billings, MT before Judge Susan P. Watters. Keep an eye on the docket link at the bottom of this article for any change of schedule.
Courtroom proceedings are open to the public. If you plan on attending then feel free to invite Senators Tester and Daines, as well as Congressmen Ryan Zinke and Matt Rosendale to join you. Invite them even if you don’t plan on attending. Either Tester of Daines can subpoena Judge Watters and US Attorney Laslovich to explain themselves before a Senate committee and either Zinke or Rosendale can subpoena them to explain themselves before a House of Representatives committee.
And any one of them as well as any member of Congress can seek to defund Watters and Laslovich, censure them, and/or impeach them.
And just for laughs, invite the National Rifle Association Field Representative for Montana, Joe Crismore, to attend. His email is jcrismore@nrahq.org. Invite as well the head and/or representative of your favorite “gun rights” organization to attend the hearing and trial.
Here is the US v. Metcalf CourtListener docket link.