Update on Gun Free School Zone Metcalf Case on Appeal in Ninth Circuit

Vivian and Gabriel’s modest home in Billings, Montana

The challenge to the Gun Free School Zone (GFSZ) case from Billings Montana, involving Gabriel Metcalf, has an interesting twist in 2025. The judges in the case asked the attorneys on both sides to present briefs addressing the impact on the case of Rehaif v. United States, 2019. Rehaif established a precedent that, in order to be found guilty, the defendant had to know he belonged to a category which was barred from possessing a firearm, as that was one of the elements of the crime.

As mentioned in previous articles, Gabriel Metcalf was repeatedly told he was not violating the law by local officials. He believed the GFSZ statute was unconstitutional.  The day before Gabriel was arrested, Billings Police Department Lt. Matt Lennick indicated the local police did not have any authority to arrest Gabriel, so they had contacted federal authorities to see what they could do. From the bozemandailychronicle.com:

While the man was not breaking any state laws in doing so, Lennick said, BPD increased their patrols in the area surrounding the school. Police also contacted federal agencies for assistance with the situation.

The briefs on the applicability of Rehaif were filed with the Court on June 30, 2025.  The Federal Defender, argues, it is only simple justice for the appellate court to consider Gabriel Metcalf believed he was not breaking the law. The issue of local officials telling him he was not breaking the law was not allowed at trial by the presiding judge. From the defense brief for the Appellant:

The law in 2023 told Metcalf his right to act as he did was enshrined in the United States Constitution and statutorily protected by the law of his eventual conviction. Given the District Court’s Order concerning Montana’s §922(q)(B)(ii)-specific licensing law, Gabriel Metcalf has been convicted of violating the Act under circumstances from which no citizen could have ascertained his conduct to be unlawful. This is an error, it is clear from review of the record (ER_21-59), it affected Metcalf’s substantial rights, and such a conviction will negatively impact the fairness of his judicial proceedings in violation of the Rehaif principle by sustaining a conviction obtained where absence of criminal intent is a matter of law.

(snip)

This was evident on March 25, 2024, when Metcalf and the United States met at the District Court for his trial. During the pretrial conference, the United States addressed its motion in limine that sought to prevent a “defense of entrapment by estoppel” by asking “state witnesses whether they told the defendant he was in violation of state law or not, or the fact he was not in violation of state law”. ER_22. The defense argued that fact and those statements were relevant to Metcalf’s mental state concerning whether he knew “or had reasonable cause to believe” he was in a federal school zone. ER_23. The United States responded that it was not required to prove Metcalf knew his actions were unlawful under federal law. Id. The Court granted the Government’s motion. Id.

(snip)

“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Rule 52(b), F.R.Crim.P. The record shows “(1) there was an error, (2) the error is clear or obvious, (3) the error affected [Metcalf’s] substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings”.

When Gabriel accepted the plea deal from the prosecution, part of the deal was he could appeal only the decision on the motion to dismiss the case made by the trial Judge. The motion involved two issues, whether Gabriel was exempted from the GFSZ act by Montana law and whether the GFSZ act was unconstitutional. The Rehaif case was not mentioned. The Appellee, the USA, argues the Appeals court should not use any information or issues outside of what was agreed to in the plea deal. From the brief for the Appellee, USA, by the Federal Attorney for Montana:

It is not disputed that Gabriel Metcalf had the mental state required to meet the material elements of 18 U.S.C. § 922(q)(2)(A): he knew he possessed a firearm in a place he knew or had reasonable cause to believe was a school zone.1 Metcalf agreed with the United States with respect to the elements of the offense in the plea agreement and the plea colloquy and, indeed, offered the same elements in his proposed jury instructions. And, in exchange for a benefit from the government, Metcalf waived his right to appeal any argument that his conduct did not fall within the statute of conviction.

Analysis: Appeals courts seldom go outside of what they are presented with. They can make exceptions in exceptional cases. The three judge panel is considering if Rehaif is relevant. Using Rehaif to remand the case allows them to avoid ruling on whether the GFSZ act is unconstitutional. A general rule for courts is, if they can resolve the case on other grounds before ruling on the constitutionality of the law, they should do so.

The conduct of the prosecution in this case has been reprehensible. The case should never have been prosecuted. Gabriel was held for over a month, without bail, based on dubious claims by the prosecution. His mental condition has been repeatedly smeared. He has had to undergo two years of probation, at considerable expense, for exercising his rights after he was told he had those rights under Montana law. He has been prosecuted and punished under local law in what appears to be retribution for exercising his rights. The Billings Police and local court system have a reputation for lack of concern for defendants legal rights.

Remanding the case on the grounds of Rehaif removes the probability the GFSZ act would be found to be unconstitutional under the Second Amendment.  It is unlikely the federal government would appeal such a ruling to a higher court. This case has been the best test case to once again rule the GFSZ act to be unconstitutional.  If the three judge panel remands the case back to the Federal District Court in Montana, the case is likely be dismissed. An outright dismissal of the case would mean Gabriel’s Second Amendment rights would be restored, as if he had not been prosecuted.  

This would not make him whole. He has been punished by the process.

It may be possible to bring a civil case based on the experience of Gabriel Metcalf.  The plea agreement contains a barrier to a civil case. The barrier might be overcome by the use of Rehaif. Civil lawsuits are expensive. Gabriel Metcalf and his mother are poor as church mice.

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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