DOJ Considers Appeal in Montana GFSZ (Metcalf) Case

In the Billings Montana Gun Free School Zone (GFSZ) case of Gabriel Metcalf, the Ninth Circuit Court of Appeals three judge panel published a split decision which struck down the indictment of Gabriel Metcalf. Thomas K. Godfrey, the Assistant U.S. Attorney who has been prosecuting the case, has filed a petition asking for an additional 45 days to consider whether a petition for rehearing will be filed. A petition for rehearing would ask for the original three judge panel to rehear the case.

The United States of America moves the Court for an extension in which to file its petition for rehearing in this case. Rule 40 of the Federal Rules of Appellate Procedure specifies that a petition for rehearing must be filed within 14 days from the entry of judgment. Currently, the United States must submit any petition for rehearing on or before October 7, 2025.

The Solicitor General is still reviewing this matter and requires an additional 45 days to complete his review to determine whether a petition for rehearing will be sought.

If the Court grants this motion, the United States’ petition for rehearing would be due on or before November 21, 2025.

The United States has contacted Russell Hart, counsel for Metcalf. He advised that he does not oppose this motion.

Metcalf is currently in not in custody.

Metcalf has not opposed the petition. A rehearing could bring the issue of whether the Gun Free School Zone act violates the rights protected by the Second Amendment back to life in this case.  The reason given for the extension is to give the Solicitor General time to study the case and make a decision. The Solicitor General of the United States is D. John Sauer. Mark W. Smith, on his Youtube channel, the Four Boxes Diner, sings the praises of Solicitor General Sauer as a strong originalist and a proponent of the Second Amendment.

This correspondent has argued the Billings Montana GFSZ act case is an excellent vehicle to challenge the constitutionality of the GFSZ. The potential challenge has been complicated by considering the implications of the Rahaif decision in the case.

If the Solicitor General decides to petition the three judge panel to rehear the case, the path forward becomes a bit complicated. Here is link to a chart of the process for a rehearing petition provided by Michellawyers.com. The process can take considerable time. The three judge panel can decide to hear the case or not to hear the case. If they choose not to hear the case, the prosecution can ask for a hearing en banc. If the Ninth Circuit does not grant an en banc hearing, the prosecution can appeal the case to the Supreme Court. The Supreme Court has considerable discretion. They could decide to grant cert to hear the case; they could hear it on the narrow question of if the Rahaif decision applies; they might even be decide to hear it on the question of the constitutionality of the GFSZ act. If the Solicitor General asks the Supreme Court to hear a case, the possibility of the Supreme Court granting cert jumps up enormously. The Solicitor General reasonably has to consider all these implications before deciding whether or not to petition the three judge panel for a rehearing.

Unfortunately, Gabriel Metcalf and his mother, Vivian, will continue to be punished by process while this case is ongoing. One of the reasons Gabriel has undergone the many difficulties has been to challenge the Constitutionality of the GFSZ act. This correspondent has spoken to Gabriel. He is a strong proponent of Second Amendment rights.

Gabriel’s mother, Vivian has set up a GiveSendGo site for donations to help the family. Gabriel Metcalf and his mother are poor as church mice. The hardship of continuing this case has been very difficult for them. If you are willing to help out, here is a link to the GiveSendGo site.

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

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