Sent on the letterhead of the Montana Shooting Sports Association
(Update, november 6, 2007 - no reply yet from the AG.)
September 24, 2007
The Honorable Mike McGrath
Attorney General of Montana
Justice Building
215 N. Sanders
Helena, Montana 59620
Dear Mike,
Greetings from Missoula.
This letter ends with a request for action on your part. Please read it through.
In the past ten years, I have graduated 1,406 Montanans from firearms
safety classes that generate a credential allowing these students to
apply for a Montana concealed weapon permit (CWP) pursuant to
45-8-321(3) M.C.A.
In all of these classes, I have addressed how a person with a CWP and
carrying a firearm should act if stopped by a law enforcement
officer. I tell my students that law enforcement personnel have
sufficiently stressful lives, and that a legal gun carrier should try
to avoid adding to that stress. As a courtesy to the officer, I
say to my students, the person stopped should offer the officer his or
her CWP credential as the least stressful way to cue the officer both that the person has a firearm, and
that the person is a sheriff-certified "good guy," having paid to get a
background check and personal references checked, and having completed
the requisite firearms safety training.
I tell my students that law enforcement officers are supposed to be
trained to assume that everyone they stop has a firearm, and that they
should expect to see the officer relax when presented with the CWP
credential, because the officer will know that a CWP-holder is no
threat at all. This, I tell my students, is the kindest and most
gentle way to interact with officers when exercising a CWP.
However, it seems this courtesy is not being reciprocated.
Three different people have contacted me in the past two months to say
that when they showed a Montana Highway Patrol (MHP) officer their CWP,
the officer immediately demanded that they surrender their firearm into
the officer's possession - that they be disarmed, stripped of their
constitutional rights however briefly.
In the most recent case the person stopped was a perfectly respectable
physician and an MSSA member who was stopped in Lake County because he
had a taillight out.
There were no extenuating circumstances such as speeding, erratic
driving, suspicion of alcohol or drugs, or anything similar to offer
the officer probable cause to suspect the man stopped was likely to be
a threat to the officer or to others. Although this incident
occurred outside the limits of any city or town where a CWP is not
required for concealed carry, the motorist proffered his CWP credential
as a courtesy to the officer. The officer responded to that
courtesy by treating the citizen like a criminal and violating the
motorist's constitutional rights.
In Montana, the right of every person to bear arms shall not be called
into question (M.C., Article II, Section 12). Montanans are also
constitutionally protected from unreasonable search and seizure (M.C.,
Article II, Section 11), and their individual dignity is inviolable
(M.C., Article II, Section 4).
When the motorist asked the Highway Patrolman to specify under what
authority he demanded the surrender of the motorist's firearm, the
Patrolman informed the motorist that it was a matter of MHP
"policy". MHP policy!
Mike, state agency policy does not trump the rights we citizens have
reserved to ourselves from intrusion by government actors in the
Montana Constitution. Further, even though it would violate the
Montana Constitution, I am unaware of any statutory authority for the
asserted MHP policy.
The language used in the Montana reservation of the right to bear arms,
"shall not be called into question" is odd in that this exact
phraseology is unique and used nowhere else in the Montana
Constitution. It appears to me that the drafters wanted to use
the strongest possible language to secure this right. If it were
not inelegant, they would also have said, "and we really, really mean
it."
Also, it is important to note that this is not some boon granted to
people by a benevolent but authoritative government, to be rescinded
when it suits government agents. Rather, when the people of
Montana surrendered some of their sovereignty to empower a state
government to do things for them collectively, there were some areas of
operation where they declined to surrender any authority or sovereignty
at all - they reserved such areas of free action to themselves - the
right to bear arms.
It is also significant to note what the Montana Constitution does not
say about the right to bear arms. It does not say "except when in
the presence of government agents who are not comfortable with
constitutional rights." Nor does it say, "except in the presence
of government agents who don't feel safe around people who are
exercising this constitutional right." It is well-settled law
that constitutional reservations of authority such as the right to bear
arms operate primarily as restrictions upon government actors.
As a member of the International Association of Law Enforcement
Firearms Instructors, I understand law enforcement training and duties
better than most people who are not law enforcement personnel. I
appreciate the difficult and demanding job MHP officers have taken on
as their profession, and that they have concerns for their own
safety. However, these concerns cannot be permitted to override
the individual rights of the citizens of Montana to be free from
arbitrary, unlawful or uninformed police action as they peaceably go
about their lawful business.
I tried to call Paul Grimstad of the MHP six times today to talk to him
about this, but to no avail. Upon each call, Colonel Grimstad's
secretary, Amy, told me that the Colonel was in but unable to talk to
me. Each time I asked if there would be a good time to call back
in hope of getting through to Colonel Grimstad. Amy was unable to
suggest any such time. Upon the sixth attempt, Amy told me that
Colonel Grimstad would not be able to speak to me at all, any
time. The way she said this made it apparent to me that the
Colonel did not want to speak to me. I told Amy that I'd hoped to
speak with Grimstad about a policy matter relative to the MHP. I
told her that I would pursue this with you in lieu of being able to
talk to him.
Allow me to raise two more related issues.
First, a safety issue. In my firearms safety classes I teach that
there are two types of people in the gun culture, those who have had an
accidental discharge (AD) with a firearm and those who are going to
have an AD. This is why safe muzzle direction is always
essential. Any time a firearm is handled there is risk of an
AD. This is so important, let me restate it: Any time a
firearm is handled there is the potential for an AD. Therefore,
if MHP officers are asking citizens to unholster and hand over guns,
and the officers are handling those guns, the risk of an AD is present
and exacerbated, both for the citizen and for the officer, and in a
public place. If officers are asking citizens to surrender guns,
sooner or later there will be an AD, either by the citizen or by the
officer. It's only a matter of when, and whether or not somebody
gets injured. If someone were injured by an AD because an officer
demanded a citizen handle his or her firearm, or if the officer had an
AD handling a type of firearm with which he or she were unfamiliar,
untrained and not certified, the liability would be huge and
unacceptable to everyone.
The second issue is a more pragmatic one about procedure and
discrimination. If the MHP were to continue its disarmament
policy, whose guns will be taken? In Montana, general big game
season is about to begin, and many special seasons are open now.
Tens of thousands of Montana vehicles will contain firearms as Montana
hunters take to the field. Does the MHP policy contemplate
stripping every one of these vehicles encountered of all firearms while
an officer discusses a malfunctioning taillight? Or will the MHP
discriminate and apply the asserted policy only against people who
voluntarily proffer a CWP credential? If an MHP officer
encounters a vehicle full of hunters, will the officer temporarily
seize every firearm in the vehicle before he queries the driver about a
taillight out, or some other minor infraction? If so, what will
the officer do with all the guns?
If an officer encounters four hunters in a crew cab pickup and there
are six rifles, four shotguns and four handguns in the vehicle, what is
the officer going to do to possess all of these firearms during the
stop? How much will this exercise add to the officer's
workload? Will extra, backup manpower be required to manage this
transfer of firearms at each stop? Will the firearms go into the
officer's patrol car to keep them out of the weather? Will the
officer be responsible for any damage to the firearms while they are in
his possession? Will the officer provide receipts for the
property taken to document chain of possession? Will these
receipts become de facto gun registration? For safety, will the
officer unload every firearm taken? Then, will the officer reload
the firearms before returning them? Are all MHP officers trained
and certified to safely handle the myriad types of firearms that would
be encountered? As you can see, the asserted MHP policy invokes a
host of procedural questions and problems that will not be simply
resolved.
Retired Los Angeles Police Department detective Joseph Wambaugh writes
both fiction and non-fiction books about police and police work.
Wambaugh says cops see all people as divided into only two categories,
cops and perps (criminal perpetrators). Wambaugh says that cops
believe that anyone not a cop and not in prison has just not been
caught yet committing his or her special crime. We hope that the
policy and practice addressed in this letter is not evidence of this
Wambaugh-expressed attitude leaking into law enforcement in Montana.
Mike, the MHP works for you. On behalf of MSSA members statewide,
I request that you issue a memo to the MHP, and to the Montana Law
Enforcement Academy, to be circulated to all enforcement and training
personnel, stating:
1. That citizens exercising their constitutionally-protected
right to keep and bear arms are not to be disarmed unless the officer
can support specific and articulable facts giving him reasonable
suspicion to believe the person being disarmed constitutes an apparent
and imminent threat to the safety of the person, the officer or others,
or the person is being arrested for having committed a crime;
2. That the simple possession of a firearm - the exercise of a
constitutional right - may not be construed to constitute a threat to
an officer or others sufficient to warrant the reasonable suspicion
required for disarming the person;
3. That any existing MHP policy, written or otherwise, about
disarming otherwise law-abiding people be immediately rescinded and
corrected; and
4. I suggest you inform MHP officers that people who have gone to
the trouble to obtain a CWP are friends and allies, not the enemy or
criminals, and ought to be treated as friends and allies.
Because the wheels at the Montana Department of Justice have been known
to turn slowly, and because the constitutional rights of Montana
citizens may be disrupted or denied every day the existing MHP policy
or practice continues, it is important to note that time is of the
utmost essence in resolving this matter. Therefore, if we haven't
heard from you by October 15th, 2007 that the requested actions have
been taken or if this problem has not been solved to our satisfaction
by then, we will pursue other remedies to this apparently ongoing
violation of the civil rights in Montana.
To expedite communication, I will send this letter to you both by U.S.
Mail and by email. If you respond, and to further expedite
matters, I suggest you respond both by Mail and by email. I also
invite you to call me at 549-1252 if you wish to discuss any aspect of
this issue.
Thank you very much for your assistance in this matter that we take very seriously.
Sincerely yours,
Gary Marbut, President
Montana Shooting Sports Association
I believe there are more instances of the abridgement of the freedom of
the people by gradual and silent encroachment of those in power than by
violent and sudden usurpations. -- James Madison
Experience should teach us to be most on our guard to protect liberty
when the government's purposes are beneficent . . . The greatest
dangers to liberty lurk in insidious encroachment by men of zeal, well
meaning but without understanding."
-- Supreme Court Justice Louis Brandeis
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AFTERTHOUGHT (not a part of the letter to McGrath)
I was discussing this issue with a law professor relatively new to
Montana and our culture. Although he was quick to grasp the legal
issues at hand, it seemed to me that he was not quite getting the
strong cultural content of this issue in Montana.
I reminded the professor of the infamous Dredd Scott decision written
by Chief Justice Taney of the U.S. Supreme Court. This decision
is thought by many historians to be the match that lit the inferno of
the U.S. Civil War.
Dredd Scott was a slave, taken on a journey by his owner and master
from a slave-holding state to a "free" state, where slave-owning was
prohibited by law. The master took a side trip, leaving Scott
temporarily with a friend and, upon returning home, wrote to the friend
with whom the master had left Scott and asked the friend to return
Scott to slavery in the slave state. Scott asserted his freedom
in this free state, declined to return to slavery, and filed a lawsuit
to claim his freedom, a suit which ended before the U.S. Supreme Court.
In his decision, Taney examined the important differences between a
slave and a free person. One difference, Taney noted, is that a
slave is not allowed to possess arms. Let me say this
again. One notable difference between a slave and a free person
is that a slave is not allowed to possess arms, for the obvious reason
that it is difficult to hold an armed person in slavery.
So, I told the law professor, when a law enforcement officer disarms an
otherwise law-abiding person at a traffic stop, my view of that act is
that the officer is enslaving the person, however temporarily.
And, I told him, we simply do not tolerate enslavement in Montana. The
law professor, I believe, suddenly "got it" - felt the strong cultural
connection.
One more afterthought. I spoke about this issue with a friend
recently retired from 30+ years as a street cop in Montana. He
said, quite bluntly, that if a law enforcement officer is afraid to
conduct business in the presence of a law-abiding but armed citizen,
the officer needs to find a new line of work. I know that many
law enforcement officers in Montana would agree with my friend. I
also know that a growing number may not, which is what concerns me.
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