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


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.