HB 228 – TALKING POINTS
(by the Montana Sheriffs and Peace Officers Association)
(with critique by the Montana Shooting Sports Association)
1. HB 228 is amateurishly drafted, which leads to numerous technical problems.
(MSSA says: HB 228 was finalized
by the attorney employed by the Legislature who is legal counsel for
the House Judiciary Committee.)
a. The shift in the burden of proof (Section 1 (5)) occurs in a
“purpose” section not a substantive section. An explicitly
contradictory statute exists in the current code (Section 45-3-115),
yet is not even mentioned.
(MSSA says: False.
45-3-115 only says that self defense is an "affirmative defense" but
does not address "burden of proof" at all - "45-3-115.
Affirmative defense. A defense of justifiable use of force based on the
provisions of this part is an affirmative defense.")
b. The introduction of three new and undefined mental states
(recklessly, deliberately and intentionally) in the brandishing
section. The Montana criminal code uses and defines only three
mental states: purposely, knowingly, or negligently.
(MSSA says: False. There
is no "brandishing" section in HB 228. There is a section that
defines what display of a firearm is perfectly legal (such as being in
possession of a firearm), and what display requires justification for
use of lethal force under existing laws (such as pointing a firearm at
another person or actually shooting somebody). All terms used are
well understood. Perhaps opponents should look in a law book.)
c. All the existing law of Justifiable Use of Force, § 45-3-101 et
seq. remains on the books. Nothing has been repealed. Which
statutes control? These very real technical problems exist
because there was no substantive review by the Legislative Counsel to
address these conflicting statutory construction issues. Since
all the current law regarding justifiable use of force apparently
remains in effect along with HB 228. Which law governs? No one
knows, but we do know there are numerous conflicts with current laws
and this law. The sponsor’s stated purpose is to “clarify” the
law. HB 228 accomplishes the opposite, and runs counter to our
existing laws regarding justifiable use of force and the carrying
concealed weapons statutes.
(MSSA says: False again.
The language in HB 228 was analyzed and reviewed by an attorney
employed by the Legislature, then was reviewed again by the editing
department of the Legislative Services Division, and then was reviewed
yet again by the Legal Review staff of the Legislature. This
entire process was done THREE TIMES. The attorneys who work for
the Legislature write MANY more laws than HB 228 opponents. Any
conflict between HB 228 and existing laws is only in the imagination of
those who disapprove of self defense.)
2. The citizens of Montana are receptive to “Castle Doctrine”
legislation. HB 228 is not “Castle Doctrine” legislation.
It is a major overhaul of well-settled self-defense law and concealed
weapons statutes. HB 228 does not protect law-abiding
citizens. It only creates loopholes for criminals and will have
serious unintended consequences.
(MSSA says: What unnamed
"unintended consequences?" Those who oppose legislation but who
dare not articulate their actual reasons always claim one of two
primary objections - "unconstitutional" and "unintended consequences."
(Well, sometimes they also claim it's ugly or fattening.) What is
"well-settled" in Montana is that a person using a firearm to defend
herself from criminal attack can be prosecuted and forced into the
position of guilty until proven innocent (it happened in Montana); that
a person can be prosecuted for felony "intimidation" for simply being
in possession of a firearm (it happened in Montana); and that a person
can be prevented from having a firearm in his or her home for self
defense (it happened in Montana, just like Washington D.C. until the
Supreme Court fixed that.) These are all well-settled problems in
Montana that cry out for a remedy.)
3. HB 228’s real impact will be felt in law enforcement’s
response to domestic violence cases. Domestic violence is where
we most often see violence in the home. In 2008, Yellowstone
County alone had 67 felony domestic violence cases (prosecuting
defendants with a minimum of 134 prior domestic violence
convictions). It is already difficult enough for law enforcement
to respond to domestic violence situations. The legislature has
previously recognized the problems inherent in domestic violence, and
has made it a priority to stop this societal epidemic.
Accordingly, it has amended and expanded § 45-5-206 every session
from 1991 through 2005. For example, in 2005, the legislature
recognized by statute that these cases may involve mutual combat, and
now requires an officer to make a determination and arrest the
“predominant aggressor” (§ 46-6-311(1)(b)). HB 228 will set
domestic violence enforcement back ages and undermine all the hard work
of these 8 consecutive legislative sessions and arguably allows a
partner or family member to choose deadly force as his lawful response
to a mere verbal threat of bodily injury, or a slap in the face.
Serial domestic abusers will use HB 228 to justify their crimes against
their partners.
(MSSA says: Crying wolf!
These are the same people who testified to the Legislature in 1989 that
if Montana dared to adopt a "shall issue" concealed weapon permit law
in Montana (as was done in 1991) that there would be "rivers of blood
flowing in the streets." That Chicken Little prediction proved to
be entirely false, now verified by nearly 20 years of experience and
data. What about people defending themselves from domestic
violence? They can't always wait to see if police will
respond. It was the Longstreth decision by the Montana Supreme
Court that established the current precedent that a person defending
herself must prove to a jury that she is innocent - guilty until proven
innocent. Longstreth was defending herself in a domestic violence
situation, after a long history of beatings and ineffective police
intervention. She was convicted of a felony because she was
presumed guilty and could not prove her innocence - no witnesses.)
4. We are aware of no counterpart in any State in the country for
the “brandishing a firearm” section of HB 228 (Section 3). It
does not clarify Montana law; it muddles it. For example,
under HB 228, if an individual in a crowded theater asked a rude patron
to quit talking on his cell phone during the movie, and the rude person
responded with a threat of bodily injury (“Shut up or I’ll punch you in
the nose!”), the first individual could then draw his concealed weapon,
point it in the air, and say, “I have a gun and I will not be
intimidated any more!” While the amateurish drafting of HB 228
forbids discharging a firearm in the direction of another person, it
suggests by implication that a person could crank off a round into the
ceiling for emphasis. Under HB 228, no crime is committed.
He did not point the weapon at anyone; he only displayed it for
defensive purposes because he felt “threatened” with bodily
injury. HB 228 also condones without consequence the firing of
the weapon in the air for defensive purposes. Montana’s current
law uses objective standards—how would a reasonable person respond—in
such situations. HB 228 avoids the reasonable person standard and
now adds to Montana’s criminal code the subjective standard—the
individual’s claimed perceived fear—whether reasonable or not.
(MSSA says: More fearmongering
by the same people who invented the "rivers of blood in the streets"
argument to oppose concealed carry in 1989. Not worth further
comment.)
5. The amendments to the concealed weapons sections gut the
permitting process. Since anyone acting under HB 228 can carry
concealed without a permit or any screening procedure whatsoever, for
all intents and purposes, the permitting process is gone. Perhaps
this is why the sponsors are also repealing Section 45-8-317, the list
of exceptions currently applied to the law. After all, with no
need for permits or screening, there is no need for any
exception. Thus, convicted violent/sexual offenders will no
longer be screened or prohibited from carrying concealed weapons.
The plain language of HB 228 Section 11(1)(2) allows such convicted
felons to carry concealed weapons, so long as the convicted felon was
not using the weapon to commit another crime. Under current law,
when a law enforcement officer stops someone for a traffic violation
and a pat-down for officer safety reveals a convicted felon is carrying
a concealed weapon (it does not have to be a firearm), that is a felony.
(MSSA says: What HB 228 will
accomplish is ALREADY the law in 99.4% of Montana. There is no
incidence of the type of problems opponents allege in 99.4% of
Montana. HB 228 only extends the same privilege to the other
6/10ths of 1% of Montana. More fearmongering - same as 1989.)
Under HB 228, there will be no felony arrest sanctions available to law
enforcement, because the officer cannot know whether the felon was
carrying the concealed weapon to “commit a crime.” The officer
must wait until the felon has actually committed the crime with his
hidden weapon and only then can he be charged with a misdemeanor.
Unfortunately, there must first be another victim before this
misdemeanor can be charged. Authorizing convicted felons to
covertly arm themselves without consequence presents an extremely
dangerous situation for law enforcement and the general public.
(MSSA says: This is an outright
lie. HB 228 does not authorize felons to carry firearms because
it is a felony under state (45-8-313 and 45-8-314 MCA) and federal law
for a felon to even be in possession of a firearm, concealed or
not. Besides, criminals will break the laws no matter how many
things are made illegal - that's their chosen vocation, breaking
laws. That's exactly why they are called "criminals." More
fearmongering by the "blood in the streets" crowd.)
6. More troubling is the next scenario. Once violent
criminals realize HB 228 not only encourages but gives them permission
to brandish their weapons at each other without any criminal
consequence, the public’s safety will be shattered. Further, once
weapons are “displayed,” HB 228 then arguably allows the other party to
defend themselves anywhere and anytime they are lawfully located
(parks, malls, intersections) with deadly force. HB 228 neither
recognizes nor gives law enforcement the ability to arrest
mutually-agreed combatants, even if they mutually agreed to illegal
activity. Other states provide no such safe harbor.
(MSSA says: More fearmongering by the "blood in the streets" crowd. Enough said.)
7. HB 228 pretends to “solve” a problem that does not
exist. Proponents of HB 228 and its supporters have failed to
identify or name any specific case or any specific incident where
someone was harmed because HB 228 was not the law. The proponents
fear that prosecutors and law enforcement are running amok depriving
ordinary citizen of their Second Amendment rights. Some would
have you believe that innocent Montanans who have lawfully used
firearms to protect themselves are being arrested and prosecuted across
this state. Yet, not a single case has been presented for
consideration. But if such a case really did happen, somewhere,
sometime in this century or last, we all should be talking about
it. The fact that we are not speaks highly of our citizens and
our law enforcement. HB 228 is a clumsy solution in search of a
nonexistent problem.
(MSSA says: It was the Montana
Supreme Court that ruled in the precedent-setting Longstreth case where
Longstreth was convicted of a felony for defending herself because she
was presumed guilty until she could prove innocence. She could
not prove she was justified in using lethal force because nobody else
was there to witness the incident. Perhaps HB 228 opponents just
don't read court cases.)