Montana Shooting Sports Association

Montana County Attorneys

2010 Candidate Questionnaire

(CLICK HERE to download this Candidate Questionnaire as an MSWord file.)


Dear County Attorney Candidate,

The Montana Shooting Sports Association (MSSA) is the primary entity asserting the rights and prerogatives of gun owners and hunters in Montana.  For example, MSSA has gotten 54 pro-gun and pro-hunting measures through the Montana Legislature in the past 25 years or so, although we are active in other Montana fora than just the legislative arena.

Gun owners and hunters in your county wish to know more about your positions concerning issues within the scope of the County Attorney's job that may affect them.  Please take a few minutes to answer the questions below.  Your answers will help local voters understand and appreciate you better.  Please check the answer that best describes your sentiments.

1.  Right to bear arms (RBA); standard of review.  The U.S. Constitution declares that the right to bear arms "shall not be infringed," and the Montana Constitution says this right "shall not be called into question."  About "shall not be infringed," and "shall not be called into question":

a. (  )  This is anachronistic language that doesn't really apply to modern conditions
b. (  )  This does imply a standard of review, but that standard has not been defined
c. (  )  Any standard of review required may only be what is supported by current case law, most recently in D.C. v. Heller
d. (  )  A rational basis should be sufficient for any RBA curtailment
e. (  )  Given this language, RBA restrictions must pass intermediate scrutiny
f. (  )  This language will require strict scrutiny for any RBA restrictions to pass muster
g. (  )  The language in both constitutions will require stronger justification than even strict scrutiny for governmental inroads into this right the people have reserved to themselves.

2.  The top law enforcement officer in any Montana county is:

a. (  )  The elected County Sheriff
b. (  )  The elected County Attorney
c. (  )  The Montana Attorney General
d. (  )  Any federal officers present in the county
e. (  )  The U.S. Attorney for Montana
f.  (  )  The U.S. Attorney General
g. (  )  The Governor of Montana
h. (  )  The President of the United States

3.  Law Enforcement Cooperation.  Many Montanans, both citizens and people in public office, are concerned about the lack of accountability of federal officers conducting law enforcement operations in Montana.  In Montana, we know the county sheriff and he is elected and accountable locally.  Some believe the sheriff is the chief law enforcement officer in the county, and ought to have the tools to implement that status.  MSSA will offer a bill to require federal officers to obtain the written permission of the local sheriff before conducting an arrest, search, or seizure in the sheriff’s county.  There are exceptions for federal reservations, Border Patrol, Immigration and Naturalization Service, close pursuit, when a federal officer witnesses a crime that requires an immediate response, if the sheriff or his personnel are under investigation, and other necessary exceptions.  This bill was passed by the Legislature in 1995, but was vetoed by the Governor.

I would:
a. (  )  Come to Helena to testify in support
b. (  )  Support with letter or phone call
c. (  )  Be neutral
d. (  )  Oppose with letter or phone call
e. (  )  Come to Helena to testify in opposition

4.  Citizen firearms and law enforcement.  Some people believe that guns outside the hands of law enforcement personnel constitute a hazard for law enforcement officers.  Others believe that the more citizens who are prepared to provide for their own personal protection the safer everyone is, including law enforcement personnel.  Do you agree with the first attitude or the second?

a. (  ) Firearms are a law enforcement hazard
b. (  ) Firearms in citizens' hands enhance safety for all

5.  Shooting Ranges.  Some people claim that established shooting ranges provide citizens with safe and suitable places to shoot, and thereby decrease incidents of questionable or irresponsible shooting.  Do you agree, and will you actively support retention and development of shooting ranges?

a. (  ) Support shooting ranges
b. (  ) Neutral about shooting ranges
c. (  ) Can't support shooting ranges
d. (  ) Oppose shooting ranges

6.  Law Enforcement Training.  Law enforcement training may instruct officers to treat every armed person as a felony suspect for officer safety.  Other training acknowledges that many law-abiding citizens possess and carry firearms, and that these citizens are not likely to be a threat to law enforcement officers.  Do you lean towards the former standard, or the latter?

a. (  ) Any armed person requires a felony stop approach
b. (  ) Armed citizens are unlikely to be a threat

7.  Rules for criminal procedure.  Federal rules of criminal procedure in Montana require that if a person is charged with an offense for which he claims the affirmative defense of self defense, the prosecution bears the burden of persuading the jury that the accused was not justified in using force for self defense.  Montana law was changed in 2009 to mirror this procedural requirement in Montana courts.  This change:

a. (  )  Will make it impossible to get convictions for use-of-force offenses
b. (  )  Preserves the presumption of innocence for accused persons

8.  Multiple charges for self defense; heavy charging.  Some prosecutors in Montana have developed a reputation for "throwing the book" at persons who claim to have defended themselves with firearms.  Such prosecutors tend to file multiple charges for these cases, making it very expensive for the accused to mount the required legal defense.  This may be done by prosecutors to force plea bargains to give the prosecutor a win and clear his desk of cases.  I believe:

a. (  )  This practice is a necessary tool to get essential convictions
b. (  )  This practice is unfair to accused persons
c. (  )  This practice is used by prosecutors with weak cases or weak prosecutorial ability to effectively prosecute the primary offense in a case

9.  Official misconduct is defined as a crime in Montana, including for public employees who exceed their authority, yet there are few criminal charges in Montana against public officials for having exceeded their authority.  Some people claim that prosecutors fail to file official misconduct charges because they are protecting other public employees.

a. (  )  Public employees rarely exceed their authority in Montana so charges of official misconduct are seldom warranted
b. (  )  The Montana law and circumstances are so unclear that official misconduct charges would be impossible to prove in most cases
c. (  )  Public employees who exceed their authority commit such a minor offense that official misconduct charges are not worth use of finite prosecutorial resources
d. (  )  Public employees would be unable or unwilling to do their essential jobs if they were commonly subject to official misconduct charges for their critical work
e. (  )  Prosecutors do tend to look the other way for official misconduct but should take it more seriously

10.  Deprivation of constitutional rights - official oppression.  A number of states have state laws that call it "official oppression" when government employees, acting as if they have the authority of law, deprive people of essential constitutional rights.  Official oppression happened following Hurricane Katrina when police were ordered to go door to door to disarm otherwise unprotected citizens.  We propose a measure to make it a crime in Montana for a public employee to exceed his authority to deprive a Montana citizen of constitutional rights.  This bill would also set up a simple procedure whereby such an employee may be held accountable in a civil action, in case the public prosecutor refuses to file criminal charges.  I would:

a. (  )  Come to Helena to testify in support
b. (  )  Support with letter or phone call
c. (  )  Be neutral
d. (  )  Oppose with letter or phone call
e. (  )  Come to Helena to testify in opposition

11.  Prohibited places.  Montana has long been plagued with a nonsensical "prohibited places" law. 45-8-328 is a list of places where a person may not exercise a CWP.  What is nonsensical about this is that the safest people in Montana with firearms are those sheriff-certified people who have been issued a Montana CWP.  While these people are prohibited from exercising their CWP in the prohibited places, people not trained and not checked out by the sheriff may legally carry openly in these same places.  CWP holders are legal to carry openly (not concealed) in these same places.  Even law enforcement personnel are not exempted from prohibited places.  When a law enforcement officer enters the county courthouse or city hall with a coat covering his or her firearm, he or she commits a crime in Montana, a gun crime that would end their law enforcement career if he or she were prosecuted.  The only reason LEOs are not being prosecuted under this badly-written statute is because police and prosecutors engage in selective enforcement.  Our proposal would exempt sheriff-certified CWP-holders and LEO's from the effects of this badly-conceived law.  I would:

a. (  )  Come to Helena to testify in support
b. (  )  Support with letter or phone call
c. (  )  Be neutral
d. (  )  Oppose with letter or phone call
e. (  )  Come to Helena to testify in opposition

12.  Taxpayer resources for lobbying.  The courts have held that both the proponents and opponents of an issue to be decided as public policy have an equal stake in any taxpayer funds used to support or oppose the issue (the "equal stake" doctrine; Mountain States Legal, etc. v. Denver School Dist. (459 F.Supp. 357 (1978)); Citizens to Protect Pub. Funds v. Board of Education (9S A.2d 673)).  Not withstanding this doctrine and some applicable Montana statutes, some public employees travel to Helena on their taxpayer-paid time, sometimes in public vehicles at public expense, to speak publicly before the Legislature for or against public policy issues to be decided by the Legislature.  Often these public employees are speaking in opposition to citizens who have traveled to Helena at their own expense and on their own time to urge some legislative action.  This is not about anyone who is a public employee traveling to Helena and addressing the Legislature on his or her own time and own expense.  About public employees using public funds to lobby the Legislature:

a. (  )  This is necessary for legislators to get full information about issues before them, and is well within the job description of all public employees.
b. (  )  This is unfair to citizens seeking redress from the Legislature and is an unauthorized and inappropriate use of public funds

13.  Fully informed juries.  It is a time-honored principle that jurors may not be punished for their votes in a criminal trial in the privacy of the jury room.  This includes that a juror may vote to acquit because the juror believes the accused is being tried under an unfair law or a law improperly applied, even if the facts demonstrate that the accused did what he is accused of.  An historical example is juries' refusal to convict people in northern states under the federal Fugitive Slave Act, which made it a crime to aid or abet a runaway slave from a southern state, even in cases where the accused admitted helping an escaped slave.  In more recent times, juries have been prevented from receiving information about their admitted power to acquit if they don't agree with the law being applied.  A proposal is being circulated in Montana to prohibit anyone providing information to jurors about their existing powers to judge the law.  About this issue:

a. (  )  Only a judge may determine if the accused is being tried under a valid or acceptable law
b. (  )  Jurors express the conscience and sentiment of the community and should not be prohibited from learning about their power to acquit a person because the juror disagrees with the law being applied.

14.  Game law violations.  The quality of cases brought to prosecutors for violation of Montana hunting and fishing laws are not regarded highly in Montana.  The problem seems to be that Montana game wardens will put together mistaken or flaky cases, for which the Montana Department of Fish, Wildlife and Parks (FWP) will insist on full-court-press prosecution by prosecutors.  Some prosecutors look carefully at these cases and choose not to prosecute the flaky ones.  Other prosecutors cave in to FWP pressure and prosecute any FWP case, regardless of the quality of the work done on the case.  I would:

a. (  )  Examine each case on its merits and decline to prosecute those not put together using the same quality of work I expect from the county sheriffs department and city police department.
b. (  )  Assume that a state agency such as FWP knows what it is doing and prosecute any cases that FWP brings to me.

The foregoing responses are actually my positions on these issues, to the best of my knowledge and at this time.


                                        
Candidate Signature                        Date


                                        
Candidate printed name                    Office sought

                                                                                                       
Mailing address if different than envelope.


Thank you for being willing to serve your community and state in public office, and thank you very much for helping to provide us information about your views on issues related to firearms.

Please return questionnaire to the MSSA County Coordinator who provided it to you.

Any additional comments may be added here or on separate sheet: