State bow rule upheld after judicial reversal
Published: Monday, December 1, 2008
By NICHOLAS LEDDEN / The Daily Inter Lake
Flathead County District Court Judge Stewart E. Stadler has upheld a Montana Department of Corrections policy banning parolees and probationers from possessing hunting bows.
The department in June clarified its administrative rules on deadly weapons to include archery equipment, effectively prohibiting parolees and probationers from hunting.
The Department of Corrections has long classified guns as dangerous weapons, and federal laws can prohibit felons from owning firearms.
Stadler initially ruled in September that two Flathead County sex offenders on probation -- Kay Dean Denning and Gary William Hughes Jr. -- could continue to bow-hunt as long as they didn't store their bows at their residences.
Stadler reversed himself during a second hearing Nov. 13.
"I don't see where I have the right to determine that some probationers can own dangerous weapons and some can't, and there's no question it's a dangerous weapon," Stadler said.
Both Denning's and Hughes' sentences contain provisions that they submit to the "supervision of the Montana Department of Corrections Adult Probation and Parole Bureau, and fully comply with all requirements and regulations imposed by that agency."
But Kalispell attorney Gary G. Doran, who represented Denning and Hughes, argued that the ultimate authority over which conditions to impose on a parolee or probationer lies with the court.
"If the court gives up its right to make determinations about what conditions will be placed on a probationer, it's an unconstitutional transfer of power to an administrative agency," Doran said. "It's not the Department of Probation and Parole that makes those determinations, it's got to be done... by the court."
District Court judges have the authority to set conditions of probation to allow offenders to possess bows on a case-by-case basis, especially for nonviolent offenders, Doran said.
Denning was convicted of sexual assault in March 2003 and Hughes was convicted of sexual assault in September. Both are serving the suspended portions of their sentences.
"I think that archery equipment falls in a gray area, and I think the court has the freedom to determine whether a person can possess it," Doran said.
Stadler said the Department of Corrections' inclusion of bows on its list of deadly weapons was "tremendously unfair" to certain probationers -- some of whom had been given permission to own archery equipment -- but that he upheld the department's rule with officer safety in mind.
Modern compound bows can send an arrow through a Kevlar vest where a bullet may not.
"It's a safeguard and a protection for them," Deputy Flathead County Attorney Lori Adams argued. "The state would ask that we enforce this rule and we make it universal."
Before the clarification in the Department of Corrections' rules, the long-standing ban on deadly weapons had been applied unevenly in different parts of the state. Some probation officers allowed offenders to possess bows while others did not.
"It's not a new policy per se," said Tom Forsyth, the Office of Probation and Parole's regional administrator for Flathead, Lake, Lincoln, and Sanders counties. "I think everyone has always thought bows were a deadly weapon. More than anything else what we were trying to do was get consistency statewide."
The department's deadly weapons restriction is an administrative rule, not a law, and its clarification was recommended by its legal department.
Guns and knives over a certain length are classified as deadly weapons, but corrections officials did acknowledge that some aspects of the rule are subject to interpretation. For example, steak knives generally aren't considered deadly weapons, and probation officers often rely on common sense to determine what does and does not constitute a probation violation.
Now, possessing a bow is grounds for the revocation of a suspended or deferred sentence. It also counts as a parole violation.
The Office of Probation and Parole supervises only felons -- about 900 in Flathead County and another 550 out of satellite offices in Polson, Libby and Thompson Falls.