Response to MSPOA HB 228 attack
Attack on HB 228
This Page: The Montana Sheriffs and Peace Officers Association and the Montana County Attorneys Association have attacked MSSA's HB 228, about self defense with firearms, with two hit pieces now being circulated to legislators:
1) A piece called "Frequently Asked Questions about HB 228 for Legislators and Citizens"
2) A piece titled "HB 228 – TALKING POINTS"
Below is the text of these two attack pieces with the responses of the Montana Shooting Sports Association (MSSA) to each item. These responses highlight the many untruths prosecutors and top cops are spreading about HB 228. This comment is prepared and offered by Gary Marbut, President of MSSA.
Qualifications to comment: Gary Marbut is the author of the book Gun Laws of Montana, now the accepted standard on this subject in Montana, with nearly 10,000 copies in circulation. Gary is accepted in state and federal courts as an expert witness concerning use of force, firearm use for self-defense and related topics. Gary is a certified and veteran firearms instructor, having graduated nearly 2,000 students from classes teaching the safe and allowable use of firearms for self defense. Gary is a member of the International Association of Law Enforcement Firearms Instructors, having trained military, law enforcement, security and civilian personnel in firearm use. Gary is the long-time president of and chief lobbyist for the Montana Shooting Sports Association, the primary political action organization for gun owners and hunters in Montana. MSSA has achieved 50 pro-gun and pro-hunting measures passed by the Montana Legislature in the past 30 years. With input from many others, Gary is the primary compiler of HB 228.
Location of bill: These comments relate to the current bill draft of MSSA's self defense bill as it is posted on the Legislature's Website at: http://data.opi.mt.gov/bills/2009/billhtml/HB0228.htm
Here are the MSOPA and MCAA hit pieces, with MSSA comments interspersed:
Frequently Asked Questions about HB 228 for Legislators and Citizens
HB 228 makes sweeping changes to the Montana criminal code, its concealed weapon statutes, and the permit process. Here are answers to the Frequently Asked Questions that the Montana County Attorneys, the Montana Sheriffs and Peace Officers, and Montana’s Chiefs of Police have received about this bill.
Q. If HB 228 passes, will convicted felons be allowed to carry concealed weapons?
A. Under current law, when a law enforcement officer stops someone for a traffic violation and a pat-down search for officer safety reveals a convicted felon carrying any type of concealed weapon (it does not have to be a firearm), that conduct, in and of itself, is a felony. The plain language of HB 228 Section 8(2) changes this. It allows any person, including convicted violent/sexual offenders, to carry concealed weapons, so long as the person was not using the weapon to commit another crime. The current felony statutory sanction will no longer be available to law enforcement, putting our officers and community at risk. Authorizing convicted violent/sexual offenders to covertly arm themselves obviously creates dangerous consequences with dire results.
MSSA response: Dishonest and fearmongering! It is already a felony for a convicted felon to be in possession of a firearm under federal law and under state law at 45-8-313 and 45-8-314 MCA. HB 228 cannot change federal law and does not change these two Montana statutes. This claim is a complete untruth. In 1989, these same entities testified that there would be "rivers of blood in the streets" if the Legislature adopted the "shall issue" concealed weapon permit law that was passed over the objection of these groups in 1991. "Trust us, we're the professionals," they said. After nearly 20 years of experience with Montana's "shall issue" law, their dire warnings have turned out to be totally false. The sad truth is, they speak as if their job to protect us (even though they can't) is far more important than our ability to protect ourselves.
Q. Why do the sponsors want felons to have the privilege of carrying concealed weapons?
A. We don’t know.
MSSA response: Felons are already prohibited from possessing ANY guns under federal law and 45-8-313 and 45-8-314 MCA. This is a loaded and pejorative question, as it would be if we asked, "Why do top cops demand that people must die violently in their homes without police protection and without being allowed to defend themselves?" Besides, breaking the law is the profession of criminals. They will carry whatever guns they want, even though illegal. The supporters of HB 228 include EVERY significant national and Montana organization of gun owning citizens. Why are the top cops (not rank and file) so afraid of law abiding citizens being allowed to protect our families and ourselves?
Q. If HB 228 passes, will I be able to carry my concealed weapon into government buildings?
A. The MCAA and law enforcement take the position that carrying in government buildings or other presently prohibited places will remain against the law. However, the potential conflict of laws creates a serious problem. Presently, under § 45-8-328, there are places where a concealed weapon may not be carried, and these include buildings or portions of buildings used for state or local government offices. Sections 7 and 8 of HB 228 confuse rather than clarify current law because they amend or repeal some provisions of the Carrying Concealed Weapons (CCW) permit structure, but do not mention nor address other provisions. HB 228 Section 8 states that as long as you are not using the concealed weapon to commit a criminal offense, you may carry it there. Someone will likely challenge these current prohibitions and we will have to litigate this matter all the way to the Supreme Court. Criminal defense attorneys will strongly argue that because of the ambiguity created by the bill, their client could not act “purposely or knowingly” and thought he had permission to carry. Which side would prevail is unclear, but generally whenever our Supreme Court is confronted with ambiguous language or conflicting statutes, it favors the charged individual’s interpretation.
MSSA response: Misdirection. 45-8-328 MCA will remain in effect and is unchanged by HB 228. Also, 45-8-351 MCA allows even broader restrictions, which are currently in place.
Q. If HB 228 passes, will I be able to carry my concealed weapon into a bar, casino, or other places where alcohol is served?
A. Unclear. Same answer as above.
MSSA response: More misdirection. 45-8-328 MCA currently makes it a crime to possess a concealed weapon in a place that serves alcoholic beverages. 45-8-328 MCA is beyond the scope of HB 228, is not amended by HB 228 and is not affected by HB 228. Further, the Montana Supreme Court has already rejected "amendment by implication." Therefore, 45-8-328 cannot be affected unless that change is covered in HB 228, which it clearly is not.
Q. If HB 228 passes, will I be able to carry my concealed weapon into my bank or credit union?
A. No. Federal law still prohibits carrying into a bank. While some citizens may believe HB 228 shields him to carry, he will be violating federal law regarding carrying into banks and credit unions.
MSSA response: The laws prohibiting carrying a concealed weapon into a bank are unaffected by HB 228.
Q. Will HB 228 have any effect on the permit process in current law (45-8-329) or on Montana’s reciprocity agreement with other states?
A. Unclear, but possible. The Attorney General is responsible for administering the reciprocity agreements. This question is being researched. It is possible this bill will invalidate reciprocity agreements with other states, negatively affecting untold numbers of Montana’s law-abiding citizens who rely upon such agreements.
MSSA response: Wrong again! HB 228 does not affect the permit issuance process or laws. The Attorney General is absolutely NOT responsible for administering "reciprocity agreements." There are no "reciprocity agreements" between Montana and other states. Montana law is quite clear. 45-8-329 MCA simply recognizes permits issued by other states, period. To specifically foreclose bureaucratic tinkering with this process (as suggested by this ill-advised question), the Legislature also included in this statute, "(2) The attorney general shall develop and maintain a list of states from which permits are recognized under this section for the use by law enforcement agencies in this state" and "(3) A determination or declaration of a Montana government entity, official, or employee is not necessary to the existence and exercise of the privilege granted by this section." Further, under HB 228 Montanans will still be able to obtain Montana concealed weapon permits for use in any other states where Montana permits are recognized.
Q. 45-8-329 speaks to the concealed Weapon Advisory Council. Was HB 228 presented to the CCW Advisory Council?
MSSA response: Wrong yet again. The purpose of the concealed weapon permit advisory council is clearly specified in 45-8-329 MCA and is ONLY* to advise the governor about concealed weapon permit issues, not the Legislature. HB 228 has nothing to do with reciprocity. This council was created by legislation in 1995 which then gave the governor authority to negotiate reciprocity with other states. The intended purpose was to help the governor sort out reciprocity with other states. After the governor declined to implement any reciprocity agreements for FOUR years, the 1999 Legislature revised the statute to its present form, simply recognizing permits issued by other states, effectively leaving the council with no mission (this information written by someone who was appointed to this council by two different governors).
*45-8-329(4) says, "The governor shall establish a council, composed of interested persons, including law enforcement personnel and gun owners, to advise the governor on and pursue concealed weapon permit issues."
Bonus "frequently asked questions" and answers from the Montana Shooting Sports Association.
Q. Should low-income people deserve the right to protect themselves in their home?
A. Absolutely. Section 8 of HB 228 would prevent low-income people who are forced to rent their home from being disarmed in their "castle."
Q. Which is more effective at protecting any individual citizen from violent crime, "public safety" (the criminal justice system) or "private safety" (citizens protecting themselves and each other)?
A. Citizens use firearms between 2,000,000 (two million) and 2,500,000 times each year in the U.S. to defend themselves against criminal attack, always before police can respond to stop the criminal. Shots are fired by defenders in only about 8% of these instances. Police response times may be over an hour in Montana. Nationally, police have a closure rate for serious and violent crimes of less than 50%. So although they may arrive in time to fill body bags and notify next of kin, that doesn't necessarily mean there is a good chance they will bring the perpetrator to justice. Clearly "private safety" is more effective for citizens than "public safety," although "public safety" is held to be more important by those who run the "criminal justice system." See: Public Safety v. Private Safety
Q. Why do police oppose self defense?
A. They don't. Only law enforcement administrators oppose self defense, not rank and file police officers. Street officers are mostly VERY supportive of citizens defending themselves. They know they cannot be there in time to save you.
Q. Okay, so why do law enforcement administrators oppose self defense.
A. It's a turf issue. Administrators must defend their budgets and bureaucracies. If they can make you dependent on them for your protection, you will be more likely to vote them more money and power and allow them to grow their bureaucracies, the unavoidable goal of a leader in any bureaucracy. Also, not all law enforcement administrators oppose self defense, although those who do give the rest a bad reputation. Also, there is an issue of change. People naturally resist change. Some feel threatened by change in the status quo, as apparently do some police administrators.
Q. Will HB 228 actually make work more dangerous for police officers?
A. No, for several reasons. First, when citizens are further empowered to defend themselves, crime decreases, just as violent crime has significantly decreased in EVERY state that has adopted "shall issue" concealed weapon permit laws like Montana has had for 18 years. Second, the greatest danger to police officers are motor vehicles, their own and others'. HB 228 has nothing to do with this most dangerous aspect of police work. Third, bad guys will still be bad guys and still break the laws after HB 228 passes, and good people will still be good people. The law enforcement community will still be faced with the same mix after HB 228 passes.
Q. What about convictions. Will prosecutors still be able to prosecute murderers for murder after HB 228 passes?
A. Sure. There will be a change. Under current Montana case law, if you legitimately defend yourself and you are charged by a zealous prosecutor, you can be forced to prove your innocence - guilty until proven innocent. HB 228 would change that and require prosecutors to prove to a jury that you were not justified in using lethal force - innocent until proven guilty. Will that allow a few bad guys to get off? Maybe. Will prosecutors still be able to convict murderers? Sure. This is now the standard in most states AND in the federal courts in Montana. Montana prosecutors will only need to do what other prosecutors already do in other states and in federal court in Montana.
Q. Does HB 228 materially improve my ability to protect myself and my family?
A. Absolutely. You still need to be responsible for yourself and to learn about awareness, about personal security, and about firearm safety and use. But it definitely improves the legal climate for your ability to protect yourself and your family.
Q. If HB 228 is passed will police officers with their guns covered by clothing be able to legally carry their guns into bars, banks or public buildings such as the police station or the county courthouse?
A. No. 45-8-328 MCA will remain unchanged (as noted above), and it contains no exception for police officers. It applies to "A person … [who] … purposely or knowingly carries a concealed weapon" into a bar, bank or public building. Therefore, if an elected sheriff is carrying a firearm under his coat and fails to take his coat off before entering the courthouse, he commits a misdemeanor crime under Montana law. He might also be prosecuted for "Official misconduct" for having violated the law in 45-8-328 MCA. If he is prosecuted for violation of 45-8-328, he will be told that "ignorance of the law is no excuse," especially because those sworn to uphold and enforce the law are held to the highest standard. Those who violate Montana criminal laws (such as 45-8-328 MCA) are likely not up to the standards required of peace officers in Montana.
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.)