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Montana Shooting Sports Association
2009 Self Defense Bill - House Bill 228
Explanation of sections
Why each is needed, what each does
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 this bill.
Location of bill: This
explanation relates, section by section, to the current bill draft of
MSSA's self defense bill as it is posted on the Legislature's Website
This section is a general restatement and elaboration of the principles
associated with the Right to Bear Arms at Article II, section 12 of the
Montana Constitution, whereby the people of Montana have reserved to
themselves the right of "any person" to use firearms for self defense.
Subsection five, (5) is important and needed to clarify law in Montana resulting from the 1999 Longstreth opinion by the Montana Supreme Court.
If a person kills another while using a firearm for self defense, the
person is considered to have committed a homicide - a crime. If
prosecuted for that, the person is allowed to mount the affirmative
defense of self-defense. However, under Longstreth,
when mounting the affirmative defense of self-defense the burden of
proof shifts to the defendant - that is, the person is presumed guilty
until proven innocence. The jury instructions will be that the
defendant must have proven justification for use of force in
self-defense. This is in conflict with both American
jurisprudence and with the exercise of a reserved constitutional
right. (5) requires the prosecutors to prove that the defendant
was NOT justified in using force for self defense to get a conviction.
Ten attorneys will offer ten different opinions about the actual effect of the Longstreth
decision. That is exactly the problem! The law needs to be
clarified on this issue in Montana. Prosecutors have argued in
the past that Longstreth already requires what the bill states in (5). If that is so, why do prosecutors object to (5)?
Prosecutors have also argued that if they are required to prove absence
of justification for use of force in self-defense, they will no longer
be able to get convictions, although convictions are obtained in other
states under this requirement. Of course, this argument is
directly in conflict with prosecutor's claim that Longstreth
already sets in law what (5) would put in statute. It's true that
requiring prosecutors to prove guilt (lack of justification for use of
force) will make their jobs more difficult than it currently is.
It would be ever so much easier for prosecutors if they could just send
people straight to prison without the awkward need for a trial to prove
the accused guilty in court. But that's simply not our method of
American jurisprudence, and not the system of justice the people
choose. Section 1(5) will clarify the law and fix this problem in
No duty to summon help or flee.
In many other jurisdictions, case law or statutes have evolved
requiring that a person may not use force in self defense, but must try
to summon law enforcement ("dial 911 and die") or flee from attack
rather than meet criminal acts with force. This shift in policy
usually happens by degree in small steps, often beginning with
arguments to a jury that a victim could
have called police or escaped before using force to prevent
victimization. The "stand your ground" philosophy is more
consistent with Montana culture. Since this is not currently
specified in Montana law, Section 2 would clarify this void by
declaring in statute that a person is not required to summon help or
escape before using force for self defense.
Defensive display of firearm.
Many other states have laws making it illegal to "brandish" a firearm,
which implies waving or pointing a firearm in a wild or reckless
manner. Montana has no such law. Yet people are being
arrested or prosecuted in Montana for simply informing another person
that they possess a firearm, usually for the felony crime of
"intimidation." Section 3 draws a clear line that gun owners (and
prosecutors) can understand between what conduct is not a crime at all
(constitutionally-protected activity), and what conduct requires
justification for use of lethal force under Title 45 of existing
law. Where this line is drawn in Section 3 is derived from
standard firearm safety doctrine, existing use of force law and common
sense, in order to protect reserved constitutional rights, while
allowing prosecution of people who commit unwarranted or dangerous acts
For example, Section 3 requires that if a person puts another at risk
of actual injury by pointing a firearm directly at another person or
sweeping them with the muzzle of a firearm (standard firearm safety),
this is NOT protected activity and requires justification for use of
lethal force under Title 45 to be legal and safe from
prosecution. However, if a person simply informs another that
they possess a firearm, or shows another that they possess a firearm,
this activity is protected as a reserved constitutional right and is no
crime at all.
Because Montana law is currently silent on this subject and because
people are currently being prosecuted for conduct within this legal
void, Section 3 is very needed to clarify the law in Montana.
(Note 2/3/09: Section 3 was amended by the House Judiciary
Committee with an amendment that interferes with the good effect of the
bill. Plans are laid to fix this problem with further amendment
on the House floor upon Second Reading.)
Investigation of alleged offense involving self-defense claim.
The mission of police is to enforce the laws. That's exactly why
they are called "law enforcement." Understandably, when they
investigate the scene where self-defense is utilized, they are focused
on determination of what laws may have been violated. Law
enforcement personnel have a very understandable bias towards
discovering and preserving evidence that supports the contention that
laws have been violated - that's simply their mission. In such a
situation, it is very possible that investigators will overlook or fail
to secure evidence that may tend to support the claim that a defender
has used force legally in self-defense. If the defender is
charged with a crime, often weeks or months will have elapsed before
investigators for the defendant are able to examine the scene for
evidence that may support the defender's claim of self-defense.
By then, such evidence is usually be gone.
Section 4 requires that investigators look for and collect all
evidence, including evidence that could exonerate a person claiming
self-defense. Investigators say that this need is already
included in their professional standards for investigation. If
that is so, they shouldn't object to this requirement being placed in
statute, another clarification needed in existing law. Further,
citizens shouldn't be required to rely on changeable occupational
standards drawn by un-elected organizations of public employees in
order for citizens to stay out of prison.
Section 5. (NOTE 2/3/09: This Section has been deleted from HB 228)
Award of attorney fees and costs.
Some prosecutors like to "throw the book" at people who defend
themselves - to charge them with everything from jaywalking to
treason. They pile on multiple charges knowing that many cannot
be proven in court, but to so inflate the costs of the defendant's
defense as to make legal defense totally unaffordable, forcing a
defendant into a plea bargain and admission of guilt for a person who
may not be guilty of doing anything wrong. It certainly makes
life easier for any prosecutor if he can clear his desk of cases using
plea bargains. No trial, work, jury or verdict are
required. This leads some prosecutors to "charge heavy" to force
the plea bargain and thus clear their desk of cases.
Section 5 levels the scales of justice to prevent an accused from being
railroaded with heavy charging by allowing the accused to recover
defense costs for any charges that are dismissed or for which the
accused is exonerated. This should discourage prosecutors from
filing charges they don't really have the facts to prove. This
will also make it economically possible for the accused to mount a
viable legal defense when a prosecutor tries to force a guilty plea
with a plea bargain with heavy charging. Section 5 cures an
existing problem with how Montana law is structured and applied.
Section 6. (NOTE 2/3/09: This Section has been deleted from HB 228)
Conditions for seizure of firearm -- return of seized firearm.
When law enforcement personnel arrive at an incident where a firearm
has been used in self-defense, it is understood that the law
enforcement officer (LEO) must take control of the scene to assure the
safety of the LEO and of other persons at the scene. This will
often, but not always, require the officer to take possession of the
firearm used in self-defense to secure the scene. This is
especially true if the officer has probable cause to believe that a
particular firearm was used to commit a criminal act.
However, law enforcement practice too often goes well beyond these
necessary and acceptable actions. LEOs will often seize a
firearm, ostensibly for generalized "safety" reasons, even though there
is no probable cause to believe the firearm was used to commit a
crime. Too often, multiple firearms are seized regardless of any
contention that many were used in conjunction with any criminal
activity. Once these firearms are seized, it may become very
difficult, very expensive, or even impossible for the owner to regain
possession of his or her property.
Section 6 clarifies all of this by establishing fixed timelines beyond
which law enforcement may not retain firearms taken unless for good
reason. And, Section 6 requires that a person be given a receipt
for a firearm seized so the person will have proof and a record of what
was taken, and so the firearms cannot mysteriously disappear in the
process, something known to occasionally happen.
The exact hours and days specified in the bill are much less important
than that times certain are expressed in law, that receipts must be
given, that firearms must eventually be returned to a rightful and
lawful owner without a forbiddingly expensive process, and that the
persons or agency in temporary possession be held accountable for that
possession and for any loss of or damage to firearms in their
possession. This will clarify an area of Montana law that is now
either vague or silent.
Firearm not to be destroyed.
In some places in the U.S., firearms are routinely destroyed within 24
hours of acquisition by a law enforcement agency, if not needed as
evidence in a prosecution, specifically to thwart firearm return to
lawful owners. When queried about the practice by this writer (at
an FBI National Academy Conference in Minneapolis), a patrol captain
from Illinois asserted that this practice is because "Every gun
destroyed is one less gun that will be used in a crime."
Section 7 prevents this egregious practice from gaining a foothold in
Montana by requiring that law enforcement agencies may not be destroy
firearms that are legal for people to possess. If firearms seized
cannot be returned to the rightful owner, they must be sold to a
licensed firearms dealer and the income from that sale must go into the
public treasury. Selling any non-returnable firearms to a
licensed dealer avoids any liability for the law enforcement agency for
the safe working condition of the firearm. It also returns the
firearms to the Montana marketplace for citizen ownership.
Landlords and tenants -- no firearm prohibition allowed.
Although important, property rights are not absolute. When a
person sells property, they give up their property rights. Many
property rights are surrendered with a lease or rental as well, such as
the owner's right to exclusive use of the leased property. For
example, if a motel owner rents a motel room to a paying guest, the
owner voluntarily gives up the right to sleep in the bed in the motel
room rented, in fair exchange for the income received.
Once a person leases or rents a place to live, even if just overnight,
that place becomes the renter's domicile - his castle. The renter
enjoys certain property rights associated with the place becoming his
domicile. Rights associated with a domicile become especially
important when they are constitutional rights. It would not be
acceptable, for example, for a rental property owner to require a
renter by contract to surrender his right to trial by jury while
renting the property, to require a renter by contract to promise to
vote only for candidates of one party or persuasion (or not vote at
all), to require a renter by contract to never write a letter to the
editor, to require a renter by contract to never allow a person of
another race to visit the property, etc.
There have been several examples in Montana where people renting or
leasing property for their domicile have been told that they may not
possess firearms on the rented property. This potentially denies
the renter the most fundamental right, the right to live, because it
denies the renter or leaseholder the ability to conduct his own self
defense or the defense of his family. It deprives the occupant of
the domicile the right to defend his castle.
Section 8 does allow a landlord to prohibit firearm discharge on the
leased or rented property, except in cases of self-defense. This
section fills another critical void in Montana law.
Section 9. (NOTE 2/3/09: This Section has been deleted from HB 228)
Employer prohibition of means of self-defense.
When an employer employs you, that employer has certain obligations to
provide a safe workplace. That includes protecting an employee
from predictable hazards. It is insufficient to post a sign at
the main entrance to a workplace announcing, "No criminal predator is
allowed to prey on company employees here - by company policy."
That is an unrealistic approach, and an empty assurance of worker
safety. It is similar to a theoretical company policy saying, "No
structural fires are allowed on company property so no fire exits to
the building are provided."
If a worker's job is in the wilds of Grizzly country, it would be
nonsensical for an employer to adopt a work policy prohibiting
employees from climbing trees or shouting for help if attacked by a
Grizzly, a policy for which an employee in violation could be
fired. It is equally nonsensical to allow the employer prohibit
the same employee, as a part of the employment contract, from
possessing a firearm to protect herself or himself from an attacking
Grizzly, or a two-legged predator.
Section 9 holds that if an employer prohibits an employee from
possessing the tools to defend herself or himself, the employer assumes
an absolute responsibility for overtly defending the employee from a
predator, four-legged or two-legged. The theoretical sign posted
at the main entrance to the workplace mentioned above would not satisfy
this requirement, nor would a pensioner in a uniform sitting at a
reception desk at the entrance. The alternative is that the
employee be allowed to provide for her or his own defense.
Section 10 is just a code clarification required by the Code Commissioner. It has no effect.
For the last 20 years Montana has tested a public policy of trusting
citizens to behave well if allowed to carry concealed firearms for
self-defense. That experiment has worked stunningly well.
Since 1991 a concealed weapon permit has not been required for a person
to legally carry a concealed firearm outside of the limits of a city or
town (99.4% of Montana according to the Montana League of Cities and
Towns). There are ZERO reported incidences of people abusing this
privilege in the 99.4% of Montana it applies to in the past 20
years. The Legislature did the right thing in 1991 to trust its
citizens to behave well.
It is now time to extend this proven privilege to trustworthy Montana
citizens in the remaining 6/10ths of 1% of Montana, inside the limits
of cities and towns.
Section 11 would leave existing process for applying for and issuing
concealed weapon permits in place, so citizens could obtain them for
out-of-state travel and for preapproved firearm purchases from licensed
dealers under the federal Brady Law.
For others, Section 11 would change the law to make it not a crime to
carry a concealed firearm in the remaining 6/10ths of 1% of Montana,
without a permit, as long as the person is not using the firearm to
commit a crime. Thus, the crime of carrying a concealed firearms
would only apply to bad guys - people committing crimes, a proper focus
for criminal law.
This change in Montana law has been opposed in the past by law
enforcement administrators, but not by street-working officers.
What Section 11 would accomplish is already the situation in nearly all
of the jurisdiction covered by sheriffs departments in Montana, and
they have found citizen firearm carry agreeable. So, the primary
opposition has come from chiefs of police in the larger urban areas of
A retired FBI agent explained this opposition this way. Police
administrators see everyone out after 11 PM as "up to no good" unless
the person is delivering pizza or newspapers. They want their
officers to have a tool to roust or intimidate those out late and not
working. As long as a concealed weapon permit is required to
carry a firearm, then working police officers can be instructed to stop
and frisk any "up to no good" people for concealed weapons. This
physical search is used to intimidate those perceived to be "up to no
good." If a permit is no longer required inside city limits,
police administrators would no longer have a tool to roust perceived
undesirables. So, the real law enforcement application of the
current law is to roust perceived undesirable people.
We say that if law enforcement needs a specialized tool to intimidate
people perceived as "up to no good," let them come to the Legislature
and ask the Legislature to craft a legal tool for that purpose.
But don't lay this burden on law abiding gun owners - don't make it
difficult or illegal for the 99.9% of citizens who are law abiding to
be able to provide for their personal security only to give police a
tool to intimidate the elements they think are "up to no good."
When the change to a mandatory-issue concealed weapon permit process
was first proposed for Montana in 1989, law enforcement administrators
testified to the Legislature that this would result in shootouts on
every street corner and blood in the streets. Despite this claim,
the Legislature changed the law in 1991. The dire prediction by
law enforcement of widespread bloodshed proved to be totally wrong and
unwarranted. The modest change now proposed for Montana by
Section 11 has long been the case in Vermont, and is currently the case
in Alaska. This privilege in Vermont and Alaska has NOT resulted
in any mayhem. Conversely, interpersonal crimes of violence are
reduced everywhere citizens are trusted to provide for their own
defense by carrying concealed firearms.
Arrest by private person.
Currently Montana law allows a citizen to hold for law enforcement a
person believed to have committed a crime. This is called a
"citizen's arrest." However and curiously, Montana law does not
authorize ANY use of force to restrain a person placed under citizen's
arrest. If the person arrested wishes to just walk away, there's
no legal way to detain them. If the citizen uses any force, the
citizen could be prosecuted for assault or illegal restraint, or sued
Section 12 authorizes a person making a citizen's arrest to use
reasonable force to detain the person arrested until law enforcement
can arrive. It authorizes lethal force, such as a firearm, only
under laws already in place for use of lethal force in Title 45.
This cures another void in Montana law.
Section 13 repeals 45-8-317, MCA. Section 13 works in conjunction
with Section 11, above. 45-8-317, MCA is an existing statute
listing types of people who are exempt from the crime of carrying a
concealed weapon, such as police officers, people with concealed weapon
permits, and people outside the limits of a city or town, etc.
Because non-criminal citizens would not be required to have permits to
carry concealed firearms inside city limits (as is now the case outside
city limits) if Section 11 is enacted, it will no longer be necessary
to have a list of people in 45-8-317, MCA exempt from the law about
illegal concealed carry.