MONTANA SHOOTING SPORTS ASSOCIATION
2005 LEGISLATIVE ISSUES

2004 LEGISLATIVE CANDIDATE QUESTIONNAIRE

Please check the response that best describes your position on each issue.

1. Supporting self defense. There is a serious problem for gun owners in other states that is beginning to creep into Montana. That is, when a person uses a firearm in self defense, they are increasingly likely to face one or more criminal charges as a result. In one example, a woman was alone at night in a Billings apartment when a man began pounding heavily on her door, demanding admittance. Through the door she told him to go away. He did not identify himself, but kept pounding on the door demanding entrance. Finally, she opened the door, but had a handgun in her hand, hanging at her side, pointed at the floor. The man, she learned only then, was the apartment maintenance man. The woman was charged with two felonies. This is only one of a growing number of examples.

Possession of firearms for self defense is guaranteed by the Montana Constitution.

MSSA will advance a bill to tweak Montana law in a number of respects to clarify the ability of Montanans to use firearms properly for self defense without fear of criminal prosecution. This bill will have a number of sections, each of which will be described separately below (A - J). Not included here is a general declaration of legislative intent, including that self defense is not a crime.

A. No duty to summon help or flee. This section declares what is a cultural norm in Montana now, but which is not currently expressed in law. That is, a person confronted with the need to defend himself or herself has no legal duty to first summon law enforcement assistance, or to either retreat or flee, before defending himself or herself.

I would:

B. Defensive display of a firearm not a crime. Other states have laws defining as a criminal offense something called "brandishing" a firearm. This section says that no person who displays or shows a firearm for a defensive purpose may be held accountable for a criminal act. This section defines what constitutes simple display of a firearm, or display for a defensive purpose. It also defines what display would require justification for use of lethal force already defined in Montana criminal law, such as pointing a firearm at another person.

I would:

C. Citizen use of force to detain another. Currently, Montana law does not clearly authorize a Montana citizen to use any level of force to detain another person believed to have committed a crime. This section says that a person may use reasonable force to detain a person believed to have committed a crime, but that lethal force may only be used under the criteria already established in Montana criminal law (to defend oneself).

I would:

D. Court or jury may award legal costs for charges dismissed or exonerated. Some prosecutors charge multiple criminal charges for one incident, hoping to leverage a quick plea bargain because of the threat of excessive defense costs for the accused to defend against the multiple charges. Such overcharging does not serve the cause of justice. This section says that if, in a self defense situation, any of the charges filed are dropped or dismissed, or if the accused is exonerated for any of the charges, either the judge or the jury may award defense costs attributable to the charges dropped, dismissed, or for which the accused is exonerated. This is intended to level the playing field, and, hopefully, persuade prosecutors to file only those charges that they really believe they can prove.

I would:

E. Landlords and hotels may not ban firearms. A non-resident owner of Montana apartment buildings recently posted a sign banning firearms from the premises. While the Montana Constitution says that the right to keep firearms for self protection "may not be called into question", there is no Montana statute addressing this specific issue. This section says that landlords and hotels may not prohibit renters from possessing firearms.

I would:

F. Custody or seizure of a firearm - mandatory return. Another area where Montana law is silent concerns when and for how long police may seize firearms. This section clarifies that when a firearm is used in a self defense situation, police may take the firearm used into temporary custody for the safety of persons at the scene, may keep the firearm longer if the person is arrested, and may keep the firearm longer yet if the person is charged with a crime, but must give the person a receipt for the firearm taken, and must return the firearm to the person from whom it was taken or the rightful owner, unless the person is convicted of a crime for which the firearm was used.

I would:

G. Investigation to disclose self defense. Sometimes when investigations are done at the scene of a self defense incident, the investigation is focused on discovery of evidence that would substantiate an assumption that a crime was committed. This section requires that any investigation of an incident where self defense is apparent or claimed must also focus on gathering evidence that would disclose valid self defense.

I would:

H. Firearms not to be destroyed. In some places in the U.S., it has become standard police practice to destroy any firearms that come into police custody, unless they are needed for evidence, even if they may have been lawfully possessed by the person from whom they were taken. This section says that if a firearm taken into custody is not needed for evidence in a pending criminal action, it must be returned to the owner, or, if the owner cannot be found, it must be sold into the marketplace to an eligible buyer, if that can be done, rather than being destroyed. The sale proceeds would go to the general fund of the entity overseeing the law enforcement agency.

I would:

I. Concealed weapon permit holders exempt from prohibited places. This section would exempt people who have applied for and obtained concealed weapon permits from the prohibition on exercising their permits in the "prohibited places" currently in Montana law.

I would:

J. Mandatory probable cause hearing for self defense cases. Under current law and practice, a person who has defended himself or herself with a firearm may be far into the legal expense of a criminal defense before there is ever an opportunity for the accused to challenge the probable cause upon which the permission for prosecution is granted by a judge. This section would require that if self defense is apparent or claimed, the prosecutor will not be allowed to file criminal charges until the court has held a hearing concerning the probable cause that is the basis for the criminal charge, a hearing at which the accused may contest the probable cause argued by the prosecution. Such a hearing would save money for the justice system where the probable cause might later be found to be insufficient for prosecution.

I would:

2. Montana-made firearms. Nearly all federal regulation of firearms manufacture and transfer is accomplished under the guise of authority in the U.S. Constitution for Congress to regulate interstate commerce (the "commerce clause"). MSSA will advance a bill to declare that any firearms made in Montana and retained in Montana are simply not subject to federal regulation under commerce clause authority. Any firearms made under this exemption would have "Made in Montana" stamped into the metal of the receiver, and would lose this protection anywhere outside Montana.

I would:

3. No SSN to hunt or fish. A previous Legislature required hunters and anglers to give their Social Security Numbers in order to obtain a hunting or fishing license. This was done, ostensibly, to aid in collection of overdue child support. We believe this violates the right to privacy guaranteed by the Montana Constitution. The 2001 Legislature made removal of SSNs from hunting and fishing licenses contingent upon federal permission. The federal government has declared that they will not give this permission. State social service employees say Montana will lose federal money if SSNs are not collected on all licenses. However, there are still licenses for which Montana does not require SSNs, and Montana has not been threatened with loss of any federal money for noncompliance. Further, at the beginning of the 2001 session, FWP did a telephone survey of other state fish and game agencies, and reported that 17 other states do not require collecting SSNs to hunt and fish. We propose changing the law so that a SSN is NO LONGER required to get a hunting or fishing license. Our strategy would allow objectors an alternate path to game tags without surrendering an SSN.

I would:

4. 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. We 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 required 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, what we called the “corrupt sheriff provision”, and other necessary exceptions. This bill was passed by the Legislature in 1995, but was vetoed by the Governor.

I would:

5. Harmonizing concealed weapon permit (CWP) requirements. Since 1991, a CWP has not been required for a law abiding person to carry a concealed weapon in 99.4% of Montana - outside the limits of cities or towns. With over a decade of experience that not requiring CWPs for nearly all of Montana has not created any problems, we propose to harmonize the law so a permit will no longer be required for a law abiding person to carry a concealed weapon in the remaining small part of Montana, inside cities and towns. We intend to leave the permitting process in place, so citizens who desire them may still obtain CWPs for travel to other states that recognize Montana CWPs, and for firearm purchases at gun stores under the federal Brady Law. People who do obtain the optional CWPs would also be exempt from the prohibited places currently in Montana law.

I would:

6. Of the five issues above, which three (3) do you think are most important to pursue in the next session of the Legislature?

#

#

#

7. We are interested to know how many legislative candidates actually hunt. Please tell us how many out of the last 10 years you have purchased a Montana Conservation License AND one or more hunting tags (or a Sportsman's License).

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

Date:

Candidate name:

Office sought:

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 MSSA, by reply email (or by U.S. Mail to P.O. Box 4924, Missoula, 59806).

Add any additional comments here: