City of Missoula submits brief challenging AG’s decision on gun ordinance

Attorneys representing the city of Missoula in its lawsuit over a local ordinance requiring background checks for gun sales and transfers have submitted their brief in District Court.

Given its length, however, the brief must be accepted by District Court Judge Robert “Dusty” Deschamps. That could happen this week, according to Zach Franz, a Boone Karlberg associate who’s representing the city in its suit.

The brief is 31 pages long and includes a number of attachments and exhibits.

“There’s a 20-page limit for briefs in the Fourth Judicial District, so you have to get permission from the judge to file one longer than that,” Franz said Tuesday. “But we have filed our motion for leave to file an over-length brief, and it’s waiting for the judge to approve it.”

The city announced in April that it planned to challenge a legal opinion issued by Montana Attorney General Tim Fox regarding an adopted city ordinance requiring background checks for all gun sales and transfers within city limits.

While the ordinance was intended to promote public safety by “preventing and suppressing” the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors, Fox voided the ordinance by declaring it unenforceable under state law.

Franz said the city’s legal brief and motion for summary judgment will be considered filed once accepted for its length by the court.

“We view this as an entirely legal issue that doesn’t need trial or discovery or anything else, and I think the Attorney General’s Office agrees that it can just be resolved on each side by filing a brief and letting the judge decide,” said Franz.

Under typical rules, Franz said, the defendant – Fox in this case – has roughly 21 days to respond with a brief of his own. However, Franz added, both sides are cooperating in the case and the timeline remains open for negotiation and approval by the court.

“The AG’s office has asked us to work with them to come up with a custom schedule we’ll ask the judge to adopt,” Franz said. “We’ll ask the judge to set aside the normal default timeline. It would be pretty normal for the judge to allow that.”

While the city contends that Fox issued an “erroneous” legal opinion in 2017 by suggesting the city’s ordinance was unenforceable under state law, Fox’s response – filed last month – asked the court to dismiss the city’s lawsuit, saying it lacked merit on “nearly every count.”

The Montana Shooting Sports Association also has filed a motion to intervene in the case. That brief contends Fox, in his response to the city’s lawsuit, failed to defend the individual rights of MSSA members under the Montana Constitution.

Franz anticipates a decision on the case later this year.

“We expect whichever side loses to appeal to the Montana Supreme Court,” he said.