Attorney General Tim Fox issued an “erroneous” legal opinion in 2017 by suggesting that Missoula's ordinance requiring background checks on all gun sales and transfers within the city limits was unenforceable under state law, the city argues in a legal brief filed Wednesday morning.

The city's legal challenge, filed in Missoula District Court, rekindles a debate over a local government's right in Montana to close the background check loophole – something 19 other states and the District of Colombia have already done.

Missoula became the first municipality in Montana to enact such an ordinance in September 2016, though Fox, a Republican, declared the ordinance unenforceable in January 2017.

“We believe the city of Missoula was acting well within its right to enact that ordinance,” Missoula Mayor John Engen told the City Council on Wednesday. “We believe our self-governing powers and responsibility to citizens requires us to question that opinion and get a ruling from a court of law so we may proceed accordingly.”

The City Council took up the issue of background checks in 2015 and proceeded to hold several public hearings over the course of a year. While two City Council members tried to block the effort from going to a vote, it advanced regardless and passed by an 8-4 margin.

While it 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.

He was asked to take up the issue by fellow Republican and state Rep. Austin Knudsen of Culbertson – a community several hundred miles east of Missoula. That left some to argue that Fox's ruling was politically motivated and not rooted in law.

“A city, town, or other local government entity with self-governing powers is prohibited by Montana state law from enforcing a local regulation or ordinance requiring background checks on firearm sales or transfers within its borders,” Fox wrote in his ruling.

Fox's opinion stood in conflict with an opinion issued by Missoula City Attorney Jim Nugent, who determined that Montana law does, in fact, grant local governments the power to adopt background checks.

The issue will be decided by District Judge Robert “Dusty” Deschamps. The city is represented by Boone Karlberg P.C. and Everytown for Gun Safety, which has taken the case on a pro-bono basis.

“By issuing the opinion that Montana law prohibits local governments from enacting ordinances to prevent convicted felons and the mentally incompetent from obtaining firearms, the attorney general substantially invalidated a statutory provision enacted by the Legislature for the protection of the public,” the city's legal challenge states.

City Council members Gwen Jones, right, and Heather Harp were among several to express support for the city's decision to challenge the Attorney General on the issue of gun safety. (Martin Kidston/Missoula Current)
City Council members Gwen Jones, right, and Heather Harp were among several to express support for the city's decision to challenge the Attorney General on the issue of gun safety. (Martin Kidston/Missoula Current)

As adopted in 2016, the measure would require private parties selling and buying guns to meet at a licensed dealer, where the buyer must pass a background check.

Under the ordinance, background checks would not be required for gun transfers between immediate family members, or for the transfer of relic firearms between collectors. It would also exclude firearms acquired for personal defense.

“It's important for communities to have dialogue on issues that are difficult, and we had a lot of dialogue around this issue,” said City Council president Bryan von Lossberg. “This action today continues that dialogue and discussion, and it's important to do so.”

Since the mass shooting in Florida earlier this year, a number of cities across the country have enacted gun laws, including mandatory background checks. Over the past two months, thousands of Missoula residents have marched on several occasions calling for common-sense gun reform.

The state's elected leaders have not acted on the issue.

“I wondered if this was ever going to be pursued in the court system, and I'm glad to hear that this is going to go forward,” said City Council member Gwen Jones. “I was in support of it when it passed a year and a half ago, and I'm still in support of it. It's the right thing to do.”

While Everytown for Gun Safety is taking the case for free, the city has set a $25,000 cap on its legal fees to Boone Karlberg.