The City of Missoula has filed for summary judgment in its lawsuit against Montana Attorney General Tim Fox regarding a universal background check ordinance for gun purchases, asking a judge to rule in its favor on the application of state laws without going through a trial.

Summary judgment can be used when the two sides of a case have a solely legal disagreement, not a factual one. That’s the case with Missoula’s attempt to get its gun ordinance — made defunct by a legal opinion issued by Fox last year — back onto the books, said Scott Stearns and Zach Franz, attorneys from Missoula firm Boone Karlberg who were hired by the city for the suit.

Franz said he anticipates Fox also will file a request for summary judgment — albeit one asking District Court Judge Robert “Dusty” Deschamps to rule in the attorney general’s favor — in response to the city’s motion.

Regardless of the way Deschamps rules, Stearns said it’s likely the losing side will appeal the case to the Montana Supreme Court for a definitive determination of how the law should be applied.

The ordinance, passed in 2016, mandates background checks for all gun purchases in the city, including those between private parties. After it was passed, Montana Speaker of the House Austin Knudsen, R-Culbertson, asked Fox for a legal opinion on whether it conflicted with state law.

In early 2017, Fox issued that opinion, saying the city had no right to legislate gun purchases under state law.

A main legal point of contention between both sides is a state law that says a local government “may not prohibit, register, tax, license, or regulate the purchase, sale … ownership, possession … of any weapon” except in a limited number of exemptions.

Among those exemptions is one the city has used to defend its ordinance, which says that a local government can “prevent and suppress … the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors.”

But in its most recent legal filing, the city now claims that this law does not even apply to Missoula, which in 1997 became what’s called a “self-governing city.” Under the Montana Constitution, such cities are empowered to perform any action not expressly prohibited by state law.

The private attorneys working for the city point out the statute in question doesn’t include the phrase “self-governing city” and therefore none of its prohibitions apply to Missoula.

This however, means the same exemption the city has long pointed to — which allows a city to prevent felons and other parties not allowed to have guns from possessing them — also doesn’t apply to Missoula, as it too does not list “self-governing city” in the list of local governments it empowers.

But a different state law does directly speak to a self-governing city, holding that such a government cannot exercise “any power that applies to or affects the right to keep or bear arms.”

In its filing, the city’s way of dealing with that prohibition is to say that a mandatory universal background check on all gun sales doesn’t trigger the “applies to or affects” provision of gun ownership, calling it a “narrowly tailored mechanism.”

Fox plainly stated in his opinion that a background check ordinance like Missoula’s clearly violates the prohibition on local governments imposing controls on gun ownership, and he criticized it as a “dragnet approach.”

In April, the city filed a lawsuit in Missoula County District Court, seeking to overturn Fox’s opinion and allowed the ordinance to be enforced again. Attorneys for Fox have previously filed to have the entire lawsuit tossed out, saying among other reasons that the city waited too long to challenge his early 2017 opinion.

The Montana Shooting Sports Association — a group that advocates for hunters and gun owners — has also filed to intervene in the lawsuit, wishing to add Second Amendment, Montana Constitution and Montana Human Rights Act protections for gun owners to the list of things it wants Deschamps to consider in deciding the case.

Franz said he expects “other parties” to also file briefs in the case supporting the city’s side.

In addition to the attorneys from Boone Karlberg — whose fees have been capped at $25,000 — the city is also represented pro bono by an attorney from Everytown for Gun Safety, a national activist organization funded by billionaire former New York City Mayor Michael Bloomberg.

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Law and Justice Reporter

Crime reporter for the Missoulian.