The City of Missoula announced Wednesday that it will challenge state Attorney General Tim Fox’s decision voiding a background check ordinance passed in 2016.
The ordinance, sponsored by Ward 1 representative Bryan von Lossberg, required background checks on all gun sales in city limits, even between private parties. In early 2017, Fox issued an opinion saying the city couldn’t regulate firearms sales according to Montana Code Annotated.
“We believe … that the city was within its rights,” Engen said Wednesday. “And that it was the responsible thing to do.”
The city’s filing argues another section of state law allows it to “prevent and suppress the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens and minors.” Requiring background checks, it argues, is a legal way to do this.
The Attorney General's office declined to comment on ongoing litigation.
The city will be represented pro bono by an attorney for Everytown for Gun Safety and will also hire Boone Karlberg, with expenses capped at $25,000.
“There is minimal expense to the city to get an answer to this question,” Engen said.
If legal costs rose above $25,000, Engen said the city would look into other funding options, potentially from gun safety advocacy groups.
The City Council passed the ordinance in September 2016. Almost immediately afterward, Montana House Speaker Austin Knudsen, R-Culbertson, asked Attorney General Fox to issue an opinion on the legality and enforceability of the ordinance under Montana law.
Fox, in January 2017, issued an opinion voiding the city ordinance.
Engen said last year’s election, along with the completion of the water utility condemnation proceedings, held up legal action related to the background check ordinance.
The city’s filing argues that since Fox’s opinion was constitutionally inaccurate, Missoula District Court Judge Robert “Dusty” Deschamps should overrule it.
Engen was not aware of any legal precedent for a city challenging an attorney general's opinion.
“There’s multiple areas in Montana Code Annotated, our state constitution, the national constitution, and it’s important for communities to have clarity around what they can and can’t do to promote public safety,” von Lossberg said.