Attorney general blocks prosecution in concealed carry case

HELENA (AP) — The office of Attorney General Austin Knudsen asked a county attorney to dismiss two concealed-carry charges filed against a Helena man accused of assaulting employees who asked him to wear a face covering while entering a restaurant last year during the height of the COVID-19 pandemic, the Montana State News Bureau reported.

The county attorney refused, saying there was probable cause to move forward. Knudsen's office is now handling the case and has started settlement negotiations, court records said. A trial had been set for Aug. 30.

In November 2020, Rodney Robert Smith, 45, was charged with felony assault with a weapon and misdemeanor assault after he allegedly showed a holstered firearm to employees at a Helena restaurant who asked him to comply with the statewide mask requirement or leave.

Smith also was charged with two misdemeanors on suspicion of carrying a concealed weapon and doing so in a prohibited place, in this case a place where alcoholic beverages are consumed. Smith did not have a concealed weapons permit, court records said.

Witnesses told Helena police that Smith knocked over several glasses of water, shoved one employee and pinned another one against a wall.

"The defendant then exposed a concealed handgun on his belt, patted the firearm, and made a statement to the effect of, 'I'm going to get you,'" court documents state.

Smith's attorney, Palmer Hoovestal, said Tuesday they have witnesses who would testify that the restaurant's manager initiated the altercation and put Smith in a headlock.

Hoovestal also said allegations that Smith exposed a handgun "didn't happen" and that the confrontation wasn't a disagreement over the mask mandate.

Documents obtained by the Montana State News Bureau show Lewis and Clark County Attorney Leo Gallagher received a letter from the Attorney General's Office on July 26 asking Gallagher to deliver them all the files in Smith's case, noting the office can "exercise supervisory authority over county attorneys in all matters pertaining to the duties of their offices."

After reviewing the case, general counsel Derek Oestreicher said the Attorney General's Office would not prosecute the case, and directed Gallagher to dismiss the concealed-carry charges no later than Aug. 12.

Gallagher responded stating there was probable cause to move forward.

"I can not in good conscience move to dismiss those counts and comply with my oath of office," Gallagher wrote in an email obtained via a public records request. Gallagher then asked the Attorney General's Office to take over the case.

When the Montana State News Bureau asked spokespeople with the Attorney General's Office why they were handling the case, they said Gallagher had requested it, omitting Gallagher's opposition to dismissing the charges.

Gallagher told the Montana State News Bureau last week that the process "doesn't feel good."

"I've been practicing since 1978, and I've never seen it," he said.

Last week, Hoovestal filed an unopposed motion to delay the trial due to the settlement negotiations that were expected to be successful.

Department of Justice spokesperson Kyler Nerison said Monday the office was unable to comment further on the ongoing negotiations.

Earlier this year, Montana's Republican-controlled Legislature passed a law making it legal for people to carry concealed firearms for self defense without permits in the same places where people can openly carry guns. Knudsen, a Republican, testified in favor of the bill.

Hoovestal said Tuesday the change in the law could be the basis for a motion to acquit Smith of the concealed carry charges. If the charges aren't dismissed, Hoovestal said he would take the case to trial, stating Smith is "not going to plead guilty to a felony assault when it didn't happen."

Hoovestal said he did not know how the Attorney General's Office got involved in the case.

While awaiting trial, Smith was not allowed to possess firearms or travel without the court's permission.

He was granted court permission to travel to South Dakota in June for training with his Montana Army National Guard unit, where he is a military policeman. Smith also was allowed to travel to Washington for up to two weeks in January to provide security for President Joe Biden's inauguration.