After pulling her over, the trooper told Cooper that the reason he had initiated the stop was because snow obstructed the view of her license plate. However, he testified to many other factors including that:

• he pickup truck did not come to a stop before entering the highway, but “abruptly” pulled out onto the highway in front of Kloster, forcing him to take evasive action to avoid a possible crash;
• Cooper crossed the fog line and performed a U-turn; and
• Cooper was driving incredibly slowly

SCOMOT ruled that “[the trooper’s] articulable facts included his observation of Cooper’s truck pulling into oncoming traffic, nearly causing a collision; Cooper leaving the parking lot of a bar hosting a special event known to serve alcohol; Cooper driving incredibly slow; and Cooper’s truck traveling over the fog line.” This justified a particularized suspicion and legitimized the stop making the evidence obtained admissible.

Justice Nelson concurred to note that the obscured license plate alone would not have justified sufficient particularized suspicion for detaining Cooper. Nelson argued that snow obscuring a plate is not sufficient to justify a traffic stop in Montana during the winter, arguing that reading MCA § 61-3-301(1)(a) in this fashion would produce an absurd result and, therefore, should be avoided. However, given the additional reasons for the stop, Nelson concurred.

Does § 45-8-321, MCA, prohibit a county sheriff from issuing a concealed weapon permit to a person described in subsection (1)(c) of the statute, or does the sheriff have discretion to issue a permit falling within that category?

In 1983, Van der hule pled guilty in Montana state court to one count of sexual assault and four counts of sexual intercourse without consent. Both felonies are punishable by a term of not less than four years.  In 1993 he was paroled, and in 1999 he received a “Final Discharge” from the Montana Board of Pardons and Parole stating his civil rights were restored.

In 2003, he filed an action in the U.S. District Court in Missoula seeking declaratory relief from the FBI’s refusal to issue him a firearms license.  The federal court granted summary judgement in favor of the U.S. on all issues except the question certified in this appeal.

The statute at issue, § 45-8-321(1)(c) provides that, except as provided in subsection (2), a concealed weapon permit “may not be denied an applicant unless” the applicant:

(c) has been convicted in any state or federal court of a crime punishable by more than 1 year of incarceration or, regardless of the sentence that may be imposed, a crime that includes as an element of the crime an act, attempted act, or threat of intentional homicide, violence, bodily or serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent.

Subsection (2) grants a sheriff the discretion to deny a concealed weapon permit to an applicant based on “reasonable cause” to believe the applicant is “mentally ill, mentally defective, or mentally disabled or otherwise may be a threat to the peace and good order of the community.” § 45-8-321(2), MCA.

Because Van der hule’s past convictions were punishable by more than a year in prison and included sexual abuse and sexual intercourse without consent, his application for a concealed weapon permit was denied.  Van der Hule argued, however, that county sheriffs are allowed to make a case-by-case determinination because of the word “may” in the statutory phrase “may not be denied an applicant unless” is permissive.

Acknowledging that the word “may” generally designates discretionary conduct, SCOMONT pointed out that “may not” is consistently interpreted as mandatory.  Ulimately though, it was the larger structure of the statute, and not the definition of “may” or “may not” the decided the issue.  Because § 45-8-321(a)-(h), MCA, consists of individuals who are ineligible under Montana Law or federal law to own, possess, or receive a firearm, it would be nonsensical to allow a sheriff discretion to issue a concealed weapon permit to such an individual.

In closing, SCOMONT stated:

We conclude, based on the language and structure of § 45-8-321, MCA, that the eight categories listed under subsection (1)(a) through (h) describe applicants to whom issuance of a concealed weapon permit is prohibited.

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