Department of Public Safety v. Berg

Decision Date01 September 1994
Docket NumberNo. 120,120
Citation674 A.2d 513,342 Md. 126
PartiesDEPARTMENT OF PUBLIC SAFETY and Correctional Services v. Randolph B. BERG ,
CourtMaryland Court of Appeals

Carmen M. Shepard, Assistant Attorney General, (J. Joseph Curran, Jr., Attorney General, on brief) of Baltimore, for appellant.

Robert C. Brown of Ellicott City, for appellee.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL, RAKER, and JOHN F. McAULIFFE, (Retired and Specially Assigned), JJ.

ELDRIDGE, Judge.

We issued a writ of certiorari in this case to decide whether the State Police erred in disapproving an application to purchase a handgun on the ground that the transaction would constitute a violation of federal law. 1

I.

In March 1993 Randolph Berg, a resident of Maryland, submitted an application to purchase a handgun from a gun dealer in Carroll County, Maryland. The handgun was a Smith and Wesson 10 mm semi-automatic. Pursuant to Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.), Art. 27, § 442(b), a seven day waiting period is imposed on a prospective buyer of a pistol or revolver from a gun dealer while the information supplied by the applicant is reviewed by the State Police. Berg's application included a statement that, inter alia, he had never been convicted of a violation of Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.), Art. 27, §§ 286, 286A, or 286C, which prohibit the distribution, importation, manufacture, etc., of controlled dangerous substances. 2

After Berg completed the application, the gun dealer, as required by Art. 27, § 442(d)(2), forwarded the application to the State Police which initiated a background investigation. 3 After this investigation was completed, Berg was notified by letter that his application had been disapproved. Although no reasons were given for the denial of the application, the letter stated that Berg could request a hearing in accordance with § 442(i). 4

Following the disapproval, Berg requested a hearing, and, in June 1993, Berg and his attorney attended a hearing at the State Police barracks in Westminster, Maryland. At the beginning of the hearing, the hearing officer stated that a routine background check showed that, in 1990, Berg had been convicted in the Circuit Court for Howard county, upon a guilty plea, of violating Art. 27, § 287, by having possession of cocaine. The offense carries a maximum sentence of four years imprisonment. As a result of this conviction, Berg received a suspended sentence of four months and two years probation. According to the hearing officer, this conviction served as the basis for the State Police's disapproval of Berg's application to purchase a handgun.

Although Berg's conviction for possession of cocaine was neither required to be reported on his application to purchase the handgun nor one of the statutorily enumerated offenses listed in Art. 27, § 445, that bars a handgun purchase under state law, the hearing officer pointed out that federal law prohibits the sale, receipt, and possession of a handgun when a prospective buyer has been convicted of a crime that is punishable by imprisonment for a term of more than one year. Specifically, the hearing officer relied on the Gun Control Act of 1968, 18 U.S.C. § 921 et. seq., which, inter alia, prohibits a gun dealer from selling a handgun to any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year and also prohibits any person who is convicted of such a crime from possessing or receiving any handgun. 5 Thus, according to the hearing officer, if the State Police were to approve Berg's application, the State Police would be sanctioning a violation of federal criminal law. 6

At the hearing, Berg's attorney argued that federal law was inapplicable, that federal law could be applied only if state law adopted the federal statute by reference, that the federal statute could be validly applied only when there was some involvement with interstate commerce and, in this case, there was no such involvement, and that there was a procedure under the federal statute for granting relief from the prohibition. The hearing officer rejected these arguments and disapproved Berg's application. The hearing officer stated, however, that if Berg received either a pardon from the Governor or a grant of relief from the federal Bureau of Alcohol, Tobacco, and Firearms pursuant to the federal statute, his application would be approved.

Berg filed in the Circuit Court for Carroll County an action for judicial review of the administrative decision. In the circuit court, Berg principally argued that "the applicable federal handgun law ... contains an interstate ... commerce requirement for the law to apply," and, as a Maryland resident wishing to purchase a handgun from a Maryland gun dealer, Berg's transaction involved only intrastate commerce. Therefore, Berg contended, the federal statute, as a matter of statutory interpretation, was not applicable to this transaction. Berg alternatively argued that the statute could not constitutionally be applied to the transaction. In addition, Berg reiterated the other arguments which he had made at the administrative hearing. Since Berg's conviction was not disqualifying under the Maryland statute, Berg maintained that his application should be approved.

Following a hearing, the circuit court issued a written opinion and an order reversing the decision of the State Police and remanding the case to the State Police for further proceedings in accordance with the court's opinion. Initially in its opinion, the circuit court rejected Berg's interstate commerce argument, holding "that there is no need for an interstate nexus to be shown" and that the federal statute was within congressional power under the Commerce Clause. 7 The circuit court expressed some doubt about the propriety of the State Police enforcing federal law, although the court did not overturn the agency decision on this ground. Rather, the court reversed the administrative decision because the agency "erroneously interpreted and applied the federal law." The circuit court thus stated:

"[Berg] contends that there is no justification for the Maryland State Police to be enforcing, by their own mandate, Federal firearms law. The [State] responds by stating that the State Police have the duty to 'detect and prevent the commission of crime.' Md.Code Ann.Art. 88B, § 3. However, this is only a limited portion of the overall 'duties' set forth in the statute. The statute also provides that the 'Department shall have the general duty ... to cooperate with and assist law enforcement agencies in carrying out their respective duties.' "In the present case, the [State] did not 'cooperate and assist' the Federal authorities in the enforcement of 18 U.S.C. § 922. Rather, the State Police 'assumed' the responsibilities of the Federal Bureau of Alcohol, Tobacco and Firearms ... by electing to enforce a federal regulation. Unfortunately, the [State] erroneously interpreted and applied the Federal law and, as such, a reversal is mandated."

In explaining why the State Police and the hearing officer erroneously interpreted and applied federal law, the circuit court first quoted 18 U.S.C. § 925(c), which authorizes a grant of relief from the prohibition as follows:

"(c) A person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Secretary [of Treasury] for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer ... or possession of firearms, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to the public safety and the granting of the relief would not be contrary to the public interest...."

From this provision, the circuit court concluded that the hearing officer was required to consider the factors enumerated in § 925(c) and decide whether circumstances in Berg's case justified "relief from the disabilities imposed by Federal laws." In so concluding, the court stated:

"[I]t is abundantly clear that [the hearing officer] was of the erroneous opinion that the Federal statute mandated a denial in all cases where the applicant had been convicted of a two (2) year state misdemeanor. However, a careful reading of the Federal statute reveals that this simply is not the case.

* * * * * *

"[I]t is readily apparent that hearing officer may consider the circumstances of the conviction and the applicant's general standing in the community. However, the record in the present case amply demonstrates that no such consideration was undertaken in the present case."

Since the State Police failed to consider the federal statutory factors which would authorize relief from the prohibition, the circuit court directed the State Police, upon remand, to evaluate the circumstances surrounding Berg's conviction. The agency was ordered to decide, pursuant to the factors set forth in 18 U.S.C. § 925(c), whether Berg would likely act in a manner dangerous to public safety.

The State appealed to the Court of Special Appeals, and, prior to oral argument in that court, we issued a writ of certiorari. The State argues that it is appropriate for the State Police to disapprove an application to purchase a handgun where the applicant's receipt or possession of the handgun would violate federal law. The State also contends that the circuit court erred in requiring the State Police to determine whether Berg should be granted relief under 18 U.S.C. § 925(c). The State points out that the federal statute gives such authority exclusively to the Secretary of the Treasury or the Secretary's designee, and the Secretary's only designee is the Director of the Bureau of Alcohol,...

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3 cases
  • Moore v. State
    • United States
    • Maryland Court of Appeals
    • 22 Diciembre 2011
    ...between the federal act and our State's act. Further, I agree with the petitioner, although this Court, in Dept. of Public Safety v. Berg, 342 Md. 126, 139, 674 A.2d 513, 519 (1996), held that, in applying § 5–133(c), Maryland law enforcement official's may appropriately consider federal gu......
  • Furda v. State Of Md..
    • United States
    • Court of Special Appeals of Maryland
    • 14 Septiembre 2010
    ...for the purpose of determining an applicant's eligibility to purchase a firearm in Maryland. See Dep't of Pub. Safety & Corr. Services v. Berg, 342 Md. 126, 138-39, 674 A.2d 513 (1996) (concluding that Maryland State Police could enforce federal law prohibiting firearm possession based on n......
  • Mccloud v. Dep't of State Police
    • United States
    • Court of Special Appeals of Maryland
    • 6 Septiembre 2011
    ...but still be arrested and charged with violating PS § 5–133(b)(1) for possessing a handgun. See Dept. of Public Safety and Correctional Services v. Berg, 342 Md. 126, 139, 674 A.2d 513 (1996) (“It would defy common sense to hold that the State Police were required to approve [an] applicatio......

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