Fooks v. State
| Decision Date | 29 June 2022 |
| Docket Number | 269, Sept. Term, 2021 |
| Citation | 255 Md.App. 75,278 A.3d 208 |
| Parties | Robert L. FOOKS v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Submitted by: Peter F. Rose (Paul B. De Wolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Submitted by: Andrew J. Dimiceli (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee.
Panel: Nazarian, Friedman, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.
Nazarian, J. Robert Fooks was charged by way of criminal information with ten counts of illegal possession of a rifle or shotgun, three counts of illegal possession of a regulated firearm, and one count of theft. He moved to dismiss all firearm-related charges on the ground that they violated his Second Amendment right to bear arms. The Circuit Court for Wicomico County denied the motion. Mr. Fooks entered a conditional guilty plea to two counts of illegal possession of a regulated firearm and reserved the right to appeal the denial of his motion to dismiss. On appeal, Mr. Fooks argues that the statutory scheme used to charge and convict him is facially unconstitutional or unconstitutional as applied to him. We disagree and affirm.
On January 26, 2021, the State charged Mr. Fooks with thirteen counts of unlawfully possessing various firearms between November 12, 2018 and July 18, 2020.1 The criminal information alleged that a 2016 conviction of constructive criminal contempt disqualified Mr. Fooks from possessing firearms,2 and the charges included violations of two provisions of the Public Safety Article ("PS") of the Maryland Code (2003, 2018 Repl. Vol.). Section 5-133(b)(2) provides that "a person may not possess a regulated firearm if the person ... has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years[.]" Similarly, PS § 5-205(b)(2) provides that "[a] person may not possess a rifle or shotgun ... if the person has been convicted of a violation classified as a crime under common law and received a term of imprisonment of more than 2 years[.]"3
On February 3, 2021 defense counsel filed a motion to dismiss, asserting that the firearm-related charges infringed on Mr. Fooks's right to bear arms, as guaranteed to him by the Second Amendment of the Constitution of the United States. Mr. Fooks argued that PS §§ 5-133(b)(2) and 5-205(b)(2) were unconstitutional as applied to him because "[t]he only reason that Mr. Fooks has been disqualified from possessing a firearm is a prior constructive criminal contempt conviction" for failure to pay child support. He cited a line of Fourth Circuit cases (we'll discuss these in detail later) that apply a two-prong test to determine the constitutionality of a disarmament law. The defense maintained that the first prong of the test requires either (a) the challenger to rebut a presumption of lawfulness by proving that the facts of their case are different from "ordinary challenges" to felon disarmament laws, or (b) if the challenger is disqualified because of a common law crime conviction (and not a statutory felony), a "historical review to evaluate whether rights, as understood in 1791, are burdened by the statute ...."
Mr. Fooks argued that he satisfied the first prong under either analysis because he was "a law abiding, responsible citizen ...." The court could find that PS §§ 5-133(b)(2) and 5-205(b)(2) were not presumptively lawful as applied to him, he said, because a conviction for constructive criminal contempt is different from a conviction for a violent, serious felony. Alternatively, since contempt is considered a common law offense in Maryland, the court could engage in a historical review to determine that he would not have been excluded from possessing a firearm in 1791.
If the court finds that the challenger satisfies the first prong, then it proceeds to the second prong and determines whether the challenged law passes judicial scrutiny. The defense asserted that the State had the burden to demonstrate that PS §§ 5-133(b)(2) and 5-205(b)(2) satisfied intermediate scrutiny, which they defined as "a reasonable fit between the challenged regulation and a substantial government objective" (cleaned up). And as applied to this case, he argued, "there is not even rational basis to conclude that disqualifying a person, convicted for failing to pay child support, serves the government goal of reducing gun violence in any capacity." Because PS §§ 5-133(b)(2) and 5-205(b)(2) failed to satisfy intermediate scrutiny, the defense asked the court to dismiss the charges against Mr. Fooks.
On March 8, 2021, the State responded. It emphasized that "[w]hile the [r]ight to [b]ear [a]rms is a fundamental constitutional right, much like other rights, their bounds are not endless." The State recounted a history of PS § 5-133(b) ’s precursor and concluded that the statutory text "makes it clear that the legislature recognized that there would be certain crimes that did not carry felony convictions, that still should prohibit an individual from possessing a firearm."
The State argued that Mr. Fooks's motion "m[et] its demise, squarely on the two-pronged framework used in analyzing as-applied challenges to firearm prohibitions." The State asserted that the court didn't need to conduct a historical review under the first prong of the test " ‘to determine whether the conduct at issue was understood to be within the scope of the Second Amendment at the time of ratification’ " (quoting Hamilton v. Pallozzi , 848 F.3d 614, 624 (4th Cir. 2017) ). Rather, the court could instead conduct a "streamlined analysis," by " ‘supplant[ing] the historical inquiry with the more direct question of whether the challenger's conduct is within the protected Second Amendment right of law abiding, responsible, citizens to use arms in defense of hearth and home’ " (quoting Hamilton , 848 F.3d at 624 ).
Applying this framework, the State disputed that Mr. Fooks's conduct fell "within the protected right of law-abiding, responsible citizens to use arms in defense of hearth and home," because although he possessed the firearms, he never owned them. Instead, he stole the firearms from a relative (hence the theft charge) and sold them at a pawn shop. In other words, the State asserted that because Mr. Fooks did not have a Second Amendment right in someone else's firearms, his case was not different from "ordinary challenges" to disarmament laws. Therefore, PS §§ 5-133(b)(2) and 5-205(b)(2) were not unconstitutional as applied to Mr. Fooks and were "valid regulation[s] to one's Second Amendment right."
The court held a hearing on the motion to dismiss on March 17, 2021. The defense asked the court to evaluate the challenged statutes using the historical inquiry analysis because subsections (b)(2) of both §§ 5-133 and 5-205 had never been upheld as valid. Because Maryland lacked case law concerning these specific statutory provisions, the defense argued, there could be no presumption of validity. The court asked whether it could find PS §§ 5-133(b)(2) and 5-205(b)(2) presumptively valid based solely on the legislature's determination that people convicted of a common law crime who receive a prison term of more than two years should be disqualified from possessing a firearm. The defense rejected this position, arguing that just because a legislature passes a valid law does not make it presumptively constitutional. And under the historical inquiry approach, Mr. Fooks claimed there was no evidence that a criminal contempt conviction would have barred him from possessing a firearm in 1791.
Turning to the second prong, Mr. Fooks argued that PS §§ 5-133(b)(2) and 5-205(b)(2) were "not narrowly tailored to serve a significant government interest[,]" and that the government's interest in disqualifying individuals convicted of a crime from possessing a firearm "burden[s] substantially more conduct than is necessary ...." Mr. Fooks's conduct of failing to pay child support, he argued, fell outside the scope of the government's interest and thus burdened Mr. Fooks more than necessary.
The court took issue with defense counsel's characterization of Mr. Fooks's conviction, asserting that "the criminality [was] the contempt of court, not the underlying basis for the contempt of court[.]" It was Mr. Fooks's failure to follow a court order, regardless of what that court order specified, that enabled the sentencing court to sentence Mr. Fooks to more than two years’ incarceration. Defense counsel suggested that even considering the "contempt as a whole" didn't lead to the conclusion that Mr. Fooks was a dangerous person. Based on the State's failure to prove that Mr. Fooks was a dangerous person and the lack of "historical proof" that criminal contempt was meant to be a disqualifying crime in 1791, defense counsel contended that PS §§ 5-133(b)(2) and 5-205(b)(2) were unconstitutional as applied to Mr. Fooks.
The State urged the court to evaluate the constitutionality of §§ PS 5-133(b)(2) and 5-205(b)(2) using the streamlined approach. Under this analysis, the court would determine whether Mr. Fooks "is a law abiding responsible citizen to use arms in defense of hearth and home." The State mentioned the landmark firearms case, District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and noted that the Supreme Court "specifically stated that nothing in the [ Heller ] opinion should cast doubt on the prohibitions against the possession of firearms." Therefore, the State argued, Sections 5-133(b)(2) and 5-205(b)(2) were presumptively valid. The State also argued that Mr. Fooks lacked standing to challenge his firearm-related charges because he didn't own the firearms, and his possession of them was "not used in protection of hearth and home ...." And as such, the State asserted, the motions court was barred from proceeding to the second prong of the test and considering whether the statutory...
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