In re McCloy
| Docket Number | 673-22 |
| Decision Date | 01 May 2023 |
| Parties | IN THE MATTER OF MARK McCLOY |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Queen Anne's County Case No C-17-CV-21-000138
OPINION
This appeal arises from Appellee's, the Maryland State Police ("the MSP"), denial of Appellant Mark McCloy's ("McCloy") application to purchase a handgun. The MSP determined that McCloy's 1999 conviction under a federal witness tampering statute qualified as a "disqualifying crime" that prohibited him from possessing a regulated firearm under Maryland law. The Office of Administrative Hearings ("the OAH") reviewed the decision, and an administrative law judge ("ALJ") affirmed the denial of the application. McCloy sought judicial review in the Circuit Court for Queen Anne's County. The circuit court affirmed the ALJ's decision, but on different grounds. This appeal followed.
For the reasons explained herein, we answer both of these questions in the negative. We, therefore, affirm the circuit court's ruling that the MSP correctly denied McCloy's application.
A "handgun qualification license" ("HQL") is "a license issued by [the MSP] that authorizes a person to purchase, rent, or receive a handgun." Md Code (2003, 2022 Repl.) § 5-101(o) of the Public Safety Article ("PS"). A person must submit, and have approved, an application for an HQL before purchasing, renting, or transferring a regulated firearm. Id. § 5-117. The application shall contain a statement from the applicant, made under penalty of perjury, that the applicant has never been convicted of a "disqualifying crime," or of a common law crime resulting in imprisonment for more than two years. Id. § 5-118(b)(3). Upon the receipt of the application, the Secretary of the MSP must promptly investigate "the truth or falsity of the information supplied" and determine whether the applicant may purchase a regulated firearm. Id. § 5-121(a); Md. Code Regs. ("COMAR") 29.03.01.18(A).
"[A] person may not possess a regulated firearm if the person has been convicted of a disqualifying crime." PS § 5-133(b)(1). "[A] '[d]isqualifying crime' means: (1) a crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than [two] years." Id. § 5-101(g). The MSP, as the agency tasked with reviewing HQL applications, "may properly deny a handgun permit to anyone who has [been determined to have committed] a disqualifying crime under PS § 5-101(g) and is [thereby] prohibited from possessing a handgun under PS § 5-133(b)(1)." Brown v. Handgun Permit Rev. Bd., 188 Md.App. 455, 471 (2009).
While working as a government employee in 1999, McCloy and a fellow employee engaged in sex at McCloy's home in Chester, Maryland. McCloy gave the fellow employee $200. Shortly thereafter, the woman filed a complaint against McCloy with the Equal Employment Opportunity Commission ("EEOC") alleging sexual harassment. The fellow employee later called McCloy and offered to dismiss her complaint in exchange for McCloy paying her $5,000. McCloy advised the fellow employee that McCloy could not afford that amount, but he counteroffered $1,000 for the employee to dismiss the complaint, to which she agreed.[2]
Unbeknownst to McCloy, Federal Bureau of Investigation ("F.B.I.") agents taped the call. Additionally, another employee who worked in close physical proximity to McCloy overheard the call. Thereafter, McCloy asked that employee not to disclose or discuss what he had heard. McCloy was ultimately arrested. He pleaded guilty in the United States District Court for the District of Columbia to witness tampering, in violation of 18 U.S.C. § 1512(c)(1).[3] McCloy was sentenced to six months of home detention followed by a five-year period of probation.
In 2015, McCloy submitted an HQL application to the MSP. The MSP initially denied the application. McCloy promptly appealed that denial. Before the hearing for the appeal, the MSP sent McCloy a letter, dated April 8, 2015, reversing its prior decision and approving his application.[4] McCloy used this license to purchase several firearms.[5]
On February 8, 2021, McCloy filed another application with the MSP to purchase a handgun.[6] The required criminal background check conducted by the MSP detected McCloy's 1999 federal conviction and sentence. On March 4, 2021, the MSP sent McCloy a letter informing him of the denial of his permit and of his right to appeal the decision.
McCloy sent an email to the MSP the following day requesting a formal hearing to appeal.[7]That same day, Senior Trooper David Simmons, the MSP officer assigned to review McCloy's application, responded, informing McCloy that, while his federal conviction did not federally prohibit his possession of a firearm, the MSP determined 18 U.S.C. § 1512(c)(1) was comparable to Section 9-302 of Maryland's Criminal Law Article ("CR"), and because this statute carried a penalty of up to ten years' imprisonment, it constituted a "disqualifying crime" under Maryland law.[8] Two days before the scheduled OAH hearing for the appeal, the MSP changed its position and advised McCloy that the equivalent statute to his federal conviction was Section 9-305(a), not Section 9-302, of the Criminal Law Article.[9] McCloy's Appeal of the Denial of His 2021 HQL Application
On July 21, 2021, the OAH conducted a hearing before an ALJ to review the denial of McCloy's application. Separate counsel represented both the MSP and McCloy. McCloy's attorney did not note an objection to the late notice of the MSP's change in position regarding the equivalent "disqualifying crime." Both parties proceeded with full examinations of Trooper Simmons and McCloy, the only witnesses who provided testimony, and further presented their respective arguments at the hearing.
On August 6, 2021, the ALJ issued a decision affirming the disapproval of McCloy's application. In so doing, the ALJ made findings of fact and conclusions of law distinct from the arguments presented by both the MSP and McCloy. The ALJ sua sponte determined that 18 U.S.C. § 1512(c)(1) was analogous to Section 9-306 of the Maryland Criminal Law Article, not Section 9-305(a). The ALJ concluded that because CR § 9-306 has a maximum penalty of five years' imprisonment (and because the federal law providing the basis for McCloy's conviction is analogous to this statute), McCloy's "misdemeanor conviction [in United States District Court for the District of Columbia] for tampering with a witness meets the definition of a disqualifying crime...." The ALJ further determined that the MSP "correctly disapproved [McCloy's] application to purchase a regulated firearm based on this prior conviction."
The ALJ also found that McCloy "provided false information in his application in the attempt to hide the [D.C.] federal conviction because it might negatively impact his application." On his application, McCloy affirmed, under penalty of perjury, that he had not been convicted in Maryland or elsewhere of a misdemeanor which, under Maryland law, carries a maximum sentence of two years or more. The ALJ concluded that the MSP could deny McCloy's application based on this false statement alone. See PS § 5-122(a)(1)-(2).
On August 30, 2021, McCloy filed in the Circuit Court for Queen Anne's County a petition for judicial review of the ALJ's decision.[10] That court held a hearing on the petition on March 8, 2022. On May 19, 2022, the circuit court issued a memorandum opinion and order affirming the denial of McCloy's application. See Jud. Rev. of the Decision of the Off. of Admin. Hearings Case of Mark A. McCloy OAH No. MSP-LD-20-21-06628, Case No. C-17-CV-21-000138, at 1, 13 [hereinafter McCloy Cir. Ct. Rev.].
Notably, the circuit court disagreed with several of the ALJ's conclusions. Id. at 78, 11. The circuit court found that the OAH proceeding violated McCloy's due process rights because the ALJ pursued a rationale for disqualification not advanced by the MSP, and, in so doing, deprived McCloy of the opportunity to respond to the argument that his federal conviction was akin to a Maryland conviction under CR § 9-306. Id. at 7. Additionally, the court found that the record did not support the finding that McCloy provided a false statement on his application when he checked the "no" box in response to the question asking whether he had been convicted of a crime in Maryland or elsewhere with a maximum penalty of more than two years' imprisonment. Id. at 7-8.
Nonetheless the circuit court affirmed the denial of McCloy's application by the MSP. In reviewing whether the ALJ erred in rejecting the MSP's assertion that CR § 9-305(a) and 18 U.S.C. § 1512(c)(1) were equivalent, the circuit court independently compared the statutes. Id. at 8-11. The circuit court determined that the statutes were equivalent based on the common element of intent to interfere with or impede an official proceeding. Id. at 10-11. Accordingly, McCloy's federal conviction was a "disqualifying crime" that prohibited him from obtaining a license to possess a firearm. Id. As a result, ...
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