Love v. Pepersack, No. 94-1582

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore HALL and LUTTIG; K.K. HALL; LUTTIG
Citation47 F.3d 120
PartiesApril LOVE, Plaintiff-Appellant, v. Robert G. PEPERSACK, Sr.; Merrill A. Messick, Jr.; Ernest Eldon Pletcher; Elmer Hunt Tippett, Jr.; State of Maryland, Defendants-Appellees.
Docket NumberNo. 94-1582
Decision Date03 February 1995

Page 120

47 F.3d 120
April LOVE, Plaintiff-Appellant,
v.
Robert G. PEPERSACK, Sr.; Merrill A. Messick, Jr.; Ernest
Eldon Pletcher; Elmer Hunt Tippett, Jr.; State
of Maryland, Defendants-Appellees.
No. 94-1582.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 7, 1994.
Decided Feb. 3, 1995.

Page 121

Howard J. Fezell, Frederick, MD, for appellant. Mark Holdsworth Bowen, Asst. Atty. Gen., Pikesville, MD, for appellees. ON BRIEF: J. Joseph Curran, Jr., Atty.

Page 122

Gen. of Maryland, Pikesville, MD, for appellees.

Before HALL and LUTTIG, Circuit Judges, and CURRIE, United States District Judge, District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge HALL wrote the opinion of the Court, in which Judge CURRIE joined. Judge LUTTIG wrote a separate concurring opinion.

OPINION

K.K. HALL, Circuit Judge:

April Love appeals the dismissal of her 42 U.S.C. Sec. 1983 civil rights suit against various Maryland state troopers. We affirm.

I.

According to her complaint, in September, 1990, April Love tried to purchase a handgun at a shop in Prince George's County, Maryland. She filled out an application required by state law. All of her answers to the questions posed were true and correct.

The licensing division of the Maryland state police received the application on September 18, 1990. It was strapped for time--Maryland law gives the police only seven days to deny the application; if it does not act, the dealer may legally sell the firearm. 27 Md.Code Ann. Sec. 442(b) (1992). On September 21, Corporal Ernest Pletcher reviewed the application and a computer printout from Maryland police and Federal Bureau of Investigation files. He discovered that Ms. Love had been arrested on four occasions. In 1976, while working as a stripper, Ms. Love had been arrested twice for participating in an obscene show and once for indecent exposure. In 1978, she had been arrested and charged with two counts of battery and one of resisting arrest. She was convicted of only one of these crimes--a misdemeanor 1--though disposition of the charges was not apparent on the computer printout.

Without further investigation, Pletcher recommended that the application be denied. Sergeant Robert Pepersack reviewed the file and made the final decision to deny the application. A letter to Ms. Love reporting the denial was signed by Lieutenant Merrill Messick. In separate correspondence, Messick instructed the dealer not to sell Ms. Love the handgun.

The reason for the denial was the prior arrest record itself, and both Pletcher and Pepersack later testified that it was standard practice to deny applications on that basis. The Maryland Code lists several grounds for denying an application, but a prior arrest is not such a ground.

Love exhausted state administrative remedies without success, and then sued in state court. She won. The court ordered the state police to approve her application. Love then filed this Sec. 1983 suit--alleging violations of substantive due process, a "right to contract," and the Second Amendment--against Pletcher, Pepersack, Messick, and the state police commander, Colonel Elmer Tippett. The defendants moved to dismiss, and the district court granted the motion.

Love appeals.

II.

We divide due process into "substantive" and "procedural" prongs, though the latter term is redundant and the first is, strictly speaking, a conflict in terms. Love asserts only a substantive due process claim. Substantive due process is a far narrower concept than procedural; it is an absolute check on certain governmental actions notwithstanding "the fairness of the procedures used to implement them." Weller v. Dep't of Social Services, 901 F.2d 387, 391 (4th Cir.1990) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)).

To win her case, Love must first have a property right in the approval of her application to purchase a handgun. Property rights can be created and defined by state laws, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), but laws calling for issuance of a license or permit cannot create property rights unless "the [state actor] lacks all discretion

Page 123

to deny issuance of the permit or to withhold its approval. Any significant discretion conferred upon the local agency defeats the claim of a property interest." Gardner v. Baltimore Mayor...

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106 practice notes
  • Mary's House, Inc. v. State, No. 1:12cv169.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 30, 2013
    ...has questioned whether Gardner's no-discretion standard should apply outside the land use context. (Doc. 28 at 6–7.) Love v. Pepersack, 47 F.3d 120, 123 (4th Cir.1995) (assuming without deciding that plaintiff had property interest). However, the Fourth Circuit and its district courts conti......
  • Julian v. Rigney, Case No. 4:13-cv-00054
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • March 24, 2014
    ...check on certain governmental actions notwithstanding the fairness of the procedures used to implement them." Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995) (internal citations and quotation marks omitted). The residual protections of substantive due process "run only to stat......
  • Sansotta v. Town of Nags Head, No. 2:10–CV–29–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 28, 2012
    ...state remedies.” Rucker v. Harford Cnty., Md., 946 F.2d 278, 281 (4th Cir.1991); see Sylvia, 48 F.3d at 827;Love v. Pepersack, 47 F.3d 120, 123 (4th Cir.1995). Here, even if the Town did deprive plaintiffs of a property interest, the Town is entitled to summary judgment because its actions ......
  • Burch v. NC Dep't of Pub. Safety, NO. 4:15-CV-86-FL
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • January 19, 2016
    ...notwithstanding the fairness of the procedures used to implement them.” Roth , 408 U.S. at 576, 92 S.Ct. 2701 (citing Love v. Pepersack , 47 F.3d 120, 122 (4th Cir.1995) ).In the complaint, plaintiff captions her Due Process claim as one for violations of the right to substantive due proces......
  • Request a trial to view additional results
105 cases
  • Mary's House, Inc. v. State, No. 1:12cv169.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • September 30, 2013
    ...has questioned whether Gardner's no-discretion standard should apply outside the land use context. (Doc. 28 at 6–7.) Love v. Pepersack, 47 F.3d 120, 123 (4th Cir.1995) (assuming without deciding that plaintiff had property interest). However, the Fourth Circuit and its district courts conti......
  • Julian v. Rigney, Case No. 4:13-cv-00054
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • March 24, 2014
    ...check on certain governmental actions notwithstanding the fairness of the procedures used to implement them." Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995) (internal citations and quotation marks omitted). The residual protections of substantive due process "run only to stat......
  • Sansotta v. Town of Nags Head, No. 2:10–CV–29–D.
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • March 28, 2012
    ...state remedies.” Rucker v. Harford Cnty., Md., 946 F.2d 278, 281 (4th Cir.1991); see Sylvia, 48 F.3d at 827;Love v. Pepersack, 47 F.3d 120, 123 (4th Cir.1995). Here, even if the Town did deprive plaintiffs of a property interest, the Town is entitled to summary judgment because its actions ......
  • Burch v. NC Dep't of Pub. Safety, NO. 4:15-CV-86-FL
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • January 19, 2016
    ...notwithstanding the fairness of the procedures used to implement them.” Roth , 408 U.S. at 576, 92 S.Ct. 2701 (citing Love v. Pepersack , 47 F.3d 120, 122 (4th Cir.1995) ).In the complaint, plaintiff captions her Due Process claim as one for violations of the right to substantive due proces......
  • Request a trial to view additional results
1 books & journal articles
  • LOWER COURT ORIGINALISM.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 Nbr. 1, January 2022
    • January 1, 2022
    ...in the lower courts had "relied on the view of the [Second] Amendment" expressed in Miller). (70.) See, e.g., Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995) ("Since [Miller], the lower federal courts have uniformly held that the Second Amendment preserves a collective, r......

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