McCloud v. Dep't of State Police

• Decision Date: 21 May 2012
• Docket Number: No. 101,Sept. Term, 2011.,101
• Parties: Michael T. McCLOUD v. DEPARTMENT OF STATE POLICE, HANDGUN PERMIT REVIEW BOARD.
• Court: Maryland Court of Appeals

426 Md. 473

44 A.3d 993

Michael T. McCLOUD

v.DEPARTMENT OF STATE POLICE, HANDGUN PERMIT REVIEW BOARD.

No. 101, Sept. Term, 2011.

Court of Appeals of Maryland.

May 21, 2012.

Keith A. Parris (Law Offices Keith A. Parris, Lanham, MD), on brief, for Petitioner.

Mark H. Bowen, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD) on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and ALAN M. WILNER (Retired, Specially Assigned), JJ.

ADKINS, J.

In this case, we consider how a conviction in another jurisdiction affects an applicant's ability to obtain a handgun permit under Maryland law. Petitioner Michael T. McCloud applied for a handgun permit but was denied because in 2006 he had been convicted in the District of Columbia of attempting to carry a pistol without a license.

In denying Petitioner's application, the Maryland State Police relied on the Maryland Attorney General's Opinion in 91 Op. Att'y Gen. 68 (2006) ( “Attorney General's Opinion” or “Opinion”). The Opinion advises that an out-of-state conviction can disqualify an applicant from obtaining a handgun permit. It adds that, when determining if such a conviction disqualifies an applicant, an agency should look to whether the penalty for the equivalent crime in Maryland meets the statutory threshold for barring possession of a handgun under Sections 5–101(g)(3) and 5–133(b)(1) of the Public Safety Article.

The permit denial was reversed by the Maryland State Police's Handgun Permit Review Board, which held that the Opinion did not apply to Petitioner's situation. The denial was reinstated by the Circuit Court for Baltimore County. From there, Petitioner proceeded to the Court of Special Appeals, which, also relying on the Attorney General's Opinion, affirmed the Circuit Court and the denial. Petitioner presents the following issue to us:

Whether the Court of Special Appeals erred in following the Attorney General's Opinion in [91 Op. Att'y Gen. 68] as to what constitutes a disqualifying crime.

We shall hold that the Court of Special Appeals did not err in adopting the views expressed in the Attorney General's Opinion to determine what constitutes a disqualifying crime. Accordingly, Sections 5–101(g)(3) and 5–133(b)(1) of the Public Safety Article, which define a disqualifying crime, include out-of-state convictions. When determining whether such a conviction is a disqualifying crime, an agency must look to the maximum penalty for the equivalent offense in Maryland.

Facts and Legal Proceedings

Petitioner's journey through the handgun permitting process began on July 5, 2008, when he submitted an application to the Maryland State Police (“MSP,” also “Respondent”) to renew his permit to carry a concealed weapon. The MSP denied Petitioner's renewal application after discovering he had been convicted in the District of Columbia in 2006 of attempting to carry a pistol without a license. The MSP, relying on the Attorney General's Opinion, determined that this conviction disqualified him under Maryland law from possessing a concealed weapon.

Petitioner appealed this denial to the MSP's Handgun Permit Review Board (“the Board”), which reversed the denial and directed the MSP to issue the permit. The MSP sought judicial review of the Board's decision in the Circuit Court for Baltimore County, and the order to issue Petitioner a permit was stayed pending resolution of the appeal. The Circuit Court reversed the Board's decision, concluding that Petitioner was prohibited from obtaining the permit.

Petitioner timely appealed to the Court of Special Appeals, which affirmed the Circuit Court in a reported opinion adopting the Attorney General's Opinion. See McCloud v. Dep't of State Police, 200 Md.App. 725, 28 A.3d 214 (2011). The Court of Special Appeals first held that “a ‘disqualifying crime’ can be an offense committed out-of-state that, when looking to a comparable violation in Maryland, is a misdemeanor and has a penalty of greater than two years imprisonment.” Id. at 731, 28 A.3d at 217. To determine whether the out-of-state offense was a disqualifying crime, the court instructed, “we must look to the penalty for the equivalent Maryland offense in effect at the time the person convicted seeks to possess a regulated firearm.” Id.; see also Brown v. Handgun Permit Review Bd., 188 Md.App. 455, 480, 982 A.2d 830, 845 (2009). The intermediate appellate court said that if the current penalty for the Maryland offense is different from the penalty in effect at the time of the offense, the current penalty determines whether the offense is a disqualifying crime. See McCloud, 200 Md.App. at 731, 28 A.3d at 217. The court also rejected several of Petitioner's secondary arguments.

Petitioner sought review from this Court, and we granted certiorari on December 16, 2011. See McCloud v. Dep't of State Police, 424 Md. 54, 33 A.3d 981 (2011).

Discussion

Maryland law prohibits a person from wearing, carrying, or transporting a handgun without a permit. See Md.Code (2003, [426 Md. 478]2011 Repl.Vol.), § 5–303 of the Public Safety Article.¹ MSP may issue a permit if the applicant meets six criteria set forth by the statute. See § 5–306(a). Elsewhere, the Public Safety Article prohibits a person from possessing a regulated firearm if he had been previously convicted of a “ disqualifying crime.” See§ 5–133(b)(1). The statute defines “ disqualifying crime” as:

(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 2 years.

§ 5–101(g).

In 2006, MSP asked the Attorney General for his advice on whether a disqualifying crime includes out-of-state offenses. The Attorney General answered that “the disqualification based on prior convictions was intended to include out-of-State convictions.” 91 Op. Att'y Gen. at 76. The Opinion also concluded that the agency must look to the equivalent crime in Maryland to determine whether the crime constitutes a disqualifying crime under Sections § 5–101(g)(3) and § 5–133(b)(1). Id. at 77.

Petitioner's overarching argument is that “the Court of Special Appeals erred in adopting the Attorney General's Opinion ... as to what constitutes a disqualifying crime” under the statutory framework. Regarding the baseline issue contained in that Opinion, Petitioner first appears to concede, in his brief, that Section 5–101(g)(3) applies to out-of-state crimes. Indeed, Petitioner quotes the Attorney General's Opinion, which states

[I]f the statute were interpreted otherwise, an individual who had been convicted of multiple serious offenses in another state and who came to Maryland might face no impediment under Maryland law to acquiring a handgun while a lifetime resident with a single local conviction would be subject to the disqualification.

91 Op. Att'y Gen. at 76. He seemingly agrees with the Attorney General, commenting: “[T]his rationale seems prudent and reasonable[.]” In his reply brief, however, Petitioner backtracks, no longer willing to concede that out-of-state convictions can be disqualifying crimes. In his words,

In its review of the legislative history, the Court of Special Appeals in Brown ... noted, and [Respondent] highlights, that prior to 1996, the statute in question expressly provided that disqualifying crimes were those committed “in this State or elsewhere.” [Respondent] goes on to point out that [after] the Gun Violence Act of 1996, that phrase was left out of the [revised] statute. In other words, the revision by the Legislature omitted the phrase that would specifically include crimes in other jurisdictions.... Statutory construction begins with the plain language.... The [L]egislature is presumed to have meant what it said and said what it meant. (Citations omitted.)

This ambiguity in Petitioner's argument notwithstanding, Respondent correctly counters that the Court of Special Appeals followed its own precedent in applying the Attorney General's Opinion to Petitioner's situation. As it had held previously, the court held that Section 5–101(g)(3) applies to out-of-state disqualifying crimes and “is intended to be interpreted such that the conviction's potential punishment is measured by reference to the penalty under the law of Maryland for a comparable violation.” McCloud, 200 Md.App. at 730–31, 28 A.3d at 217 (citations and quotation marks omitted); see also Brown, 188 Md.App. at 480, 982 A.2d at 845 (same).

Our cardinal rule of statutory interpretation is to “ascertain and effectuate the real and actual intent of the Legislature.”Robinson v. Balt. Police Dep't, 424 Md. 41, 50, 33 A.3d 972, 978 (2011) (quoting State v. Johnson, 415 Md. 413, 421, 2 A.3d 368, 373 (2010)). We first look to the language of the statute to determine its plain meaning, and we “ neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute.” Id. at 50, 33 A.3d at 978. If we conclude that the language of the statute is “unambiguous and clearly consistent with the statute's apparent purpose,” our inquiry as to legislative intent ordinarily ends, and we “apply the statute as written, without resort to other rules of construction.” Id. at 51, 33 A.3d at 978 (quoting Johnson, 415 Md. at 421, 2 A.3d at 373). Additionally, we must always give the statute “a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense.” Johnson, 415 Md. at 422, 2 A.3d at 373 (citations and quotation marks omitted).

We agree with the Court of Special Appeals that “disqualifying crimes” under Sections 5–101(g)(3) and 5–133(b)(1) include out-of-state offenses. We discern this from the clear words of Section 5–101(g)(3), which defines “disqualifying crime” as including “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.” If the...