Md. Shall Issue, Inc. v. Hogan

• Decision Date: 03 August 2020
• Docket Number: No. 19-1469,19-1469
• Citation: 971 F.3d 199
• Parties: MARYLAND SHALL ISSUE, INCORPORATED; Atlantic Guns, Incorporated; Deborah Kay Miller ; Susan Brancato Vizas, Plaintiffs – Appellants, and Ana Sliveira; Christine Bunch, Plaintiffs, v. Lawrence HOGAN, in his capacity as Governor of Maryland; William M. Pallozzi, in his capacity as Superintendent, Maryland State Police, Defendants – Appellees. National Rifle Association; Maryland State Rifle and Pistol Association, Incorporated; National Shooting Sports Foundation, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

971 F.3d 199

MARYLAND SHALL ISSUE, INCORPORATED; Atlantic Guns, Incorporated; Deborah Kay Miller ; Susan Brancato Vizas, Plaintiffs – Appellants,andAna Sliveira; Christine Bunch, Plaintiffs,

v. Lawrence HOGAN, in his capacity as Governor of Maryland; William M. Pallozzi, in his capacity as Superintendent, Maryland State Police, Defendants – Appellees.National Rifle Association; Maryland State Rifle and Pistol Association, Incorporated; National Shooting Sports Foundation, Amici Supporting Appellant.

No. 19-1469

United States Court of Appeals, Fourth Circuit.

Argued: May 6, 2020

Decided: August 3, 2020

Amended: August 31, 2020

ARGUED: Mark William Pennak, LAW OFFICES OF MARK W. PENNAK, Chevy Chase, Maryland; John Parker Sweeney, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellants. Robert A. Scott, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Cary J. Hansel, Baltimore, Maryland, for Appellants. Brian E. Frosh, Attorney General, Jennifer L. Katz, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. T. Sky Woodward, James W. Porter, III, Marc A. Nardone, BRADLEY ARANT BOULT CUMMINGS LLP, Washington, D.C., for Appellant Atlantic Guns, Inc. David H. Thompson, Peter A. Patterson, Brian W. Barnes, John D. Ohlendorf, COOPER & KIRK, PLLC, Washington, D.C., for Amici National Rifle Association of America, Inc. and Maryland State Rifle & Pistol Association, Inc. Craig A. Livingston, LIVINGSTON LAW FIRM, P.C., Walnut Creek, California; Jerome Bennett Crites, III, SHUMAKER LOOP & KENDRICK LLP, Charleston, South Carolina; Lawrence G. Keane, General Counsel, THE NATIONAL SHOOTING SPORTS FOUNDATION, INC., Newtown, Connecticut, for Amicus The National Shooting Sports Foundation, Inc.

Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.

Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge Agee wrote the opinion, in which Judge Keenan and Judge Richardson joined.

AGEE, Circuit Judge:

Maryland Shall Issue, Inc. ("MSI"); Deborah Kay Miller and Susan Vizas; and Atlantic Guns, Inc. ("Atlantic Guns")¹ brought suit against Lawrence Hogan in his capacity as Governor of Maryland and William M. Pallozzi in his capacity as Superintendent of the Maryland State Police (collectively "State Defendants"). Appellants challenge the constitutionality of Maryland's handgun licensing law, which is part of the Maryland Firearm Safety Act of 2013 ("FSA"), for violating their Second Amendment rights. They also challenge other FSA regulations as vague and ambiguous in contravention of the Fourteenth Amendment and separately attack certain FSA regulations as ultra vires under Maryland law. The district court granted summary judgment to the State Defendants on the ground that Appellants lacked Article III standing as to all claims. Because we hold that Atlantic Guns has standing to pursue the Second Amendment claim, we affirm in part and reverse in part the judgment of the district court and remand this case for further proceedings.

I.

A.

Before addressing the merits of the parties’ arguments, we begin with an explanation of the statutory scheme in question. In 2013, the Maryland General Assembly enacted the FSA to "protect[ ] its citizens and law enforcement officers," by regulating the sale, transfer, and possession of certain firearms within Maryland. Kolbe v. Hogan , 849 F.3d 114, 120, 129 (4th Cir. 2017) (en banc).

In relevant part, the FSA provides that "[a] dealer or any other person may not sell, rent, or transfer a handgun to a purchaser, lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer or other person a valid handgun qualification license issued to the purchaser, lessee, or transferee by the Secretary [of the State Police.]" Md. Code, Pub. Safety § 5-117.1(b). To obtain such a handgun qualification license ("HQL"), a person must: (1) be at least 21 years old; (2) be a resident of Maryland; (3) complete a minimum of 4 hours of firearms safety training within the prior three years; and (4) "based on an investigation, [not be] prohibited by federal or State law from purchasing or possessing a handgun." Id. § 5-117.1(d). The safety training, which is undertaken at the applicant's expense, must cover classroom instruction on "State firearm law[,] home firearm safety[,] and handgun mechanisms and operation" along with a live-fire "firearms orientation component that demonstrates the person's safe operation and handling of a firearm."² Id. § 5-117.1(d)(3).

An individual may apply for an HQL by submitting the mandated materials, including a written application, a "nonrefundable application fee to cover the costs to administer the program of up to $50," and, as noted above, proof of completing firearms safety training or an exemption to that requirement. Id. § 5-117.1(g). Once the HQL application is received, the Secretary of State Police "appl[ies] to [the Criminal Justice Information System Central Repository of the Department of Public Safety and Correctional Services] for a State and national criminal history records check for each applicant[.]" Id. § 5-117.1(f)(2). "As part of the application for a criminal history records check," the Secretary must provide, among other things, "a complete set of the applicant's legible fingerprints." Id. § 5-117.1(f)(3). Based on the result of this criminal history records check and the information provided by an applicant, the Secretary issues a decision to the applicant "[w]ithin 30 days after receiving a properly completed application." Id. § 5-117.1(h).

The FSA authorizes the State Police to adopt regulations to implement the HQL requirement. Id. § 5-117.1(n). Under this statutory authority, the State Police has adopted various regulations providing guidance on how to obtain an HQL, including what information an applicant must submit and what a qualifying safety training course must include. For instance, the regulations require an applicant to provide, among other things, "[a] complete set of the applicant's fingerprints, taken and submitted in the manner prescribed by the Secretary on the application." Md. Code Regs. 29.03.01.28(B)(3). The applicant is responsible for obtaining his or her fingerprints from an approved vendor at his or her expense. The State Police further mandates that the applicant "safely fire[ ] at least one round of live ammunition" during the safety training course. Md. Code Regs. 29.03.01.29(C)(4).

Only four designated groups of people are exempt from the HQL requirement:

(1) a licensed firearms manufacturer;

(2) a law enforcement officer or person who is retired in good standing from service with a law enforcement agency of the United States, the State, or a local law enforcement agency of the State;

(3) a member or retired member of the armed forces of the United States or the National Guard; or

(4) a person purchasing, renting, or receiving an antique, curio, or relic firearm, as defined in federal law or in determinations published by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Md. Code, Pub. Safety § 5-117.1(a). Apart from these limited exceptions, anyone who fails to comply with the HQL requirement "is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both." Id. § 5-144(b).

B.

With the statutory framework in mind, we now turn to the specific circumstances of this case. MSI is a non-profit membership organization that, in its own words, is "dedicated to the preservation and advancement of gun owners’ rights in Maryland" and "seeks to educate the community about the right of self-protection, the safe handling of firearms, and the responsibility that goes with carrying a firearm in public." Opening Br. 8. It has more than 1,100 members. The Individual Plaintiffs are MSI members who would like to own a handgun, but have not attempted to purchase one and do not intend to obtain an HQL. Atlantic Guns, which has no formal affiliation with any of the other parties, is a family-owned, federally licensed firearms dealer that operates several commercial gun stores in Maryland.

Appellants argue that the FSA has caused them various injuries. The Individual Plaintiffs claim that the FSA prevents them from purchasing a handgun, even though they are willing to do so. Specifically, Vizas alleges that she is unable to commit the time and the expense required to fulfill the HQL requirement, while Miller alleges that she suffers from a medical condition that prevents her from completing the safety training course. Because the Individual Plaintiffs have neither taken any steps to apply for an HQL nor expressed any desire to obtain one, they do not have an HQL and the FSA precludes them from purchasing a handgun. As a result, they assert that the FSA's "ban on the unlicensed acquisition" of a handgun has harmed them. Opening Br. 20. For its part, MSI claims that the FSA disrupted the pursuit of its organizational mission by deterring its members from acquiring handguns and caused it to alter its mission by expending funds to oppose the FSA. Atlantic Guns separately alleges that the FSA barred it from selling handguns to customers who did not possess an HQL, which constricted its market and caused direct economic loss. Based on these asserted injuries, Appellants allege that the HQL requirement violates their Second Amendment rights to purchase a handgun (or, for Atlantic Guns, its ancillary right to sell firearms) for self-defense and protection in the home.

Further, the Individual Plaintiffs claim that the HQL requirement is void for vagueness under the Fourteenth Amendment based on its use of two terms, "receive" and "receipt," in two specific subsections of the FSA. In their view, these terms as used in the FSA are so vague and ambiguous that they lead to absurd results and do not sufficiently clarify what conduct without an HQL is...