Md. Shall Issue, Inc. v. Hogan

Decision Date31 March 2019
Docket NumberCivil Case No. ELH-16-3311
CourtU.S. District Court — District of Maryland



In this case, the Court considers a challenge to the constitutionality of Maryland's handgun licensing requirement, enacted in 2013 by the Maryland General Assembly as part of a comprehensive effort to protect public safety.1 The legislation, known as the Firearm Safety Act of 2013 (the "FSA" or the "Act"), was spawned by the tragic, senseless, and brutal murders committed in Newtown, Connecticut in 2012, when 20 first-graders and six adults were slaughtered by an individual who used an AR-15-type Bushmaster rifle. See Kolbe v. Hogan, 849 F.3d 114, 119-20 (4th Cir. 2017) (en banc), cert. denied, ___ U.S. ___, 138 S. Ct. 469 (2017).2

Plaintiffs Maryland Shall Issue, Inc. ("MSI"), for itself and approximately 772 members; Atlantic Guns, Inc. ("Atlantic Guns"); Deborah Kay Miller; and Susan Vizas have filed suit against defendants Lawrence Hogan, in his capacity as Governor of Maryland, and William M. Pallozzi,in his capacity as Superintendent of the Maryland State Police. ECF 1.3 Plaintiffs' suit concerns the provision in the FSA that requires a prospective handgun buyer to obtain a Handgun Qualification License ("HQL") before purchasing a handgun. See Md. Code (2018 Repl. Vol.), § 5-117.1 of the Public Safety Article ("P.S.").

Plaintiffs' First Amended Complaint (ECF 14) contains three counts. Count I (¶¶ 47-57) asserts a claim alleging violation of the Second Amendment of the Constitution. According to plaintiffs, the HQL application process "unnecessarily chills the exercise of Second Amendment rights . . . . Id. ¶ 49. Count II asserts a violation of the Due Process Clause of the Fourteenth Amendment, based, inter alia, on statutory vagueness. In Count III (¶¶ 74-87), plaintiffs allege an ultra vires claim under Md. Code, § 10425(d) of the State Government Article ("S.G."), challenging rulemaking by the Maryland State Police ("MSP"). Plaintiffs seek, inter alia, an order declaring that P.S. § 5-117 violates the Second Amendment and the Due Process Clause of the Fourteenth Amendment, both on its face and as applied. ECF 16 at 21-22.

Defendants moved to dismiss the First Amended Complaint. ECF 18. On September 6, 2017, Judge Marvin Garbis, to whom the case was then assigned, issued a Memorandum and Order (ECF 34), dismissing a challenge to the Instructor Certification Requirement of the Act with respect to Count II. He denied the motion as to all other claims. Id.

Discovery has since concluded. Now pending is defendants' motion for summary judgment under Fed. R. Civ. P. 56 (ECF 59), supported by a memorandum (ECF 59-1) (collectively, "Defendants' Motion") and multiple exhibits. Plaintiffs filed a consolidated opposition and cross motion for summary judgment (ECF 77, "Plaintiffs' Motion"), along withnumerous exhibits. Defendants filed a combined reply in support of Defendants' Motion and an opposition to Plaintiffs' Motion (ECF 89), along with many more exhibits. Plaintiffs replied (ECF 96) and submitted additional exhibits.

Each side has also filed a motion to exclude the other side's expert witnesses, along with oppositions and replies to each motion (collectively, "the Expert Witness Motions"). See ECF 79; ECF 90; ECF 91; ECF 94; ECF 95; ECF 97.

Several amici have filed briefs, with leave of court. They focus largely on whether the Act comports with the Second Amendment. ECF 70; ECF 78.4

No hearing is necessary to resolve the pending motions. See Local Rule 105(6) (D. Md. 2018). For the reasons that follow, I conclude that plaintiffs lack standing to pursue their claims. Accordingly, I shall grant Defendant's Motion, deny Plaintiffs' Motion, and deny, as moot, the Expert Witness Motions.

I. Factual Background5
A. The FSA

In 2013, the Maryland General Assembly enacted the FSA. In relevant part, the statute requires most Maryland handgun purchasers to first obtain a Handgun Qualification License. Subject to certain exemptions, "[a] dealer or any other person may not sell, rent, or transfer ahandgun" to a second person, and the second person "may not purchase, rent, or receive a handgun" from the first person, unless the buyer, lessee, or transferee presents a valid HQL. P.S. § 5-117.1(b), (c). In order to obtain an HQL, the applicant must satisfy several requirements. A person who violates the statute is guilty of a misdemeanor, and is subject to imprisonment for up to five years and/or a fine not exceeding $10,000. Id. § 5-144(b).

The FSA requires the Secretary of the Maryland Department of State Police ("MSP") to issue an HQL to an applicant who satisfies four criteria: (1) the applicant must be at least 21 years of age; (2) the applicant must be a Maryland resident; (3) the applicant must have completed an acceptable firearms training course within three years of applying for an HQL; and (4) the applicant must not be otherwise prohibited from owning a firearm, based on a background investigation after fingerprints are provided by the applicant. Id. § 5-117.1(d).

An applicant must complete a written application, in a manner designated by the Secretary, and payment of a non-refundable application fee in an amount not to exceed $50. Id. § 5-117.1(g). Moreover, the application must include "a complete set of the applicant's legible fingerprints taken in a format approved by" the Maryland Department of Public Safety and Correctional Services ("DPSCS") and the Federal Bureau of Investigation. Id. § 5-117.1(f)(3)(i); ECF 59-7 at 1-9 (Declaration of MSP Captain Andy Johnson), ¶ 23.6 The applicant must also submit proof of completion of the training requirement, and a statement under oath that he or she is not prohibited from gun ownership. P.S. § 5-117.1(g).

The Secretary of MSP must apply to DPSCS for a criminal history records check for all HQL applicants. Id. § 5-117.1(f)(2). If DPSCS receives criminal history information "after thedate of the initial criminal history records check," the MSP may revoke the HQL of a person who becomes ineligible to possess the handgun. See ECF 59-7 at 7, ¶¶ 23, 24.

In order to obtain a valid HQL, most applicants must complete a four-hour firearms safety training course, taught by a qualified handgun instructor ("QHI"), consisting of both classroom instruction and "a firearms orientation component that demonstrates the person's safe operation and handling of a firearm." P.S. § 5-117.1(d)(3). However, an applicant is exempt from the training requirement under certain conditions, including prior completion of safety training or lawful ownership of a "regulated firearm." Id. §§ 5-117.1(e); 5-101(r).

The Act requires the MSP to process any completed application within 30 days of its receipt. Id. § 5-117.1(h). Once issued, an HQL is valid for ten years (id. § 5-117.1(i)) and may be renewed. Id. § 5-117.1(j).

If the HQL is not approved, the Secretary must provide a written denial, along with a statement of reasons and notice of appeal rights. Id. § 5-117.1(h). A person whose application is not approved may request a hearing with the Secretary within 30 days of the denial, and thereafter may seek judicial review in State court. Id. § 5-117.1(I)(1), (3).

As authorized by the Act, the MSP adopted regulations to effectuate the HQL requirements. See P.S. §§ 5-105; 5-117.1(n); Code of Maryland Regulations ("COMAR") Among other things, the regulations require submission of an online application for an HQL, which includes the applicant's "name, address, driver's license or photographic identification soundex number," along with other identifiers and a nonrefundable application fee of $50. COMAR The regulations also require that the applicant's fingerprints be taken by a State-certified vendor using "livescan" technology, which requires a fingerprinting fee of $17. P.S. § 5-117.1(f)(3)(i); ECF 59-7 at 7, ¶ 23; ECF 59-7 at 81-84.

With respect to the required firearms safety training course, the regulations require the course to include "a practice component in which the applicant safely fires at least one round of live ammunition." COMAR However, as of November 17, 2017, MSP permits the use of "non-lethal marking projectiles" to satisfy the HQL's "live fire" training requirement. See ECF 59-7 at 100.

B. The Plaintiffs

MSI is a non-profit membership organization that is "'dedicated to the preservation and advancement of gun owners' rights in Maryland. It 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.'" ECF 77-2 (Decl. of Mark W. Pennak, MSI President), ¶ 2 (quoting MSI's purposes include "promoting and defending the exercise of the right to keep and bear arms" and "defending the Constitutional right of law-abiding persons to lawfully purchase, own, possess and carry firearms and firearms accessories." Id.

MSI's membership has grown since suit was filed. As of October 3, 2018, it had more than 1,100 members throughout Maryland. Id.

In the course of this litigation, MSI identified four members "whose circumstances MSI relies upon in part to establish standing and other elements of its case" ECF 59-11, MSI's Response No. 1. One of those members, Deborah Miller, is also one of the named plaintiffs. The second MSI member, John Matthew Clark, purchased a 9-millimeter handgun in September 2013, before the HQL Act took effect. ECF 59-13 (Clark Deposition) at 3. Mr. Clark uses his handgun for target shooting at a range approximately two miles from his home. Id. at 4. He wants a larger 9-millimeter handgun, but has not shopped for or selected one. Id. at 5. Moreover, Mr. Clark hasnot applied for an HQL, because he believes the requirement is unconstitutional, and he is deterred by the cost....

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