Scherr v. Handgun Permit Review Bd.

• Decision Date: 11 July 2005
• Docket Number: No. 780,780
• Citation: 880 A.2d 1137,163 Md. App. 417
• Parties: H. Robert SCHERR v. HANDGUN PERMIT REVIEW BOARD.
• Court: Court of Special Appeals of Maryland

880 A.2d 1137

163 Md. App. 417

H. Robert SCHERR v. HANDGUN PERMIT REVIEW BOARD.

No. 780, September Term, 2004.

Court of Special Appeals of Maryland.

July 11, 2005.

Reconsideration Denied September 8, 2005.

H. Robert Scherr, Glen Burnie, for Appellant

Mark H. Bowen (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: SALMON, BARBERA, WILLIAM W. WENNER, (Ret., Specially Assigned), JJ.

SALMON, Judge.

With certain exceptions, some of which will be discussed infra, section 4-203(a)(1) of the Criminal Law Article of the Annotated Code of Maryland (2002) makes it illegal for anyone to

(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person; or

(ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State.

One of the exceptions to the foregoing prohibition is set forth in section 4-203(b)(2) of the Criminal Law Article. That section allows

the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under Article 27, § 36E of the Code.

MD.CODE ANN., CRIM. LAW § 4-203(b)(2) (2002).

Article 27, Section 36E,¹ of the Maryland Annotated Code (1996 Repl., 2000 Supp.), provides:

(a) Issuance. — A permit to carry a handgun shall be issued within a reasonable time by the Secretary of the State Police, upon application under oath therefor, to any person whom the Secretary finds:

(1) Is eighteen years of age or older; and

(2) Has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than one year has been imposed or, if convicted of such a crime, has been pardoned or has been granted relief pursuant to Title 18, § 925(c) of the United States Code; and

(3) If the person is less than 30 years of age and who has not been:

(i) Committed to any detention, training, or correctional institution for juveniles for longer than one year after an adjudication of delinquency by a juvenile court; or

(ii) Adjudicated delinquent by a juvenile court for:

1. A crime of violence;

2. Any violation classified as a felony in this State; or

3. Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years; and

(4) Has not been convicted of any offense involving the possession, use, or distribution of controlled dangerous substances; and is not presently an addict, an habitual user of any controlled dangerous substance not under legitimate medical direction, or an alcoholic; and

(5) Has, based on the results of investigation, not exhibited a propensity for violence or instability which may reasonably render his possession of a handgun a danger to himself or other law-abiding persons; and

(6) Has, based on the results of investigation, good and substantial reason to wear, carry, or transport a handgun, provided however, that the phrase "good and substantial reason" as used herein shall be deemed to include a finding that such permit is necessary as a reasonable precaution against apprehended danger.

(Emphasis added.)

On September 23, 2002, H. Robert Scherr, Esq., applied to the Maryland State Police, pursuant to Article 27, section 36E, for a permit to carry a handgun. The Secretary of the Maryland State Police denied the permit because, allegedly, Scherr had not shown, based on the results of the police investigation, "good and substantial reason to wear, carry, or transport a handgun." Scherr appealed that denial to the Handgun Permit Review Board ("the Review Board"). After a hearing, the Review Board affirmed the denial. Scherr then filed a petition for judicial review in the Circuit Court for Baltimore County. Judge Thomas Bollinger conducted a hearing at the conclusion of which he remanded the matter to the Review Board because (1) there was evidence in the record that Scherr was "a former prosecutor"; (2) neither the Review Board nor the state police official who made the determination to deny the permit considered the fact that Scherr was a former prosecutor; and (3) a former prosecutor, due to "past adverse dealings with criminals," would "certainly have a level of apprehended danger more than the average person would encounter."

A second hearing was held before the Review Board on November 5, 2003. Eight days after the hearing, on November 13, the Review Board, in a three to two decision, once again affirmed the denial of the handgun permit by the Secretary. A second petition for judicial review was then filed by Scherr. In a written opinion and order dated May 26, 2004, Judge Christian M. Kahl affirmed the Review Board's decision to deny the permit.

Scherr filed a timely appeal in which he raises five questions, which we have reworded:

1. Was the conclusion of the Review Board that appellant has failed to demonstrate a good and substantial reason to wear, carry, or transport a handgun supported by substantial evidence?

2. Did the Review Board err in failing to find that appellant had "good and substantial reason to wear, carry, or transport a handgun"?

3. Do the provisions of Article 27, Section 36E(a)(6) violate the due process clause of the Fourteenth Amendment because those provisions do not bear a real and substantial relation to the public health, morals, safety, and welfare of the citizens of the State of Maryland?

4. Is Article 27, Section 36E(a)(6), unconstitutional because it violates the Second Amendment to the Constitution of the United States?

5. Does the Maryland Declaration of Rights provide a state constitutional right to bear arms?

I. EVIDENCE PRESENTED AT THE FIRST HEARING BEFORE THE REVIEW BOARD

A state police background check of Scherr was conducted shortly after he applied for a handgun permit. The investigation revealed that Scherr was a law abiding citizen with an excellent reputation. He was a member of the National Guard between 1970 and 1976 and received an honorable discharge. Scherr, a lawyer, resides in Baltimore County.

As part of the investigation, Scherr was interviewed by Maryland State Police Trooper Richard Kelly. Scherr told Trooper Kelly that he was a divorce lawyer and wanted a gun permit due to the "nature of his work."

After the interview by Kelly, Scherr's application for a permit was reviewed by Detective Sergeant Anthony Galloway, a supervisor of the State Police Handgun Permit Unit. Detective Sergeant Galloway noted that Scherr's application contained "no evidence and/or reference" to previously having been subjected to either "assaults, threats, or robberies." As a result of Galloway's review, the state police sent Scherr a "shortage letter" asking him to provide them with evidence of prior assaults, robberies, and/or threats. The letter asked that the prior assaults, etc., be corroborated by police reports. On November 22, 2002, Scherr returned the "shortage letter" with the word "none" handwritten next to the block requesting evidence of assaults and/or threats supported by police reports; he also wrote the word "none" next to the block requesting evidence that he had been a robbery victim.

Detective Sergeant Galloway, on November 22, 2002, recommended that the handgun permit be denied because Scherr had produced no evidence: (1) showing that he was the recipient of threats and/or assaults as a result of his activities as a divorce lawyer; (2) showing that the applicant's "level of threat and/or danger" was any greater than that of an ordinary citizen; and (3) demonstrating a "good or substantial reason" why he should be allowed to "wear, carry, or transport a handgun."

At the hearing before the Review Board, Detective Sergeant Galloway was cross-examined extensively by Scherr, who acted as his own attorney, concerning the criteria that Galloway used to establish whether an applicant's level of threat and/or danger "was any greater than that of the ordinary citizen." The cross-examination included the following exchange:

Q [MR. SCHERR] What is your criteria to determine whether a person has a good or substantial reason to carry a handgun?

A Whether or not that person's level of danger warrants the issuance of a Handgun Permit.

Q What is an acceptable level of danger, and what is not an acceptable level of danger?

A An acceptable level of danger is that which is more than the average person would expect to encounter. Unacceptable would be anything other than that. And we require that you have police reports to substantiate that, because often, people come to us and say that they've been involved in activities or have been threatened and assaulted, when it never occurred. And the only way for us to know that it actually did occur is whether or not there's been something to substantiate it, reports of witnesses, something, other than the person just coming to me and saying, you know, I was threatened, I was assaulted.

Q All right. So what you're testifying to is that an acceptable level of danger to you, which would merit your issuing a permit, would be, I think you said more than the average person would encounter?

A Yes.

Q What would the average person encounter, in your mind? I'm just trying to figure out what all your, what your standards are. You said that an acceptable level of danger to get a permit would be more than the average person would encounter. I'm asking you, what is the standard that an average person would encounter, so that I can determine what's more and what's less?

A There is no definitive standard. I look at that, and I interpret that as meaning more than someone saying, "I'm going to harm you," or someone bumping into you or someone making gestures, that we all encounter every day.

You're at the supermarket, and someone bumps into you and gives you the evil stare. We all encounter that from time to time. Someone cuts you off on the road. We all have encountered that. Verbal arguments

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