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Cutonilli v. State

United States District Court, D. Maryland

April 13, 2017

JOHN A. CUTONILLI, Plaintiff
v.
STATE OF MARYLAND, Defendant

          MEMORANDUM AND ORDER

          JAMES K. BREDAR UNITED STATES DISTRICT JUDGE.

         On March 9, 2017, Plaintiff John Cutonilli (''Plaintiff'') filed a pro se Motion for Leave to File Amended Complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure (''Motion to Amend''). (ECF No. 19.) The State of Maryland filed a response brief objecting in part to Plaintiff's proposed amendments. (ECF No. 20.) Plaintiff has not replied to the State's response brief within the fourteen-day window allotted by Local Rule 105.2(a) (D. Md. 2016).

         The Court has carefully reviewed Plaintiff's proposed amendments and has determined that no hearing is necessary to resolve this matter, see Local Rule 105.6 (D. Md. 2016). In spite of the State's partial acquiescence in Plaintiff's motion, the Court concludes that the proposed amendments would be futile. Accordingly, Plaintiff's Motion to Amend will be DENIED. Further, because any set of pleadings consistent with Plaintiff's basic theory of the case would seem to be foreclosed by Circuit precedent, Plaintiff shall have fourteen days from the date of this Memorandum and Order to SHOW CAUSE why this action should not be dismissed with prejudice.

         I. Procedural Overview

         A brief review of the procedural history of this case is in order. Plaintiff initially filed suit on March 6, 2015, challenging Maryland's Firearm Safety Act of 2013, Md. Code Ann., Crim. Law §§ 4-301 to -306 (''FSA''), on federal and state constitutional grounds. (ECF No. 1.) Plaintiff speculated that, as a ''member'' of the unorganized militia, he might be called upon to serve at the pleasure of the Governor of Maryland or the President of the United States, and he wished to purchase assault weapons and large-capacity magazines to arm himself for this hypothetical service. These weapons of war are restricted under the FSA. Plaintiff challenged the statute under the Second Amendment (Counts I-II), the Maryland Constitution's Declaration of Rights (Count III), and the Equal Protection Clause of the Fourteenth Amendment (Count IV). The State moved to dismiss. (ECF No. 5.)

         In a Memorandum and accompanying Order dated September 28, 2015, the Court granted the State's motion in part and denied the motion without prejudice in part. Cutonilli v. Maryland, Civ. No. JKB-15-629, 2015 WL 5719572 (D. Md. Sept. 28, 2015). The Court dismissed Counts III (Maryland Constitution) and IV (Equal Protection) of Plaintiff's complaint for failure to state a claim for relief. Id. at *5-6. The Court declined to dismiss Counts I-II (Second Amendment), but it narrowed the scope of those counts considerably. As the Court explained, following District of Columbia v. Heller, 554 U.S. 570 (2008), it is settled that the Second Amendment fundamentally protects an individual right to self-defense: the prefatory clause, which references the militia, merely ''announces the purpose for which the right was codified'' but not the ''central component of the right itself.'' Id. at 599 (emphasis omitted). Bound by Heller, this Court held that ''Plaintiff's effort to carve out a discrete militia interest is unavailing.'' Cutonilli, 2015 WL 5719572, at *3.

         The Court also observed that Plaintiff's Second Amendment claim was remarkably similar to a claim in a case then recently decided by Chief Judge Blake of this District, Kolbe v. O'Malley, 42 F.Supp.3d 768 (D. Md. 2014). Kolbe was then pending on appeal before the United States Court of Appeals for the Fourth Circuit, and the Court deemed it prudent to stay this action until a final decision was reached in that matter. A stay accordingly entered.

         Plaintiff sought review of the Court's ruling, but the Fourth Circuit dismissed his appeal for lack of appellate jurisdiction. See Cutonilli v. Maryland, 633 F. App'x 839 (4th Cir. 2016) (per curiam). Around the same time, a panel of the Fourth Circuit vacated in part Chief Judge Blake's decision in Kolbe, see Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016), but that panel decision was subsequently vacated on the State's petition for rehearing. The court of appeals, sitting en banc, ultimately affirmed Chief Judge Blake's decision, see Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017). Shortly after the en banc opinion in Kolbe issued, Plaintiff filed his Motion to Amend.

         That motion is ripe for decision.

         II. Analysis

         Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a party may amend its pleading at any time with leave of court. The rule contemplates that leave should be freely granted when justice requires. There are exceptions, however, to this liberal standard for amendments. One such exception applies where an amendment would be futile. Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc). An amendment is futile if it could not survive a motion to dismiss for failure to state a claim. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995).

         Here, Plaintiff has submitted a proposed amended complaint that essentially tracks the allegations of his original complaint. He again has pleaded counts for violation of the Maryland Constitution (Count III) and the Equal Protection Clause (Count IV), and while he has added some descriptive language to these counts, he has not shown that the Court's prior dismissal of these counts was in error. That dismissal-barring reversal by the Fourth Circuit-is the law of the case. The proposed amendments to Counts III and IV are futile.

         Plaintiff also has retained much of the language from his original complaint concerning his hypothetical role in the unorganized militia. As the Court explained in its prior Memorandum, Heller makes clear that the Second Amendment does not enshrine a discrete militia interest separate from the core right to self-defense. See Cutonilli, 2015 WL 5719572, at *3; see also United States v. Smoot, 690 F.3d 215, 220 (4th Cir. 2012) (''In [Heller], the Supreme Court identified an individual right to keep and bear arms embodied in the Second Amendment, without any connection to militia service.''). To whatever extent Plaintiff intends to prosecute a Second Amendment challenge to the FSA on the basis of his militia membership, this Court has already rejected that theory as barred by controlling precedent, and Plaintiff has not shown that this Court's prior ruling was erroneous.

         Once Counts III-IV and the language concerning militia membership are stripped from the proposed amended complaint, Plaintiff is left with basically the same Second Amendment challenge that the Court stayed in September 2015. However, a change in controlling law has occurred during the intervening period: namely, the Fourth Circuit decided Kolbe. In Kolbe, the Court of Appeals held unequivocally that the ''assault weapons and large-capacity magazines'' restricted by the FSA ''are not protected by the Second Amendment.'' 849 F.3d at 121 (emphasis in original). The en banc court ruled in the alternative that the FSA would be subject to (and would readily survive) intermediate scrutiny rather than the strict scrutiny that the three-judge panel had imposed, see Id. at 130-but while intermediate scrutiny involves fact-sensitive balancing, the court's principal holding was a pure decision of law. If the weapons Plaintiff wishes to purchase for his hypothetical militia duties are categorically excluded from Second Amendment protection-and the Fourth ...


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