United States District Court, D. Maryland
JOHN A. CUTONILLI, Plaintiff
STATE OF MARYLAND, Defendant
MEMORANDUM AND ORDER
K. BREDAR UNITED STATES DISTRICT JUDGE.
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.
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.
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.)
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.
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
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.
motion is ripe for decision.
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).
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
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.
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 ...