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Maryland Shall Issue, Inc. v. Hogan

United States District Court, D. Maryland

September 6, 2017

MARYLAND SHALL ISSUE, INC., Plaintiffs
v.
LAWRENCE HOGAN, in his capacity Of GOVERNOR OF MARYLAND, Defendants

          MEMORANDUM AND ORDER RE: DISMISSAL

          Marvin J. Garbis United States District Judge

         The Court has before it Defendants' Motion to Dismiss the Amended Complaint [ECF No. 18] and the materials submitted relating thereto. The Court has held a hearing and has had the benefit of the arguments of counsel.

         I. BACKGROUND

         In 2013, the Maryland General Assembly passed the Firearm Safety Act of 2013 (“FSA”), to regulate the sale and possession of firearms within the state. The FSA includes a Handgun Qualification License provision (“HQL Provision” or “Provision”), Md. Code Ann., Pub. Safety § 5-117.1, which forbids the sale, rental, transfer, purchase, or receipt of a handgun by any person without a valid HQL issued by the Secretary, with certain exceptions.

         Plaintiffs Maryland Shall Issue, Inc., Atlantic Guns, Inc., Ana Sliveira, Deborah Kay Miller, Susan Brancato Vizas, and Christine Bunch (collectively “Plaintiffs”) assert claims against Defendants Lawrence Hogan, in his official capacity as Governor of the State of Maryland, and William M. Pallozzi, in his official capacity as Secretary and Superintendent of the Maryland State Police (collectively “Defendants”).

         The Plaintiffs have filed the instant lawsuit, seeking an order declaring the HQL Provision unconstitutional on its face and as applied to the Plaintiffs, and to enjoin enforcement of Md. Code Ann., Pub. Safety § 5-117.1 and the implementing regulations and practices adopted by the Maryland State Police (“MSP”).

         Plaintiffs' Amended Complaint [ECF No. 13] presents three Counts:

         Count I. Second Amendment (42 U.S.C. § 1983);

         Count II. Fourteenth Amendment, Due Process (42 U.S.C. § 1983);

         Count III. Ultra Vires (violation of Md. Code Ann., State Gov't § 10-125(d)).

         By the instant motion, Defendants seek dismissal of the Amended Complaint pursuant to Rule[1] 12(b)(6) for failure to state a claim upon which relief can be granted.

         II. DISMISSAL STANDARD

         A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. A complaint need only contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or “a formulaic recitation of the elements of a cause of action will not [suffice].” Id. A complaint must allege sufficient facts “to cross ‘the line between possibility and plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

         Inquiry into whether a complaint states a plausible claim is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Id. (quoting Twombly, 550 U.S. at 557). Thus, if “the well-pleaded facts [contained within a complaint] do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).

         III. DISCUSSION

         A. Handgun Qualification License Provision

         Plaintiffs challenge the HQL Provision of the FSA. The Provision provides that “[a] dealer or any other person may not sell, rent, or transfer a handgun” unless the purchaser, lessee, or transferee presents a valid handgun qualification license (“HQL”). Md. Code Ann., Pub. Safety § 5-117.1(b).

         Furthermore, “[a] person may purchase, rent, or receive a handgun only if the person:

(1) possesses a valid HQL [or meets certain statutory exceptions][2] and

(2) is not otherwise prohibited from purchasing or possessing a handgun under State or federal law.”

Id. § 5-117.1(c).

         The statute states that the Secretary shall issue an HQL to a person who is (1) 21 years old, (2) a Maryland resident, (3) not prohibited by federal or state law from purchasing or possessing a handgun, and (4) has “demonstrated satisfactory completion” of a firearms safety training course approved by the Secretary within the three years prior to the application. Id. § 5-117.1(d). The training course is required to include:

(a) a minimum of 4 hours of instruction by a qualified handgun instructor;
(b) classroom instruction on:
(1) State firearm law;
(2) home firearm safety; and
(3) handgun mechanisms and operation; and
(c) a firearms orientation component that demonstrates the person's safe operation and handling of a firearm.

Id. Certain individuals are exempt from the training course requirement.[3]

         HQL applicants must submit:

(1) an application in the manner and format designated by the Secretary;

(2) a nonrefundable application fee to cover the costs to administer the program of up to $50;

(3) (i) proof of satisfactory completion of [an approved firearms safety training course]; or

(ii) a valid firearms instructor certification;

(4) any other identifying information or documentation required by the Secretary; and

(5) a statement made by the applicant under the penalty of perjury that the applicant is not prohibited under federal or State law from possessing a handgun.

Id. § 5-117.1(g).

         After receiving an application, the Secretary must complete a State and national criminal history records check using the applicant's fingerprints. The fees for these records checks are $18.00 and $14.50 respectively.

         Within thirty days[4] of receiving a complete application, the Secretary will issue an approval or a written denial containing the reason for denial and a statement of the applicant's appeal rights.[5] An HQL is valid for ten years and may be renewed for successive ten-year periods as long as the applicant possesses the qualifications for the HQL and pays a $20.00 application fee. Id. §§ 5-117.1(i), (j).

         A person whose HQL application is denied or whose HQL is revoked may request a hearing within thirty days of the revocation or denial, and the hearing will be granted within fifteen days of the request. Id. § 5-117.1(1).

         B. The HQL Regulations

         The FSA authorizes the Secretary of the Maryland State Police (“MSP”) to adopt regulations to implement the HQL requirement. Id. § 5-117.1(n). Accordingly, the MSP has adopted regulations and practices after a notice and comment period.

         The MSP regulations require an HQL application to be submitted online, and the application must include the “applicant's name, address, driver's license or photographic identification soundex number, place and date of birth, height, weight, race, sex, eye and hair color, occupation, and home and work telephone numbers” and a nonrefundable payment of $50.00. Md. Code Regs. 29.03.01.28 (2017). Plaintiffs claim that, as a matter of practice, the MSP will accept only fingerprints taken by a State-certified vendor using “livescan” technology. The fee for fingerprinting is $17.00. ¶[6] 37.

         Applicants are also required to submit “a Firearms Safety Training Certificate issued by a Qualified Handgun Instructor” that “constitute[s] proof that the applicant satisfactorily completed a Firearms Safety Training Course.” Md. Code Regs. 29.03.01.29 (2017). In addition to the statute's requirements for the course content, the regulations specify that the course must include “a practice component in which the applicant safely fires at least one round of live ammunition.” Id. An applicant will have to pay any charged fee for the training course in addition to the $50.00 application fee.

         C. The Plaintiffs

         1. Individual Plaintiffs

         The Individual Plaintiffs are four women who reside in Maryland and are over the age of 21. They do not currently own handguns and are “deterred from purchasing a handgun because of the expense and inconvenience of the HQL application process and its constituent parts.” ¶¶ 9, 14, 19, 24. But for the HQL requirement, they could lawfully purchase and own handguns.

         Plaintiff Ana Sliveira is a single mother who is employed as a Department of Defense federal contractor employee. She holds a government security clearance and was a victim of the Office of Personnel Management data breach. She has heightened concern for her family's safety because her personal information has been disclosed as a result of that breach. She would like to purchase a handgun to protect herself and her family inside of her home. She does not own any other firearms.

         Plaintiff Deborah Kay Miller is a General Member of Plaintiff organization Maryland Shall Issue, Inc. Ms. Miller wants a handgun for self-defense, target practice, and other lawful purposes.

         Plaintiff Susan Brancato Vizas has passed Hunter Safety Training and would like to purchase a handgun for self-defense, target practice, and other lawful purposes, but has not taken further steps to obtain an HQL because the process is burdensome. Ms. Vizas is a mother of three school-aged children.

         Plaintiff Christine Bunch wants a handgun for self-defense, target practice, and other lawful purposes; however, she “cannot afford the time or excessive cost of acquiring an HQL.” ¶ 24.

         2. Plaintiffs Maryland Shall Issue

         Plaintiff Maryland Shall Issue, Inc. (“MSI”) is a Maryland non-profit organization “dedicated to the preservation and advancement of gun owners' rights in Maryland.” ¶ 25. MSI “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.” Id. MSI claims that the HQL requirements undermine its message and objectives.

         MSI brings this action on behalf of itself and its approximately 772 members. Some MSI members do not possess HQLs and “have been deterred from purchasing a handgun because of the expense and inconvenience of the HQL application process and its constituent parts.” Id.

         3. Plaintiff ...


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