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Maryland Shall Issue v. Hogan

United States District Court, D. Maryland

November 15, 2018

MARYLAND SHALL ISSUE, et al. Plaintiffs,
v.
LAWRENCE HOGAN, in his official capacity as Governor of Maryland Defendant.

          MEMORANDUM

          James K. Bredar Chief Judge

         I. Introduction [[1]]

         On October 1, 2017, a gunman opened fire on a concert crowd in Las Vegas. In the span of barely ten minutes, the attacker unleashed hundreds of rounds of ammunition, killing 58 people and injuring more than 850. It was the deadliest mass shooting in the modern era. (Brief of Amicus Curiae Giffords Law Center to Prevent Gun Violence in Support of Def. at 2, ECF No. 13-1.) The shooter used semiautomatic rifles modified with devices known as “bump stocks, ” which enabled rapid fire approaching the rate of a fully automatic machine gun. (Id. at 2, 4.[2]) According to the Department of Justice,

[o]rdinarily, to operate a semiautomatic firearm, the shooter must repeatedly pull and release the trigger to allow it to reset, so that only one shot is fired with each pull of the trigger. When a bump- stock-type-device is affixed to a semiautomatic firearm, however, the device harnesses the recoil energy to slide the firearm back and forth so that the trigger automatically re-engages by ‘bumping' the shooter's stationary trigger finger without additional physical manipulation of the trigger by the shooter. The bump-stock-type device functions as a self-acting and self-regulating force that channels the firearm's recoil energy in a continuous back-and-forth cycle that allows the shooter to attain continuous firing after a single pull of the trigger . . . .

Dep't of Justice, Bureau of Alcohol, Tobacco, Firearms, & Explosives (ATF), Bump-Stock-Type Devices, 83 Fed. Reg. 13442, 13443 (proposed Mar. 29, 2018) [hereinafter “DOJ Notice of Proposed Rulemaking”] (cited in Amicus Brief at 2).

         Machine guns have been regulated under federal law for decades. See e.g., National Firearms Act of 1934, Pub. L. No. 73-474, 48 Stat. 1236 (codified as amended at I.R.C. §§ 5801-5872); Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449 (codified as amended at 18 U.S.C. §§ 921-927, 929(a)). However, federal law does not classify most bump-stock-type devices as machine guns, despite their impact on a semiautomatic weapon's rate of fire. See DOJ Notice of Proposed Rulemaking, 83 Fed. Reg. at 13444-46 (summarizing the history of ATF decisions involving bump stocks). Largely unregulated, such devices are widely available, often for $200 or less. (Amicus Brief at 6.)

         In the wake of the Las Vegas shooting, numerous elected officials called for changes to federal law. DOJ Notice of Proposed Rulemaking, 83 Fed. Reg. at 13446. Even the National Rifle Association publicly declared support for more stringent regulation. See Polly Mosendz & Kim Bhasin, Bump-Fire Stock Prices Double, Thanks to the NRA, Bloomberg (Oct. 5, 2017), https://www.bloomberg.com/news/articles/2017-10-05/bump-fire-stock-prices-double-thanks-to-the-nra (cited in Amicus Brief at 6 n.17). In early 2018, President Trump “directed the Department of Justice . . . ‘to dedicate all available resources[, ] . . . as expeditiously as possible, to propose for notice and comment a rule banning devices that turn legal weapons into machineguns.'” DOJ Notice of Proposed Rulemaking, 83 Fed. Reg. at 13446 (quoting Exec. Office of the President, Memorandum for the Attorney Gen., Application of the Definition of Machinegun to ‘Bump Fire' Stocks and Other Similar Devices, 83 Fed. Reg. 7949, 7949 (Feb. 23, 2018)). Shortly thereafter, DOJ proposed a rule that would reclassify bump-stock-type devices as machine guns under federal law, id. at 13442, but no changes have yet been made.

         The Maryland General Assembly moved more decisively. In April 2018, the democratically elected representatives of Maryland enacted Senate Bill 707, which made manufacture, sale, transport, or possession of “rapid fire trigger activators, ” including bump stocks and similar devices, unlawful in Maryland. 2018 Md. Laws ch. 252 (to be codified as amended at Md. Code Ann., Crim. Law §§ 4-301, 4-305.1, and 4-306) [hereinafter “SB-707”]. In crafting the law, legislators expressed concern about mass shootings, the lethality of firearms equipped with bump-stock-type devices, their unregulated status, and the danger to public safety. See S. Judicial Proceedings Comm. Floor Rep. on SB-707, at 4, 2018 Reg. Sess. (Md. 2018) (citing the Las Vegas shooting, lack of federal regulation, and the ability for such devices to enable “rates of fire between 400 to 800 rounds per minute”); Testimony of Sen. Victor R. Ramirez in Support of SB-707 at 2, S. Judicial Proceedings Comm., 2018 Reg. Sess. (Md. 2018) (“[T]here is no reason someone should be making a semi-automatic weapon into an automatic weapon[.] [W]ith the ban o[n] rapid fire trigger activators[, ] we can . . . sav[e] . . . innocent lives, and minimiz[e] the magnitude of tragic events such as the Las Vegas shooting.”) Seven other states similarly moved to restrict bump-stock-type devices. (Amicus at 11 n.33 (referring to laws in Connecticut, Delaware, Florida, Hawaii, New Jersey, Rhode Island, and Washington).)

         In this case, a putative class action filed on June 11, 2018, Plaintiffs seek to invalidate SB-707's restrictions on bump stocks and similar devices. Plaintiff Maryland Shall Issue, Inc. (MSI), a non-profit membership organization “dedicated to the preservation and advancement of gun owners' rights in Maryland, ” asserts claims on its own behalf, and on behalf of its members and others similarly situated. (Compl. ¶ 8, ECF No. 1.) Four individual MSI members are also named as individual plaintiffs. (Id. ¶¶ 9-12.) Plaintiffs have sued Governor Larry Hogan in his official capacity, alleging that SB-707 violates their constitutional rights under the Federal and State Constitutions. (Id. ¶ 3.) The Complaint puts forward five counts: a violation of the Takings Clause of the Fifth Amendment of the United States Constitution, applicable to the states via the Fourteenth Amendment (Count I); a violation of the Takings Clause of the Maryland Constitution, Article III, § 40 (Count II); a violation of the federal Due Process Clause, because of the imposition of an impossible condition (Count III); a violation of the federal Due Process Clause, because of vagueness (Count IV); and a violation of Article 24 of the Maryland Constitution, because of the abrogation of vested property rights (Count V). (Id.)

         Currently before the Court is Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF No. 9.) The issue is fully briefed, and no hearing is required. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Defendant's motion will be granted as to all counts of the Complaint.

         II. Factual Background

         On April 24, 2018, Governor Hogan signed Senate Bill 707 (“the Act, ” or “SB-707”) into law. (Compl. ¶ 13.) The Act makes it unlawful for any person to “manufacture, possess, sell, offer to sell, transfer, purchase, or receive a rapid fire trigger activator” or to “transport” such a device into the state. SB-707, sec. 2, § 4-305.1(a). Violation of the Act is a criminal misdemeanor subject to a term of imprisonment up to three years, a fine of up to $5, 000, or both. SB-707, sec. 1, § 4-306(a).

         The Act defines a “rapid fire trigger activator” to be “any device, including a removable manual or power-driven activating device, constructed so that, when installed in or attached to a firearm the rate at which the trigger is activated increases; or the rate of fire increases.” SB-707, sec. 1, § 4-301(M)(1). The term is defined to include “a bump stock, trigger crank, hellfire trigger, binary trigger system, burst trigger system, or a copy or a similar device, regardless of the producer or manufacturer.” § 4-301(M)(2). These named devices are defined as follows:

• “Bump Stock” is defined as “a device that, when installed in or attached to a firearm, increases the rate of fire of the firearm by using energy from the recoil of the firearm to generate a reciprocating action that facilitates repeated activation of the trigger.” § 4-301(F).
• “Trigger Crank” is defined as “a device that, when installed in or attached to a firearm, repeatedly activates the trigger of the firearm through the use of a crank, a lever, or any other part that is turned in a circular motion.” § 4-301(N).
• “Hellfire Trigger” is defined as “a device that, when installed in or attached to a firearm, disengages the trigger return spring when the trigger is pulled.” § 4-301(K).
• “Binary Trigger System” is defined as “a device that, when installed in or attached to a firearm, fires both when the trigger is pulled and on release of the trigger.” § 4-301(E).
• “Burst Trigger System” is defined as “a device that, when installed in or attached to a firearm, allows the firearm to discharge two or more shots with a single pull of the trigger by altering the trigger reset.” § 4-301(G).

         Finally, the Act exempts from the definition any “semiautomatic replacement trigger that improves the performance and functionality over the stock trigger.” § 4-301(M)(3).

         The Act contains an exception clause to permit certain individuals to continue to possess the otherwise prohibited devices in Maryland, provided that the individual:

(1) possessed the rapid fire trigger activator before October 1, 2018; (2) applied to the [ATF] before October 1, 2018, for authorization to possess a rapid fire trigger activator; (3) received authorization to possess a rapid fire trigger activator from the [ATF] before October 1, 2019; and (4) is in compliance with all federal requirements for possession of a rapid fire trigger activator.

         SB-707, sec. 2, § 4-305.1(b). Most provisions of the Act went into effect on October 1, 2018. (Compl. ¶ 13.) The requirement that an individual have received “authorization” from the ATF to qualify for the exception does not go into effect until October 1, 2019. SB-707, sec. 3.

         On the same day that the Act was signed into law, the ATF issued a “Special Advisory” on its website stating that “ATF is without legal authority to accept and process” applications for authorization under the Act. (Compl. ¶ 32 (quoting Special Advisory, Bureau of Alcohol, Tobacco, Firearms & Explosives, Maryland Law Restricting ‘Rapid Fire Trigger Activators,' (Apr. 24, 2018) [hereinafter ATF Special Advisory], https://www.atf.gov/news/pr/maryland-law-restricting-rapid-fire-trigger-activators).) The Advisory declared that “[a]ny such applications or requests will be returned to the applicant without action.” (Id. (quoting ATF Special Advisory).)

         According to the Complaint, Plaintiff MSI is a non-profit organization that works 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.” (Compl. ¶ 8.) Its purpose is to “promot[e] the exercise of the right to keep and bear arms, ” and to conduct activities including “education, research, and legal action focusing on the Constitutional right to privately own, possess and carry firearms and firearms accessories.” (Id.) MSI sues on its own behalf, alleging that SB-707 “undermin[es] its message and act[s] as an obstacle to the organization's objectives and purposes, ” and sues on behalf of its members, who “currently possess ‘rapid fire trigger activators' which are effectively and totally banned by” the Act. (Id.) The individual Plaintiffs, Paul Brockman, Robert Brunger, Caroline Brunger, and David Orlin, are all Maryland residents and MSI members, each of whom is alleged to have lawfully owned one or more of the devices prior to the Act's effective date. (Id. ¶¶ 9-11.) Plaintiffs seek compensatory damages for the loss of their banned devices, as well as declaratory and permanent injunctive relief to bar enforcement of the Act. (Id. ¶ 4.)

         III. Standard for Dismissal under Rule 12(b)(6)

         A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In analyzing a Rule 12(b)(6) motion, the Court views all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). Nevertheless, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A pleading that offers ‘labels and conclusions' or . . . ‘naked assertion[s]' devoid of ‘further factual enhancement'” will not suffice. Iqbal, 556 U.S. at 678 (alteration in original) (citation omitted) (quoting Twombly, 550 U.S. at 555, 557). The Court must be able to infer “more than the mere possibility of misconduct.” Id. at 679. In addition, the Court “need not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable conclusions, or arguments.'” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).

         IV. Analysis

         Although the Complaint alleges five counts, Plaintiffs have four main theories of relief:

• In Counts I and II, Plaintiffs argue that the Act is a per se taking without just compensation under the United States Constitution, as well as the Maryland Constitution, to the extent its Takings Clause follows federal law. (See Compl. ¶ 21 (citing Litz v. Md. Dep't of Env't., 131 A.3d 923, 930 (Md. 2016) (“[T]he decisions of the Supreme Court on the Fourteenth Amendment are practically direct authorities [for construing Article III, § 40].”)).)
• In Counts II and V, Plaintiffs put forward a separate per se takings theory under the State Constitution-that the Act retrospectively abrogates vested property rights in violation of Article 24, which also constitutes a taking under Maryland law. (See Id. ¶ 70 (citing Dua v. Comcast Cable of Md., Inc., 805 A.2d 1061, 1076 (Md. 2002) (“A statute having the effect of abrogating a vested property right, and not providing for compensation, does ‘authoriz[e] private property[]' to be taken . . . without just compensation (Article III, § 40). Concomitantly, such a statute results in a person . . . being ‘deprived of his . . . property' contrary to ‘the law of the land' (Article 24).”)).)
• In Count IV, Plaintiffs argue that the Act is unconstitutionally vague, because its terms can be read to encompass a number of devices that have only “minimal” impact on a firearm's rate of fire and are otherwise functionally and operationally dissimilar to bump stocks and other devices named in the Act. (Id. ¶¶ 61-66.)
• In Count III, Plaintiffs argue that ATF's refusal to process applications and grant authorizations for continued lawful possession makes it “legally impossible to comply” with the Act's exception clause, thus imposing a “legally impossible condition precedent” that violates due process ...

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