United States District Court, D. Maryland
MARYLAND SHALL ISSUE, et al. Plaintiffs,
LAWRENCE HOGAN, in his official capacity as Governor of Maryland Defendant.
K. Bredar Chief Judge
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.) According to the Department
[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
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.)
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),
(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
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).)
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.)
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.
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).
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.” §
• “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).
the Act exempts from the definition any “semiautomatic
replacement trigger that improves the performance and
functionality over the stock trigger.” §
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.
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.
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],
The Advisory declared that “[a]ny such applications or
requests will be returned to the applicant without
action.” (Id. (quoting ATF Special Advisory).)
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.)
Standard for Dismissal under Rule 12(b)(6)
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)).
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
• 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 ...