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Maryland Shall Issue, Inc. v. Hogan

United States District Court, D. Maryland

March 31, 2019

MARYLAND SHALL ISSUE, INC., et al.
v.
LAWRENCE HOGAN, et al.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         In this case, the Court considers a challenge to the constitutionality of Maryland's handgun licensing requirement, enacted in 2013 by the Maryland General Assembly as part of a comprehensive effort to protect public safety.[1] The legislation, known as the Firearm Safety Act of 2013 (the "FSA" or the "Act"), was spawned by the tragic, senseless, and brutal murders committed in Newtown, Connecticut in 2012, when 20 first-graders and six adults were slaughtered by an individual who used an AR-15-type Bushmaster rifle. See Kolbe v. Hogan, 849 F.3d 114, 119-20 (4th Cir. 2017) (en banc), cert, denied, U.S., 138 S.Ct. 469 (2017).[2]

         Plaintiffs Maryland Shall Issue, Inc. ("MSI"), for itself and approximately 772 members; Atlantic Guns, Inc. ("Atlantic Guns"); Deborah Kay Miller; and Susan Vizas have filed suit against defendants Lawrence Hogan, in his capacity as Governor of Maryland, and William M. Pallozzi, in his capacity as Superintendent of the Maryland State Police. ECF 1, [3] Plaintiffs' suit concerns the provision in the FSA that requires a prospective handgun buyer to obtain a Handgun Qualification License ("HQL") before purchasing a handgun. See Md. Code (2018 Repl. Vol.), § 5-117.1 of the Public Safety Article ("P.S.").

         Plaintiffs' First Amended Complaint (ECF 14) contains three counts. Count I (¶¶ 47-57) asserts a claim alleging violation of the Second Amendment of the Constitution. According to plaintiffs, the HQL application process "unnecessarily chills the exercise of Second Amendment rights Id. ¶ 49. Count II asserts a violation of the Due Process Clause of the Fourteenth Amendment, based, inter alia, on statutory vagueness. In Count III (¶¶ 74-87), plaintiffs allege an ultra vires claim under Md. Code, § 10-125(d) of the State Government Article ("S.G."), challenging rulemaking by the Maryland State Police ("MSP"). Plaintiffs seek, inter alia, an order declaring that P.S. § 5-117 violates the Second Amendment and the Due Process Clause of the Fourteenth Amendment, both on its face and as applied. ECF 16 at 21-22.

         Defendants moved to dismiss the First Amended Complaint. ECF 18. On September 6, 2017, Judge Marvin Garbis, to whom the case was then assigned, issued a Memorandum and Order (ECF 34), dismissing a challenge to the Instructor Certification Requirement of the Act with respect to Count II. He denied the motion as to all other claims. Id.

         Discovery has since concluded. Now pending is defendants' motion for summary judgment under Fed.R.Civ.P. 56 (ECF 59), supported by a memorandum (ECF 59-1) (collectively, "Defendants' Motion") and multiple exhibits. Plaintiffs filed a consolidated opposition and cross motion for summary judgment (ECF 77, "Plaintiffs' Motion"), along with numerous exhibits. Defendants filed a combined reply in support of Defendants" Motion and an opposition to Plaintiffs' Motion (ECF 89), along with many more exhibits. Plaintiffs replied (ECF 96) and submitted additional exhibits.

         Each side has also filed a motion to exclude the other side's expert witnesses, along with oppositions and replies to each motion (collectively, "the Expert Witness Motions"). See ECF 79; ECF 90; ECF 91; ECF 94; ECF 95; ECF 97.

         Several amici have filed briefs, with leave of court. They focus largely on whether the Act comports with the Second Amendment. ECF 70; ECF 78.[4]

         No hearing is necessary to resolve the pending motions. See Local Rule 105(6) (D. Md. 2018). For the reasons that follow, I conclude that plaintiffs lack standing to pursue their claims. Accordingly, I shall grant Defendant's Motion, deny Plaintiffs' Motion, and deny, as moot, the Expert Witness Motions.

         I. Factual Background[5]

         A. The FSA

         In 2013, the Maryland General Assembly enacted the FSA. In relevant part, the statute requires most Maryland handgun purchasers to first obtain a Handgun Qualification License. Subject to certain exemptions, i-[a] dealer or any other person may not sell, rent, or transfer a handgun" to a second person, and the second person "may not purchase, rent, or receive a handgun" from the first person, unless the buyer, lessee, or transferee presents a valid HQL. P.S. §5-117.1 (b), (c). In order to obtain an HQL, the applicant must satisfy several requirements. A person who violates the statute is guilty of a misdemeanor, and is subject to imprisonment for up to five years and/or a fine not exceeding $10, 000. Id. § 5-144(b).

         The FSA requires the Secretary of the Maryland Department of State Police ("MSP") to issue an HQL to an applicant who satisfies four criteria: (1) the applicant must be at least 21 years of age; (2) the applicant must be a Maryland resident; (3) the applicant must have completed an acceptable firearms training course within three years of applying for an HQL; and (4) the applicant must not be otherwise prohibited from owning a firearm, based on a background investigation after fingerprints are provided by the applicant. Id. § 5-117.1(d).

         An applicant must complete a written application, in a manner designated by the Secretary, and payment of a non-refundable application fee in an amount not to exceed S50. Id. § 5-117.1(g). Moreover, the application must include-ia complete set of the applicant's legible fingerprints taken in a format approved by" the Maryland Department of Public Safety and Correctional Services ("DPSCS") and the Federal Bureau of Investigation. Id. § 5-117.1(f)(3)(i); ECF 59-7 at 1-9 (Declaration of MSP Captain Andy Johnson), ¶ 23.[6] The applicant must also submit proof of completion of the training requirement, and a statement under oath that he or she is not prohibited from gun ownership. P.S. § 5-117.1 (g).

         The Secretary of MSP must apply to DPSCS for a criminal history records check for all HQL applicants. Id. § 5-117.1(f)(2). If DPSCS receives criminal history information "after the date of the initial criminal history records check," the MSP may revoke the HQL of a person who becomes ineligible to possess the handgun. See ECF 59-7 at 7, ¶¶ 23, 24.

         In order to obtain a valid HQL, most applicants must complete a four-hour firearms safety training course, taught by a qualified handgun instructor ("QHI"), consisting of both classroom instruction and "a firearms orientation component that demonstrates the person's safe operation and handling of a firearm." P.S. § 5-117.1(d)(3). However, an applicant is exempt from the training requirement under certain conditions, including prior completion of safety training or lawful ownership of a "regulated firearm." Id. §§ 5-117.1(e); 5-101(r).

         The Act requires the MSP to process any completed application within 30 days of its receipt. Id. § 5-117.1 (h). Once issued, an HQL is valid for ten years (/t/. § 5-117.1 (i)) and may be renewed. Id. § 5-117.1(j).

         If the HQL is not approved, the Secretary must provide a written denial, along with a statement of reasons and notice of appeal rights. Id. § 5-117.1(h). A person whose application is not approved may request a hearing with the Secretary within 30 days of the denial, and thereafter may seek judicial review in State court. Id. § 5-117.1(I)(1), (3).

         As authorized by the Act, the MSP adopted regulations to effectuate the HQL requirements. See P.S. §§ 5-105; 5-U7.1(n); Code of Maryland Regulations ("COMAR") 29.03.01.26-41. Among other things, the regulations require submission of an online application for an HQL, which includes the applicant's "name, address, driver's license or photographic identification soundex number." along with other identifiers and a nonrefundable application fee of $50. COMAR 29.03.01.28. The regulations also require that the applicant's fingerprints be taken by a State-certified vendor using "livescan" technology, which requires a fingerprinting fee of $17. P.S. § 5-117.1 (f)(3)(i); ECF 59-7 at 7, ¶ 23; ECF 59-7 at 81 -84.

         With respect to the required firearms safety training course, the regulations require the course to include "a practice component in which the applicant safely fires at least one round of live ammunition." COMAR 29.03, 01.29. However, as of November 17, 2017, MSP permits the use of "non-lethal marking projectiles" to satisfy the HQL's "live fire" training requirement. See ECF59-7at 100.

         B. The Plaintiffs

         MSI is a non-profit membership organization that is '"dedicated to the preservation and advancement of gun owners' rights in Maryland. It 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.'" ECF 77-2 (Decl. of Mark W. Pennak, MSI President), ¶ 2 (quoting https://www.marylandshallissue.org/jmain/index.php). MSI's purposes include "promoting and defending the exercise of the right to keep and bear arms" and "defending the Constitutional right of law-abiding persons to lawfully purchase, own, possess and carry firearms and firearms accessories." Id.

         MSI's membership has grown since suit was filed. As of October 3, 2018, it had more than 1, 100 members throughout Maryland. Id.

         In the course of this litigation, MSI identified four members "whose circumstances MSI relies upon in part to establish standing and other elements of its case." ECF 59-11, MSI's Response No. !. One of those members, Deborah Miller, is also one of the named plaintiffs. The second MSI member, John Matthew Clark, purchased a 9-millimeter handgun in September 2013. before the HQL Act took effect. ECF 59-13 (Clark Deposition) at 3. Mr. Clark uses his handgun for target shooting at a range approximately two miles from his home. Id. at 4. He wants a larger 9-millimeter handgun, but has not shopped for or selected one. Id. at 5. Moreover, Mr. Clark has not applied for an HQL, because he believes the requirement is unconstitutional, and he is deterred by the cost. Id. at 10-11. He did some "very light research" in 2014 on the required fingerprinting, but does not remember the exact fees and hours. Id. at 8-10. He believes he would be exempt from the law's training requirement. Id. at 12.

         The third identified MSI member. Dana Hoffman, testified that she has not fired a gun since the 1960s. ECF 59-14 (Hoffman Deposition) at 5. She went to a gun show for the first time in 2017. Id. at 4. Ms. Hoffman would like to have a license to purchase a handgun, but has not decided on a particular gun. Id. at 3. Nor has she applied for an HQL. Id. at 18. She has no financial hardship, and she has a computer, internet access, a credit or debit card, a driver's license, and a scanner. Id. at 12-13. Ms. Hoffman has hyperacusis, a condition affecting her hearing, and she is unable to tolerate noise. Id. at 5-7. She believes that in order to complete the HQL training course, she would have to fire at least 20 bullets. Id. at 7. However, she is not sure how long the required training would take. Id. at 16.

         The fourth identified MSI member, Scott Miller, was prompted to join the organization as a result of the passage of the Act. ECF 59-12 (Scott Miller Deposition) at 4. Mr. Miller owns a sporting shotgun, and has shopped online for handguns, but does not have the money to purchase one right now. Id. at 5. He has a computer, internet access, a credit or debit card, a driver's license, and a scanner. Id. at 6. Mr. Miller believes that the training class required for the HQL lasts about ten hours. Id. at 7. He has taken most of Maryland's Hunter Safety Course, but still has one requirement to complete. Id. at 8. Mr. Miller has not completed an application for an HQL, due to principle and inconvenience. Id. at 12-14. Nor has he done any research regarding the fingerprinting requirement. Id. at 10-12.

         Plaintiff Atlantic Guns is a licensed federal firearms dealer. ECF 14, ¶ 26. Under seal, Stephen Schneider, the owner of Atlantic Guns, has submitted a declaration with attached data showing the number of guns sold in Atlantic Gun's two stores, and the gross revenue derived for each year from 2000 through 2017. ECF 84 [SEALED]. Atlantic Guns

is aware of individual potential customers who express an interest in purchasing a handgun but cannot for lack of a Handgun Qualification License. Sometimes potential customers make a deposit toward the purchase. Atlantic Guns holds the deposit. On many occasions, customers will ask for a return of the deposit, having not acquired a Handgun Qualification License. Once the deposit is returned, Atlantic Guns does not retain the potential customer's information. As to deposits currently being held, Atlantic Guns cannot know if the customer is pursuing the Handgun Qualification License or not.

         ECF 59-16, Atlantic Guns's Interrogatory Response No. 7.

         Atlantic Guns cannot identify, by name, any potential customers who were denied HQLs or were deterred from purchasing handguns by the HQL requirement. Id.; ECF 59-15 (Deposition of Schneider, Corporate Designee) at 4-5. Schneider acknowledged at his deposition that he cannot establish that any reduction in business ''was caused exclusively by the HQL requirement. . . ." Id. at 7.

         Plaintiff Deborah Kay Miller joined MSI in 2017. ECF 77-4 (Miller Deposition) at 11. Ms. Miller would like to purchase a handgun, and previously looked at some guns, but has not made any decisions about the type of gun she wants to purchase or the price she is willing to pay. Id. at 10-11. Ms. Miller can afford the cost of an HQL, but has not taken any steps to initiate the application process. Id. at 12-14. She has a computer, internet access, a credit or debit card, a driver's license, and a scanner. Id. at 6. But, she claims that she has been deterred from applying for an HQL because of the time required for the training course. Id. at 12. She has not investigated whether the HQL training would require her to miss time at work. Id. at 13.

         Ms. Miller suffers from a back injury that she claims would make it difficult for her to sit through safety training. But, she has not inquired whether an accommodation can be made or whether the trainer would permit her to stand at will. Id. at 14. Ms. Miller is concerned that the Act is vague as to whether using her husband's gun at the firing range or at home would constitute ''receipt," potentially subjecting her to prosecution. Id. at 9, 15-17.

         Plaintiff Susan Vizas has passed Maryland's Hunter Safety Training course. ECF 59-10 (Vizas Deposition) at 16-17. Her spouse owns firearms, although she is not certain whether he has an HQL. Id., at 4. Ms. Vizas has a computer, internet access, a credit or debit card, a driver's license, and a scanner. Id. at 3-4. She decided in 2015 that she wanted to purchase a handgun. Id. at 5. She did not purchase one earlier because of financial constraints. Id. at 8-9. Ms. Vizas has not decided on a particular gun to purchase, and has not done a lot of research into available options. Id. She has not taken steps to apply for or to obtain an HQL, because she is deterred by the expense and the time required to take a class, get fingerprinted, and wait for a background check. Id. at 22. She believes the total cost to obtain an HQL would be about $400. Id. at 12.

         II. Legal Standards

         A. Summary Judgment

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Harmoosh, 848 F.3d at 238 ("A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law."). The nonmoving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

         The Supreme Court has clarified that not every factual dispute will defeat a summary judgment motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248. There is a genuine issue as to material fact ''if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id; see Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence "is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S at 252. And, "the mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id.

         Notably, "[a] party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [her] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert, denied, 541 U.S. 1042 (May 17, 2004); see also Celotex, 477 U.S at 322-24. As indicated, the court must view all of the facts, including any reasonable inferences to be drawn, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587; accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The district court's "function" is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; accord Guessons v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Where there is conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Or., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).

         However, to defeat summary judgment, conflicting evidence must give rise to a genuine dispute of material fact. Anderson, 477 U.S. at 247-48. If "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," then a dispute of material fact precludes summary judgment. Id. at 248; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016). Conversely, summary judgment is appropriate if the evidence "is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S at 252. And, "[t]he mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant]." Id.

         When, as here, the parties have filed cross motions for summary judgment, the court must consider "each motion separately on its own merits 'to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003). Simply because both sides have moved for summary judgment, it does not follow that summary judgment is necessarily appropriate. "Both motions must be denied if the court finds that there is a genuine issue of material fact. But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment." 10A Wright, Miller & Kane, FEDERAL PRACTICE & Procedure, § 2720, at 336-37 (3d ed. 1998, 2012 Supp.).

         B. Standing

         Defendants First argue that this Court is without subject matter jurisdiction to consider this case because each plaintiff lacks Article III standing to pursue the suit. According to defendants, plaintiffs have failed to provide any evidence that "they have suffered a concrete injury that is fairly traceable to the HQL law." ECF 59-1 at 18.

         Plaintiffs counter that they have standing to challenge the HQL requirement. ECF 77 at 44. MSI maintains that it has both organizational and representative standing. Id. Moreover, plaintiffs claim that the individual plaintiffs have standing to challenge the Act on vagueness and other grounds. Id. at 48. They also contend that they need not have applied for an HQL in order to obtain standing. Id. at 47. And, they claim that Atlantic Guns has standing because it has suffered a loss of revenue and because its customers have been injured. Id. at 52.

         To establish standing under Article III of the Constitution, a plaintiff must satisfy three elements. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). They are, id. (internal quotation marks and citations omitted):

First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

See also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 168 (2014); Clapper v. Amnesty Int'l USA,568 U.S. 398, 409 (2013); Sierra Club v. U.S. Dep't of the Interior,899 F.3d 260, 284 (4th Cir. 2018); Cahaly v. Larosa,796 F.3d 399, 406 (4th Cir. 2015); Lane v. Holder,703 F.3d 668, 671 (4th Cir. ...


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