United States District Court, D. Maryland
MARYLAND SHALL ISSUE, INC., et al.
LAWRENCE HOGAN, et al.
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
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. 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
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,  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.").
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
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.
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
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.
amici have filed briefs, with leave of court. They focus
largely on whether the Act comports with the Second
Amendment. ECF 70; ECF 78.
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.
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).
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).
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), ¶
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
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.
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);
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).
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. §
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.
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.
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
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.
membership has grown since suit was filed. As of October 3,
2018, it had more than 1, 100 members throughout Maryland.
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.
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.
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.
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
59-16, Atlantic Guns's Interrogatory Response No. 7.
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.
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.
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,
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.
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,
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
"[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).
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).
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.
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.).
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.
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.
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
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. ...