What you can expect in the House Judiciary Committee of the Maryland General Assembly

Firearms Safety Act of 2013 requires that a person complete a 16 hour training course, taught by a State certified instructor, “prior to application” for a carry permit. MD Code, Public Safety, § 5-306(a)(5). Senate Bill 506 would amend Section 5-306 to delete the requirement that the training be completed “prior to application.” It then provides that a person may file an initial application for a wear and carry permit without completing the training and directs that the State Police to issue a preliminary approval if the person is otherwise qualified for the permit. The person then has 120 days after receipt of the preliminary approval to furnish the State Police the certificate of training otherwise required by the regulations. A permit does not issue until that training certificate is provided.  If no certificate of training is provided, the State Police are directed to revoke the preliminary approval and deny the permit application. 

This bill makes sense.  Indeed, this same bill passed the House of Delegates in 2017 as HB 1036 and that bill was reported out this Committee with a favorable report.  The bill only failed to become law because time ran out at sine die.  The bill is not materially different than the bill that has already passed the House and this Committee. 

These Bills and Current Law:  The New Burdens And Conflicts

This State imposes very strict regulation of firearms dealers, requiring that these dealer obtain a state-issued firearms license and submit to inspections on a regular basis by the Maryland State Police.  See, e.g., MD Code Public Safety §5-110, §5-114, §5-115, §5-145. Additional regulatory burdens on dealers were imposed with the enactment of SB 281, the Firearms Safety Act of 2013, including amending MD Code Public Safety 5-145 to impose additional record keeping requirements.  In addition to state regulation, all these dealers are also Federal Firearms Licensees (“FFLs”) and are thus heavily regulated by the ATF, a component of the U.S. Department of Justice.  The ATF likewise imposes substantial record-keeping requirements, along with many other requirements concerning the conduct of business, on FFLs.  See 18 U.S.C. § 923; 27 C.F.R. Part 478. 

These bills would impose a vast array of new burdens on State licensed dealer.  First, it would amend MD Code Public Safety 5-145 to require that the dealer keep ELECTRONIC records. The ATF does not permit electronic records. Rather FFL records must be kept in a “bound form” under a format specified in the regulations.  See 27 C.F.R. §478.125(e).  Any alternative format for records must receive special permission, requiring an application, and may not be employed by the FFL until approval is received.  Id. at §478.125(h). Thus, this bill would effectively require the dealer to keep two sets of records, one in electronic format and one in paper format (as required by the ATF).  Indeed, the bills effectively negate the provision in existing law (Section 5-145(a)(4)) that provides that “[r]ecords maintained under 18 U.S.C. § 923(g)(1)(a) may be used to satisfy the requirements of this section, if the Secretary is granted access to those records.” 

The bills would also amend Section 5-145 requiring dealers to keep new records, including requiring the dealer to CREATE A VIDEO AND AUDIO RECORDING OF ALL RECEIPTS, SALES, AND OTHER DISPOSITIONS OF FIREARMS CONDUCTED AT THE DEALER’S BUSINESS.  The dealer must also keep each such audio and video record FOR AT LEAST 1 YEAR AFTER THE RECEIPT, SALE, OR DISPOSITION and submit any such record or recording to the State Police upon demand.  The dealer is required to supply such records not only to the State Police upon request, but also to a Federal agency and to any party in a civil suit simply upon releasing a discovery demand. This release of information to a federal agency is contradicted by 27 C.F.R. § 478.126, which sets forth the manner in which information is released to the ATF, and it authorizes submission only of information “required by this subpart.”  That regulation precludes any alternative form of submission without special approval. The mandated release of information in a civil suit is breathtaking in scope and includes disposition information of the name, date of birth, address and driver’s license number of the non-licensee and a copy of Federal Form 4473.  26 C.F.R. §478.125(e).

The bills also amend Section 5-145 to impose a host of new security procedures and hardware, requiring the dealer to DEVELOP AND KEEP A WRITTEN STANDARD OPERATING PROCEDURE TO PROTECT INVENTORY FROM THEFT OR UNAUTHORIZED ACCESS. That procedure must include locks, exterior lighting, surveillance cameras and an alarm system. No such requirements are imposed upon FFLs by the federal regulations. 

The bills also amend MD Code Public Safety 5-147 to impose new employment criteria on dealers.  Under this provision, as amended, a dealer may not only not employ a prohibited person, but is also barred from employing any person FOR WHOM THE LICENSED DEALER HAS NOT OBTAINED A STATE AND NATIONAL CRIMINAL HISTORY RECORDS CHECK AS REQUIRED BY THIS SECTION.  The bills go on to require the dealer to apply, by June 30 of EACH YEAR, TO THE CENTRAL REPOSITORY FOR A STATE AND NATIONAL CRIMINAL HISTORY RECORDS CHECK BY SUBMITTING TO THE CENTRAL REPOSITORY: TWO COMPLETE SET OF FINGERPRINTS OF THE EMPLOYEE and THE FEE for such checks.  Finally, if the dealer should fail to comply with any of these new requirements (or any of the requirements of existing law), the dealer may be fined $1,000 for the first offense and imprisoned for 3 YEARS and a fine of $10,000 or BOTH for the second such offense.

Next, the bills create a new Section 5-148 to provide that A LICENSED DEALER SHALL AT ALL TIMES MAINTAIN LIABILITY INSURANCE FOR THE ACTS OF ANOTHER USING A FIREARM SOLD, RENTED, OR TRANSFERRED BY THE LICENSED DEALER IN THE AMOUNT OF AT LEAST $2,000,000. A violation of this provision is punishable by a civil penalty of $1,000 on first offense and 3 years in prison and a $10,000 fine for any subsequent offense. The bills also mandate, in new Section 5-149, that a dealer REPORT ANY THEFT OF A FIREARM FROM THE LICENSED DEALER’S PLACE OF BUSINESS TO A LAW ENFORCEMENT AGENCY, AS DEFINED IN § 3–201 OF THIS ARTICLE, IMMEDIATELY UPON DISCOVERING THE THEFT. Any failure to “immediately” report the theft is punishable by a $1,000 civil fine on the first offense and 3 years imprisonment and a $10,000 fine for any second offense. Nowhere does the bill explain why dealers should be required to insure against the harm caused by the wrongful acts of another where the sale was otherwise fully legal. At common law, the negligent or unlawful acts of another are an intervening or superseding cause for which the dealer cannot be held liable.  See Pittway Corp. v. Collins, 409 Md. 218, 248-49 (2009); Section 442 of the Restatement (Second) of Torts. Dealers are not guarantors against harm inflicted by otherwise lawful purchasers.

Finally, the bills create a new Section 5-150 which governs day-to-day business activities. Under this Section, the dealer must STORE EACH FIREARM IN A LOCKING DISPLAY CASE OR ANOTHER SECURE LOCATION THAT IS INACCESSIBLE TO CUSTOMERS and ENSURE THAT EACH FIREARM THAT IS DISPLAYED TO A CUSTOMER IS RENDERED INOPERABLE WITH A TRIGGER LOCK OR ANOTHER  MECHANISM.  This provision effectively kneecaps the dealer.  Virtually every potential purchaser demands to work the action and pull the trigger of a firearm before making any purchase.  Banning this practice will ensure that the buyer will go elsewhere. After business hours, the bills mandate that the dealer SHALL LOCK ALL 23 FIREARMS IN:  (I) A VAULT; (II) A SAFE; OR (III) A REINFORCED DISPLAY CASE WITH SHATTERPROOF GLASS. This requirement just adds to the costs. The first violation by dealer is punishable by a $1,000 civil fine while any subsequent violation is punishable by 3 years imprisonment and a $10,000 fine. 

These bills would amend Md Code Criminal Law § 4-104.  Specifically, current law provides that “[a] person may not store or leave a loaded firearm in a location where the person knew or should have known that an unsupervised child would gain access to the firearm.”   A child is defined for these purposes as a person “under the age of 16 years.”  This bill would change the definition of a child to a person under the age of 18 years and modifies the prohibition to provide that a “person may not store or leave a loaded OR UNLOADED firearm in a location where the person knew or should have known that an unsupervised child COULD gain access to the firearm, UNLESS THE FIREARM IS LOCKED.” The bills will likewise repeal the exception in existing law that allows a child to have access to firearms if the child has a certificate of firearm and hunter safety issued under § 16 10–301.1 of the Natural Resources Article. 

It also changes the punishment.  Current law punishes a violation of this section as “a misdemeanor and on conviction is subject to a fine not exceeding $1,000.”  No prison time is imposed under current law.  These bills would create three new layers of offense with increasing punishments.   Merely leaving a LOADED or UNLOADED firearm in a “location where the person knew or should have known that an unsupervised MINOR COULD gain access to the firearm,” is punishable with 90 days imprisonment and a $1,000 fine.  At the next level, leaving a LOADED or UNLOADED firearm in a “location where the person knew or should have known that an unsupervised MINOR COULD gain access to the firearm,” and the minor actually gains access is punishable with 2 years of imprisonment and a fine of $2,500.  And at the final level, leaving a LOADED or UNLOADED firearm in a “location where the person knew or should have known that an unsupervised MINOR COULD gain access to the firearm,” and “THE FIREARM CAUSES HARM TO THE MINOR OR TO 3 ANOTHER PERSON” is punishable with 5 years of imprisonment and a fine of $5,000. 

THE BILLS ARE DRACONIAN, IMPOSSIBLE TO COMPLY WITH AND PATENTLY UNCONSTITUTIONAL

This bill would amend Md Code Public Safety 5-117.1 (HQL statute).  That Section prohibits law-abiding, responsible Maryland citizens from acquiring a handgun unless they have a Handgun Qualification License (“HQL”). Md. Code Ann., Pub. Safety, § 5-117.1(c).  Subsection (d) imposes training requirements, including a (i) a minimum of 4 hours of instruction by a qualified handgun instructor” consisting of “(ii) classroom instruction on: 1. State firearm law; 2. home firearm safety; 3. handgun mechanisms and operation; and (iii) a firearms orientation component that demonstrates the person’s safe operation and handling of a firearm.”  In regulations, the Maryland State Police have added a new and additional live-fire training requirement, mandating that the HQL applicant “safely fires at least one round of live ammunition.”  COMAR 29.03.01.29(C)(4). That live round requirement is not found in the statute. 

In the interests of full disclosure, we note that the live-fire requirement, along with the rest of the HQL statute, is presently being challenged by MSI in federal court. See MSI v. Hogan, 2017 WL 3891705 (D. MD. 2017) (denying the State’s motion to dismiss).  The district court, in a later decision, held that the plaintiffs lacked standing without reaching the merits of the constitutionality of the HQL statute.  That decision in on appeal and is awaiting oral argument.  See MSI v. Hogan, No.  No. 19-1469 (4th Cir.).  On the merits, we believe that it is highly likely that the Supreme Court will make use of a “text, history and tradition” test in reaching of the merits of NYSPRA v. NYC, No. 18-280, cert granted 139 S.Ct. 939 (2019). NYSPRA was argued on December 2, 2019, and numerous petitions for certiorari in Second Amendment cases are now being held by the Supreme Court pending a decision in NYSPRA. The HQL statute will likely fail under the text, history and tradition test that the NYC Court is likely to employ. 

The Live-Fire Requirement Is Not Authorized By the HQL Statute and Is Discriminatory:

It is well-established in Maryland law that “[a]n agency’s authority extends only as far as the General Assembly prescribes.” Thanner Enters., LLC v. Balt. Cty., 995 A.2d 257, 263 (Md. 2010). Thus, an agency’s rule or regulations cannot “contradict the language or purpose

of the statute.” Medstar Health v. Md. Health Care Comm’n, 827 A.2d 83, 96 (Md. 2003).  Here, the Maryland State Police has grafted onto Section 5-117.1(d)(3)(iii)‘s requirement of a “firearms orientation component” an entirely new “practice component” under which the applicant must safely fire “at least one round of live ammunition.” COMAR 29.03.01.29C(4). Although Section 5-117.1(n) provides that “[t]he Secretary may adopt regulations to carry out the provisions of this section,” it does not allow the Maryland State Police to add new “provisions,” such as adding “a practice component” so as to mandate live-fire. 

Current Maryland Law:

This bill purports to address and impose new training requirements on persons who hold a “wear and carry permit” issued by the Maryland State Police pursuant to MD Code Public Safety § 5-306.  Under MD Code Public Safety § 5-309(a), such “a permit expires on the last day of the holder's birth month following 2 years after the date the permit is issued.”  Under Section 5-309(b), “a permit may be renewed for successive periods of 3 years each if, at the time of an application for renewal, the applicant possesses the qualifications for the issuance of a permit and pays the renewal fee stated in this subtitle.”  Thus, the initial permit is good for two years and renewed permits are good for three years. 

Current Maryland law also imposes among the most (if not the most) demanding and stringent training requirements of any state.  Under Section 5-306(a)(5)(i), an applicant must first complete (prior to submitting any application for a permit) 16 hours of instruction given by a State Police certified qualified handgun instructor.  Similarly, any person seeking to renew a carry permit must submit proof of “8 hours of instruction by a qualified handgun instructor.”  (Id.).  For both the initial application and the renewal, that instruction must include “a firearms qualification component that demonstrates the applicant's proficiency and use of the firearm.”  Section 5-306(a)(5)(ii).  Under this requirement, the State Police mandate a minimum score on a prescribed, timed course of live-fire at multiple distances from the target (3yds, 5yds, 7yds and 15yds). That score must be certified by the instructor with the actual score achieved specified in the certification by the instructor. 

The Bill:

This bill would add a new Section 5-306.1 to the Public Safety Article to provide that:

A PERSON TO WHOM A PERMIT IS ISSUED OR RENEWED SHALL SUCCESSFULLY COMPLETE ON SEPARATE DAYS EACH CALENDAR YEAR: 

(I) A COURSE ON SITUATIONAL AWARENESS APPROVED BY THE SECRETARY; AND 

(II) A COURSE ON THE COMPETENT HANDLING OF A FIREARM APPROVED BY THE SECRETARY. 

The bill would further amend MD Code Public Safety §5-310 to allow the State Police to revoke a permit on grounds that the holder of the permit failed to meet these new requirements imposed by this new Section.

These bills would create a new section 4-111 in the Criminal Law Article of the Maryland Code to provide that A PERSON MAY NOT SELL, OFFER TO SELL, OR DISPLAY AN IMITATION FIREARM, which the bills define to mean “A TOY, A DEVICE, OR AN OBJECT THAT SUBSTANTIALLY DUPLICATES OR CAN REASONABLY BE  PERCEIVED TO  BE  A FIREARM.”  The bills apply only to the City of Baltimore. 

The Bills Are Preempted By Federal Law:

The bills effectively ban the sale of imitation guns the sale of which are expressly protected by federal law (15 U.S.C. § 5001), and federal regulations (15 C.F.R. § 272.2, et seq.).  That federal law establishes a system by which imitation firearms are marked and preempts any State regulation of sales, providing in 15 U.S.C. § 5001(g):

The provisions of this section shall supersede any provision of State or local laws or ordinances which provide for markings or identification inconsistent with provisions of this section provided that no State shall—

(i) prohibit the sale or manufacture of any look-alike, nonfiring, collector replica of an antique firearm developed prior to 1898, or

(ii) prohibit the sale (other than prohibiting the sale to minors) of traditional B-B, paint ball, or pellet-firing air guns that expel a projectile through the force of air pressure.

Statutory Context and the Bill: 

A “dangerous weapon” is defined by MD Code, Criminal Law, § 4-101 to include a wide assortments of weapons, but that list excludes “a penknife without a switchblade.”  A “penknife” is simply a folding knife, like a Swiss Army knife.  See Bacon v. State, 322 Md. 140 (1991).  Persons excluded from 4-101’s ban include law enforcement officers, persons with a Maryland wear and carry permit to carry a handgun and “a person who carries the weapon as a reasonable precaution against apprehended danger.”

However, MD Code Criminal law, 4-102(b), provides that a “person may not carry or possess a firearm, knife, or deadly weapon of any kind on public school property.” Because this provision separately bans knives, not even a folding penknife can be possessed on public school property. Section 4-102 makes an exception for law enforcement officers who are on duty or who are a parent, guardian, or visitor of a child at the school. It also makes an exception for “a person hired by a county board of education specifically for the purpose of guarding public school property.”  Unlike Section 4-101, Section 4-102 makes no exception for persons with a Maryland wear and carry permit. For mere possession of every weapon besides a handgun, a violation of Section 4-102 is punishable by “imprisonment not exceeding 3 years or a fine not exceeding $1,000 or both.”  Possession of a handgun on public school property is punished more severely. Under MD Code Criminal Law, 4-203(c)(2)(i), possession of a handgun on public school property “is subject to imprisonment for not less than 30 days and not exceeding 3 years or a fine of not less than $250 and not exceeding $2,500 or both.” 

This bill would expand Section 4-102 to include not only public school property but also include “NONPUBLIC” school property.  It would exclude from its coverage “a person hired by A NONPUBLIC SCHOOL SPECIFICALLY FOR THE PURPOSE OF GUARDING NONPUBLIC SCHOOL PROPERTY.  Because wear and carry permit holders are not exempt under 4-203 for public schools, such permits holders would likewise be banned from private school property under this bill. 

The bill (as well as its cross-filed bill HB4) would add a wholly new set of restrictions on temporary and permanent long gun “transfers” which would be defined in an extremely broad manner.  The bills would severely criminalize any non-compliance with its many and highly complex new restrictions.  The bills would effectively eviscerate loans of guns between law-abiding individuals, including fellow hunters and effectively destroy the market value of countless gun collections, as their sales would be all but banned. The bills mandate the use background checks by Federal Firearms Licensees (“FFLs”) for private loans of long guns in a manner that would actually violate federal law.  The bills would create nightmarish uncertainty in violation of the Due Process Clause of the Fourteenth Amendment.  Finally, the bills ignore the well-documented reality that these sorts are long guns are almost never used in crime.  Indeed, FBI statistics demonstrate that a person far more likely to be killed by a knife or hands or feet than a long gun. There is simply no public safety purpose that would be served by these bills.

This bill would amend MD Code, Public Safety, § 5-306(b)(6)(ii) to specify that “self-protection,” or “self-defense” is a basis for finding a “good and substantial” reason for the issuance of a Maryland Wear and Carry Permit.  The bills leave unaltered the rest of Section 5-306, including leaving unchanged the rigorous training requirements of 16 hours of instruction that includes a live fire component that “demonstrates the applicant’s proficiency and use of the firearm.” Also unchanged is the requirement that the State Police conduct a background investigation using the applicant’s fingerprints, and the requirement that the State Police find that the applicant “has not exhibited a propensity for violence or instability that may reasonably render the person’s possession of a handgun a danger to the person or to another,” found at § 5-306(b)(6)(ii). 

While different (HB 73 is more extensive), both bills provide that “a person may not be denied the right to purchase, possess, or carry a firearm under this title solely on the basis that the person” is authorized to use medical cannabis under title 13, subtitle 33 of the Health – General Article of Maryland law.  MSI takes no position with respect to the merits of these bills.  However, we do wish to point out some legal realities for purposes of informing the debate on these bills. 

The Statutory Scheme and the Problem Addressed by these Bills:

Under MD Code Public Safety 5-117.1(c), [a] person may purchase, rent, or receive a handgun only if the person” obtains a Handgun Qualification License” (HQL).   Under Section 5-117.1(a), the statue does not apply to “a law enforcement officer or person who is retired in good standing from service with a law enforcement agency of the United States, the State, or a local law enforcement agency of the State.”  By its terms, this exclusion for active and retired law enforcement officers applies only to federal agents or law enforcement officers of the State of Maryland. 

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Bill Link: http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0035?ys=2020RS

This bill would require the Maryland State Police to study and make recommendations to the General Assembly concerning the feasibility of “FIREARM TELEMATICS” which the bill defines to mean “AN ELECTRONIC SENSOR OR EQUIPMENT INSTALLED ON A FIREARM DESIGNED TO TRACK THE LOCATION OF THE FIREARM IF IT BECOMES LOST OR STOLEN.”  The obvious intent underlying such firearm telematics is trace and locate any firearm so equipped.  Presumably, such equipment could be made mandatory if the study were to determine that doing so would be technically feasible.  Indeed, the bill contemplates such equipment for “PREVIOUSLY MANUFACTURED FIREARMS.”

Bill Link: http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0055?ys=2020RS

This bill would create a new “buyback fund” in the Maryland State Police for the purpose of paying persons for the voluntary surrender of what the bill calls “assault weapons.”  It first defines “assault weapons” to include “A SELF–LOADING, SEMI–AUTOMATIC OR FULLY AUTOMATIC ACTION FIREARM WITH A DETACHABLE MAGAZINE THAT FIRES AN INTERMEDIATE OR HIGH–POWERED CENTERFIRE CARTRIDGE” and to include “A REGULATED FIREARM, AS  DEFINED UNDER § 5–101 OF THIS ARTICLE.”  To create the buyback fund, the bill would direct the Comptroller to create a checkoff on the income tax form that allows taxpayers to contribute $5.00 to the fund, either by reducing the refund or adding to the tax liability of the taxpayer.  The State Police are directed to administer the fund by “SETTING THE PRICES OF ASSAULT WEAPONS THAT THE STATE MAY BUY” and further directs the State Police to either destroy or donate any guns turned in to “the Armed Forces of the United States.”  The bill compels the Governor to include, starting in FY 2022, an annual budget appropriation of $50,000 to the Fund. 

Bill Link: http://mgaleg.maryland.gov/mgawebsite/Legislation/Details/sb0039?ys=2020RS

The Statutory Scheme of Existing Maryland Law:

This bill would include ANDERSON MANUFACTURING .223 CALIBER AM–15 AND .300 CALIBER AM–15 on the list of guns set forth in MD Code Public Safety 5-101(r)(2) that are now classified as assault weapons and thus were banned in 2013, with enactment of the Firearms Safety Act of 2013.  Section 5-101(r)(2)(xv) already lists (and thus bans) the “Colt AR-15, CAR-15, and all imitations except Colt AR-15 Sporter H-BAR rifle.”

This letter is submitted on behalf of Maryland Shall Issue, its officers and Board and all its members, to request that Governor Hogan veto SB1000/HB1343, which abolish the Handgun Permit Review Board. As you may know, Maryland Shall Issue is an all-volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners’ rights in Maryland. The undersigned President of Maryland Shall Issue is an attorney and an active member of the Bar of the District of Columbia, having recently retired from the United States Department of Justice, after 33 years of practicing before the federal Courts of Appeals and the Supreme Court of the United States. Having just passed the out-of-state-attorney’s bar exam, the undersigned will also soon be an active member of the Maryland Bar.

What a Session! We saw the most anti-gun bills introduced since 2013. But as a community, we stood tall and defeated almost every single anti-gun measure. Maryland Shall Issue thanks each and every one of you who took time from your days, evenings, and endured sleepless nights to contribute to the defense and advancement of your fellow Marylanders rights. Despite this particularly hostile legislative session, you didn't tire or throw in the towel. Without your phone calls, meetings, letters, and testimony, who knows the damages and criminal penalties Marylanders would be facing this year. We know we can count on you when the time calls and are honored to have your support. Again, thank you.