2020 MDGA - MSI Testimony in Opposition to SB1050

This bill proposes an amendment to MD Code Public Safety § 5-146 to criminalize and increase the penalties for a failure to report a lost or stolen regulated firearm. Under current law, the owner of a regulated firearm has 72 hours to report the lost or theft of the firearm to a local law enforcement agency. A knowingly and willful failure to do so is punishable, on the first offense, as a civil offense with a fine not exceeding $500.00.  On the second or subsequent offense, the failure is punishable as a criminal misdemeanor with imprisonment of 90 days and a fine not exceeding $500.00.

This bill would abolish the civil penalty for the first offense and make a failure to report on the first offense a criminal misdemeanor punishable by up to 6 months in jail and a $1,000 fine.  Second and subsequent violations are also criminal and punishable by imprisonment not exceeding 1 year and a fine of $2,000. 

The Bill Criminalizes the Victim And Is Extreme In The Penalties Imposed

This bill is apparently motivated by a desire to prevent gun diversions and straw purchases by punishing a theft victim for a failure to report a lost or stolen regulated firearm.  Those motivations are misguided.  A Rand Corporation study published in 2018 found that there is no evidence or study that actually supports any reporting requirement.  https://www.rand.org/research/gun-policy/analysis/lost-or-stolen-firearms.html. That Study is attached to this testimony.  Specifically, the Study found that “[w]e found no qualifying studies showing that lost or stolen firearm reporting requirements increased any of the eight outcomes we investigated.”  (Id. at 1).  Indeed, the Study further states that “[w]e found no qualifying studies showing inconclusive evidence about lost or stolen firearm reporting requirements.”  (Id.).  In short, the supposed benefits of such reporting requirements are speculative at best.

In contrast, criminalizing the victim is sure to have unintended consequences. First, because this bill makes the failure to report a criminal violation with jail time, instead of a civil violation, the theft victim may well be less likely to report a lost or stolen firearm.  Section 5-146 provides that the owner must report the loss “within 72 hours after the owner first discovers the loss or theft.”  Under this bill, a criminal investigation will likely be conducted into when the owner “first discovered” the loss.  In all cases, the question of when the loss was “discovered” creates a question of fact for the trier of fact, thus exposing the owner to the risk of criminal prosecution.

Because a failure to report would become criminal, any rational owner will be loath to expose himself or herself to any such criminal investigation or questioning by the police for fear that his responses to such questioning might be incriminating. Indeed, for the same reasons, any competent legal counsel would advise such an owner to invoke his or her Fifth Amendment right to silence and the Sixth Amendment right to counsel and thus refuse full cooperation with the police. Thus, even if the stolen firearm is discovered at a crime scene and traced to the original owner, such owner would be legally ill-advised to submit to police questioning because of the criminal penalties imposed by this bill. That result would frustrate any investigation into the loss or theft as well as any crime that may have been committed with the stolen firearm.  That consequence is, of course, exactly the opposite of the desired result.

Second, criminalizing a failure to report with steep fines and jail time is extreme.  Only a small minority of states require an owner even to report lost or stolen firearms.  California, for example, simply requires a report within 5 days and does not impose any civil or criminal consequences for any failure.  California Penal Code §25250.  Connecticut punishes a failure to report, as a first offense, with a fine of $90.00. CT Gen Stat § 53-202g.  The District of Columbia imposes a civil fine of $100 for any failure to report and does not impose any jail time, even for subsequent offenses. D.C. Code § 7–2502.08.  Similarly, New Jersey law imposes only civil penalties for first or subsequent offices.  N.J. Stat. Ann. § 2C:58-19.  Our neighbor, Delaware, punishes a first offense as a “civil penalty” with a fine of not less than $75 and not more than $100.  Del. Code tit. 11, § 1461.  Michigan requires a stolen firearm to be reported in 5 days and punishes any failure as a “civil violation” with a fine of no more than $500. Mich. Comp. Laws § 28.430. 

Even the very few States that do impose criminal penalties for a failure to report do not, as a rule, impose the draconian penalties imposed by this bill on the first offense.  Ohio, for example, punishes a failure to report within 7 days as a fourth decree misdemeanor which is punishable with a maximum jail sentence of 30 days and a fine not to exceed $250.  Ohio Rev. Code Ann. § 2923.20(A)(5). Massachusetts does not impose jail time until the third offense and even that penalty is applicable only to sellers and or a person who has been issued a license to carry a pistol or revolver. Mass. Gen. Laws ch. 140, § 129C.  In Illinois, a failure to report is a “petty offense” which is punishable by a fine between $1 and $1,000. 720 Ill. Comp. Stat. 5/24-4.1. Rhode Island punishes a failure to report with a “fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100).”  R.I. Gen. Laws § 11-47-48.1. This bill, with its heavy fine and jail time for the first offense, would plainly make Maryland an outlier jurisdiction.

Third, punishing an owner for failing to report is, itself, perverse. The owner may be unaware of any such reporting requirement, but may, under this bill, nonetheless be exposed to a criminal investigation just for being a victim of a theft. While the mens rea requirement could help the owner avoid a conviction by requiring a knowing and willful failure to report, the owner would still face the possibility of being a suspect in a potential crime when he or she has already been victimized by the theft.  Such an investigation would simply add to the trauma that the victim has already experienced. It could well require the victim to hire legal counsel at considerable expense.  That is simply no way to treat otherwise innocent crime victims. If the “victim” is truly a bad actor, then remedies are already available under existing law, not changed by this bill.  See MD Code Public Safety § 5-146(e) (“The imposition of a civil or criminal penalty under this section does not preclude the pursuit of any other civil remedy or criminal prosecution authorized by law.”).  There is no reason to pile on potential criminal liability that could work to ensnare the innocent person.  That is especially so given that the supposed benefits associated with mandatory reporting requirements are so speculative, as the Rand study points out.  In short, this bill is both bad policy and over-criminalization. We see no need or reason to alter Maryland’s existing law.  We urge an unfavorable report.

Sincerely,

Mark W. Pennak
President, Maryland Shall Issue, Inc.

PDF Available Here


Latest News

Court Uphold's MD's Taking of Rapid Fire Trigger Activators

 

In a sharply split, 2-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit has held that Maryland may ban the possession of "Rapid Fire Trigger Activators" by existing owners without paying just compensation under Fifth Amendment or the Maryland Constitution.  The majority ruled that no just compensation was owed to existing, lawful owners because the ban “does not require owners of rapid fire trigger activators to turn them over to the Government or to a third party.”  In short, as far as this majority is concerned, the State is free to ban the possession of any personal property without paying just compensation unless the State puts the property into its own pocket or the pocket of a third party.  If that is the law, then no personal property, of any kind, is safe from the grasping clutches of the General Assembly.  For example, the State could ban possession of your existing car and not pay a dime.  The dissenting opinion ably demolishes the majority's reasoning.  Needless to say, we will be seeking further review.

You can read the ruling HERE.  Stay tuned.

Maryland Shall Issue will continue to fight for the interests and rights of its members and the public, but to do so requires resources and your help. Consider joining or donating to MSI.

Background Checks for Firearms Purchases and Licenses Interrupted

Due to a systems failure on the morning of June 21st within the Maryland Department of Public Safety and Corrections Services (DPSCS), the Maryland State Police (MSP) was no longer able to complete background checks for Handgun Qualification Licenses (HQL), regulated firearms transfers (77R transfers), and Wear and Carry Permit background investigations. DPSCS have since restored their systems and the MSP have been processing background checks as fast as they can. We appreciate the efforts of the State Police to remedy the backlog as quickly as possible, though the bureaucratic processes created by the General Assembly compounds these issues for Marylanders who are merely trying to protect themselves.

From the MSP:

Background Checks Underway After Data System Restored

(PIKESVILLE, MD) — Maryland State Police Licensing Division employees worked throughout the night and will continue to work around-the-clock to address pending regulated firearm purchase applications after a state data system was restored late yesterday.

At about 8:30 p.m. yesterday, the State Police Licensing Division was notified by officials at the Maryland Department of Public Safety and Correctional Services that the data system had been restored and access to background check information was available.  Employees at the Licensing Division immediately began completing background check investigations on the regulated firearm purchase applications that had been pending since a system failure occurred on June 21st.

Licensing Division employees worked throughout the night and will continue to work around-the-clock until all pending and incoming regulated firearm purchase applications have been reviewed and are being completed within Maryland’s required seven day waiting period.  Even with employees working 24-hours-a-day to address this, the process is anticipated to take several days to complete.  The Licensing Division continues to work with Maryland’s licensed firearms dealers to track any regulated firearm released after the waiting period, but before full completion of the background check process.

As of 4:00 p.m. yesterday, information from Maryland firearms dealers indicated that of the 893 firearm purchase applications eligible for release, 54 regulated firearms had been released to customers after the seven day waiting period had passed.  The individuals receiving those firearms were the first ones background checks were conducted on during the night.  There were no prohibiting factors found for any of those applicants.


As far as we know, there's no evidence or information to suggest that anyone's personal information was comprimised while the systems were down and none of the applicants whose dealer released firearms to them failed or would have failed background checks.

While the MSP have asked the Dealers to hold off on releasing any regulated firearms (handguns) until the checks completed, dealers may release regulated firearms on the 8th day after a transaction at their discretion. From the MSP's latest advisory on 6/25:

Should the RFD elect to exercise their statutory option to release a regulated firearm on the eighth day, we ask that the procedure listed below be followed:

1. The RFD will access their Licensing Portal;
2. locate the application to be released within the “SUBMITTED APPLICATIONS” section;
3. print a copy of the application;
4. verify that all information in “Section 4” is accurate;
5. both the RFD and the applicant will sign and complete “Section 6;”
6. scan and send the completed copy of the 77R to .

Additional Coverage:
Maryland Handgun Background Check System Crashes, Leaving Gun Buyers in Limbo - Washington Free Beacon
Citing a ‘catastrophic hardware failure,' Maryland State Police report delays in gun background checks and licenses - Baltimore Sun
Guns sold without completed background checks in Maryland - WUSA9
After ‘Catastrophic Hardware Failure,’ Dozens Of Guns Were Released Without Completed Background Checks In Maryland - WAMU

Contact Info

Headquarters:

Maryland Shall Issue®, Inc.
9613 Harford Rd
Ste C #1015
Baltimore, MD 21234-2150

Phone:  410-849-9197
Email: 
Web:   www.marylandshallissue.org