Veto Request for HB4/SB208
March 23, 2020
Mr. Keiffer Jackson Mitchell, Jr.
Chief Legislative Officer
100 State Circle
Annapolis, MD 21401-1925
Re: Veto Request for HB 4 / SB 208
Dear Mr. Mitchell:
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 and the Bar of Maryland, 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.
This letter is submitted on behalf of Maryland Shall Issue, its officers and Board and all its members, to request that Governor Hogan veto HB 4 / SB 208, which criminalizes private sales of ordinary long guns between law-abiding persons. These bills are misguided and, worse, will criminalize a long-standing activity that has no discernable effect on public safety. Indeed, it appears that the General Assembly would rather criminalize the law-abiding than enact the Governor’s crime bills that would address actual (and repeated) criminal behavior. We urge a veto.
1. The Premise Of These Bills Is False
The proffered premise of the bill is public safety. Specifically, the idea appears to be that requiring comprehensive background checks for private sales of long guns will reduce homicides and suicides by keeping guns out of the hands of prohibited persons or persons who may use them to commit suicide. That premise is false. In a recent study concerning California's comprehensive background check (“CBC”) and misdemeanor violence prohibition policies conducted by researchers from the University of California Davis School of Medicine, and by Daniel Webster of the Johns Hopkins Bloomberg School of Public Health (among others), the study concluded that California’s long standing comprehensive background check system “was not associated with a net change in the firearm homicide rate over the ensuing 10 years in California.” https://www.sciencedirect.com/science/article/abs/pii/S1047279718306161. (Study at 1, Abstract). The researchers further concluded that the same was true for suicides, finding that “[t]he decrease in firearm suicides in California was similar to the decrease in nonfirearm suicides in that state” and that the “[r]esults were robust across multiple model specifications and methods.” (Id.). As the study also states, “a more rigorous time-series analysis found no effect on firearm suicide and homicide rates from repealing CBC policies in two states.”
In other words, imposing comprehensive back ground checks beyond those already required by federal law for sales by dealers does nothing to promote public safety. Given its authors (Daniel Webster of Johns Hopkins testified before the General Assembly in support of the Firearms Safety Act of 2013), this study is entitled to considerable weight. Indeed, the California CBC law, addressed in the study, covered both long guns and handguns and Maryland already requires the same sort of comprehensive background checks on private sales of handguns. See MD Code, Public Safety, § 5-124. The study’s conclusion thus applies with even greater force to Maryland. As detailed below, the bill criminalizes innocent conduct in order to criminalize private transfers of rifles and shotguns, even though these firearms are very seldom used in crime. These bills would thus mint thousands of new criminals for engaging in private transactions that have been legal for centuries and that are less risky to the public safety than a private sale of a knife. The General Assembly should have required strong factual support of the public safety benefits before criminalizing conduct that has been common and legal since before Maryland became a State. As this latest study makes plain, that support is lacking. After all, “[m]aking something a crime is serious business.” Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 731 (6th Cir. 2013) (Sutton, J., concurring).
2. Long Guns Are Very Seldom Used In Crime
The bills inappropriately criminalize private sales of long guns even though such long guns are very seldom used in crime. This is confirmed by the Maryland UNIFORM CRIME REPORT issued annually by the State Police. For example, in 2014, a rifle (of any type) was used in one (1) murder in Maryland and a shotgun was used in seven (7). In 2015, a rifle was used in five (5) murders and a shotgun used in six (6). By way of comparison and perspective, a knife was used in 79 murders in 2014 and 65 murders in 2015. A “blunt object” was used in 12 murders in 2014 and 17 murders in 2015. “Personal weapons” (hands and feet) were used in 13 murders in 2014 and 19 murders in 2015. The same pattern is presented by the most recent data published by the State Police for 2017. Specifically, in 2017, a rifle was used in 5 murders and a shotgun used in 7. In the same year, a knife was used in 63 murders while blunt objects were used in 13 murders and hands and feet were used in 18 murders.
FBI statistics show similar results nationwide. https://ucr.fbi.gov/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/expanded-homicide-data/expanded_homicide_data_table_8_murder_victims_by_weapon_2010-2014.xls. According to the latest data from the FBI, in Maryland, there were 470 murders in 2018. Of those 470 murders, one (two-tenths of one percent) was committed with a rifle and 10 (2%) were committed with shotguns. In contrast, knives were used in 39 murders and hands and feet were used in 13 murders. Thirty (30) murders were committed in Maryland in 2018 using “other weapons.” In short, murders using long guns are not only exceedingly rare, long guns are the least used weapon for such crimes. Yet, nothing in the bills would address murders using knives or murders by using hands and feet or by “other weapons.” Indeed, there is no data suggesting that any of these few murders with long guns ever involved private sales between law-abiding persons.
As is apparent from these numbers, there is simply no serious public safety justification for the restrictions imposed by these bills. The State may not constitutionally ban firearms or their acquisition. Nor may the General Assembly enact legislation just because a majority of legislators hate guns or want to discourage the ownership of all firearms. Those purposes are constitutionally illegitimate and any legislation based on those reasons is likewise illegitimate.
3. The Bill Criminalizes Long Gun Sales Between Law-Abiding Citizens
More Severely Than Maryland Law Treats Actual Thefts Of Firearms.
These bills punish the otherwise innocent sale of a long gun between law-abiding persons more severely than the actual theft of a long gun. As enacted, these bills punish such a private sale of a long gun with 6 months imprisonment and a $10,000 fine. In contrast, under current Maryland law, a firearm theft is treated like any other theft of personal property. Under current law, theft of property valued less than $1,500 but more than $100 is a punishable by a fine of $500 and a maximum six months imprisonment on first offense. MD Code Criminal Law § 7-104(g)(4). In reality, virtually no person convicted of such a theft ever actually receives jail time, even after repeated offenses. Yet, these bills impose a $10,000 fine for a private sale between the law-abiding while theft of a firearm is punishable only by a fine of $500. The disparity is unjustifiable. Stolen firearms are often used by prohibited persons in violent crime while private sales of long guns between law-abiding persons are completely innocent. Yet, a conviction for the theft offense would not even be sufficient to make the firearm thief a prohibited person (who may not even possess a firearm). See MD Code Public Safety § 5-101(g)(3) (defining “disqualifying crime”).
This Session, the Governor’s crime bill, SB 35, passed the Senate but failed in the House. As passed by the Senate, SB 35 would have punished such theft of a firearm as a felony and thus made the thief a prohibited person. If the State was serious about addressing illegal acquisitions of firearms, the General Assembly would have enacted a bill like SB 35, instead of criminalizing law-abiding persons for innocent private sales. The unthinking animus toward law-abiding gun owners is apparent. In sum, these bills cavalierly ignore real criminals (thieves) while criminalizing the law-biding. That’s irrational.
4. The Bills Impose Strict Liability For Innocent Mistakes
Finally, by its terms, these bills also impose strict criminal liability on the defendant without regard to the mens rea of the defendant. The defendant need not know that the transfer was illegal to be a criminal under these bills. See Chow v. State, 393 Md. 431, 471 (2006) (construing a “knowingly participate” requirement in MD Code Public Safety § 5-144(a), to mean that “a person must know that the activity they are engaging in is illegal.”). Imposing strict criminal liability for innocent conduct would be unjust by any measure. Where such liability is imposed on conduct arguably protected by the Constitution, it is particularly pernicious. See, e.g. City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (due process); Okpalobi v. Foster, 244 F.3d 405, 438 (5th Cir. 2001) (en banc) (Benavides, J., concurring in part, dissenting in part) (right to an abortion).
To avoid precisely these kinds of injustices, strict liability statutes are heavily disfavored in the law. See Staples v. United States, 511 U.S. 600, 605 (1994) (noting that “the requirement of some mens rea for a crime is firmly embedded” in common law). Thus, when construing federal statutes, the federal courts will require specific mens rea to the extent “necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Carter v. United States, 530 U.S. 255, 269 (2000) (citation omitted). The guiding principle is that “wrongdoing must be conscious to be criminal.” Morissette v. United States, 342 U.S. 246, 252 (1952). Implementation of that requirement varies with the context, but it is undeniable that in some instances “requiring only that the defendant act knowingly ‘would fail to protect the innocent actor.’” Elonis v. United States, 135 S.Ct. 2001, 2010 (2015) (citation omitted) (emphasis added). State law also strongly favors an appropriate mens rea requirement. See, e.g., Garnett v. State, 332 Md. 571, 577-78, 632 A.2d 797, 800 (1993) (“The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence.”); Lowery v. State, 430 Md. 477, 498, 61 A.3d 794, 807 (2013) (same). These bills ignore this principle.
Please veto SB 208 and HB 4 and send a message to the General Assembly that it should stop criminalizing innocent behavior. Instead, the General Assembly should focus on real threats to public safety, such as those addressed by SB 35, as passed by the Senate.