HPRB January 19, 2016 Meeting Thread

[jeffie7]

Make sure they don't speak any English there, that's always a good sign that they will be legit.

Jo kerdo churOhhhs por fav four.

 

[DC-W]

thought you were in the triple deuce.

here ya go
Tacos Tolteca
901 North Point Blvd
Baltimore, MD 21224


One of their reviews:
"We finished up with fried ice cream and some of the best churros I have ever had."

They gotta be fresh man. I leave from Woodbury when I head to the HPRB.

 

[protegeV]

They gotta be fresh man. I leave from Woodbury when I head to the HPRB.

oh, gotcha. Just assumed you were coming from home like me . Let me get on that...

 

[protegeV]

You should know, anything near woodberry is gonna be $$$

La Cuchara
3600 Clipper Mill Rd
Ste 125
Baltimore, MD 21211


not sure what this reviewer meant...
"The churros were noticeably better if a bit dangerous"

 

[ShafTed]

I suggest mentioning the wand in the OP, Applehd.

Keep the pocket knives and other goodies in the car

Since the 5th was the first appearance of the wand, I actually had a small Swiss army knife in one pocket and an EDC folder clipped in the other, as well as a handful of change. Nary a peep from the wand. But I will still leave such things in the car for future meetings.

PS anybody know what prompted the change?

 

[protegeV]

Since the 5th was the first appearance of the wand, I actually had a small Swiss army knife in one pocket and an EDC folder clipped in the other, as well as a handful of change. Nary a peep from the wand. But I will still leave such things in the car for future meetings.

PS anybody know what prompted the change?

I hate to bring it up again, but most likely the added security measure(even though it seems to be a bit of theater) is bc of some hostility toward some of the board members after the last meeting.

 

[Gryphon]

Per Your Many Requests: Excerpts from Gryphon's Application to MSP & HGPRB Appeal

THIS IS NOT LEGAL ADVICE, but it's time to share. Also, I'd like to publicly thank Esqappellate for the collaborative effort. We have never actually met, but this forum allowed us to exchange, combine, vet and test our legal analysis against one another to ensure it is correct. I truly hope this helps others understand the situation . . .

Dear HGPRB:

Please accept this letter, and its attachments which are incorporated herein by reference, as my Notice of Appeal and Request for Hearing for the referenced Handgun Permit Application.

Introduction

The appeal is based on: 1) the Maryland State Police’s (“MSP”) failure to articulate a specific reason for denial in its untimely written decision contrary to the requirements of COMAR; 2) MSP’s continued and erroneous reliance on the outdated Snowden and Scherr opinions; 3) MSP’s failure to recognize and apply the “palpable need for self-protection” standard relied upon by the 4th Circuit in Woollard when it considered and upheld the Constitutionality of Maryland’s “good and substantial” requirement in 2013; and 4) the Board’s authority and duty to adopt and enforce an interpretation of “good and substantial” that reconciles Maryland law with the Second Amendment, as did Woollard which is controlling legal authority.

Specific Basis for Appeal & Request for Hearing

First, the appeal is made and a hearing is requested pursuant to Maryland Annotated Code, Public Safety Article (hereinafter “PS”), § 5-312(a)(2), because the application was not acted on by the Secretary within 90 days of being submitted to the Handgun Permit Unit on March 23, 2015.

Second, Tfc. Brett Lazuick’s recently issued decision dated August 4th, post-marked August 5th, and that I received on August 8, 2015, does not satisfy the requirements of COMAR 29.03.02.08.C. That regulation requires “a written denial provided by the Secretary shall contain the reasons the application was denied.”

In this regard, Tfc. Lazuick’s letter (see Attachment L hereto) merely states that “Title 5-306, of the Annotated Code of Maryland, establishes the qualifications and procedures for the issuance of a handgun permit.” That statement of the applicable law is not disputed, but it certainly over-simplifies the landscape. Tfc. Lazuick then concludes without any specifics that “ased on that criteria, your request for a handgun permit has been disapproved.”

Simply put, four and a half months after submission the Handgun Permit Unit’s written decision cites the applicable statute but fails to identify any specific reason the application was denied. Unsupported decisions like this are arbitrary and capricious on their face, and should be summarily reversed in favor of issuing a permit; especially where the “Policies and Procedures of the Handgun Permit Review Board” clearly state MSP “bears the burden of proof.” See <http://www.dpscs.state.md.us/agencies/HPRBpoicyiesandprocedures.pdf [sic] (last visited on August 10, 2015).

Third, even to the extent the MSP may argue in the future that I have not satisfied the “good and substantial reason” requirement under PS § 5-306(a)(6)(ii)(2), the record reflects that MSP could have only reached that conclusion by continuing to inappropriately rely on Snowden v. Handgun Permit Review Board, 45 Md.App. 464, 413 A.2d 295 (1980), and Scherr v. Handgun Permit Review Board, 163 Md.App. 417, 880 A.2d 1137 (2005). However, Snowden (decided in 1980) and Scherr (decided in 2005) are no longer controlling and should not be considered persuasive with respect to the meaning of “good and substantial.”

Notably, neither the Secretary’s written decision nor anyone else in the MSP Licensing Division/Handgun Permit Unit has genuinely opposed, contested, or otherwise rebutted the legal analysis which was provided in support of my application, and that is incorporated here by reference. That analysis is primarily located within Attachment H. [SEE EXCERPT OF EXHIBIT H ANALYSIS BELOW]

* * *

Snowden & Scherr are no longer proper standards for “Good and Substantial.” I will not repeat the post-Snowden and post-Scherr developments in Second Amendment jurisprudence at length here, but you will find the applicable Supreme Court and federal appellate court decisions, including Heller (2008), McDonald (2010), Moore (2012), Woollard (2013), etc. thoroughly discussed in my June 29, 2015 submission (Attachment H) [SEE EXCERPTS BELOW] to Tfc. Lazuick and Secretary Pallozzi.

To summarize, the “palpable need for self-protection” standard articulated by the 4th Circuit in the Woollard decision in 2013 should replace the “greater than other citizens” standard which was adopted in Scherr. First, the greater than other citizens standard does not even appear anywhere in the applicable Maryland statutes – rather it was literally “made up” by the MSP trooper testifying in the Scherr case. Second, the Woollard court’s palpable need standard was derived while the federal court was considering the Constitutionality of Maryland’s “good and substantial” requirement in the context of the aforementioned post-Scherr federal decisions interpreting the Second Amendment.

The Second Amendment – not outdated state court decisions – controls how the Board must apply the “Good and Substantial” requirement in Maryland

Maryland state law must be construed and applied in a manner that is in keeping with the current interpretation of the Constitution. This is made entirely clear by Article 2 of Maryland’s Declaration of Rights which provides (emphasis added):

The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State [Maryland]; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.​

In addition, there can be no doubt that each member of the Board is sworn to uphold the Constitution of the United States over the laws of the Maryland – or at the very least reconcile them. For example, the “oath of office” for those appointed to the Board provides in part:

Every person elected, or appointed, to any office of profit or trust, under this Constitution, or the Laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath, or affirmation: I, ___________, do swear, (or affirm, as the case may be,) that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof . . .​

Md. Const. Art. I, § 9, emphasis added. Accordingly, where possible Maryland state law must be interpreted and applied consistent with the Second Amendment.

Last, where an applicant like myself is not challenging the validity of PS § 5-306 as a whole, but rather is asserting a specific statute (PS § 5-306(a)(6)(ii)) is being applied in an unconstitutional manner, and especially where the General Assembly has provided the Board as an administrative remedy, the Constitutional issue must be raised and must be decided in the statutorily prescribed administrative and judicial review proceedings. See e.g., Insurance Comm’r v. Equitable Life Assurance Society of the United States, 339 Md. 596, 664 A.2d 862 (1995)(Insurance Commissioner has authority to decide whether portions of the Insurance Code under attack were applied unconstitutionally during evidentiary hearing and findings of fact). In short, the Board has the authority to consider and the duty to decide whether “good and substantial” as applied by the MSP passes Constitutional muster.

The Secretary and Board must apply existing Maryland law in harmony with the Second Amendment

For many years the MSP has denied applicants seeking a handgun permit based on the Snowden and Scherr cases; both are Maryland state court opinions that were decided 35 and 10 years ago respectively. They were decided when the state courts improperly viewed permits as a mere privilege. Both opinions were issued before the aforementioned Supreme Court and federal appellate cases which serve to completely undermine them as an appropriate basis for the MSP to deny permits to otherwise qualified, law-abiding applicants. Yet it is evident from the recent disapproval of my application that the bureaucracy within the MSP is “stuck in 2005,” as if Heller, McDonald, Moore, Woollard, etc. simply do not exist.

Notwithstanding the MSP’s long standing prior practices, my June 29, 2015 submission (Attachment H) [SEE EXCERPTS BELOW] to the Handgun Permit Unit and Secretary Pallozzi explains in detail: 1) that Maryland statute does not require an applicant to prove documented threats or imminent danger greater than others; 2) that the Supreme Court has held the Second Amendment embodies an individual’s right to bear arms for self-defense that applies to Maryland; 3) that all of the federal courts, including the 4th Circuit in Woollard, have held or readily presume the right to bear arms extends outside of the home; 4) that the need for self-defense is just as great if not greater outside versus inside the home; 5) that neither the Secretary nor the Board are bound by Snowden or Scherr; 6) that continued reliance on Snowden and Scherr is improper; 7) that “good and substantial” can and must be harmonized with the protections of the Second Amendment; and 8) perhaps most importantly, that application of the “palpable need of self-protection” standard articulated in the Woollard case does exactly that.

Secretary Pallozzi, and the Board in its oversight or “appellate” capacity, have the authority and must apply “good and substantial” in harmony with the federal courts interpretations of the Second Amendment. Unfortunately, Secretary Pallozzi’s decision to deny my application demonstrates a failure on his part to do so, and that the MSP continues to favor the unconstitutionally restrictive Scherr standard in lieu of the Woollard “palpable need for self-protection” standard.

Requested Relief

I request the Board to: 1) order and compel MSP to produce true copies of any document(s) or standard(s) upon which it premised the Secretary’s written decision (Attachment L) to deny the permit so the complete record is before the Board in deciding this appeal; 2) allow the applicant, consistent with the Board’s Policies and Procedures, to cross examine MSP’s representative under oath during the hearing; 3) recognize and apply Woollard’s “palpable need for self-protection” standard to reconcile Maryland’s “good and substantial” requirement with current Second Amendment jurisprudence; 4) find that my original application and supplemental submissions adequately satisfy the standard for issuance of a permit; and to 6) direct the issuance of a permit by MSP valid at all times “where Maryland’s various permit exceptions do not apply” consistent with the Woollard decision.


EXCERPTS FROM EXHIBIT H

* * *

Maryland Law does not Require Documented Imminent Danger

I am familiar with the history of Maryland’s handgun laws, regulations and administrative policies, as well as federal and Supreme Court cases interpreting the Second Amendment. In this regard, I perceive your email request to be premised on the outdated standards discussed in Scherr and Snowden, which are still identified as “Cases Referencing Good and Substantial Reason” on the Maryland State Police’s Licensing Division’s Wear and Carry Permit website. Regardless of the past Superintendent’s policies and the State Police’s past practices, Maryland Law does not require documented imminent danger before a carry and wear permit is issued.

On this point, if you check my file you will see that on April 22, 2015, I responded to an April 3, 2015 letter from Major Herman that incorrectly suggested the Scherr and Snowden cases are still controlling. My response letter cited the “limitations” of those two cases, but perhaps a more detailed explanation is in order.

There are at least two reasons that Scherr v. Handgun Permit Review Board, 163 Md.App. 417, 880 A.2d 1137 (2005), and Snowden v. Handgun Permit Review Board, 45 Md.App. 464, 413 A.2d 295 (1980), are no longer controlling and should not be considered persuasive with respect to the meaning of “good and substantial.”

1. Contrary to Scherr and Snowden, the Supreme Court has held the Second Amendment embodies an individual’s right to bear arms for self-defense that applies to the States.

Scherr and Snowden both predate the Supreme Court's decisions in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020 (2010)(“citizens must be permitted to use handguns for the core lawful purpose of self-defense”). Heller held that the Second Amendment embodies an individual right to keep and bear arms, and McDonald expressly held that this right is so “fundamental to the Nation's scheme of ordered liberty” as to be incorporated into the Due Process Clause of the 14th Amendment and thus applicable to the States – including Maryland.

In Moore v. Madigan, supra, the Seventh Circuit expressly held that the Second Amendment right, as interpreted by the Supreme Court in Heller and McDonald, extends the right to bear arms outside the home. Moreover, every other federal court of appeals that has addressed this issue, including the Fourth Circuit in Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), have recognized or readily assumed the right to bear arms extends outside the home. Indeed, the Woollard court sustained the constitutionality of Maryland’s statute only upon its finding that “the good-and-substantial-reason requirement ensures that those persons in palpable need of self-protection can arm themselves in public places where Maryland's various permit exceptions do not apply.” Woollard, 712 F.3d at 880.

* * *

These holdings make clear that Scherr and Snowden – decided long before Heller and McDonald – are woefully outdated. For example, Scherr, which is the most recent Maryland opinion (decided in 2005), expressly rejected a number of the applicant’s Second Amendment based arguments, including the argument that the meaning of “good and substantial” must be construed by reference to, and in the context of, the Second Amendment. See Scherr, 163 Md.App. at 441-442. The Scherr court’s rationale was simple, i.e. that “‘the Second Amendment . . . is not applicable to the States.’” Id. at 443, quoting Onderdonk v. Handgun Permit Review Board, 44 Md.App. 132, 134-35, 407 A.2d 763 (1979). On that same rationale, Scherr also rejected the substantive due process claim because the state court did not view the right to bear arms as sufficiently “fundamental.” 163 Md.App. at 444.

However, we now know Scherr was dead wrong because the Supreme Court held in McDonald that the Second Amendment is a fundamental right applicable to Maryland. Simply stated, the Supreme Court has rejected the very foundation on which Scherr was laid.

2. Neither the current Superintendent nor the current Handgun Permit Review Board is bound by Scherr or Snowden.

Even apart from Heller and McDonald, both Scherr and Snowden merely affirmed a prior administrative interpretation of “good and substantial” imposed by two administrative agencies; the Superintendent of the Maryland State Police (“MSP”) and the Maryland Handgun Permit Review Board (“Board”). In each case the MSP and Board acted in ad hoc quasi-judicial proceedings which turned heavily on the particular facts. Neither case presented any authoritative interpretation of the phrase “good and substantial” by the prior Superintendents of the MSP or the prior Board members.

Indeed, the interpretation at issue and adopted in Scherr was “made up” by the MSP trooper reviewing Mr. Scherr's application for a permit. See Scherr, 163 Md.App. at 428 (“Q: In other words, for lack of a better word, you made that up? A: Yes.”). In this regard, the trooper’s “made up standard” had the effect of further restricting the issuance of permits only to citizens that could establish anxiety or fear greater than other citizens even though no such restriction is expressed in the applicable statute.

The true statutory standard is merely whether there is a “good and substantial reason” for the permit, including (but not limited to) whether “the permit is necessary as a reasonable precaution against apprehended danger.” MD. CODE ANN., Public Safety Article, § 5-306(a)(6)(ii). Notably, no Maryland law actually requires or mandates the more restrictive “greater than other citizens” standard “made up” by the MSP trooper and applied in Scherr. Moreover, a “failure to meet the apprehended threat criterion is not dispositive.” See e.g. Woollard at 870 (wherein the court stated “the Permit Unit . . . takes the applicant’s entire situation into account when deciding whether a ‘good and substantial reason’ exists”).

As detailed below, “apprehended danger” only requires a reasonable apprehension, which is an inquiry not governed by whether the apprehension is shared or measurably greater than another person’s. Instead, and as stated in Woollard, there only need be a “palpable need of self-protection.” Woollard at 880.

Continued Reliance on Scherr and Snowden is Improper

Neither Superintendent Pallozzi nor the Board should follow the outdated standards discussed in Scherr or Snowden. Both were decided when the issuance of a handgun carry and wear permit was improperly viewed by the Maryland courts as a mere privilege, not a Constitutional right that applies to the States and extends to individuals the right to bear arms in public.

Scherr and Snowden did nothing more than try to interpret a still undefined standard (“good and substantial”), and merely confirmed that the superintendent(s) at those times properly exercised the discretion afforded to him by the Legislature. However, the Supreme Court’s decisions in McDonald and Heller, i.e. the Second Amendment applies to the States, and confers an individual right to bear arms in public completely undermine the foundations on which Snowden and Scherr were originally decided.

Given the holdings in McDonald and Heller, the Superintendent and the Board must exercise their discretion to formulate and apply a new standard that does not rely on the outdated rationales articulated in Snowden and Scherr, or those “made up” by a MSP trooper struggling to give meaning to an otherwise undefined term.

“Good & Substantial” must be Harmonized with the Protections of the Second Amendment

The MSP and the Board have the authority and responsibility to interpret statutes administered by these agencies, but have the legal obligation to do so consistent with the Supreme Court’s interpretation of the protections afforded by the Second Amendment. Furthermore, the State legislature’s refusal to provide guidance on “good and substantial” leaves that responsibility squarely on the shoulders of Superintendent Pallozzi for original applications, and on the Board for appeals. Nevertheless, neither the MSP nor the Board has ever attempted to promulgate and issue regulations, or other formal guidance with respect to the meaning of “good and substantial.”

While it is true that the MSP need not issue formal regulations, it cannot be denied that rational decision making requires the MSP to have a policy and guidelines in place for the application of the “good and substantial” standard. See Madison Park North Apartments, L.P. v. Commissioner of Housing and Madison Park North Apartments, L.P. v. Commissioner of Housing and Community Development, 211 Md.App. 676, 66 A.3d 93, 105 (2013)(“An agency's decision is arbitrary and capricious if it is “contrary to law or unsupported by substantial evidence.”). Anything else would foster arbitrary decision making.

Moreover, neither Superintendent Pallozzi nor the current Board are, in any way, “bound” by their predecessors’ prior decisions or practices with respect to the meaning of “good and substantial.” In fact, it is hornbook administrative law that an agency is free to change its interpretation of a statute at any time, a point stressed most recently by the Supreme Court in Perez v. Mortgage Bankers Ass'n, 135 S.Ct. 1199 (2015). Maryland administrative law is generally guided by federal administrative law. See Harvey v. Marshall, 158 Md.App. 355 (2004). Without question, it would be bizarre to conclude that that meaning of “good and substantial” should forever be controlled by something a MSP trooper just “made up” during his review of Mr. Scherr’s application; especially without any regard to subsequent Supreme Court, federal appellate, and federal trial court cases, and particularly where the applicable Maryland statute does not express or support the trooper’s more restrictive interpretation in the first place.

Woollard’s “Palpable Need” Reconciles Maryland Statute and the Second Amendment

The “palpable need for self-defense” standard articulated in Woollard reconciles Maryland’s “good and substantial” requirement with the Supreme Court’s recent decisions on the scope and reach of the Second Amendment. Accordingly, the MSP should no longer interpret and apply the “good and substantial” requirement as applied in Scherr, or even as stated in Snowden more than 35 years ago. Rather, Superintendent Pallozzi should exercise his statutory discretion and adopt and implement an interpretation of “good and substantial” that does not infringe on law-abiding citizens’ fundamental right to bear arms for self-defense; particularly where the applicant has articulated a reasonable or palpable need for personal protection.

Specifically, the MSP and the Board should adopt Woollard’s formulation of the appropriate test, i.e. that the “good-and-substantial-reason requirement” is met by qualified applicants with a “palpable need of self-protection.” Doing so will harmonize Maryland’s “good and substantial” requirement with the constitutional protections of the Second Amendment.

The “palpable need” test is not a difficult standard to understand or apply. It merely means that the applicant’s need is perceptible, perceivable, visible, noticeable, plausible, discernible, detectable, observable, or tangible; multiple terms that are synonymous with “palpable.” <http://www.thesaurus.com/browse/palpable> (visited June 13, 2015).

Of course carry and wear permits would still only be issued to those individuals that first satisfy the extremely rigorous firearms training, and criminal and mental background investigations imposed by MD. ANN. CODE, Public Safety Article, § 5-306(a). Those requirements are among the strictest – if not the strictest – in the Nation. Similarly, the MSP still has the discretion, authorized by Section 5-306(a)(6)(ii), to assess whether an applicant has “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.”

Conclusion

Continued reliance by the MSP on Scherr and Snowden is no longer defensible. Heller and McDonald destroy the analytic basis for those decisions. In addition, the MSP trooper’s made up “greater than other citizens” standard for establishing “apprehended danger” under the “good and substantial” requirement (no matter how well intended) is not supported by the applicable statute.

Last, similar special need or heightened need requirements are being rejected by the courts as unconstitutional. See e.g. . . .

* * *

Consequently, the MSP and the Board must revisit their respective approaches to the meaning of “good and substantial,” and should find that a reasonably articulated or “palpable need” for self-defense satisfies Maryland’s “good and substantial” requirement while simultaneously passing Second Amendment muster. A failure to do so will continue to render the protections of the Second Amendment illusory to a majority of the responsible, law-abiding citizens of Maryland.

I request that Superintendent Pallozzi do so with respect to my application, and I look forward to Superintendent Pallozzi’s decision. Please do not hesitate to contact me with any further questions or concerns.

 

[protegeV]

 

[Rack&Roll]

OK, here's my application:

What He Said.





Drops mic.

 

[protegeV]

OK, here's my application:

What He Said.





Drops mic.

exactly. THat's what we were all chomping at the bit for, expecting msp to be overturned. Well, as PJ put it, Gryphon's last stand is not over. We'll see what may come and how it may affect everyone.

 

[hodgepodge]

 

[redeemed.man]

THIS IS NOT LEGAL ADVICE, but it's time to share. I truly hope this helps others understand the situation . . .

Dear HGPRB:

Please accept this letter, and its attachments which are incorporated herein by reference, as my Notice of Appeal and Request for Hearing for the referenced Handgun Permit Application.

Introduction

The appeal is based on: 1) the Maryland State Police’s (“MSP”) failure to articulate a specific reason for denial in its untimely written decision contrary to the requirements of COMAR; 2) MSP’s continued and erroneous reliance on the outdated Snowden and Scherr opinions; 3) MSP’s failure to recognize and apply the “palpable need for self-protection” standard relied upon by the 4th Circuit in Woollard when it considered and upheld the Constitutionality of Maryland’s “good and substantial” requirement in 2013; and 4) the Board’s authority and duty to adopt and enforce an interpretation of “good and substantial” that reconciles Maryland law with the Second Amendment, as did Woollard which is controlling legal authority.

Specific Basis for Appeal & Request for Hearing

First, the appeal is made and a hearing is requested pursuant to Maryland Annotated Code, Public Safety Article (hereinafter “PS”), § 5-312(a)(2), because the application was not acted on by the Secretary within 90 days of being submitted to the Handgun Permit Unit on March 23, 2015.

Second, Tfc. Brett Lazuick’s recently issued decision dated August 4th, post-marked August 5th, and that I received on August 8, 2015, does not satisfy the requirements of COMAR 29.03.02.08.C. That regulation requires “a written denial provided by the Secretary shall contain the reasons the application was denied.”

In this regard, Tfc. Lazuick’s letter (see Attachment L hereto) merely states that “Title 5-306, of the Annotated Code of Maryland, establishes the qualifications and procedures for the issuance of a handgun permit.” That statement of the applicable law is not disputed, but it certainly over-simplifies the landscape. Tfc. Lazuick then concludes without any specifics that “ased on that criteria, your request for a handgun permit has been disapproved.”

Simply put, four and a half months after submission the Handgun Permit Unit’s written decision cites the applicable statute but fails to identify any specific reason the application was denied. Unsupported decisions like this are arbitrary and capricious on their face, and should be summarily reversed in favor of issuing a permit; especially where the “Policies and Procedures of the Handgun Permit Review Board” clearly state MSP “bears the burden of proof.” See <http://www.dpscs.state.md.us/agencies/HPRBpoicyiesandprocedures.pdf [sic] (last visited on August 10, 2015).

Third, even to the extent the MSP may argue in the future that I have not satisfied the “good and substantial reason” requirement under PS § 5-306(a)(6)(ii)(2), the record reflects that MSP could have only reached that conclusion by continuing to inappropriately rely on Snowden v. Handgun Permit Review Board, 45 Md.App. 464, 413 A.2d 295 (1980), and Scherr v. Handgun Permit Review Board, 163 Md.App. 417, 880 A.2d 1137 (2005). However, Snowden (decided in 1980) and Scherr (decided in 2005) are no longer controlling and should not be considered persuasive with respect to the meaning of “good and substantial.”

Notably, neither the Secretary’s written decision nor anyone else in the MSP Licensing Division/Handgun Permit Unit has genuinely opposed, contested, or otherwise rebutted the legal analysis which was provided in support of my application, and that is incorporated here by reference. That analysis is primarily located within Attachment H. [SEE EXCERPT OF EXHIBIT H ANALYSIS BELOW]

* * *

Snowden & Scherr are no longer proper standards for “Good and Substantial.” I will not repeat the post-Snowden and post-Scherr developments in Second Amendment jurisprudence at length here, but you will find the applicable Supreme Court and federal appellate court decisions, including Heller (2008), McDonald (2010), Moore (2012), Woollard (2013), etc. thoroughly discussed in my June 29, 2015 submission (Attachment H) [SEE EXCERPTS BELOW] to Tfc. Lazuick and Secretary Pallozzi.

To summarize, the “palpable need for self-protection” standard articulated by the 4th Circuit in the Woollard decision in 2013 should replace the “greater than other citizens” standard which was adopted in Scherr. First, the greater than other citizens standard does not even appear anywhere in the applicable Maryland statutes – rather it was literally “made up” by the MSP trooper testifying in the Scherr case. Second, the Woollard court’s palpable need standard was derived while the federal court was considering the Constitutionality of Maryland’s “good and substantial” requirement in the context of the aforementioned post-Scherr federal decisions interpreting the Second Amendment.

The Second Amendment – not outdated state court decisions – controls how the Board must apply the “Good and Substantial” requirement in Maryland

Maryland state law must be construed and applied in a manner that is in keeping with the current interpretation of the Constitution. This is made entirely clear by Article 2 of Maryland’s Declaration of Rights which provides (emphasis added):

The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State [Maryland]; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding.​

In addition, there can be no doubt that each member of the Board is sworn to uphold the Constitution of the United States over the laws of the Maryland – or at the very least reconcile them. For example, the “oath of office” for those appointed to the Board provides in part:

Every person elected, or appointed, to any office of profit or trust, under this Constitution, or the Laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath, or affirmation: I, ___________, do swear, (or affirm, as the case may be,) that I will support the Constitution of the United States; and that I will be faithful and bear true allegiance to the State of Maryland, and support the Constitution and Laws thereof . . .​

Md. Const. Art. I, § 9, emphasis added. Accordingly, where possible Maryland state law must be interpreted and applied consistent with the Second Amendment.

Last, where an applicant like myself is not challenging the validity of PS § 5-306 as a whole, but rather is asserting a specific statute (PS § 5-306(a)(6)(ii)) is being applied in an unconstitutional manner, and especially where the General Assembly has provided the Board as an administrative remedy, the Constitutional issue must be raised and must be decided in the statutorily prescribed administrative and judicial review proceedings. See e.g., Insurance Comm’r v. Equitable Life Assurance Society of the United States, 339 Md. 596, 664 A.2d 862 (1995)(Insurance Commissioner has authority to decide whether portions of the Insurance Code under attack were applied unconstitutionally during evidentiary hearing and findings of fact). In short, the Board has the authority to consider and the duty to decide whether “good and substantial” as applied by the MSP passes Constitutional muster.

The Secretary and Board must apply existing Maryland law in harmony with the Second Amendment

For many years the MSP has denied applicants seeking a handgun permit based on the Snowden and Scherr cases; both are Maryland state court opinions that were decided 35 and 10 years ago respectively. They were decided when the state courts improperly viewed permits as a mere privilege. Both opinions were issued before the aforementioned Supreme Court and federal appellate cases which serve to completely undermine them as an appropriate basis for the MSP to deny permits to otherwise qualified, law-abiding applicants. Yet it is evident from the recent disapproval of my application that the bureaucracy within the MSP is “stuck in 2005,” as if Heller, McDonald, Moore, Woollard, etc. simply do not exist.

Notwithstanding the MSP’s long standing prior practices, my June 29, 2015 submission (Attachment H) [SEE EXCERPTS BELOW] to the Handgun Permit Unit and Secretary Pallozzi explains in detail: 1) that Maryland statute does not require an applicant to prove documented threats or imminent danger greater than others; 2) that the Supreme Court has held the Second Amendment embodies an individual’s right to bear arms for self-defense that applies to Maryland; 3) that all of the federal courts, including the 4th Circuit in Woollard, have held or readily presume the right to bear arms extends outside of the home; 4) that the need for self-defense is just as great if not greater outside versus inside the home; 5) that neither the Secretary nor the Board are bound by Snowden or Scherr; 6) that continued reliance on Snowden and Scherr is improper; 7) that “good and substantial” can and must be harmonized with the protections of the Second Amendment; and 8) perhaps most importantly, that application of the “palpable need of self-protection” standard articulated in the Woollard case does exactly that.

Secretary Pallozzi, and the Board in its oversight or “appellate” capacity, have the authority and must apply “good and substantial” in harmony with the federal courts interpretations of the Second Amendment. Unfortunately, Secretary Pallozzi’s decision to deny my application demonstrates a failure on his part to do so, and that the MSP continues to favor the unconstitutionally restrictive Scherr standard in lieu of the Woollard “palpable need for self-protection” standard.

Requested Relief

I request the Board to: 1) order and compel MSP to produce true copies of any document(s) or standard(s) upon which it premised the Secretary’s written decision (Attachment L) to deny the permit so the complete record is before the Board in deciding this appeal; 2) allow the applicant, consistent with the Board’s Policies and Procedures, to cross examine MSP’s representative under oath during the hearing; 3) recognize and apply Woollard’s “palpable need for self-protection” standard to reconcile Maryland’s “good and substantial” requirement with current Second Amendment jurisprudence; 4) find that my original application and supplemental submissions adequately satisfy the standard for issuance of a permit; and to 6) direct the issuance of a permit by MSP valid at all times “where Maryland’s various permit exceptions do not apply” consistent with the Woollard decision.


EXCERPTS FROM EXHIBIT H

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Maryland Law does not Require Documented Imminent Danger

I am familiar with the history of Maryland’s handgun laws, regulations and administrative policies, as well as federal and Supreme Court cases interpreting the Second Amendment. In this regard, I perceive your email request to be premised on the outdated standards discussed in Scherr and Snowden, which are still identified as “Cases Referencing Good and Substantial Reason” on the Maryland State Police’s Licensing Division’s Wear and Carry Permit website. Regardless of the past Superintendent’s policies and the State Police’s past practices, Maryland Law does not require documented imminent danger before a carry and wear permit is issued.

On this point, if you check my file you will see that on April 22, 2015, I responded to an April 3, 2015 letter from Major Herman that incorrectly suggested the Scherr and Snowden cases are still controlling. My response letter cited the “limitations” of those two cases, but perhaps a more detailed explanation is in order.

There are at least two reasons that Scherr v. Handgun Permit Review Board, 163 Md.App. 417, 880 A.2d 1137 (2005), and Snowden v. Handgun Permit Review Board, 45 Md.App. 464, 413 A.2d 295 (1980), are no longer controlling and should not be considered persuasive with respect to the meaning of “good and substantial.”

1. Contrary to Scherr and Snowden, the Supreme Court has held the Second Amendment embodies an individual’s right to bear arms for self-defense that applies to the States.

Scherr and Snowden both predate the Supreme Court's decisions in Dist. of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783 (2008), and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020 (2010)(“citizens must be permitted to use handguns for the core lawful purpose of self-defense”). Heller held that the Second Amendment embodies an individual right to keep and bear arms, and McDonald expressly held that this right is so “fundamental to the Nation's scheme of ordered liberty” as to be incorporated into the Due Process Clause of the 14th Amendment and thus applicable to the States – including Maryland.

In Moore v. Madigan, supra, the Seventh Circuit expressly held that the Second Amendment right, as interpreted by the Supreme Court in Heller and McDonald, extends the right to bear arms outside the home. Moreover, every other federal court of appeals that has addressed this issue, including the Fourth Circuit in Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013), have recognized or readily assumed the right to bear arms extends outside the home. Indeed, the Woollard court sustained the constitutionality of Maryland’s statute only upon its finding that “the good-and-substantial-reason requirement ensures that those persons in palpable need of self-protection can arm themselves in public places where Maryland's various permit exceptions do not apply.” Woollard, 712 F.3d at 880.

* * *

These holdings make clear that Scherr and Snowden – decided long before Heller and McDonald – are woefully outdated. For example, Scherr, which is the most recent Maryland opinion (decided in 2005), expressly rejected a number of the applicant’s Second Amendment based arguments, including the argument that the meaning of “good and substantial” must be construed by reference to, and in the context of, the Second Amendment. See Scherr, 163 Md.App. at 441-442. The Scherr court’s rationale was simple, i.e. that “‘the Second Amendment . . . is not applicable to the States.’” Id. at 443, quoting Onderdonk v. Handgun Permit Review Board, 44 Md.App. 132, 134-35, 407 A.2d 763 (1979). On that same rationale, Scherr also rejected the substantive due process claim because the state court did not view the right to bear arms as sufficiently “fundamental.” 163 Md.App. at 444.

However, we now know Scherr was dead wrong because the Supreme Court held in McDonald that the Second Amendment is a fundamental right applicable to Maryland. Simply stated, the Supreme Court has rejected the very foundation on which Scherr was laid.

2. Neither the current Superintendent nor the current Handgun Permit Review Board is bound by Scherr or Snowden.

Even apart from Heller and McDonald, both Scherr and Snowden merely affirmed a prior administrative interpretation of “good and substantial” imposed by two administrative agencies; the Superintendent of the Maryland State Police (“MSP”) and the Maryland Handgun Permit Review Board (“Board”). In each case the MSP and Board acted in ad hoc quasi-judicial proceedings which turned heavily on the particular facts. Neither case presented any authoritative interpretation of the phrase “good and substantial” by the prior Superintendents of the MSP or the prior Board members.

Indeed, the interpretation at issue and adopted in Scherr was “made up” by the MSP trooper reviewing Mr. Scherr's application for a permit. See Scherr, 163 Md.App. at 428 (“Q: In other words, for lack of a better word, you made that up? A: Yes.”). In this regard, the trooper’s “made up standard” had the effect of further restricting the issuance of permits only to citizens that could establish anxiety or fear greater than other citizens even though no such restriction is expressed in the applicable statute.

The true statutory standard is merely whether there is a “good and substantial reason” for the permit, including (but not limited to) whether “the permit is necessary as a reasonable precaution against apprehended danger.” MD. CODE ANN., Public Safety Article, § 5-306(a)(6)(ii). Notably, no Maryland law actually requires or mandates the more restrictive “greater than other citizens” standard “made up” by the MSP trooper and applied in Scherr. Moreover, a “failure to meet the apprehended threat criterion is not dispositive.” See e.g. Woollard at 870 (wherein the court stated “the Permit Unit . . . takes the applicant’s entire situation into account when deciding whether a ‘good and substantial reason’ exists”).

As detailed below, “apprehended danger” only requires a reasonable apprehension, which is an inquiry not governed by whether the apprehension is shared or measurably greater than another person’s. Instead, and as stated in Woollard, there only need be a “palpable need of self-protection.” Woollard at 880.

Continued Reliance on Scherr and Snowden is Improper

Neither Superintendent Pallozzi nor the Board should follow the outdated standards discussed in Scherr or Snowden. Both were decided when the issuance of a handgun carry and wear permit was improperly viewed by the Maryland courts as a mere privilege, not a Constitutional right that applies to the States and extends to individuals the right to bear arms in public.

Scherr and Snowden did nothing more than try to interpret a still undefined standard (“good and substantial”), and merely confirmed that the superintendent(s) at those times properly exercised the discretion afforded to him by the Legislature. However, the Supreme Court’s decisions in McDonald and Heller, i.e. the Second Amendment applies to the States, and confers an individual right to bear arms in public completely undermine the foundations on which Snowden and Scherr were originally decided.

Given the holdings in McDonald and Heller, the Superintendent and the Board must exercise their discretion to formulate and apply a new standard that does not rely on the outdated rationales articulated in Snowden and Scherr, or those “made up” by a MSP trooper struggling to give meaning to an otherwise undefined term.

“Good & Substantial” must be Harmonized with the Protections of the Second Amendment

The MSP and the Board have the authority and responsibility to interpret statutes administered by these agencies, but have the legal obligation to do so consistent with the Supreme Court’s interpretation of the protections afforded by the Second Amendment. Furthermore, the State legislature’s refusal to provide guidance on “good and substantial” leaves that responsibility squarely on the shoulders of Superintendent Pallozzi for original applications, and on the Board for appeals. Nevertheless, neither the MSP nor the Board has ever attempted to promulgate and issue regulations, or other formal guidance with respect to the meaning of “good and substantial.”

While it is true that the MSP need not issue formal regulations, it cannot be denied that rational decision making requires the MSP to have a policy and guidelines in place for the application of the “good and substantial” standard. See Madison Park North Apartments, L.P. v. Commissioner of Housing and Madison Park North Apartments, L.P. v. Commissioner of Housing and Community Development, 211 Md.App. 676, 66 A.3d 93, 105 (2013)(“An agency's decision is arbitrary and capricious if it is “contrary to law or unsupported by substantial evidence.”). Anything else would foster arbitrary decision making.

Moreover, neither Superintendent Pallozzi nor the current Board are, in any way, “bound” by their predecessors’ prior decisions or practices with respect to the meaning of “good and substantial.” In fact, it is hornbook administrative law that an agency is free to change its interpretation of a statute at any time, a point stressed most recently by the Supreme Court in Perez v. Mortgage Bankers Ass'n, 135 S.Ct. 1199 (2015). Maryland administrative law is generally guided by federal administrative law. See Harvey v. Marshall, 158 Md.App. 355 (2004). Without question, it would be bizarre to conclude that that meaning of “good and substantial” should forever be controlled by something a MSP trooper just “made up” during his review of Mr. Scherr’s application; especially without any regard to subsequent Supreme Court, federal appellate, and federal trial court cases, and particularly where the applicable Maryland statute does not express or support the trooper’s more restrictive interpretation in the first place.

Woollard’s “Palpable Need” Reconciles Maryland Statute and the Second Amendment

The “palpable need for self-defense” standard articulated in Woollard reconciles Maryland’s “good and substantial” requirement with the Supreme Court’s recent decisions on the scope and reach of the Second Amendment. Accordingly, the MSP should no longer interpret and apply the “good and substantial” requirement as applied in Scherr, or even as stated in Snowden more than 35 years ago. Rather, Superintendent Pallozzi should exercise his statutory discretion and adopt and implement an interpretation of “good and substantial” that does not infringe on law-abiding citizens’ fundamental right to bear arms for self-defense; particularly where the applicant has articulated a reasonable or palpable need for personal protection.

Specifically, the MSP and the Board should adopt Woollard’s formulation of the appropriate test, i.e. that the “good-and-substantial-reason requirement” is met by qualified applicants with a “palpable need of self-protection.” Doing so will harmonize Maryland’s “good and substantial” requirement with the constitutional protections of the Second Amendment.

The “palpable need” test is not a difficult standard to understand or apply. It merely means that the applicant’s need is perceptible, perceivable, visible, noticeable, plausible, discernible, detectable, observable, or tangible; multiple terms that are synonymous with “palpable.” <http://www.thesaurus.com/browse/palpable> (visited June 13, 2015).

Of course carry and wear permits would still only be issued to those individuals that first satisfy the extremely rigorous firearms training, and criminal and mental background investigations imposed by MD. ANN. CODE, Public Safety Article, § 5-306(a). Those requirements are among the strictest – if not the strictest – in the Nation. Similarly, the MSP still has the discretion, authorized by Section 5-306(a)(6)(ii), to assess whether an applicant has “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.”

Conclusion

Continued reliance by the MSP on Scherr and Snowden is no longer defensible. Heller and McDonald destroy the analytic basis for those decisions. In addition, the MSP trooper’s made up “greater than other citizens” standard for establishing “apprehended danger” under the “good and substantial” requirement (no matter how well intended) is not supported by the applicable statute.

Last, similar special need or heightened need requirements are being rejected by the courts as unconstitutional. See e.g. . . .

* * *

Consequently, the MSP and the Board must revisit their respective approaches to the meaning of “good and substantial,” and should find that a reasonably articulated or “palpable need” for self-defense satisfies Maryland’s “good and substantial” requirement while simultaneously passing Second Amendment muster. A failure to do so will continue to render the protections of the Second Amendment illusory to a majority of the responsible, law-abiding citizens of Maryland.

I request that Superintendent Pallozzi do so with respect to my application, and I look forward to Superintendent Pallozzi’s decision. Please do not hesitate to contact me with any further questions or concerns.

Awesome sir. Just awesome. That is all.

 

[Stoveman]

Since the 5th was the first appearance of the wand, I actually had a small Swiss army knife in one pocket and an EDC folder clipped in the other, as well as a handful of change. Nary a peep from the wand. But I will still leave such things in the car for future meetings.

PS anybody know what prompted the change?

Didn't pick up mine either. All for show....

 

[JPG]

First that post should be a sticky. Second can board say permit can be unrestricted (carry 24/7/365 - not just while performing your business, for example)?

 

[motorcoachdoug]

Gryphon My hat is off to you sir!!!. This should make things a lot simpler for the people of Maryland to exercise their 2A rights for self defense. Now the ball is in MSP and or the HGPRB court. Needless to say sir you just destroyed MSP outdated reasoning not to mention anti 2a frosh as well..:

 

[PJDiesel]

I hate to bring it up again, but most likely the added security measure(even though it seems to be a bit of theater) is bc of some hostility toward some of the board members after the last meeting.

I overheard a board member saying how they were glad to see the metal detector there and they couldn't believe it wasn't there for the last meeting. Funny part was, I was walking behind them at a reasonable following distance on the way out. JV kept looking back, then looking at her, then looking back again, appeared (to me) like he was trying to have her notice me and cease the topic.

Somewhat sad that there is ANY level of suspicion going on that someone would come to a meeting to cause harm. You'd think they'd know by now we're probably a goup at the very top of the ranks as far as being law abiding........

 

[t84a]

Seriously, a criminal clearly wouldn't bother getting a permit.

 

[LCPIWB]

Gryphon.

<-Insert guy clapping hands here.->

 

[motorcoachdoug]

 

[redeemed.man]

First that post should be a sticky. Second can board say permit can be unrestricted (carry 24/7/365 - not just while performing your business, for example)?

Yes yes. There is no requirement to apply restrictions in the law it is more made up crap.

Time place and manner restrictions may be applied but I'm sure the intent of lawmakers at the time was to do that on professional permits like security guards.