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-   -   "Possess" & "Receive" meaning in SB281 (http://www.mdshooters.com/showthread.php?t=126313)

lseries July 24th, 2013 03:12 PM

"Possess" & "Receive" meaning in SB281
 
I haven't been able to find the answer to this question.

What do "possess" and "receive" mean when used in SB281?

For example, say I'm at the range and allow someone else to fire my gun. One meaning of "receive" could be that he takes the gun from my hand. One meaning of "possess" could be that he's now holding it in his hand.

After October 1, will it be legal to allow someone else to fire your gun (or to fire someone else's) without checking whether he has the permit, and has undergone the finger printing, background check, and so on?

I'm happy to take people to the range and to let folks at the range try my guns, but I don't like any of them well enough to be a test case!

Many thanks for any clarification.

lx1x July 24th, 2013 03:20 PM

I doubt you need to have license to borrow a handgun.. (they actually have rent in the bill but it is specifically said. Leaving the premises.. something like that)

As long the owner is around...I personally think will not be a problem.. I.e. if I let my nephew, who is 16, shoot few rounds of my 22lr handgun.. of better yet.. my wife shoot any regulated funs I have while we are at the range.

Inigoes July 24th, 2013 03:53 PM

Receive deals with ownership.

Possession is what in your hands. That is why some machine gun rentals have an employee keeping onehand on the gun at all times when it is use by a client.

rob-cubed July 24th, 2013 04:01 PM

The HQL is required to purchase a handgun, not shoot or own one.

The intent of the law was to restrict sales. Loans should still be fine, in any case it would be impossible to prevent or enforce.

erwos July 24th, 2013 04:05 PM

Quote:

Originally Posted by rob-cubed (Post 2583439)
The HQL is required to purchase a handgun, not shoot or own one.

The intent of the law was to restrict sales. Loans should still be fine, in any case it would be impossible to prevent or enforce.

The OP is asking about it in the context of banned rifles and shotguns.

Suffice it to say, my take on those terms is expansive... I will not be lending out any banned guns out of my presence past 10/1, just like I don't lend out > 20rd magazines out of my presence right now. Maybe COMAR will interpret it more narrowly, but I wouldn't bet on it.

lx1x July 24th, 2013 04:08 PM

Quote:

Originally Posted by Inigoes (Post 2583412)
Receive deals with ownership.

Possession is what in your hands. That is why some machine gun rentals have an employee keeping onehand on the gun at all times when it is use by a client.

Lol. Latter part..

esqappellate July 24th, 2013 05:13 PM

Quote:

Originally Posted by Inigoes (Post 2583412)
Receive deals with ownership.

Possession is what in your hands. That is why some machine gun rentals have an employee keeping onehand on the gun at all times when it is use by a client.

I am not so sure about that. SB-281 creates a whole new set of provisions regulating the “receipt” of handguns in particular. Section 5-501 of the Public Safety Article has added a new provision for the newly created “Handgun Qualification License.”

(O) “Handgun Qualification License” means a license issued by the Secretary that authorizes a person to purchase, rent, or receive a handgun.

SB-281 then relies on this definition of the “Handgun Qualification License” in creating Section 117.1 to the Public Safety Article. Subsections (b) and (c) of newly enacted Section 117.1 broadly mandate that a person have such a “Handgun Qualification License” as a condition to acquiring such a handgun, providing:

(B) a dealer or any other person may not sell, rent, or transfer a regulated firearm handgun to a purchaser, lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer or other person a valid regulated firearm handgun qualification license issued to the purchaser, lessee, or transferee by the Secretary under this section.

(c) a person may purchase, rent, or receive a handgun only if the person:
(1) (i) possesses a valid handgun qualification license issued to the person by the Secretary in accordance with this section; * * * *

Section 5-143 of the Public Safety Article, which was not amended by SB-281, can be read to apply to transactions governed by new Section 5-117.1 so as to impose severe criminal penalties. Section 5-143 provides:

(a) Except as otherwise provided in this subtitle, a dealer or other person may not:
(1) knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle;
* * * *
Penalty
(b) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both.

Interpretation Issues Associated with SB 281's Regulation of “Receipt” or “Receive”:

The terms “receipt” or “receive” in these provisions of SB-281 are not defined, either in the existing code or in SB-281 and there is, of course, no Maryland case law on these newly enacted provisions. The only arguably analogous provisions are the regulation of the “receipt” of firearms under federal law, 18 U.S.C. 922(h), which provides:

(h) It shall be unlawful for any individual, who to that individual's knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment--
(1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce;
or
(2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, there are significant differences between “receive” as used in SB-281 and “received” as used in federal law. Subsection (g), referenced in Section 922(h), refers, of course, to persons who are disqualified from possessing any firearms because of criminal convictions or other disqualification. In this context, the term “receive” as used in subsection (h) “means to take possession of or to knowingly accept the same.” See, e.g., United States v. Turnmire, 574 F.2d 1156, 1157 (4th Cir. 1978). As Turnmire notes, other federal courts of appeals are in accord. (Id). As Turnmire thus explains, under federal law, “receipt “ may be inferred by mere possession, on the assumption that one cannot “possess” without have had first “received.” See Turnmire, 574 F.2d at 1157 (approving the instruction that “since one cannot possess something without having received it, (then) receipt of a firearm may be shown circumstantially by proving possession.”).

Stated simply, if the federal interpretation of “receive” were to be used under state law, SB-281 would shut down instructional shooting, family shooting activities, youth shooting and the mere temporary transfer of firearms at the range to friends and other persons who wish to learn about shooting activities. Few persons will temporarily loan an assault weapon, a magazine or handgun for temporary use at the range under these provisions for fear of enforcement. Otherwise innocent, law-abiding persons could risk arrest, criminal prosecution and imprisonment by overzealous or literal minded law-enforcement officials. SB 281 would become a legal trap for the unwary.

Such a strict construction of “receive” for purposes of the above provisions in State law, as amended by SB-281, would also expose innocent, law-abiding persons to the loss of all their firearms for life. As you know, under federal law, 18 U.S.C. 921(a)(20) and 18 U.S.C. 922(g), a person convicted of a state misdemeanor which is “punishable” by a sentence of greater than two years in prison becomes a disqualified “felon in possession” and loses the right to possess any modern firearms for the rest of his or her life. Any possession of such firearms after such a conviction for the state misdemeanor may also result in federal imprisonment of up to 10 years under 18 U.S.C. 924(a)(2). Violations of any of the SB-281 provisions noted above or a conviction under Section 5-143 easily satisfies these conditions for a permanent federal firearms possession disability.

Moreover, there are severe problems associated with extending the literal federal definition for “receipt” or “receive” to these provisions of state law. Under SB-281, a person who lawfully owns and possesses an “assault weapon” prior to October 1, 2013, may continue to own, possess, transport and lawfully use that weapon. Similarly the ban on sales and transfers and on the receipt of magazines with a capacity of greater than 10 rounds does not ban the continued possession or use of such magazines or even the receipt of such magazines in transactions taking place out-of-state. Persons who already own handguns are not required to obtain a Handgun Qualification License to keep and lawfully use his or her already-owned handguns. Yet, if the existing owner of such an assault weapon, or magazine or handgun were temporarily to loan his assault weapon, magazine or handgun to a spouse, other family members, a friend or even a student at a sanctioned training course, then the recipient of that assault weapon, magazine or handgun could be seen as “taking possession” and thus “receiving” these articles simply by that fact alone. Both that recipient and the existing owner could then be exposed to the severe criminal penalties imposed by SB 281 and/or charged as “participants” under Section 5-143.

ameridane July 24th, 2013 06:11 PM

quote " Yet, if the existing owner of such an assault weapon, or magazine or handgun were temporarily to loan his assault weapon, magazine or handgun to a spouse, other family members, a friend or even a student at a sanctioned training course, then the recipient of that assault weapon, magazine or handgun could be seen as “taking possession” and thus “receiving” these articles simply by that fact alone. Both that recipient and the existing owner could then be exposed to the severe criminal penalties imposed by SB 281 and/or charged as “participants” under Section 5-143." End Quote

Sounds like the whole gun industry is doomed .... How can a parent teach, give safe instructions to their child and teach them how to protect themselves? 5 years in prison $10000 in fines etc plus if the child is also prosecuted their whole life is ruined. Sounds like someone will prepare a lawsuit to overturn this nightmare

lseries July 24th, 2013 07:11 PM

Quote:

Originally Posted by erwos (Post 2583450)
The OP is asking about it in the context of banned rifles and shotguns.

Actually, the OP was interested mainly in handguns, since he does not own any rifles or shotguns that will be banned after October 1.

lseries July 24th, 2013 07:16 PM

Quote:

Originally Posted by esqappellate (Post 2583572)
I am not so sure about that. SB-281 creates a whole new set of provisions regulating the “receipt” of handguns in particular. Section 5-501 of the Public Safety Article has added a new provision for the newly created “Handgun Qualification License.”

(O) “Handgun Qualification License” means a license issued by the Secretary that authorizes a person to purchase, rent, or receive a handgun.

SB-281 then relies on this definition of the “Handgun Qualification License” in creating Section 117.1 to the Public Safety Article. Subsections (b) and (c) of newly enacted Section 117.1 broadly mandate that a person have such a “Handgun Qualification License” as a condition to acquiring such a handgun, providing:

(B) a dealer or any other person may not sell, rent, or transfer a regulated firearm handgun to a purchaser, lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer or other person a valid regulated firearm handgun qualification license issued to the purchaser, lessee, or transferee by the Secretary under this section.

(c) a person may purchase, rent, or receive a handgun only if the person:
(1) (i) possesses a valid handgun qualification license issued to the person by the Secretary in accordance with this section; * * * *

Section 5-143 of the Public Safety Article, which was not amended by SB-281, can be read to apply to transactions governed by new Section 5-117.1 so as to impose severe criminal penalties. Section 5-143 provides:

(a) Except as otherwise provided in this subtitle, a dealer or other person may not:
(1) knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle;
* * * *

[major snip-a-roonie]

Esqappellate's concerns and the sections of the law he cites are exactly what I'm asking about. I gather that the answer is that there is--so far--no definitive answer. I'll stay tuned, but will avoid doing anything that could make me a test case.

Thanks.

Inigoes July 24th, 2013 07:53 PM

Quote:

Originally Posted by esqappellate (Post 2583572)

I am not so sure about that. SB-281 creates a whole new set of provisions regulating the “receipt” of handguns in particular. Section 5-501 of the Public Safety Article has added a new provision for the newly created “Handgun Qualification License.”

(O) “Handgun Qualification License” means a license issued by the Secretary that authorizes a person to purchase, rent, or receive a handgun.

SB-281 then relies on this definition of the “Handgun Qualification License” in creating Section 117.1 to the Public Safety Article. Subsections (b) and (c) of newly enacted Section 117.1 broadly mandate that a person have such a “Handgun Qualification License” as a condition to acquiring such a handgun, providing:

(B) a dealer or any other person may not sell, rent, or transfer a regulated firearm handgun to a purchaser, lessee, or transferee unless the purchaser, lessee, or transferee presents to the dealer or other person a valid regulated firearm handgun qualification license issued to the purchaser, lessee, or transferee by the Secretary under this section.

(c) a person may purchase, rent, or receive a handgun only if the person:
(1) (i) possesses a valid handgun qualification license issued to the person by the Secretary in accordance with this section; * * * *

Section 5-143 of the Public Safety Article, which was not amended by SB-281, can be read to apply to transactions governed by new Section 5-117.1 so as to impose severe criminal penalties. Section 5-143 provides:

(a) Except as otherwise provided in this subtitle, a dealer or other person may not:
(1) knowingly participate in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subtitle;
* * * *
Penalty
(b) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $10,000 or both.

Interpretation Issues Associated with SB 281's Regulation of “Receipt” or “Receive”:

The terms “receipt” or “receive” in these provisions of SB-281 are not defined, either in the existing code or in SB-281 and there is, of course, no Maryland case law on these newly enacted provisions. The only arguably analogous provisions are the regulation of the “receipt” of firearms under federal law, 18 U.S.C. 922(h), which provides:

(h) It shall be unlawful for any individual, who to that individual's knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment--
(1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce;
or
(2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, there are significant differences between “receive” as used in SB-281 and “received” as used in federal law. Subsection (g), referenced in Section 922(h), refers, of course, to persons who are disqualified from possessing any firearms because of criminal convictions or other disqualification. In this context, the term “receive” as used in subsection (h) “means to take possession of or to knowingly accept the same.” See, e.g., United States v. Turnmire, 574 F.2d 1156, 1157 (4th Cir. 1978). As Turnmire notes, other federal courts of appeals are in accord. (Id). As Turnmire thus explains, under federal law, “receipt “ may be inferred by mere possession, on the assumption that one cannot “possess” without have had first “received.” See Turnmire, 574 F.2d at 1157 (approving the instruction that “since one cannot possess something without having received it, (then) receipt of a firearm may be shown circumstantially by proving possession.”).

Stated simply, if the federal interpretation of “receive” were to be used under state law, SB-281 would shut down instructional shooting, family shooting activities, youth shooting and the mere temporary transfer of firearms at the range to friends and other persons who wish to learn about shooting activities. Few persons will temporarily loan an assault weapon, a magazine or handgun for temporary use at the range under these provisions for fear of enforcement. Otherwise innocent, law-abiding persons could risk arrest, criminal prosecution and imprisonment by overzealous or literal minded law-enforcement officials. SB 281 would become a legal trap for the unwary.

Such a strict construction of “receive” for purposes of the above provisions in State law, as amended by SB-281, would also expose innocent, law-abiding persons to the loss of all their firearms for life. As you know, under federal law, 18 U.S.C. 921(a)(20) and 18 U.S.C. 922(g), a person convicted of a state misdemeanor which is “punishable” by a sentence of greater than two years in prison becomes a disqualified “felon in possession” and loses the right to possess any modern firearms for the rest of his or her life. Any possession of such firearms after such a conviction for the state misdemeanor may also result in federal imprisonment of up to 10 years under 18 U.S.C. 924(a)(2). Violations of any of the SB-281 provisions noted above or a conviction under Section 5-143 easily satisfies these conditions for a permanent federal firearms possession disability.

Moreover, there are severe problems associated with extending the literal federal definition for “receipt” or “receive” to these provisions of state law. Under SB-281, a person who lawfully owns and possesses an “assault weapon” prior to October 1, 2013, may continue to own, possess, transport and lawfully use that weapon. Similarly the ban on sales and transfers and on the receipt of magazines with a capacity of greater than 10 rounds does not ban the continued possession or use of such magazines or even the receipt of such magazines in transactions taking place out-of-state. Persons who already own handguns are not required to obtain a Handgun Qualification License to keep and lawfully use his or her already-owned handguns. Yet, if the existing owner of such an assault weapon, or magazine or handgun were temporarily to loan his assault weapon, magazine or handgun to a spouse, other family members, a friend or even a student at a sanctioned training course, then the recipient of that assault weapon, magazine or handgun could be seen as “taking possession” and thus “receiving” these articles simply by that fact alone. Both that recipient and the existing owner could then be exposed to the severe criminal penalties imposed by SB 281 and/or charged as “participants” under Section 5-143.

There is a state appeals case that defines possession and receipt of a handgun. SB281 does not change that ruling, someone will chime in the case citation.

clay_shooter July 24th, 2013 09:27 PM

The rent part concerns me. Does that mean new shooters can't take a class and shoot? How would they qualify for a license?

fabsroman July 24th, 2013 09:45 PM

Quote:

Originally Posted by lseries (Post 2583810)
Esqappellate's concerns and the sections of the law he cites are exactly what I'm asking about. I gather that the answer is that there is--so far--no definitive answer. I'll stay tuned, but will avoid doing anything that could make me a test case.

Thanks.

There is no definitive answer. There is the Chow v. State case that is from 2006 in which the Maryland Court of Appeals dealt with the definition of transfer and came to a conclusion that a person can loan a firearm to another person if that person is legally able to own/possess firearms. The HQL in SB281 throws a wrinkle into that holding and one that either the Courts will eventually have to determine if law enforcement decides to push the matter or one that our General Assembly needs to clarify.

SB281 doesn't just suck because of all the restrictions it places on the 2nd Amendment, but because it is drafted to poorly and leaves way too much ambiguity.

What I think we should do is start a thread of the issues for which there really is no answer:

1) Will people that pay for a handgun prior to October 1, 2013 and take possession of said handgun prior to October 1, 2013 need a HQL if their Form 77r is not completed by MSP until after October 1, 2013?

2) Will people that pay for a handgun prior to October 1, 2013, but who do not take possession of the handgun prior to October 1, 2013 need a HQL? My opinion on this is yes.

3) If a person places an order for an "assault weapon" prior to October 1, 2013 and he has a purchase order dated prior to October 1, 2013, how does he get an FFL to receive the "assault weapon" after October 1, 2013 and how does he get the FFL to transfer the "assault weapon" to him after October 1, 2013?

Those are the ones I can think of off the top of my head.

By no means am I trying to hijack this thread. Just trying to show how poorly this legislation is written. Might start a new thread to see what everybody thinks is a gray area in SB281.

zoostation July 24th, 2013 09:46 PM

There's case law on this issue from a MoCo case from several years ago involving loaning a handgun that was relatively (by MD standards) friendly to gun rights.

Of course, that could all change now with the new mad rush of our liberal elite state rulers to declare all things gun-related as "bad."

PS-I am not a lawyer, this is not legal advice, and is worth exactly the nothing you paid for it. :)

fabsroman July 24th, 2013 09:49 PM

Quote:

Originally Posted by lseries (Post 2583797)
Actually, the OP was interested mainly in handguns, since he does not own any rifles or shotguns that will be banned after October 1.

I will not be loaning any of my handguns to anybody after October 1, 2013.

As far as "assault weapons" go, I think there is less of a gray area there as far as loaning them to somebody is concerned. Simply put, do not let them out of your sight.

I think we can also look at the entire "possess" definition in terms of people on probation and those that are prohibited. Essentially, they cannot have a firearm in their hands, or they are deemed to be in possession of a firearm. As Esqappellate pointed out, this would be a really, really, really bad thing for almost all of us.

zoostation July 24th, 2013 09:51 PM

ahh, I found the case, it is Todd Lin Chow v. State of Maryland

Quote:

Headnote: The temporary gratuitous exchange or loan of a regulated handgun between two adult individuals, who are otherwise permitted to own and obtain a regulated handgun, does not constitute an illegal “transfer” of a firearm in violation of Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), A rt. 27, § 442, in particular, subsection (d). The plain language of § 442(d), when construed in harmony with the rest of the subheading, reveals that “transfer” refers to a gratuitous permanent exchange of title or possession and does not include temporary exchanges or loans.
http://www.google.com/url?sa=t&rct=j...,d.dmg&cad=rja

esqappellate July 24th, 2013 09:51 PM

Quote:

Originally Posted by Inigoes (Post 2583886)
There is a state appeals case that defines possession and receipt of a handgun. SB281 does not change that ruling, someone will chime in the case citation.

You are thinking of the Chow case. Such a gloss was applied to the temporary “transfer” of regulated firearm in Chow v. State, 393 Md. 431, 903 A.2d 388 (2006). The Court in Chow interpreted former section 442(d)(1), which is currently codified (without substantial change) as § 5–124 of the Public Safety Article. Section 442(d)(1) provided (and Section 5-124 currently provides) that “‘[a] person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm.’” (903 A.2d at 390-91) (quoting Section 442(d)). The Court held that “the plain language and legislative history of the ‘Regulated Firearms’ subheading indicates that the word ‘transfer,’ as used in § 442(d), is used in an ownership context and does not apply to the situation extant in the case sub judice — that of a gratuitous temporary exchange or loan between two adults who are otherwise permitted to own and obtain regulated firearms.” (Id. at 391) (emphasis added). The Chow Court’s interpretation of “transfer” in former Section 442(d)(1) could also be applied to the terms “receive” and “receipt” as used in SB-281 and for prosecutions under Section 5-143 so to limit the terms “receipt” and “receive” to an “ownership context, but that is not certain, especially since the statute covers both receipts and transfers, unlike the statute at issue in Chow. That would make one of the two words superfluous, and courts don't generally do that.

fabsroman July 24th, 2013 09:52 PM

Quote:

Originally Posted by zoostation (Post 2584165)
There's case law on this issue from a MoCo case from several years ago involving loaning a handgun.

Of course, that could all change now with the new mad rush of our liberal elite state rulers to declare all things gun-related as "bad."

PS-I am not a lawyer, this is not legal advice, and is worth exactly the nothing you paid for it. :)

Are you referring to Chow v. State from 2006? Believe that was a case in Prince Georges County that made it through the Court of Special Appeals and the Court of Appeals.

A DC police officer loaned one of his handguns to a buddy that had had his guns taken away by the police. The loan was so the buddy could see if he liked the handgun and if he wanted to buy it. The Court held that a loan is not a transfer. So, we have the definition of "transfer" sorted out via Chow. Thing is, it does not deal with "receive" or "possess".

fabsroman July 24th, 2013 09:55 PM

Quote:

Originally Posted by esqappellate (Post 2584177)
You are thinking of the Chow case. Such a gloss was applied to the temporary “transfer” of regulated firearm in Chow v. State, 393 Md. 431, 903 A.2d 388 (2006). The Court in Chow interpreted former section 442(d)(1), which is currently codified (without substantial change) as § 5–124 of the Public Safety Article. Section 442(d)(1) provided (and Section 5-124 currently provides) that “‘[a] person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm.’” (903 A.2d at 390-91) (quoting Section 442(d)). The Court held that “the plain language and legislative history of the ‘Regulated Firearms’ subheading indicates that the word ‘transfer,’ as used in § 442(d), is used in an ownership context and does not apply to the situation extant in the case sub judice — that of a gratuitous temporary exchange or loan between two adults who are otherwise permitted to own and obtain regulated firearms.” (Id. at 391) (emphasis added). The Chow Court’s interpretation of “transfer” in former Section 442(d)(1) could also be applied to the terms “receive” and “receipt” as used in SB-281 and for prosecutions under Section 5-143 so to limit the terms “receipt” and “receive” to an “ownership context, but that is not certain, especially since the statute covers both receipts and transfers, unlike the statute at issue in Chow. That would make one of the two words superfluous, and courts don't generally do that.

Thank you for posting the holding. I am too tired to go looking for it tonight. The part I put in bold is the part that scares me. What does "obtain" mean? Does it mean "purchase"? Does everybody need a HQL after October 1, 2013 to be able to obtain a handgun, and therefore to be the recipient of a loaned handgun?

fabsroman July 24th, 2013 09:56 PM

Quote:

Originally Posted by zoostation (Post 2584176)
ahh, I found the case, it is Todd Lin Chow v. State of Maryland



http://www.google.com/url?sa=t&rct=j...,d.dmg&cad=rja

Good, we are all on the same page then. Thing is, I don't think Chow will cover this situation exactly. That dealt with the definition of transfer, which is also included in the section of the law we are debating. What it does not cover is "receive".


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