Gov. Hogan Appoints New HPRB Members

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  • Mr H

    Banana'd
    so cut the bull, what does this actually mean?
    should we all run out and apply for a permit?

    Considering that HPRB has nothing to do with an initial application, I'm not sure about your question, as MSP is in charge at first.

    That said, that's entirely your call, based on circumstances and what info you get about the process.
     

    Jaybeez

    Ultimate Member
    Industry Partner
    Patriot Picket
    May 30, 2006
    6,392
    Darlington MD
    Snowden and Scherr apply across the board, not just to the particular plaintiffs. They purport to interpret the meaning of a statutory provision (G&S) and that interpretation is a legal ruling. BUT both decisions affirm a construction given G&S by the Board. The Board, like any other administrative body, is free to change that interpretation, as long as it does so expressly and explains why. Scherr and Snowden do not purport to bind all future boards. There is a convenient explanation, if the Board were to choose to adopt it. Both Scherr and Snowden were decided before Heller. The latest decision (Scherr) expressly rejected the constitutional argument on grounds that the 2A does not apply to the States. The SCT in McDonald, expressly rejected that very contention. So Scherr is out of date as is Snowden. We should thus argue that G&S should be reinterpreted by the Board (and by the MSP) by reference to the constitutional principles announced in McDonald and Heller and thus given a more generous interpretation. The Board is free to do so. Even the 4th Circuit was willing to assume in Woollard that the 2A applies outside the home. Woollard does not purport to preclude Maryland from adopting any standard it wishes with respect to G&S.


    s&s tells them how restrictive they can be, not how permissive
     

    Jaybeez

    Ultimate Member
    Industry Partner
    Patriot Picket
    May 30, 2006
    6,392
    Darlington MD
    so cut the bull, what does this actually mean?
    should we all run out and apply for a permit?

    there are people in line ahead of you, already denied and awaiting appeal. the hprb has a considerable backlog. lets see how this plays out.
     

    Gryphon

    inveniam viam aut faciam
    Patriot Picket
    Mar 8, 2013
    6,993
    Snowden and Scherr apply across the board, not just to the particular plaintiffs. They purport to interpret the meaning of a statutory provision (G&S) and that interpretation is a legal ruling. BUT both decisions affirm a construction given G&S by the Board. The Board, like any other administrative body, is free to change that interpretation, as long as it does so expressly and explains why. Scherr and Snowden do not purport to bind all future boards. There is a convenient explanation, if the Board were to choose to adopt it. Both Scherr and Snowden were decided before Heller. The latest decision (Scherr) expressly rejected the constitutional argument on grounds that the 2A does not apply to the States. The SCT in McDonald, expressly rejected that very contention. So Scherr is out of date as is Snowden. We should thus argue that G&S should be reinterpreted by the Board (and by the MSP) by reference to the constitutional principles announced in McDonald and Heller and thus given a more generous interpretation. The Board is free to do so. Even the 4th Circuit was willing to assume in Woollard that the 2A applies outside the home. Woollard does not purport to preclude Maryland from adopting any standard it wishes with respect to G&S.

    :lol2: Got me. This (in bold) is how I crafted my application, and my response to an interim MSP letter rejecting the notion that the Superintendent was bound by Scherr and Snowden. In those two cases the Superintendent and Board were virtually aligned below, with the Board affirming the Super's denials, then being affirmed by the State appellate courts. Yet no one questions first and foremost it is the Superintendent who has authority to define G&S as delegated by the MGA. Hence, and regardless of the intervening decisions in McDonald and Heller (which I too realize are significant and which I also cited and quoted), Pallozzi can change the G&S definition and thereby the standard the Board will be reviewing provided his definition is reasonable, within his authorized power, and that it comports with significant 2A case opinions by SCOTUS and the Circuit Courts of Appeal. In short, Scherr and Snowden are already outdated by the intervening SCOTUS opinions, even Woollard recognized the 2A outside the home despite being reversed on other grounds, and the standards in Scherr and Snowden will be rendered even more inapplicable if Pallozzi implements his own modified G&S definition in lieu of continuing with the prior Superintendent(s) overly restrictive definition. Maybe Wrenn if favorably resolved on the merits (even though not mandatory authority) will hold up, and be another persausive nail for the new HGPRB.
     

    esqappellate

    President, MSI
    Feb 12, 2012
    7,407
    :lol2: Got me. This (in bold) is how I crafted my application, and my response to an interim MSP letter rejecting the notion that the Superintendent was bound by Scherr and Snowden. In those two cases the Superintendent and Board were virtually aligned below, with the Board affirming the Super's denials, then being affirmed by the State appellate courts. Yet no one questions first and foremost it is the Superintendent who has authority to define G&S as delegated by the MGA. Hence, and regardless of the intervening decisions in McDonald and Heller (which I too realize are significant and which I also cited and quoted), Pallozzi can change the G&S definition and thereby the standard the Board will be reviewing provided his definition is reasonable, within his authorized power, and that it comports with significant 2A case opinions by SCOTUS and the Circuit Courts of Appeal. In short, Scherr and Snowden are already outdated by the intervening SCOTUS opinions, even Woollard recognized the 2A outside the home despite being reversed on other grounds, and the standards in Scherr and Snowden will be rendered even more inapplicable if Pallozzi implements his own modified G&S definition in lieu of continuing with the prior Superintendent(s) overly restrictive definition. Maybe Wrenn if favorably resolved on the merits (even though not mandatory authority) will hold up, and be another persausive nail for the new HGPRB.

    I think your strategy is legally and logically quite sound and I have been following your posts here with great interest. Of course, you realize that this is an appeal to Pallozzi's discretion and to the Board's discretion, should it get that far. That will require leadership from them. Leadership is not something administrative agency leaders are known for since it makes them political targets. Certainly, I agree that recent legal developments will help. And not just Wrenn. We will soon have a decision from the DC circuit in Heller III and from the 4th Circuit in Kolbe. And eventually, an en banc decision in Peruta. Favorable decisions in those cases will change the atmosphere considerably. So the ball is really in Pallozzi's court. What he cannot reasonably deny is that (1) he has the responsibility and power to administer how G&S is applied by the MSP and nothing in Scherr and Snowden preclude him from changing the standard in doing so and (2) the 2A applies outside the home (all the court of appeals have assumed it and the 7th Circuit in Moore directly so held) and that reality should be taken into account in assessing G&S. Indeed, the district court invalidated a total ban on carry outside the home in Palmer and the DC government chose to voluntarily dismiss its appeal of that ruling. We have effectively won that much and that's a lot. Pallozzi may not be willing to deem a simple assertion of "self defense" as sufficient, but there are a host of definitions or interpretations that would be far less restrictive than that articulated by the Board in Scherr and Snowden, cases that were decided on the premise that there simply was NO 2A right at all, and thus carry permits were considered to be a state conferred privilege. That premise is obviously dead after McDonald and Heller. So your challenge is to articulate a reasonable standard that (1) will get you the permit (I have no clue as to the facts and circumstances of your application) and (2) is reasonable enough to allow Pallozzi to adopt it without appearing to deem self defense sufficient G&S all by itself. We may someday get "self defense" as the standard when and if the SCT ever takes the issue. Until then, we ask for reasonable interpretations of G&S.
     

    good guy 176

    R.I.P.
    Dec 9, 2009
    1,174
    Laurel, MD
    Courtney White will be a positive on the Board. She and her husband own and run a progun business, IOTA, here in central MD. I attended and protested the proposed MD AWB(s) with the two of them a few years ago in Annapolis. She certainly is pro carry.

    Lew--Ranger63
     

    dblas

    Past President, MSI
    MDS Supporter
    Apr 6, 2011
    13,087
    I generally agree the current Board is free to make up there own rules and exercise their own collective discretion, but I think it needs to be in the context of the policy standard being implemented within the current Super's reasonable discretion so it is lawful. Don't forget about stare decisis. True, Scherr and Snowden shouldn't apply if Pallozzi implements a new standard including articulated self-defense. I would expect the Board to review for abuse of (or not) of that new policy on an individual applicant's basis. However, if MSP continues under the old policy there is at least an argument that the prior standard and case precedent from petitions to the circuit court (of the Board's prior decisions in Scherr/Snowden) affirming them is applicable. Just an argument. But the cleaner route, IMHO, is for a new standard to be implemented cutting off arguments (by the two remaining members) about the applicability of the old case precedence.

    Maybe the easier way to think of it is that the HGPRB exists to make sure the Super fairly applies the standard (whatever it is at the time) to all, and doesn't abuse his discretion denying or restricting individual permits relative to the masses, and that should be true whether the Super and the Board are being restrictive under a liberal administration or more favorable under a more conservative administration. Again, just my thoughts.

    Remember Frosh has an inside guy at MSP, and available to the HGPRB. He works for them as his client, but he is still a subordinate of Frosh.


    The SA liaison for MSP cannot provide any guidance to the HPRB, that guidance would have to come from the SA liaison for Corrections and Public Safety. The rest of your statement is correct.
     

    dblas

    Past President, MSI
    MDS Supporter
    Apr 6, 2011
    13,087
    Is this a conflict of interest.. can the Gov seek and retain outside counsel?

    Nope, as the AGs office is counsel for all state agencies, and thus the AG liaison is speaking for/on behalf of Frosh regardless of what agency they support.
     

    Gryphon

    inveniam viam aut faciam
    Patriot Picket
    Mar 8, 2013
    6,993
    The SA liaison for MSP cannot provide any guidance to the HPRB, that guidance would have to come from the SA liaison for Corrections and Public Safety. The rest of your statement is correct.

    Sorry if I confused you, but the AAG that works assigned to the MSP and the AAG that works assigned to Public Safety & Correctional Services are BOTH subordinates to Frosh. Two different bodies potentially same result.
     

    Gryphon

    inveniam viam aut faciam
    Patriot Picket
    Mar 8, 2013
    6,993
    I think your strategy is legally and logically quite sound and I have been following your posts here with great interest. Of course, you realize that this is an appeal to Pallozzi's discretion and to the Board's discretion, should it get that far. That will require leadership from them. Leadership is not something administrative agency leaders are known for since it makes them political targets. Certainly, I agree that recent legal developments will help. And not just Wrenn. We will soon have a decision from the DC circuit in Heller III and from the 4th Circuit in Kolbe. And eventually, an en banc decision in Peruta. Favorable decisions in those cases will change the atmosphere considerably. So the ball is really in Pallozzi's court. What he cannot reasonably deny is that (1) he has the responsibility and power to administer how G&S is applied by the MSP and nothing in Scherr and Snowden preclude him from changing the standard in doing so and (2) the 2A applies outside the home (all the court of appeals have assumed it and the 7th Circuit in Moore directly so held) and that reality should be taken into account in assessing G&S. Indeed, the district court invalidated a total ban on carry outside the home in Palmer and the DC government chose to voluntarily dismiss its appeal of that ruling. We have effectively won that much and that's a lot. Pallozzi may not be willing to deem a simple assertion of "self defense" as sufficient, but there are a host of definitions or interpretations that would be far less restrictive than that articulated by the Board in Scherr and Snowden, cases that were decided on the premise that there simply was NO 2A right at all, and thus carry permits were considered to be a state conferred privilege. That premise is obviously dead after McDonald and Heller. So your challenge is to articulate a reasonable standard that (1) will get you the permit (I have no clue as to the facts and circumstances of your application) and (2) is reasonable enough to allow Pallozzi to adopt it without appearing to deem self defense sufficient G&S all by itself. We may someday get "self defense" as the standard when and if the SCT ever takes the issue. Until then, we ask for reasonable interpretations of G&S.

    Thanks for the feed back. I bolded above the excerpts that others may wish to take from our exchange to push forward fighting for our fundamental right.
     

    montoya32

    Ultimate Member
    Patriot Picket
    Jun 16, 2010
    11,311
    Harford Co
    so cut the bull, what does this actually mean?
    should we all run out and apply for a permit?

    It is my opinion and my opinion only that the board of appeals will be the conduit for change in the MSP. The SP will have to take their decisions and adjust their policies and not the other way around. I think the MSP is hesitant to be the ones to initiate change and would rather deny, then abide by the decision of the appeals board.

    This IS the process and if the current process, that has been created and legislated by our general assembly, results in more permits being issued, then oh well. :D
     

    Gryphon

    inveniam viam aut faciam
    Patriot Picket
    Mar 8, 2013
    6,993
    I think Montoya32, coupled w/EsqAppellate's post above, are both on to something here. Perhaps the Super and MSP view themselves as mere traditional cogs in the wheel, and they don't recognize in this back-asswards State that the MGA has delegated the Super with near exclusive authority to decide and control the issuance of permits via the power to define G&S? Perhaps Pallozzi is reluctant to exercise the power he has been vested with by the MGA to enforce fundamental rights and the Constitution he is sworn to uphold?
     

    CypherPunk

    Opinions Are My Own
    Apr 6, 2012
    3,907
    I think there might be a lesson to learn here from history.

    Research the Maryland State Police, Gays, and Paris Glendenning.
     

    montoya32

    Ultimate Member
    Patriot Picket
    Jun 16, 2010
    11,311
    Harford Co
    I think Montoya32, coupled w/EsqAppellate's post above, are both on to something here. Perhaps the Super and MSP view themselves as mere traditional cogs in the wheel, and they don't recognize in this back-asswards State that the MGA has delegated the Super with near exclusive authority to decide and control the issuance of permits via the power to define G&S? Perhaps Pallozzi is reluctant to exercise the power he has been vested with by the MGA to enforce fundamental rights and the Constitution he is sworn to uphold?

    I know the HPRB can reverse a denial and relax restrictions on permits. They cannot tighten restrictions and obviously do not get the opportunity to reverse the issuance of permits. If one person get a denial reversed and/or has restriction relaxed, then the SP must issue permits with attached restrictions per the HPRB's decision.

    For example, if the SP denies me, but then the HPRB reverses that based on the information in my app, then from here on out the SP must issue permits to applicants with the same reasons I used.

    Also, if the SP saddle my permit with XYZ restrictions and the HPRB relaxes or all together removes them, then the SP must issue permits to applicants using the same "g&s" reasons as I did. The SP will be forced to rewrite their policy based on the ultimate results from the HPRB. It will be up to the GA to legislate against, lessen or strengthen any decisions the HPRB hands out.
     

    Gryphon

    inveniam viam aut faciam
    Patriot Picket
    Mar 8, 2013
    6,993
    Prior to Hogan quietly appointing 3 new members to the HGPRB I didn't feel this way (Post #52), because appearing before the prior members would have been like charging into a buzz saw of anti's. IMO the best option was to obtain a permit through the initial application processed by MSP under a newly imposed G&S standard at the Superintendent's lawful discretion. However, indications to date tend to suggest the Superintendent isn't going use the discretion afforded to him by statute and be a true leader (I do hope I am wrong), and that MSP is reluctant to abandon (or at least willing to hide behind, again I hope I am wrong) Scherr and Snowden. Just speculation (again I hope I am wrong), but I wouldn't expect the AAG at the MSP to go out of his way to help guide the Superintendent on changes in Constitutional law since Scherr and Snowden? Plus, we have all heard the MSP hates doing informal reviews, and only rarely reverses itself. Obviously I am just speculating and don't have any guaranteed answers, but if the new Board members are seated and can vote/act (prior to confirmation by the Senate next session), and will at least consider the legal arguments in good-faith and with an open mind, a formal appeal may be more productive than I previously considered. Perhaps recognition by the HGPRB that Scherr and Snowden are outdated an now inapplicable to the legal analysis is what we all need.
     

    ironpony

    Member
    MDS Supporter
    Jun 8, 2013
    7,190
    Davidsonville
    So Hogan likes the current system and puts in new people to speed up the processing of denied applicants? Is that a fair assumption? Hopefully a good start.
     

    Schipperke

    Ultimate Member
    MDS Supporter
    Feb 19, 2013
    18,532
    I know the HPRB can reverse a denial and relax restrictions on permits. They cannot tighten restrictions and obviously do not get the opportunity to reverse the issuance of permits. If one person get a denial reversed and/or has restriction relaxed, then the SP must issue permits with attached restrictions per the HPRB's decision.

    For example, if the SP denies me, but then the HPRB reverses that based on the information in my app, then from here on out the SP must issue permits to applicants with the same reasons I used.

    Also, if the SP saddle my permit with XYZ restrictions and the HPRB relaxes or all together removes them, then the SP must issue permits to applicants using the same "g&s" reasons as I did. The SP will be forced to rewrite their policy based on the ultimate results from the HPRB. It will be up to the GA to legislate against, lessen or strengthen any decisions the HPRB hands out.

    Where do you find that? Once the car salesman gives you the best price, he must extend that to everyone? These applications smell as all de novo to me, not based on working precedent. The precedent they flaunt is judicial rulings. Get one favorable, then yes applicable.
     

    montoya32

    Ultimate Member
    Patriot Picket
    Jun 16, 2010
    11,311
    Harford Co
    Where do you find that? Once the car salesman gives you the best price, he must extend that to everyone? These applications smell as all de novo to me, not based on working precedent. The precedent they flaunt is judicial rulings. Get one favorable, then yes applicable.


    It is what I gather from my current dealings. If one person receives a permit for using reason XYZ, then others using reason XYZ have a history to go by. You cannot approve one person and deny another under the same reason. Lawsuit much? Even if the SP still will not recognize the actions of the HPRB, we will have an idea of how the HPRB will treat us.
     

    CharlieFoxtrot

    ,
    Industry Partner
    Sep 30, 2007
    2,527
    Foothills of Appalachia
    I have two appeals pending since last September in front of the HPRB. Don't want to post details while appeals are still pending, but will be happy to discuss after they are resolved. Just filed a writ of mandamus in one asking circuit court to order the HPRB to hear the appeal within 30 days. We will see what happens.
     

    Schipperke

    Ultimate Member
    MDS Supporter
    Feb 19, 2013
    18,532
    It is what I gather from my current dealings. If one person receives a permit for using reason XYZ, then others using reason XYZ have a history to go by. You cannot approve one person and deny another under the same reason. Lawsuit much? Even if the SP still will not recognize the actions of the HPRB, we will have an idea of how the HPRB will treat us.

    If I get denied for the same set of facts that someone else got approved, tell me how I'm going to know this. There needs to be a judicial ruling, which is public, for precedent. 99% of applicants are not going to consume their life digging and sniffing around other applications, even if they were public record. I doubt they are. Your PIA did not reveal details why people were approved.
     

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