Proof HQL Needed for Handguns Purchased Prior to 10/1 but Transferred After 10/1?

EHS1976 · Jun 27, 2013

See the following link for Amendment SB0281/873522/1, which was rejected:

http://mgaleg.maryland.gov/2013RS/amds/bil_0001/sb0281_87352201.pdf

Unless I'm misinterpreting the method to denote the location of the rejected amendment language, the insertion of the paragraph does not make sense in the third reading. However, it makes sense in the enrolled version of the bill in section 5–117.1., paragraph (A).

Section 5–117.1. pertains to the HQL. The rejected amendment would have exempted "A DEALER OR ANY OTHER PERSON WHO TRANSFERS OR RECEIVES A HANDGUN FOR WHICH A VERIFIABLE PURCHASE ORDER WAS PLACED BEFORE OCTOBER 1, 2013" from the HQL.

It seems to be implicit that with the rejected amendment, the HQL will be needed for transfers or receipt (acquisition) of handguns after 10/1. Thoughts?

Brooklyn · Jun 27, 2013

EHS1976 said:
See the following link for Amendment SB0281/873522/1, which was rejected:

http://mgaleg.maryland.gov/2013RS/amds/bil_0001/sb0281_87352201.pdf

Unless I'm misinterpreting the method to denote the location of the rejected amendment language, the insertion of the paragraph does not make sense in the third reading. However, it makes sense in the enrolled version of the bill in section 5–117.1., paragraph (A).

Section 5–117.1. pertains to the HQL. The rejected amendment would have exempted "A DEALER OR ANY OTHER PERSON WHO TRANSFERS OR RECEIVES A HANDGUN FOR WHICH A VERIFIABLE PURCHASE ORDER WAS PLACED BEFORE OCTOBER 1, 2013" from the HQL.

It seems to be implicit that with the rejected amendment, the HQL will be needed for transfers or receipt (acquisition) of handguns after 10/1. Thoughts?

Well it looks that way.

I don't recall that vote and may have been out of the room, but if the debate was that they wanted the HCL for such transfers then yes, but if it was like so many other amendments," rejected but not read", or dismissed with an "its already covered "then no. They had no idea what they voted on half the time..

The bill such a CF that the court may give up and declare entire parts indeterminate --- increases the opportunity for litigation and prelim injunction. Even before reaching the constitutional question.

Issue of legislative intent are messy enough, but if parts of the official record are a messed up as I think they will be this will be yet another CF that makes MD the laughing stock of the US. ( I mean besides san fansico).

ShallNotInfringe · Jun 27, 2013

Looks like it woulda fit here with the current version: pg 26, after line 27 (bottom) or at the top of pg 27.

Don't we have audio and/or video of it all somewhere? Good catch EHS. Wonder if we could rummage around in the archives and find the discussion on it,

EHS1976 · Jun 27, 2013

ShallNotInfringe said:
Looks like it woulda fit here with the current version: pg 26, after line 27 (bottom) or at the top of pg 27.

Don't we have audio and/or video of it all somewhere? Good catch EHS. Wonder if we could rummage around in the archives and find the discussion on it,

I agree with you about where it belongs.

PSA: Purchase a handgun today from a dealer not releasing timely + MSP application processing times staying the same or getting longer = the need for an HQL.

Who knows how long it will take to start implementing the HQL requirements. Six months; a year?

EHS1976 · Jun 27, 2013

Brooklyn said:
Well it looks that way.

I don't recall that vote and may have been out of the room, but if the debate was that they wanted the HCL for such transfers then yes, but if it was like so many other amendments," rejected but not read", or dismissed with an "its already covered "then no. They had no idea what they voted on half the time..

The bill such a CF that the court may give up and declare entire parts indeterminate --- increases the opportunity for litigation and prelim injunction. Even before reaching the constitutional question.

Issue of legislative intent are messy enough, but if parts of the official record are a messed up as I think they will be this will be yet another CF that makes MD the laughing stock of the US. ( I mean besides san fansico).

In the legislative/regulatory world, intent does not matter. What matters is what is written in the statute/regulations. I've had this discussion many a time with lawyers with whom I work.

ShallNotInfringe · Jun 28, 2013

Just for reference, here's the clause that we have been chewing on:

A DEALER OR ANY OTHER PERSON MAY NOT SELL, RENT, OR TRANSFER A HANDGUN TO A PURCHASER, LESSEE, OR TRANSFEREE UNLESS THE PURCHASER, LESSEE, OR TRANSFEREE PRESENTS TO THE DEALER OR OTHER PERSON A VALID HANDGUN QUALIFICATION LICENSE ISSUED TO THE PURCHASER, LESSEE, OR TRANSFEREE BY THE SECRETARY UNDER THIS SECTION.

The "transfer" word is what stands out as a separate action.

fabsroman · Jun 28, 2013

EHS1976 said:
In the legislative/regulatory world, intent does not matter. What matters is what is written in the statute/regulations. I've had this discussion many a time with lawyers with whom I work.

Yep, the only time legislative intent comes into play is when the legislation that is passed is ambiguous.

The State v. Chow case regarding "transfer" has the methodology for statutory interpretation in it.

Chow v. State, 393 Md. 431, 903 A.2d 388 (Md. App., 2006)

"If statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as it is written. Collins, 383 Md. at 688-89, 861 A.2d at 730. If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends; we do not need to resort to the various, and sometimes inconsistent, external rules of construction, for `the Legislature is presumed to have meant what it said and said what it meant.' Arundel Corp. v. Marie, 383 Md. 489, 502, 860 A.2d 886, 894 (2004) (quoting Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002))."

Kushell, 385 Md. at 576-77, 870 A.2d at 193-94. Furthermore, as we stated in Price v. State, 378 Md. 378, 835 A.2d 1221 (2003):

"In some cases, the statutory text reveals ambiguity, and then the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal. However, before judges may look to other sources for interpretation, first there must exist an ambiguity within the statute, i.e., two or more reasonable alternative interpretations of the statute. Where the statutory language is free from such ambiguity, courts will neither look beyond the words of the statute itself to determine legislative intent nor add to or delete words from the statute. Only when faced with ambiguity will courts consider both the literal or usual meaning of the words as well as their meaning in light of the objectives and purposes of the enactment. As our predecessors noted, `We cannot assume authority to read into the Act what the Legislature apparently deliberately left out. Judicial construction should only be resorted to when an ambiguity exists.' Therefore, the strongly preferred norm of statutory interpretation is to effectuate the plain language of the statutory text."

To me, it seems pretty clear that a handgun cannot be transferred to a customer after September 30, 2013, unless the customer has a HQL. The law goes into effect on October 1, 2013 and there is no exception for handguns paid for prior to October 1, 2013 or paperwork submitted to MSP prior to October 1, 2013. This is the premise I have been operating under until the MSP or the AG states otherwise in writing.

Somebody correct me if I am wrong and the language is not crystal clear.

fabsroman · Jun 28, 2013

ShallNotInfringe said:
Just for reference, here's the clause that we have been chewing on:

A DEALER OR ANY OTHER PERSON MAY NOT SELL, RENT, OR TRANSFER A HANDGUN TO A PURCHASER, LESSEE, OR TRANSFEREE UNLESS THE PURCHASER, LESSEE, OR TRANSFEREE PRESENTS TO THE DEALER OR OTHER PERSON A VALID HANDGUN QUALIFICATION LICENSE ISSUED TO THE PURCHASER, LESSEE, OR TRANSFEREE BY THE SECRETARY UNDER THIS SECTION.

The "transfer" word is what stands out as a separate action.

The definition of transfer was beat to death by the Maryland Court of Appeals in Chow. It is pretty much the handing of the handgun to the customer by the dealer such that the customer takes legal possession of the handgun. Yep, I am making sure all handguns I bought are being transferred to me before October 1, 2013. The assault weapons can wait because there is an exception for those. However, they will probably be transferred to me prior to October 1, 2013 too.

BDWMS · Jun 28, 2013

So is the transfer complete when I take possession of my gun or when MSP comes back with the ND?

Ugh. When does this get into COMAR again?

vector03 · Jun 28, 2013

BDWMS said:
So is the transfer complete when I take possession of my gun or when MSP comes back with the ND?

Ugh. When does this get into COMAR again?

IANAL.

Given it's legal to transfer after 8 days unless DENIED by MSP, I would say you're good if possession is taken before Oct 1.

transfer n. 1) the movement of property from one person or entity to another. 2) passage of title to property from the owner to another person. 3) a piece of paper given to allow a person or shipment to continue travel.

http://legal-dictionary.thefreedictionary.com/Transfer

My thought process...

1. If you're in possession prior to Oct 1 without a HQL, you're good. If MSP determine you're DENIED after the fact, they're going to retrieve it from you.

2. If you're in possession prior to Oct 1 without a HQL, you're good. If MSP determine you're NOT DISAPPROVED after the fact, you're good.

3. If the weapon is BANNED after Oct 1st, you HAVE taken possession BEFORE Oct 1st, and the paperwork comes back NOT DISAPPROVED...you're good even if you don't obtain a HQL after Oct 1.

4. If the weapon is BANNED after Oct 1st, you HAVEN'T taken possession but you have a Purchase Order...you're good PROVIDED you obtain a HQL. If you don't obtain or are otherwise denied a HQL, you're out of luck.

ShallNotInfringe · Jun 28, 2013

vector03 said:
IANAL.

Given it's legal to transfer after 8 days unless DENIED by MSP, I would say you're good if possession is taken before Oct 1.

http://legal-dictionary.thefreedictionary.com/Transfer

My thought process...

1. If you're in possession prior to Oct 1 without a HQL, you're good. If MSP determine you're DENIED after the fact, they're going to retrieve it from you.

2. If you're in possession prior to Oct 1 without a HQL, you're good. If MSP determine you're NOT DISAPPROVED after the fact, you're good.

3. If the weapon is BANNED after Oct 1st, you HAVE taken possession BEFORE Oct 1st, and the paperwork comes back NOT DISAPPROVED...you're good even if you don't obtain a HQL after Oct 1.

4. If the weapon is BANNED after Oct 1st, you HAVEN'T taken possession but you have a Purchase Order...you're good PROVIDED you obtain a HQL. If you don't obtain or are otherwise denied a HQL, you're out of luck.

We are not discussing the cases where a person has taken possession before 10/1.

We are discussing Section 5-117.1 in SB281; handgun sales prior to 10/1 that are not transferred until after 10/1, due to MSP delays (rapidly approaching 100 days, and the 6/23 date has passed) and the FFL's choice not to release before that date. We do not have the COMAR as of yet, but speculation would lead to the belief that a HQL is required for purchases henceforth if your purchase/transfer spans 10/1, if you do not purchase from an FFL that has a release policy.

There isn't any mention of purchase orders in Section 5-117.1.

We are not discussing the long guns banned here. That language is a mess too. The new law is written in multiple sections. The long gun ban is in Section 4-302, which does talk about being able to possess and transport banned long guns after 10/1, if you have a purchase order. That argument is left for another day (or multiple already existing threads

)

Mike OTDP · Jun 28, 2013

Lawsuit time! :-)

vector03 · Jun 28, 2013

ShallNotInfringe

The folks in the situation you outlined appear to be screwed. It could literally be over a year before they ever have possession of their handgun.

Grits · Jun 28, 2013

What confuses me, and it is easy to do. If it's legal to transfer after 8 days unless DENIED by MSP, and you're good to take possession, then why doesn't the MSP just toss your application, once they receive input from the FFL that they released your weapon? The fact that the MSP will continue to follow the process, it seems that the release in 8 days is sort of dirty.

fabsroman · Jun 28, 2013

Grits said:
What confuses me, and it is easy to do. If it's legal to transfer after 8 days unless DENIED by MSP, and you're good to take possession, then why doesn't the MSP just toss your application, once they receive input from the FFL that they released your weapon? The fact that the MSP will continue to follow the process, it seems that the release in 8 days is sort of dirty.

The firearm can be released after 8 days, but the MSP will complete the background check thereafter for now. If it comes back that you are prohibited, the MSP will make you transfer the firearm to a non-prohibited person or it will come and confiscate the weapon from you. Not only that, but you might be in some legal trouble for attempting to buy a firearm when you are prohibited and/or providing false information on the Form 77r.

fabsroman · Jun 28, 2013

BDWMS said:
So is the transfer complete when I take possession of my gun or when MSP comes back with the ND?

Ugh. When does this get into COMAR again?

State v. Chow thoroughly discusses the definition of transfer. In fact, the entire case depended on the definition of transfer.

vector03 · Jun 28, 2013

Question: The 8th day release. Does that apply only to FFL's, or does that also apply to private sales where the transaction is done at the MSP?

Thanks

L0gic · Jun 28, 2013

vector03 said:
Question: The 8th day release. Does that apply only to FFL's, or does that also apply to private sales where the transaction is done at the MSP?

Thanks

IANAL but I believe both. The law strictly says if you have not received a disapproval by 7 days then you may release. Any LEO that tells you otherwise is lying

fabsroman · Jun 28, 2013

vector03 said:
Question: The 8th day release. Does that apply only to FFL's, or does that also apply to private sales where the transaction is done at the MSP?

Thanks

Private sales have been being done after the 8th day and MSP was putting an emphasis on these checks because there was no FFL to hold the firearm. Some of the FFLs are holding way beyond 8 days.

Simple answer is that a private sale could always be released on the 8th day, just like the FFLs have been now told that they too can release on the 8th day should they wish to do so.

abean4187 · Jun 28, 2013

Good thing I got all mine then. I won’t be getting any HQL until I see what happens in the lawsuit world.

Proof HQL Needed for Handguns Purchased Prior to 10/1 but Transferred After 10/1?

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