SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12

[jmira]

either way people.. this messes up their 90%+ number of applicants who are approved...

that was one of the reasons for applying.. getting denied was on the table.

 

[esqappellate]

Please pardon me for my density, and maybe there is no difference in this issue, but perhaps I can clarify as I was getting a hint that these applications might be processed in several ways....

1. You applied "pre Woollard" and as such, the decision is what it is because that was the law at the time, so if you want a permit you will have to reapply.

2. You applied during Woollard, but was denied, but now Woollard has ruled your denial "unconstitutional", for which, throws a cloud over the issue. These apps and cases are being culled out to determine how to deal with independently, since you have already been ruled on you are in essence in the same boat as Mr. Woollard.

3. You applied recently, for which, you are caught in the "stay" and have to wait until May 24th, or thereafter.

I am in category 2. Most people here are in category 3, for which I understand. Depending on who I talk to, knowledgeable citizens and lawyers alike, I get differeing answers as to the likely outcome. I was asking specifically your take on option 2, please, if that makes sense. Thanks.

Sure, I understand. If the denial in situation 2. was final and you had exhausted all your administrative appeals, you have some choices on how to proceed.

1. You can ask the State to reconsider (not sure if there is an established procedure for that) if they agree to do so, you are in situation 3 (I would get that in writing from the State if they actually agree to reconsider -- consult your lawyer). Reconsideration is probably voluntary with the State. They don't have to reconsider, unless established procedures require it and I tend to doubt that there are such procedures, (but I don't know), in which case your app. denial is final as an administrative matter.

2. If the denial is final and they won't commit in writing to reconsideration, then you can either proceed in state court or file suit in federal district court, ala Woollard. Watch out for statute of limitations issues. Suits must be brought within X amount of time or your right to sue is lost. Those who sleep on their remedies, lose them. Consult counsel.

3. OR, if your prior app. denial is final and you don't want to pursue now your judicial remedies ($$$$ -- lawyers aren't free), you can file a new application which then gets you into situation 3, like the rest of us. None of this is legal advice -- it just sets out possible options that you and your lawyer can discuss. Good luck!

 

[Dead Eye]

Sure, I understand. If the denial in situation 2. was final and you had exhausted all your administrative appeals, you have some choices on how to proceed.

1. You can ask the State to reconsider (not sure if there is an established procedure for that) if they agree to do so, you are in situation 3 (I would get that in writing from the State if they actually agree to reconsider -- consult your lawyer). Reconsideration is probably voluntary with the State. They don't have to reconsider, unless established procedures require it and I tend to doubt that there are such procedures, (but I don't know), in which case your app. denial is final as an administrative matter.

2. If the denial is final and they won't commit in writing to reconsideration, then you can either proceed in state court or file suit in federal district court, ala Woollard. Watch out for statute of limitations issues. Suits must be brought within X amount of time or your right to sue is lost. Those who sleep on their remedies, lose them. Consult counsel.

3. OR, if your prior app. denial is final and you don't want to pursue now your judicial remedies ($$$$ -- lawyers aren't free), you can file a new application which then gets you into situation 3, like the rest of us. None of this is legal advice -- it just sets out possible options that you and your lawyer can discuss. Good luck!

Thank you very, very much. I was confused over the fact that I had written back to the MDSP, as previously posted. Originally, the SGT there wrote back and said that they were waiting on guidance from the AG's office. I then got a written letter from the original case officer, stating that I was pretty much in Category 1. Finally, I got an email from the MDSP Licensing Director saying to wait until some of this plays out. As a result, I was going to wait until the order is signed, because at that point, at least in my mind, it not only "green lights" Mr. Woollard, but anyone such as myself, should as you put it, the State be willing. That is the part I really couldn't get a clear read on from anyone, as to whether that portion is voluntary or mandated.

In the meantime, I will check on the statute of limitations issue. Would that be from the time I was denied, or from the time Woollard was ruled on? I am assuming the former?

Thank you again, ever so much. Personally, I don't drink beer anymore, but I'm not above buying someone else one, if they care to imbibe.

 

[esqappellate]

In the meantime, I will check on the statute of limitations issue. Would that be from the time I was denied, or from the time Woollard was ruled on? I am assuming the former?
.

You are most welcome. The Statute of Limitations would run from the date of the State's final administrative denial, assuming that the final denial is the sole thing being challenged. Good luck!

 

[dlmcbm]

Correct me if I am wrong here.... I think this will be signed just for the fact that it was drafted by both parties. Obviously they both agree with it. Isn't this like walking into a candy store with a bunch of kids. one kid cries so they give him a piece of candy but tell all the other kids that they have to wait and see if they are good before getting there candy. Do we all need to cry?

 

[esqappellate]

Correct me if I am wrong here.... I think this will be signed just for the fact that it was drafted by both parties. Obviously they both agree with it. Isn't this like walking into a candy store with a bunch of kids. one kid cries so they give him a piece of candy but tell all the other kids that they have to wait and see if they are good before getting there candy. Do we all need to cry?

Right, in the sense it was agreed to by both sets of parties and, as such, was an implementation of what the judge said to them last Thursday. Note that MD doesn't agree with the merits -- it reserved its objections -- it is just a joint order as to form. MD is still appealing the merits. As to rest of us kids, well Gura does not represent us -- he represents Woollard and the SAF. The judge does not have our claims before him. We are not parties. Gura has done the next best thing, however, in securing an injunction against the state enforcing or applying 5ii -- not just as to Woollard, but AT ALL. A holding that 5ii is facially invalid means that 5ii can't be applied to anyone (note, in contrast, that the NC decision was not facial -- it applied expressly only to the parties). We are all the beneficiaries of that facial invalidation of 5ii. If affirmed, it will set a new floor for legislation.

 

[Dead Eye]

Right, in the sense it was agreed to by both sets of parties and, as such, was an implementation of what the judge said to them last Thursday. Note that MD doesn't agree with the merits -- it reserved its objections -- it is just a joint order as to form. MD is still appealing the merits.

I was curious as to whether or not anyone has confirmed any of this? We know a teleconference was to take place, but really don't know if it took place, much less, what was said. Then, an order is written, not signed, outlining a tentative agreement by both parties, provided they include the Judge's mandate. For all we know, the teleconference went to crap, the Judge ordered both parties to "play nice" and this is the AG's attempt at saying, "I am, Judge, here's my version of the order, but Gura doesn't want to play nice". Until the order gets signed, Gura issues his own version, or the Judge steps in someone's backside, it's all pure conjecture at this point.

 

[ccmc]

Sure, I understand. If the denial in situation 2. was final and you had exhausted all your administrative appeals, you have some choices on how to proceed.

1. You can ask the State to reconsider (not sure if there is an established procedure for that) if they agree to do so, you are in situation 3 (I would get that in writing from the State if they actually agree to reconsider -- consult your lawyer). Reconsideration is probably voluntary with the State. They don't have to reconsider, unless established procedures require it and I tend to doubt that there are such procedures, (but I don't know), in which case your app. denial is final as an administrative matter.

2. If the denial is final and they won't commit in writing to reconsideration, then you can either proceed in state court or file suit in federal district court, ala Woollard. Watch out for statute of limitations issues. Suits must be brought within X amount of time or your right to sue is lost. Those who sleep on their remedies, lose them. Consult counsel.

3. OR, if your prior app. denial is final and you don't want to pursue now your judicial remedies ($$$$ -- lawyers aren't free), you can file a new application which then gets you into situation 3, like the rest of us. None of this is legal advice -- it just sets out possible options that you and your lawyer can discuss. Good luck!

Just curious. Rather than individual suits by all those in situation 2 (applied during Woollard and denied for lack of G&SR), couldn't they be consolidated into a class action?

 

[Virginian Templar]

So, how does this latest SAF victory in NC (http://saf.org/viewpr-new.asp?id=397) regarding the bearing of arms affect this case?

For Immediate Release: 3/29/2012

BELLEVUE, WA – A federal district court judge in North Carolina has just struck down that state’s emergency power to impose a ban on firearms and ammunition outside the home during a declared emergency, ruling that the provision violates the Second Amendment right to keep and bear arms.

The case, Bateman v. Purdue, was brought by the Second Amendment Foundation, Grass Roots North Carolina FFE and three individual plaintiffs. Defendants in the case were Gov. Beverly Purdue and Reuben F. Young, secretary of the state’s Department of Crime Control and Public Safety, in their official capacities.

In his opinion, Judge Malcolm J. Howard, senior United States district judge for the Eastern District of North Carolina, wrote, “…the court finds that the statutes at issue here are subject to strict scrutiny…While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.”

“When SAF attorney Alan Gura won the Heller case at the Supreme Court,” noted SAF Executive Vice President Alan M. Gottlieb, “the gun ban crowd said that we were a ‘one-trick-pony’ and that we would never knock out another gun law. Well, SAF has now knocked out gun laws in Maryland, Illinois and North Carolina.

“We filed this lawsuit on the day we won the McDonald case against Chicago,” he added, “extending the Second Amendment to all 50 states. This was part of our strategy of winning firearms freedoms one lawsuit at a time.”

Gottlieb pointed to language in Judge Howard’s ruling that solidifies the Second Amendment’s reach outside the home. The judge noted that the Supreme Court in Heller noted that the right to keep and bear arms “was valued not only for preserving the militia, but ‘more important(ly) for self-defense and hunting.”

“Therefore,” Judge Malcolm wrote, “the Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur."

“Under the laws at issue here, citizens are prohibited from engaging, outside their home, in any activities secured by the Second Amendment,” Judge Malcolm wrote. They may not carry defensive weapons outside the home, hunt or engage in firearm related sporting activities. Additionally, although the statutes do not directly regulate the possession of firearms within the home, they effectively prohibit law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense. As such, these laws burden conduct protected by the Second Amendment.”

The Second Amendment Foundation (www.saf.org) is the nation's oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. In addition to the landmark McDonald v. Chicago Supreme Court Case, SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; New Orleans; Chicago and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and numerous amicus briefs holding the Second Amendment as an individual right.

 

[esqappellate]

Just curious. Rather than individual suits by all those in situation 2 (applied during Woollard and denied for lack of G&SR), couldn't they be consolidated into a class action?

Maybe, in theory. See Rule 23 FRCP. Very complicated.

 

[esqappellate]

So, how does this latest SAF victory in NC (http://saf.org/viewpr-new.asp?id=397) regarding the bearing of arms affect this case?

It helps. It is one more district court (in the 4th Circuit no less) that holds that the right applies outside the home. Apart from that very important point, the decision is on a much different law.

 

[esqappellate]

I was curious as to whether or not anyone has confirmed any of this? We know a teleconference was to take place, but really don't know if it took place, much less, what was said. Then, an order is written, not signed, outlining a tentative agreement by both parties, provided they include the Judge's mandate. For all we know, the teleconference went to crap, the Judge ordered both parties to "play nice" and this is the AG's attempt at saying, "I am, Judge, here's my version of the order, but Gura doesn't want to play nice". Until the order gets signed, Gura issues his own version, or the Judge steps in someone's backside, it's all pure conjecture at this point.

Nope. The Notice accompanying the draft order states:

"The parties have conferred, and jointly submit the attached draft order as reflecting the stated intent of the Court with respect to issuance of injunctive relief and a temporary stay."

 

[Inigoes]

Nope. The Notice accompanying the draft order states:

"The parties have conferred, and jointly submit the attached draft order as reflecting the stated intent of the Court with respect to issuance of injunctive relief and a temporary stay."

Wouldn't there be an affirmation from the plaintiff, stating the draft was true and correct?

 

[Dead Eye]

Nope. The Notice accompanying the draft order states:

"The parties have conferred, and jointly submit the attached draft order as reflecting the stated intent of the Court with respect to issuance of injunctive relief and a temporary stay."

And that is why IANAL

So, let me poke at it again (because there is nothing better to do).

The Judge asked both attorneys to come prepared to talk about the four (4) questions. The AG dug his heels in, Gura spanked him handily, and the Judge was leaning toward Gura. In order to be fair, and because of the AG's insistance, the Judge allowed for both parties to back off and rather than settling things with a simple telephone conversation, they now have to go about it the long drawn out way, of putting everything in writing and proceduralizing it, for the record, because no matter what, the State continues to reserve it's right (and you KNOW they are going to excersize it) to appeal, no matter what the outcome.

In the meantime, the Judge did step in and say, "While you two are sorting this out, Mr, Woollard WILL get his permit back."

Closer?

 

[fightinbluhen51]

So, how does this latest SAF victory in NC (http://saf.org/viewpr-new.asp?id=397) regarding the bearing of arms affect this case?

It helps. It is one more district court (in the 4th Circuit no less) that holds that the right applies outside the home. Apart from that very important point, the decision is on a much different law.

Actually, I say that that ruling is a bit better as it applied strict scrutiny for outside the home.

 

[GTOGUNNER]

Wow, I finally read the 77 page transcript of the hearing of 7/21/11. (Document 44) Good reading. This Judge is good. Gura is good.

 

[Broadside]

And that is why IANAL

So, let me poke at it again (because there is nothing better to do).

The Judge asked both attorneys to come prepared to talk about the four (4) questions. The AG dug his heels in, Gura spanked him handily, and the Judge was leaning toward Gura. In order to be fair, and because of the AG's insistance, the Judge allowed for both parties to back off and rather than settling things with a simple telephone conversation, they now have to go about it the long drawn out way, of putting everything in writing and proceduralizing it, for the record, because no matter what, the State continues to reserve it's right (and you KNOW they are going to excersize it) to appeal, no matter what the outcome.

In the meantime, the Judge did step in and say, "While you two are sorting this out, Mr, Woollard WILL get his permit back."

Closer?

I think the more likely scenario is we put too much emphasis on the teleconference.

In retrospect, it just seemed highly unlikely that a District Judge would invalid a 40 year old law based on a single telephone conversation.

 

[fightinbluhen51]

And that is why IANAL

So, let me poke at it again (because there is nothing better to do).

The Judge asked both attorneys to come prepared to talk about the four (4) questions. The AG dug his heels in, Gura spanked him handily, and the Judge was leaning toward Gura. In order to be fair, and because of the AG's insistance, the Judge allowed for both parties to back off and rather than settling things with a simple telephone conversation, they now have to go about it the long drawn out way, of putting everything in writing and proceduralizing it, for the record, because no matter what, the State continues to reserve it's right (and you KNOW they are going to excersize it) to appeal, no matter what the outcome.

In the meantime, the Judge did step in and say, "While you two are sorting this out, Mr, Woollard WILL get his permit back."

Closer?

Sounds about right? IANAL... (A lot of us seem to be saying that these days).

Also, correct me if I am wrong on this, but as soon as this proposed order is signed (the one posted to the docket yesterday), doesn't Maryland's 30 days for appeal filing start to tick?

They only have to file one page of paper basically saying "we appeal Judge Legg's decision, dated 3/5/2012" and then the CA4 would set the schedule for the opening salvo of briefings, correct?

So, in reality, while the first 10 page on the record brief for the "permanent" stay is due April 19th, MD may only have until April 30th to file an appeal as the rest of the "stay" briefing is papered back and forth?

No wonder lawyers cost so damned much...they are always wasting trees! (I had to get a lawyer dig in there somewhere).

 

[Inigoes]

I think the more likely scenario is we put too much emphasis on the teleconference.

In retrospect, it just seemed highly unlikely that a District Judge would invalid a 40 year old law based on a single telephone conversation.

He already did on 3/5/2012

 

[dlmcbm]

I have a new look at it...... I just want to win the $540 million dollar mega millions drawing tonight then move.