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

press1280 · Jun 2, 2012

On the other hand, if he waits TOO long, then he might as well keep the stay in place and leave it in the hands of CA4.

Jim Sr · Jun 2, 2012

mr h said:
With the obligatory IANAL...

The more thorough and reasoned Judge Legg's final decision (and all the previous work), the less chance CA4 will remand the decision for reconsideration. There will likely be an appeal to SCOTUS regardless of CA4's decision. Personally, I would rather it be MD having to beg to have it overturned, than SAF having to fight uphill again. The running theory is that, the longer Legg takes, the more likely we'll like the outcome.

Also, while Legg may well be aware of the rest of us out here, there are 2 important factors, IMO, that are being overlooked by many.

1 - This is primarily about Ray Woollard... we are hangers-on, and technically outside Legg's consideration. We can wish in one hand... but it won't fill up very fast.

2 - This decision is a piece in the bigger puzzle, which will likely be ultimately decided by SCOTUS. In order for them to hear the case, it has to be the best foundation possible. A hasty decision (even in appearance) could open up a window where the case is never heard.

Well said!

esqappellate · Jun 2, 2012

swinokur said:
I'm sure Esq can enlighten you. He'll be around at some point.

Short answer: A federal district court judge's docket is *incredibly* busy. By law, criminal cases get a priority on his time. Then he has civil and criminal trials to preside over and some of those trials last days. And then scores of motions to rule on in other criminal and civil trials, like motions in limite or motions to dismiss or motions for summary judgment or motions for recusal -- the list is endless and he is expected to get it right each time. A lot of lawyers are not very good and thus make his job harder. It is a huge juggling act on a daily basis to get the work done. He'll get to it. It isn't like he was waiting for the last brief just so he could turn to it. And when he does turn to it, he will read the briefs, do his own research in the law and the facts (some facts are subject to judicial notice) and try to figure it out, all while being interrupted by other pressing matters. I feel reasonably sure that he ordered this supplemental briefing so as to draft a good, well-reasoned opinion on the stay question. We should all be very grateful for such a careful, conscientious judge. I am.

dblas · Jun 2, 2012

Merlin said:
Don't you bet on it. For the fact that if they will never get into any trouble if they get caught going where you and I can't. The law is different for the connected. You have yourself under the false impression they have to follow the same laws to the same level that we do.

If you or I get caught doing or going somewhere were should not with our CCW, our ccw's will be pulled and maybe fines or jail time as they through the book at us. When a friend of MOM or the AG does the same, they will look the other way and ask very nicely to please do not do whatever anymore. Even if the get caught doing it 10 times.

You/me, behind bars. Them, a very polite request to stop. People are not equal in any world.

It is a lot harder to hide when the laws are the same for EVERYONE. Case in point, County Counsilwoman in PG County lost her county car and racked up 8 points for driving in excess of 100 MPH on the Capital Beltway and MD Rt 4. I believe she also received a hefty fine. Same results as what would happen to you or I.

The sheeple will have no clue who is connected and who is not when they see someone with an evil gun in a place they shouldn't be. The police will be called, the police will respond, and the police will make contact with that individual. There is no way to hide the above as once a call is taken and dispatched it has to be followed through on, and the end report is public information. So no where for the connected to hide.

eyesinpines · Jun 2, 2012

esqappellate said:
Short answer: A federal district court judge's docket is *incredibly* busy. By law, criminal cases get a priority on his time. Then he has civil and criminal trials to preside over and some of those trials last days. And then scores of motions to rule on in other criminal and civil trials, like motions in limite or motions to dismiss or motions for summary judgment or motions for recusal -- the list is endless and he is expected to get it right each time. A lot of lawyers are not very good and thus make his job harder. It is a huge juggling act on a daily basis to get the work done. He'll get to it. It isn't like he was waiting for the last brief just so he could turn to it. And when he does turn to it, he will read the briefs, do his own research in the law and the facts (some facts are subject to judicial notice) and try to figure it out, all while being interrupted by other pressing matters. I feel reasonably sure that he ordered this supplemental briefing so as to draft a good, well-reasoned opinion on the stay question. We should all be very grateful for such a careful, conscientious judge. I am.

Many thanks. Having read many of your posts I of course accept your expertise, and because of my legal naivety certainly cannot argue the point.
I guess I'm confused/frustrated because I'm a business man not a lawyer. I'm required to evaluate high risk, high cost complex issues, do the research, then make a decision and get it right.

With a "problem" the scale of just this stay, with such narrow and finite criteria I would be expected to allocate time on a specific morning and have a decision by lunchtime. This law thing seems mysterious smoke and mirrors, and the question of to stay or not to stay looks to me to be a classical case of making a mountain out of a molehill.

navycraig · Jun 2, 2012

esqappellate said:
Short answer: A federal district court judge's docket is *incredibly* busy. By law, criminal cases get a priority on his time. Then he has civil and criminal trials to preside over and some of those trials last days. And then scores of motions to rule on in other criminal and civil trials, like motions in limite or motions to dismiss or motions for summary judgment or motions for recusal -- the list is endless and he is expected to get it right each time. A lot of lawyers are not very good and thus make his job harder. It is a huge juggling act on a daily basis to get the work done. He'll get to it. It isn't like he was waiting for the last brief just so he could turn to it. And when he does turn to it, he will read the briefs, do his own research in the law and the facts (some facts are subject to judicial notice) and try to figure it out, all while being interrupted by other pressing matters. I feel reasonably sure that he ordered this supplemental briefing so as to draft a good, well-reasoned opinion on the stay question. We should all be very grateful for such a careful, conscientious judge. I am.

I always enjoy (and learn) from reading your posts. Thank you for what you do.

IMO, if His Honor ruled on this in two days time and lifed the stay, we'd all give him a big 2 :thumbsup:

and raise a glass.

However, if, in those same two days he decided to allow the stay to remain in place, a lot of us would curse and say that he did not take long enough to consider the facts.

As it is, no matter how it goes, I'll be fully convinced that this Judge did his job and deserves our thanks for doing very well.

esqappellate · Jun 3, 2012

eyesinpines said:
Many thanks. Having read many of your posts I of course accept your expertise, and because of my legal naivety certainly cannot argue the point.
I guess I'm confused/frustrated because I'm a business man not a lawyer. I'm required to evaluate high risk, high cost complex issues, do the research, then make a decision and get it right.

With a "problem" the scale of just this stay, with such narrow and finite criteria I would be expected to allocate time on a specific morning and have a decision by lunchtime. This law thing seems mysterious smoke and mirrors, and the question of to stay or not to stay looks to me to be a classical case of making a mountain out of a molehill.

I agree: The law and running a courtroom by a judge is very different than running a business. Here's a key difference -- a good judge (and Judge Legg is) has to explain and persuade. He has to consider the 4 part test and the nuances of each of the parts, as explained in governing case law, which he has to read and think about it. He can't rely on the parties' briefs alone, as those briefs are not necessarily complete or even correct. Then, after reaching a decision, he has to write an opinion that explains how he reached that decision, viz., how he applied his judgment to each of the 4 parts of the test and controlling case law and why he elected to come to a decision on each of the 4 parts. Then he has to combine the 4 factors and explain how that combination resulted in the decision. He does that not merely to give justice and the appearance of justice to the arguments raised by the parties, but to set up his opinion for review by the court of appeals. How much deference he is paid by the court of appeals is controlled, in part at least, by how well he explained what he did and persuades that his decision is the right one legally and as a matter of discretion. He will draft the opinion, let it sit a few days, and come back and redraft it. If issues come up in drafting, he will research and think about that nuance. Opinion writing, like brief writing is an art form. As to making a mountain out of a molehill, I respectfully disagree. On one hand, a stay perpetuates the denial of the very constitutional right that he has held to exist. That's a big deal. On the other hand, denial of the stay may create the risk of harm to the public (as claimed by the State and cautioned by Judge Wilkinson). That is a big deal.

eyesinpines · Jun 3, 2012

esqappellate said:
I agree: The law and running a courtroom by a judge is very different than running a business. Here's a key difference -- a good judge (and Judge Legg is) has to explain and persuade. He has to consider the 4 part test and the nuances of each of the parts, as explained in governing case law, which he has to read and think about it. He can't rely on the parties' briefs alone, as those briefs are not necessarily complete or even correct. Then, after reaching a decision, he has to write an opinion that explains how he reached that decision, viz., how he applied his judgment to each of the 4 parts of the test and controlling case law and why he elected to come to a decision on each of the 4 parts. Then he has to combine the 4 factors and explain how that combination resulted in the decision. He does that not merely to give justice and the appearance of justice to the arguments raised by the parties, but to set up his opinion for review by the court of appeals. How much deference he is paid by the court of appeals is controlled, in part at least, by how well he explained what he did and persuades that his decision is the right one legally and as a matter of discretion. He will draft the opinion, let it sit a few days, and come back and redraft it. If issues come up in drafting, he will research and think about that nuance. Opinion writing, like brief writing is an art form. As to making a mountain out of a molehill, I respectfully disagree. On one hand, a stay perpetuates the denial of the very constitutional right that he has held to exist. That's a big deal. On the other hand, denial of the stay may create of the risk of harm to the public (as claimed by the State and cautioned by Judge Wilkinson). That is a big deal.

Thank you so much for taking the time to provide this explanation. I've taken it all in, and realize I am much happier and better suited to being a business man than a lawyer

.

Accordingly, I'll slink back into my dark corner and seek meditatation to discover more patience than I currently have!

I like so many others, really appreciate your sage knowledge and "non - legal" advice.

Thanks

Kharn · Jun 3, 2012

esqappellate said:
Here is 5(i) and 5(ii). Only 5(ii) was at issue in Woollard:

(5) based on an investigation:
(i) has not 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; and
(ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.

5(i) obviously leaves a lot of leeway for interpretation and application in particular circumstances.

But as currently worded, the state would have a difficult time saying you're coco for cocoa puffs and shouldn't have a handgun in public but already own one (and are eligible to buy more) while the law says "the person's possession". They would almost need to Baker Act every applicant to keep denying permits.

Boxcab · Jun 3, 2012

esqappellate said:
{Snip of good stuff}
On the other hand, denial of the stay may create of the risk of harm to the public (as claimed by the State and cautioned by Judge Wilkinson). That is a big deal.

The text I bolded is important to understand.

Judge Legg has broken from the ranks with his decision. His work and justifications will be scrutinized by his peers, who are not pre-dispositioned to agree with him. We do not appreciate the scrutiny that his writings will have to endure.

In a number of years Judge Legg's decision will look like an easy one to make and justify, but for now he has just turned Maryland’s law up-side-down. We are in his debt for taking a risk and doing what we know is the right thing. Many Judges have not chosen to go down that road, they have avoided the question all together, or have “taken a knee” and chose to side with the state(s).

esqappellate · Jun 3, 2012

Kharn said:
But as currently worded, the state would have a difficult time saying you're coco for cocoa puffs and shouldn't have a handgun in public but already own one (and are eligible to buy more) while the law says "the person's possession". They would almost need to Baker Act every applicant to keep denying permits.

That's right as a logical matter. But, as Justice Holmes wrote, “[T]he life of the law has not been logic; it has been experience.” The Common Law, 1 (1881).

I think possession here is possession in public, as opposed to the home. Note that this statute was written prior to Heller and McDonald and under MD law there was never a right to keep and bear arms bestowed by the state constitution. As Holmes stated in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921), "a page of history is worth a volume of logic." (and yes, Holmes is one of my favorite SCT Justices of all time)

The more important point is that 5(i) (as opposed to 5(ii)) puts the burden on the state to find lack of suitability. The applicant does not have to prove that he is suitable --the state has to have a reason for concluding that he is not suitable. Some Troopers seem to take that inquiry more to heart than others, with a lot of intrusive questions during the interview, with questions about your EX, your meds, your medical condition, your job, your employment history, etc, etc. Cuz of my security clearances, their investigation is pretty minimal in my experience, but to others, it seems really unnecessarily intrusive.

esqappellate · Jun 3, 2012

eyesinpines said:
Thank you so much for taking the time to provide this explanation. I've taken it all in, and realize I am much happier and better suited to being a business man than a lawyer .

Accordingly, I'll slink back into my dark corner and seek meditatation to discover more patience than I currently have!

I like so many others, really appreciate your sage knowledge and "non - legal" advice.

Thanks

Don't go far Eyes. Your questions are very good. My perspective is just that: only mine, albeit shaped by 37 years of legal practice. To litigate, one must develop a great tolerance for uncertainty. You go nuts otherwise.

esqappellate · Jun 3, 2012

Boxcab said:
The text I bolded is important to understand.

Judge Legg has broken from the ranks with his decision. His work and justifications will be scrutinized by his peers, who are not pre-dispositioned to agree with him. We do not appreciate the scrutiny that his writings will have to endure.

In a number of years Judge Legg's decision will look like an easy one to make and justify, but for now he has just turned Maryland’s law up-side-down. We are in his debt for taking a risk and doing what we know is the right thing. Many Judges have not chosen to go down that road, they have avoided the question all together, or have “taken a knee” and chose to side with the state(s).

This ^^^^^^^^^!!

P-12 Norm · Jun 3, 2012

mr h said:
With the obligatory IANAL...

The more thorough and reasoned Judge Legg's final decision (and all the previous work), the less chance CA4 will remand the decision for reconsideration. There will likely be an appeal to SCOTUS regardless of CA4's decision. Personally, I would rather it be MD having to beg to have it overturned, than SAF having to fight uphill again. The running theory is that, the longer Legg takes, the more likely we'll like the outcome.

Also, while Legg may well be aware of the rest of us out here, there are 2 important factors, IMO, that are being overlooked by many.

1 - This is primarily about Ray Woollard... we are hangers-on, and technically outside Legg's consideration. We can wish in one hand... but it won't fill up very fast.

2 - This decision is a piece in the bigger puzzle, which will likely be ultimately decided by SCOTUS. In order for them to hear the case, it has to be the best foundation possible. A hasty decision (even in appearance) could open up a window where the case is never heard.

I don't see the state of MD letting this go to the SCOTUS, as it would then make places like IL, HI, NJ, NY (AND NYC), Washington, DC, CA, all bastions of Liberal orthodoxy, Shall Issue as well. It would make O'Malley toxic to anyone for further political consideration. I can't see him being THAT stupid, assuming Woolard goes the way we think it will at CA4.

Al Norris · Jun 3, 2012

P-12 Norm said:
I don't see the state of MD letting this go to the SCOTUS, as it would then make places like IL, HI, NJ, NY (AND NYC), Washington, DC, CA, all bastions of Liberal orthodoxy, Shall Issue as well. It would make O'Malley toxic to anyone for further political consideration. I can't see him being THAT stupid, assuming Woolard goes the way we think it will at CA4.

If the CA4 upholds Judge Legg's decision, you might just be wrong with this type of thinking.

Five years ago, no one, in their right mind thought D.C. would push Parker v. D.C. to the SCOTUS. Fact is, all the anti-gun groups of that time, told the D.C. machine to let it go.

The PTB in D.C. didn't listen and we now have the decision in Heller.

Immediately after Heller, McDonald was born. That decision, in 2010, was orchestrated by the 7th circuit itself.

Both D.C. and Chicago immediately thumbed their noses at the SCOTUS and enacted some real twists and turns in order to "obey" the orders of the SCOTUS.

Both cities are still under litigation, with the only real hope of their ordinances surviving (as written), is a final plea to public safety.

That plea didn't go down in the Ezell decision at the 7th, freed of the constraints of Cruickshank.[/] The mere fact that the Ezell decision was not challenged (by either Chicago or Judges at the circuit itself) says a lot.

In the case of Chicago, this may be shortly determined by the decision rendered in Moore/Shepard (I have a sneaky suspicion that the long awaited Palmer decision will hinge on what the 7th Circuit does).

History says that we can (somewhat) predict the future actions of individuals, based upon their prior actions.

MD is simply not going to give up their "power," without more of a fight.

Mr H · Jun 3, 2012

P-12 Norm said:
I don't see the state of MD letting this go to the SCOTUS, as it would then make places like IL, HI, NJ, NY (AND NYC), Washington, DC, CA, all bastions of Liberal orthodoxy, Shall Issue as well. It would make O'Malley toxic to anyone for further political consideration. I can't see him being THAT stupid, assuming Woolard goes the way we think it will at CA4.

If the CA4 decision goes MD's way, SAF will have no choice but to appeal to SCOTUS, IMO.

This is going to Nine Robe Hall, regardless, unless MD does the unthinkable and drops the challenge should SAF/Woollard prevail.

swinokur · Jun 3, 2012

Technically they cannot appeal to SCOTUS. They can submit a petition or request a writ of Certiorari.

SCOTUS decides whether they hear the case.

Just sayin

esqappellate · Jun 3, 2012

That's right. My guess is that the Sct will let the issue percolate for awhile so no guarantees that the Court will take the case regardless, even after the first circuit split

Inigoes · Jun 3, 2012

esqappellate said:
That's right. My guess is that the Sct will let the issue percolate for awhile so no guarantees that the Court will take the case regardless, even after the first circuit split

I think the SCOTUS would, given their interest in this past sessions criminal cases.

I believe the SCOTUS is looking for the right case, while not up ending criminal law.

With that said, everything is going to hinge on which civil case makes the race to the top. It's a horse race...

MDFF2008 · Jun 3, 2012

I'm not a lawyer; but I would be a little suprised if they didn't take Woollard considering the limited scope of the question could allow them to discuss carry outside the home without opening pandoras box

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