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

awptickes · Jul 16, 2012

apagios said:
and Wednesday morning I'll drop off copies of my training certificates. She said she would get it submitted on Wednesday.

Am I missing something? What training certificates?

Hopalong · Jul 16, 2012

swinokur said:
Did she request training certifications?

If she did, I don't understand MSP asking for things that are not legally required and should have zero bearing on permit issuance. What else could they begin asking for that isn't legally required?

Or are you just presenting them?

In reality, they're probably doing us a favor by collecting it in advance; it reduces the possibility that the GA could pass a law requiring training that invalidates all existing permits that lack training or G&S. If they already have it on file, they won't have to rush out to collect it later.

Also, everyone needs to take their bellyaching to the bellyaching thread. This is not the place for it. Thanks.

swinokur · Jul 16, 2012

I don't agree. It is conjecture on your part. If you view it as bellyaching, oh well.

I am not giving MSP or the GA a reason to change the requirements. If you take a high speed driving course, do you take your certificate to the MVA?

I won't.

Straightshooter · Jul 16, 2012

Not to bellyache, but how could they invalidate so many permits if by their own accounts in the documents they supplied to Judge Legg, they claim they wouldn't be able to accomplish such a feat if CA4 overturns Legg's decision?

Patrick · Jul 16, 2012

If you have something you'd like to offer to the MSP, then do so. Threats, training, your mother's oatmeal cookie recipe...whatever you think will help.

There is no training requirement today. Troopers are doing the same investigation they have always done, using the same material and the same practices. Prior to this ruling, that investigation was focused on occupational issues and the rare personal defense permit. In all cases they could deny you on discretionary grounds. That meant that if the trooper felt you needed training, you had better go get the training. Also, for occupational permits (guards, etc.) the training helped MSP determine you could be qualified to carry an arm while on the job.

The ruling changes the qualifications: upstanding person, in essence. So the discretion is not allowed. The current stay means they continue to do things the old way, until the new way settles in. MSP may not even love to do it, but the simple fact is they must.

MSI's official position is we don't need a training requirement in Maryland, beyond the existing handgun safety course. I won't split hairs or argue the "utility" of training with anyone here. The question is not whether it is a good idea, the question is whether there is a serious issue that only an additional law can remedy. Keep in mind that fancy gun courses may be the norm for many here, but that those on the lower end of the economic spectrum might not be able to do it. So by instituting a day's worth of training (NRA, whatever) you have increased the actual cost of the permit another few hundred dollars and disenfranchised a significant percentage of MD residents.

Any proposal from the legislature would be judged against that simple standard: would the rules prevent many from exercising their right?

We beat such a rule once. We'll do it again if we must.

swinokur · Jul 16, 2012

Excellent post as always Patrick. Succinct and easy to understand.

BenL · Jul 16, 2012

Patrick said:
The ruling changes the qualifications: upstanding person, in essence. So the discretion is not allowed.

What about the interview and references? Those also smack of an officer's discretion.

"I don't like the cut of your jib; permit denied." (do people still talk that way?

)

Maybe that will be the next target after G&S is struck down.

esqappellate · Jul 16, 2012

BenL said:
What about the interview and references? Those also smack of an officer's discretion.

"I don't like the cut of your jib; permit denied." (do people still talk that way? )

Maybe that will be the next target after G&S is struck down.

Let's not forget that nothing in Woollard affects the obligation of the MSP to screen applications under Section 5(i), which mandates an investigation into propensity for violence or instability:

"(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;"

There is a lot of leeway in that.

Boondock Saint · Jul 16, 2012

esqappellate said:
Let's not forget that nothing in Woollard affects the obligtation of the MSP to screen applications under Section 5(i), which mandates an investigation into propensity for violence or instability:

"(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;"

There is a lot of leeway in that.

A curious clause in my opinion, particularly the part about possession. If this person already shows a propensity for violence, in the supposed spirit of this statute, they shouldn't have a firearm in the first place, right? Seems like this clause has little reason to speak to possession of a carry permit, but I'm sure it's not the only poorly written law on the books...

esqappellate · Jul 16, 2012

Boondock Saint said:
A curious clause in my opinion, particularly the part about possession. If this person already shows a propensity for violence, in the supposed spirit of this statute, they shouldn't have a firearm in the first place, right? Seems like this clause has little reason to speak to possession of a carry permit, but I'm sure it's not the only poorly written law on the books...

Especially in Maryland, which seems to have the corner on badly drafted/nonsensial legislation. Compare 4-102 -- illegalizing handgun possession in schools without any exception for permit holders (3 years in jail), WITH 4-203, illegalizing handgun possession in schools but expressly EXCEPTING permit holders. And of course, the AG informally opines that merely means that that the permit holder will be charged under 4-102, instead of 4-203. You got to love it. As to 5(i), I suppose, in fairness, that possession out in public is more of a concern than possession in the home -- unless of course you happen to be part of that possessor's family, in which case you are SOL.....

Atlasarmory · Jul 16, 2012

Can someone call him and ask

Patrick · Jul 16, 2012

BenL said:
What about the interview and references? Those also smack of an officer's discretion.

"I don't like the cut of your jib; permit denied." (do people still talk that way? )

Maybe that will be the next target after G&S is struck down.

Again, they are doing it the way they have always done it, at least until someone tells them to do otherwise.

The investigations will be a cause for concern or action if they veer into the land of "G&S yet another way", or if they become a way to seriously slow the administrative processing of applications.

Fortunately for us the state has set up some handy metrics to evaluate them against: 90 days. That is their number, not ours.

Knowledgeable folks are suggesting about 20K additional applications the first year. With publicity, that could go higher. That's a lot of troopers doing a lot of interviews. At 8 hours an investigation (the current time spent to process everything), that's 20,000 person-days a year. Divide into 220 working days a year, and they will need 91 additional investigators to pull this off. Additional permit fees won't even come close to covering this. They lose money with every application made. Even the lowball number of 12,000 additional applications results in an additional 55 troopers.

If the state continues to perform live investigations, then they will need to staff the MSP with enough investigators to perform all the live investigations required to meet the 90 day mark. There will be a short "start up" period, but giving that the court has given the state all this time to get ready for the changes, that time should be short.

This is not idle talk. The simple fact is that the state has deadlines. They will not meet them initially, but we'll be watching for rapid and pronounced improvement. If the investigations continue, then they had better staff the troopers required to do them. If not, they will be clearly thumbing their nose at the law and the federal courts. That won't go unchecked, especially since they were nice enough to set metrics for their failure.

Broadside · Jul 17, 2012

Patrick,

Aren't the MSP required to do the investigations, including an interview, under the COMAR?

esqappellate · Jul 17, 2012

Patrick said:
Again, they are doing it the way they have always done it, at least until someone tells them to do otherwise.

The investigations will be a cause for concern or action if they veer into the land of "G&S yet another way", or if they become a way to seriously slow the administrative processing of applications.

Fortunately for us the state has set up some handy metrics to evaluate them against: 90 days. That is their number, not ours.

Knowledgeable folks are suggesting about 20K additional applications the first year. With publicity, that could go higher. That's a lot of troopers doing a lot of interviews. At 8 hours an investigation (the current time spent to process everything), that's 20,000 person-days a year. Divide into 220 working days a year, and they will need 91 additional investigators to pull this off. Additional permit fees won't even come close to covering this. They lose money with every application made. Even the lowball number of 12,000 additional applications results in an additional 55 troopers.

If the state continues to perform live investigations, then they will need to staff the MSP with enough investigators to perform all the live investigations required to meet the 90 day mark. There will be a short "start up" period, but giving that the court has given the state all this time to get ready for the changes, that time should be short.

This is not idle talk. The simple fact is that the state has deadlines. They will not meet them initially, but we'll be watching for rapid and pronounced improvement. If the investigations continue, then they had better staff the troopers required to do them. If not, they will be clearly thumbing their nose at the law and the federal courts. That won't go unchecked, especially since they were nice enough to set metrics for their failure.

The 90 days will probably be regarded as "directory," rather than mandatory, as the staute only requires issuance of the permit within a "reasonable time" and the only consequence under the regulations for failure to meet the 90 days is that the applicant has a right (but not an obligation) to go to the Board. See Downes v. Downes, 388 Md. 561, 880 A.2d 343 Md.,2005 ("'Where the directions of a statute look to the orderly and prompt conduct of business, including the business of a court, it is generally regarded as directory unless consequences for failure to act in accordance with the statute are set out. Statutory provisions fixing the time for performance of acts are held to be directory where there are no negative words restraining the doing of the act after the time specified and no penalty is imposed for delay.'"), quoting Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957).

And yes, that means that the MSP can effectively ignore the 90 days, at least for a while, if they want to. A court will not issue any injunction requiring action within 90 days. If the delay becomes extreme, a court could issue a writ of mandamus or perhaps review a failure to act under the State Administrative Procedure Act, but that would take a long delay.

dlmcbm · Jul 17, 2012

Broadside said:
Patrick,

Aren't the MSP required to do the investigations, including an interview, under the COMAR?

I was trying to find it... :sad20:

..... I don't know how lawyers find these laws in all that mess. If I remember correct it states that they must conduct an investigation. It says nothing about an interview BUT if thats what they consider there investigation then I guess they can.

MDFF2008 · Jul 17, 2012

dlmcbm said:
I was trying to find it........ I don't know how lawyers find these laws in all that mess. If I remember correct it states that they must conduct an investigation. It says nothing about an interview BUT if thats what they consider there investigation then I guess they can.

I think they take a class on legal notation lol

MJD438 · Jul 17, 2012

dlmcbm said:
I was trying to find it........ I don't know how lawyers find these laws in all that mess. If I remember correct it states that they must conduct an investigation. It says nothing about an interview BUT if thats what they consider there investigation then I guess they can.

Internet search tools are my friend, as IANAL:

Broadside said:
Patrick,

Aren't the MSP required to do the investigations, including an interview, under the COMAR?

Here is the wording from COMAR (regulations, not statute):

COMAR 29.03.02.03 said:
.03 Investigation of Applicant.

Upon receipt of the application and the supporting material described, the Secretary shall cause an investigation of the applicant to be conducted for the purpose of determining whether the applicant possesses the qualifications for a permit as required by Public Safety Article, §5-306, Annotated Code of Maryland.

source

COMAR 29.03.02.04 said:
.04 Criteria for Issuance of Permit.

In making a determination as to whether a permit will be issued to the applicant, the following areas will be a part of every investigation and will be considered in determining whether a permit will be issued:

A. Verification of the information supplied by the applicant in the application;

B. Occupation or profession of the applicant;

C. Geographical area of residence and employment of the applicant;

D. Criminal record of applicant, including any juvenile record for an applicant younger than 30 years old, as specifically outlined in Public Safety Article, §5-306(b), Annotated Code of Maryland;

E. Medical history of applicant as it may pertain to the applicant's fitness to wear, carry, or transport a handgun;

F. Psychiatric or psychological background of applicant as it may pertain to the applicant's fitness to wear, carry, or transport a handgun;

G. Reasons given by the applicant as to whether those reasons are good and substantial;

H. Age of applicant;

I. Applicant's use of intoxicating beverages and drugs;

J. Information received from personal references and other persons interviewed;

K. Information received from business or employment references as may be necessary in the discretion of the investigator;

L. Whether the applicant has any alternative available to him for protection other than a handgun permit;

M. Whether the applicant falls within those classes of individuals who do not need permits as outlined in the Handgun Permit Law;

N. The applicant's propensity for violence or instability which could reasonably render his wearing, carrying, or transporting of a handgun a danger to himself or other persons he may come in contact with;

O. Whether the permit is necessary as a reasonable precaution for the applicant against apprehended danger.

source

I don't see anything in there that specifically states that interviewing the applicant is required for the investigation, only interviewing the references (personal and employment).

Md Public Safety Code §5-306(a)(5)(i) (the statute for the permit application qualification) does not require an interview, only an investigation.

hjc4604 · Jul 17, 2012

As far as handling more interviews, they could create a questionnaire and have patrol troopers do the interviews for persons in the vicinity of their patrol area/barrack.

esqappellate · Jul 17, 2012

MJD438 said:
Internet search tools are my friend, as IANAL:

Here is the wording from COMAR (regulations, not statute):
source

source

I don't see anything in there that specifically states that interviewing the applicant is required for the investigation, only interviewing the references (personal and employment).

Md Public Safety Code §5-306(a)(5)(i) (the statute for the permit application qualification) does not require an interview, only an investigation.

That is absolutely correct. And the interview will be the first thing to go if Judge Legg is affirmed by the CA4

Patrick · Jul 17, 2012

esqappellate said:
The 90 days will probably be regarded as "directory," rather than mandatory, as the staute only requires issuance of the permit within a "reasonable time" and the only consequence under the regulations for failure to meet the 90 days is that the applicant has a right (but not an obligation) to go to the Board. See Downes v. Downes, 388 Md. 561, 880 A.2d 343 Md.,2005 ("'Where the directions of a statute look to the orderly and prompt conduct of business, including the business of a court, it is generally regarded as directory unless consequences for failure to act in accordance with the statute are set out. Statutory provisions fixing the time for performance of acts are held to be directory where there are no negative words restraining the doing of the act after the time specified and no penalty is imposed for delay.'"), quoting Scherr v. Braun, 211 Md. 553, 128 A.2d 388 (1957).

And yes, that means that the MSP can effectively ignore the 90 days, at least for a while, if they want to. A court will not issue any injunction requiring action within 90 days. If the delay becomes extreme, a court could issue a writ of mandamus or perhaps review a failure to act under the State Administrative Procedure Act, but that would take a long delay.

No argument on your points, but Maryland would not be the first to play the administrative game nor the first to be taken to court over it.

There is a line, and it'll be obvious. If they get 10,000 additional applications, keep requiring long investigations and then fail to hire help, - they are knowingly causing delay. One-year application times won't stand, nor will a muti-tier system that puts G&S permits ahead of non-G&S permits.

I think MSP will try to do the right thing, but they don't make all the rules. Starving the people of their exercise of a constitutional right via administrative hurdles cannot be countenanced under any form of law.

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

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