Legality of Blue Carry

regulation

Redneck17 said:

It just doesnt make sense to me that if you have a permit open or conceal why leave it in your car? Whats the point of having a permit to carry if you are not going to use it?

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The MSP regulations say that "any indiscriminate display of a handgun and/or behavior by the permit holder which would result in undue apprehension of existing danger by the general public . . . shall constitute cause for revocation of a permit."

ThatIsAFact said:

The MSP regulations say that "any indiscriminate display of a handgun and/or behavior by the permit holder which would result in undue apprehension of existing danger by the general public . . . shall constitute cause for revocation of a permit."

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So you cant be in public with a permit? Whats the sense on having one then?

Redneck17 said:

If you have a permit why did you leave the your handgun in the car?

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My permit states:
Between residence "Company Name"/bank and during normal business activities as owner of same. (MD Only)

My instruction from MSP were that stopping for coffee/lunch/gallon of milk on the way home etc., even though I am otherwise within my restrictions, requires me to disarm and secure the weapon. Secure meaning unloaded and in an case or enclosed holster.

Even though I have the permit and like to otherwise carry, it is a bit of a pain in the a** having to deal with the restrictions.

A permit to carry full time is all but impossible to get.

I'd be curious to know if there is anyone here who does have an unrestricted permit

ThatIsAFact said:

The MSP regulations say that "any indiscriminate display of a handgun and/or behavior by the permit holder which would result in undue apprehension of existing danger by the general public . . . shall constitute cause for revocation of a permit."

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"Indiscriminate display" would not include open carry for a few reasons. Armored car guards have carry permits and they open carry. Also there is this:

§ 4-203.
(a) (1) Except as provided in subsection (b) of this section, a person may not:

(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person;.....



(b) This section does not prohibit:


(1) the wearing, carrying, or transporting of a handgun by a person who is on active assignment engaged in law enforcement, is authorized at the time and under the circumstances to wear, carry, or transport the handgun as part of the person's official equipment, and is:


(i) a law enforcement official of the United States, the State, or a county or city of the State;


(ii) a member of the armed forces of the United States or of the National Guard on duty or traveling to or from duty;


(iii) a law enforcement official of another state or subdivision of another state temporarily in this State on official business;


(iv) a correctional officer or warden of a correctional facility in the State;


(v) a sheriff or full-time assistant or deputy sheriff of the State; or


(vi) a temporary or part-time sheriff's deputy;


(2) the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under Title 5, Subtitle 3 of the Public Safety Article;

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open carry generally a no-no

novus collectus said:

"Indiscriminate display" would not include open carry for a few reasons. Armored car guards have carry permits and they open carry.

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I beg to differ. Obviously MSP does not object to open carry by uniformed armored truck guards or other uniformed security officers who have carry permits, because this will not alarm citizens, nor are such guards likely to be confused with law enforcement officers. Moreover, part of their function is to provide a visible deterrent to robbers. But I think it is pretty clear that if (say) a bank executive with a carry permit starts wearing the handgun openly on his hip, MSP will indeed regard that as indiscriminate display and his permit is likely to yanked under the regulation. (I am not talking about a brief accidential lapse in concealment.) Open carry by such a permit holder would not be a criminal violation of the statute (the statute, as you note, does not distinguish between open carry and concealed carry). But the same statute gives the MSP broad discretionary authority to set restrictions on individual permits and to enforce them.

novus collectus said:

"Indiscriminate display" would not include open carry for a few reasons. Armored car guards have carry permits and they open carry. Also there is this:

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I have asked MSP about this. Open carry is legal for permit holders, but they "prefer" concealed.

You could run into issues such as an LEO parsing words over the definition of "brandishing" etc. I have had an officer come up to me while I was OCing and tell me he was concerned about me "brandishing" the weapon. This while I'm talking to an armed guard outside my bank, who was also OCing.

If your OC weapon causes concern with anti-gunners, you could be charged with Disturbing the Peace. Whether it would stick or not, I couldn't say. But I don't want to loose my permit over some pencil-necked geek's complaint.

Redneck17 said:

Shouldnt the holster have a snap lock of some sort?

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I have four holsters for four different handguns. None have a strap. It's strictly a personal preference.

ThatIsAFact said:

I beg to differ. Obviously MSP does not object to open carry by uniformed armored truck guards or other uniformed security officers who have carry permits, because this will not alarm citizens, nor are such guards likely to be confused with law enforcement officers.

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Did the regulation delineate between security guards and other permit holders? I doubt it did, so therefore what applies to one type applies to all. If open carry is permissible for one and it is not "indiscriminate display", then it should apply to the others unless specifically singled out for mention.

But I think it is pretty clear that if (say) a bank executive with a carry permit starts wearing the handgun openly on his hip, MSP will indeed regard that as indiscriminate display and his permit is likely to yanked under the regulation.

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Why would they? Remember Maryland has no "brandishing" law. I hear in some states they are so strict about brandishing even printing is considered brandishing and against the law. In others a butt cannot be seen sticking out even partially. In some states you are brandishing as soon as you pull the gun out of the holster. In Maryland there is no mention of "brandishing" as a crime that I have ever read.

(I am not talking about a brief accidential lapse in concealment.) Open carry by such a permit holder would not be a criminal violation of the statute (the statute, as you note, does not distinguish between open carry and concealed carry). But the same statute gives the MSP broad discretionary authority to set restrictions on individual permits and to enforce them.

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Actually the 4-203 statute does not mention anything about the State Police board (MSP Secretary actually) and it only alludes to Title 5. I have never seen in the handgun permit section anything related to open or concealed carry, but it did state the MSP Secretary can impose regulations and restrictions on the licensees. Unless they list it as a restriction specifically in the regulations, then there is nothing keeping open carry from being "not dissallowed". The 4-203 statute says open carry is not prohibitted under the exceptions and permit holders are excepted.

xd40c said:

I have asked MSP about this. Open carry is legal for permit holders, but they "prefer" concealed.

You could run into issues such as an LEO parsing words over the definition of "brandishing" etc. I have had an officer come up to me while I was OCing and tell me he was concerned about me "brandishing" the weapon. This while I'm talking to an armed guard outside my bank, who was also OCing.

If your OC weapon causes concern with anti-gunners, you could be charged with Disturbing the Peace. Whether it would stick or not, I couldn't say. But I don't want to loose my permit over some pencil-necked geek's complaint.

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Thanks for the info.
I know of no MD law that concerns "brandishing" specifically and as I gather in MD "brandishing" is a general term for holding the gun in your hand.

A few examples I googled:

Similarly, even if Deputy Meil also had beenarmed, which is likely, the factthat he was uniformed and carried a holstered sidearm wouldnot have affected the voluntariness of Green’s consent. See Drayton, 536 U.S. at 205, 122S. Ct. at 2112, 153 L. Ed.2d at 254 (“That most law enforcementofficers are armed is a factwell known to the public. The presence of a holstered firearm thus is unlikely to contributeto the coerciveness of the encounter absent active brandishing of the weapon.”).

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http://64.233.169.104/search?q=cach...and+code+brandishing&hl=en&ct=clnk&cd=1&gl=us

Citing Harris v. State, 331 Md. 137, 156-57 (1993),the State arguesthat the Court ofAppeals “has previously declined to follow the federalcircuits’ interpretation of § 924(c)(1)where Maryland law existed interpreting other statutes with identical language.” The issuebefore the Court in Harris, 331 Md. at 141-42, was whether, in a prior codification of C.L.§ 5-621, the Legislature contemplated the term “uses” to include situations in which a firearm“is neither actively employed nor brandished.” Maryland Code (1957, 1992 Repl. Vol.).

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http://64.233.169.104/search?q=cach...and+code+brandishing&hl=en&ct=clnk&cd=3&gl=us

I'd be curious to know if there is anyone here who does have an unrestricted permit

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I know someone (not me) who has a permit that states "while on duty as a lawyer except where prohibited." He gives out his cell phone number to clients and always leaves it on so it’s his/her opinion that he/she is always "on duty."

ThatIsAFact said:

5-133 is supposed to set uniform state standards for who may "possess" a handgun (ownership, basically). If a county board passed an ordinance that nobody in that county who had ever been convicted for DWI could own a gun within that county, clearly that would conflict with 5-133. But I agree that there seems to be some conflict between 5-133 and 4-209 with respect to "ownership," etc., within the local-control zones enumerated in the latter law. Maybe CharlieFoxtrot can shed some light on this?

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There is overlap between the two but CR 4-209 is broader. It covers all handguns, rifles and shotguns and the ammunition and parts for them and any regulation thereof except for the exceptions Novus noted in the statute. PS 5-133 only preempts laws governing the possession of regulated firearms (i.e. handguns and those "assault weapons" listed in 5-101)

It does create some weirdness in the law (imagine that!). For example a local municipality could ban possession of an ordinary rifle or shotgun "within 100 yards of or in a park, church, school, public building, and other place of public assembly" under CR 4-209(b)(1)(iii), but couldn't do it for a regulated firearm.

There is also the preemption in PS§ 5-104:

Preemption by State.

Statute text
This subtitle supersedes any restriction that a local jurisdiction in the State imposes on a sale of a regulated firearm, and the State preempts the right of any local jurisdiction to regulate the sale of a regulated firearm

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the MSP has broad discretion over evaluating "behavior"

xd40c said:

I have asked MSP about this. Open carry is legal for permit holders, but they "prefer" concealed. You could run into issues such as an LEO parsing words over the definition of "brandishing" etc. I have had an officer come up to me while I was OCing and tell me he was concerned about me "brandishing" the weapon.. . . If your OC weapon causes concern with anti-gunners, you could be charged with Disturbing the Peace. Whether it would stick or not, I couldn't say. But I don't want to loose my permit over some pencil-necked geek's complaint.

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This information reinforces my point. They "prefer" concealed carry, and if you disregard that preference, you are at the mercy of whoever may decide to complain about it. People in Maryland are not used to seeing non-uniformed persons carrying holstered handguns. If a permit holder open carries without a good reason, and somebody (a law enforcement officer or somebody else) complains to the MSP, then it is entirely within "the Secretary's" discretion (which no doubt really means, the lower-ranking officers to whom such things are delegated) whether to regard that behavior as "behavior by the permit holder which would result in undue apprehension of existing danger by the general public."

Novus Collectus, we agree that open carry by a permit holder is not a violation of the statutes. I am saying that it is within MSP's discretionary authority to regard it as behavior justifying revocation, depending no doubt on perception of the carrier's motivation, the surroundings in which the open carry occurred, who it is who is complaining about it and why, whether the permit holder promises not to do it again, and who knows what else.

You say, "Did the regulation delineate between security guards and other permit holders? I doubt it did, so therefore what applies to one type applies to all. . . . Unless they list it [open carry] as a restriction specifically in the regulations, then there is nothing keeping open carry from being 'not dissallowed'." Those assertions are, I am afraid, non sequiturs. That kind of thinking would apply in a shall-issue state, not in Maryland. Just as the Maryland statute gives "the Secretary" sweeping discretion over what constitutes sufficient reason to issue a permit, with parameters that are very elastic, so here -- the regulation gives him very sweeping authority to decide what "behavior" justifies revocation. The regulation (reproduced below) does not provide a long list of specific behaviors that the Secretary may find objectionable. For example, if a permit holder sat in a pool hall and suddenly announced in a loud voice, "I have a permit to carry a concealed handgun, I have it here under my sweater, so nobody better mess with me," you can be pretty sure that the Secretary would regard that as "behavior" not acceptable under the regulation, even though the regulation does not explicitly forbid a permit holder from revealing to others that he is carrying a concealed weapon, or from frequenting pool halls.

Here is the entire regulation applicable to revocations:

COMAR 29.03.02.10

.10 Revocation of Permit.

The Secretary may revoke a handgun permit if the holder of a permit has exhibited a propensity for violence or instability which may reasonably render his possession of a handgun a danger to himself or other law abiding persons. In making this determination, the Secretary may consider:

A. Any indiscriminate display of a handgun or behavior by the holder of a permit which would result in undue apprehension of an existing danger by the general public or any individual or group while the holder is wearing, carrying, or transporting a handgun;

B. Any false statements or false representation made in any application for a permit or renewal to carry a handgun;

C. Causing any false information to be given in connection with an investigation for a handgun permit;

D. Any alteration or forgery of a permit or part of a permit;

E. The selling, renting, or otherwise transferring of a handgun permit to another;

F. Any violation of the permit restrictions imposed by the Secretary as provided in Public Safety Article, §5-309, Annotated Code of Maryland;

G. Failure to notify the Secretary of any change in address or employment, or any acts, representations, or omissions that exhibit a propensity for violence or instability which may reasonably make the possession of a handgun a danger to the holder himself or any other law abiding person. However, the Secretary is not limited to these acts, representations, or omissions in making this determination.

[end of regulation]

apparent conflict regarding handgun regulation preemption

CharlieFoxtrot said:

There is overlap between the two but CR 4-209 is broader. It covers all handguns, rifles and shotguns and the ammunition and parts for them and any regulation thereof except for the exceptions . . .PS 5-133 only preempts laws governing the possession of regulated firearms (i.e. handguns and those "assault weapons" listed in 5-101)
. It does create some weirdness in the law (imagine that!). For example a local municipality could ban possession of an ordinary rifle or shotgun "within 100 yards of or in a park, church, school, public building, and other place of public assembly" under CR 4-209(b)(1)(iii), but couldn't do it for a regulated firearm.

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[boldface added for emphasis]

Now, that is an interesting analysis, and I would like to believe it, but I am a little skeptical. Is there clear caselaw on that?

Let's say that the "Doe County" board passes an ordinance that bans anyone other than police from possessing a handgun in a church. The pastor of a small church challenges the law, on grounds that state law allows him to possess and indeed to carry a handgun in his place of business, and that his handgun is a "regulated firearm" so the county board is barred from adopting the more restrictive law by 5-133. The county's attorney would respond that 4-209 explicitly applies to handguns (as well as rifles and shotguns), notwithstanding that handguns are regulated firearms, and 4-209 contains an explicit provision to allow the county to restrict possession of handguns in churches.

Is it entirely clear how that would come out? Is there not some principle of construction that when two statutes are in apparent conflict, the one that most specifically addresses the circumstance is applicable? The pastor would argue, I guess, that 5-133 is intended to control regulation of handguns and therefore in effect removes "handguns" from the scope of 4-209, but the county would argue that the General Assembly clearly wanted local governments to retain plenary authority to regulate any firearms with respect to the "restricted zones" defined in 4-209, which explicitly includes any "church." What say you?

Novus Collectus, we agree that open carry by a permit holder is not a violation of the statutes. I am saying that it is within MSP's discretionary authority to regard it as behavior justifying revocation, depending no doubt on perception of the carrier's motivation, the surroundings in which the open carry occurred, who it is who is complaining about it and why, whether the permit holder promises not to do it again, and who knows what else.

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The beauty of living in a may issue state

You present a good case ThatIsAFact.

The 5-133/4-209 conflict is fascinating. I never realized the "Regulated firearm" exception to preemption existed.

I would say:
1) MD courts would try to reconcile the two statutes in some way
2) if not, they may look to the later statute (the regulated firearm one) as controlling.

But that's just a guess.

What about going in the other direction, K-Romulus? What if the remaining firearms are declared "regulated" by the State in order to harmonize firearms laws everywhere? Perhaps the House or Senate feels that the 8 day waiting period is suitable for all arms and not just handguns and those on the regulated list? It would make sense if you are a liberal politico against guns.

In such a case, it would act as an effective neutering of the intent of preemption since localities would be free to implement their own, more restrictive policies (MoCo's desires for such come to mind here) without being in conflict with State law.

Or am I just going off the deep-end here? The idea of exceptions to preemption under the guise of "regulated firearms" kind of makes preemption somewhat moot since Government action could gut it while remaining within the letter of the law and twist it out of all recognition.

Matt

Just to be clear, my statement on "exception to preemption" is referring to the regulated firearm statute appearing to abolish whatever limited regulatory authority concerning firearms that localities have under the regular "MD preemption" law.

I wouldn't worry about the regulated firearm law being "interpreted" for all guns since, by definition, regulated firearms are (1) handguns and/or (2) specifically defined "assault weapons". But the House and Senate could change that whenever they want. Unless they expressly harmonize the two different preemption clauses, the conflict would remain and the courts would have to decide.

Here is something I found:http://mdcourts.gov/opinions/coa/2006/112a05.pdf
MNCPP v. Anderson, 395 MD 172 (2006) (pg. 25)

"It is well settled that when two statutes, one general and one specific, are found to conflict, the specific statute will be regarded as an exception to the general statute." Ghajari, 346 Md. at 116, 695 A.2d at 150 (citing Farmers & Merchants Bank v. Schlossberg, 306 Md. 48, 63, 507 A.2d 172, 180 (1986). In Ghajari, we stated that when the statutes conflict, "the specific statute is controlling and the general statute is repealed to the extent of the inconsistency." Ghajari, 346 Md. at 116, 695 A.2d at 150. In such a case, "the court should give effect to the specific statute in its entirety and should retain as much of the general statute as is reasonably possible."

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Using this principle, I would argue that the "regulated firearm" law wins with its total preemption regarding regulated firearms because that law sets up a specific statutory scheme for those particular firearms.

But Doug Gansler would argue that the general preemption law wins because it specifically discusses preemption as an issue.

There is no case law addressing this issue that I am aware of in Maryland. As noted by K-Romulus and ThatIsAFact it is a general rule of statutory construction that where conflict exists between two statute the specific prevails over the general. In this case I would argue that regulated firearms is specific since it is only a subset of the handguns, rifles and shotguns mentioned in 4-209.

Our statutory law is just a big accretion of bills passed and statutes added. The Annotated Code of Maryland is full of situations like this and there is a huge body of law on the issue of statutory construction and interpretation.

CharlieFoxtrot said:

There is no case law addressing this issue that I am aware of in Maryland. As noted by K-Romulus and ThatIsAFact it is a general rule of statutory construction that where conflict exists between two statute the specific prevails over the general. In this case I would argue that regulated firearms is specific since it is only a subset of the handguns, rifles and shotguns mentioned in 4-209.

Our statutory law is just a big accretion of bills passed and statutes added. The Annotated Code of Maryland is full of situations like this and there is a huge body of law on the issue of statutory construction and interpretation.

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What is your basic opinion on the carry of a loaded "antique" handgun openly or concealed?
The 4-101 dangerous weapons statute says as long as a ("any") weapon is carried openly without intent to unlawfully injure or by a minor in certain counties, then it does not restrict carry (as I read it). Also 4-101 specifically says it does not apply to "handguns" and "penknives", but it does not define handguns.
4-203 resticts its definition of "handguns" to exlcude "antiques", so the restrictions on transport, wearing, carry and possession of loaded "antique" handguns is not restricted by 4-203.

As I am understanding this an "antique" handgun may be exempted from 4-101 so it can be worn concealed loaded because "handguns" are excepted , and it is not restriced by 4-203 because it is excluded from its scope since it is an "antique". But this is questionable to me.

What is not as questionable to me as a layman is I think it is legal to carry a loaded "antique" handgun openly without intent to unlawfully injure because there is no restriction in either statute.

What do you think?

CharlieFoxtrot, it is only fair to warn you that Novus Collectus and I beat this subject to a fair-thee-well back in April, here: http://www.mdshooters.com/showthread.php?t=1167

To summarize: the issue is whether it violates any state law to carry an antique firearm concealed -- say, an 1899 Derringer. The key question, as I see it, is whether such an antique is a "handgun" within the meaning of 4-101, the dangerous weapon law. If it is a "handgun" as the term is used in Subtitle 1, then it cannot, by definition, be a "dangerous weapon," because the definition of "dangerous weapon" in 4-101 explicitly excludes both handgun and penknife. However, Subtitle 1 contains no definition of "handgun." Certainly, in ordinary usage, the antique Derringer is indeed a "handgun."

However, Subtitle 2 defines "handgun," for the purpose of Subtitle 2, to exclude antiques, so antiques do not fall under the general anti-handgun-carry provisions of 4-203. Have the courts, or would the courts, apply this Subtitle 2 definition to Subtitle 1 as well? If so, then the effect would be to remove the antique Derringer from the handgun/penknife exception and therefore push it into the category of "dangerous weapon."

I am not a lawyer, this is not legal advice, and this is not to encourage anyone to carry antique firearms either openly or concealed without a permit.