I am not a lawyer.
The purpose of this thread is to discuss the meaning, history, and application of the phrase "reasonable precaution against apprehended danger" in md law.
Everyone should be familiar with this phrase found in MD wear and carry permit law.
MD law public safety 5-306
MSP and a former HPRB stated in Snowden what they "think" (key word) reasonable precaution against apprehended danger means:
In Scherr
Neither of these cases truely addressed "reasonable precaution" and its history.
In 1886 the md legislature passed a law banning carry by anyone that wasnt a "conservator of the peace". that ban only lasted 8 years.
8 years later in 1894 the legislature revisited the law and coined the term "reasonable precaution against apprehended danger". the law gives a very specific reason for the change, and places "reasonable precaution" as an affirmative defense against the ban between the bookends of "travel to dangerous localities" and what would be found to be an unlawful use of a weapon by a judge or jury, ie lawful use.
reasonable precaution against apprehended danger remained a staple of md law for nearly a century. in 1972 the legislature stripped firearms from the dangerous weapon carry law and drafted the wear and carry permit law. they also recycled "reasonable precaution against apprehended danger" into wear amd carry permit law, but it stayed an affirmative defense to carry a dangerous weapon other than a firearm in md law for almost another 20 years. the 1894 definition of and reasoning behind "reasonable precaution" co existed with wear and carry in md law. in 1973, the year after wear and carry was enacted, anyone with a question about what reasonable precaution meant, could see it plainly in the dangerous weapons law. Prior to 1972, it was defined by the 1894 law and i believe case law. everyone in the legislature in 1972 knew that reasonable precaution against apprehended danger had a very specific and legally defined meaning, and that it why it was recycled into the new law.
a little history on how the term reasonable precaution made it into the 1972 law, from a momentarily unnamed AAG letter
it's only an opinion letter, and you know what they say about opinions... but it does explain a little history, and maybe digging into that record is something worthwhile. remember, "judgement of the superintendant" was struck and replaced with "a finding". "a finding" could be prior case law, or an investigation that the applicant falls somewhere between "dangerous localities" and "criminal intent"? either way, reasonable precaution remained defined at the time and had been clearly defined for 78 years.
finally i'm going to present the most recent pre 1972 case law that i can find that deals with reasonable precaution against apprehended danger, Gunther v State md 1962
https://www.courtlistener.com/opinion/1987893/gunther-v-state/
Gunther decided to carry a rifle to his sister in laws house. He shot and killed his violent brother in law. his rifle was found to be a reasonable precaution against apprehended danger.
The purpose of this thread is to discuss the meaning, history, and application of the phrase "reasonable precaution against apprehended danger" in md law.
Everyone should be familiar with this phrase found in MD wear and carry permit law.
MD law public safety 5-306
(a) Subject to subsection (c) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds:
(6) based on an investigation:
(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.
MSP and a former HPRB stated in Snowden what they "think" (key word) reasonable precaution against apprehended danger means:
WeaponsPermits to carry guns For purposes of determining whether gun permit applicant has “good and substantial reason” to carry handgun, criterion of “apprehended danger” is not to be viewed from subjective standpoint of applicant. Code 1957, art. 27, § 36E(a).
The appellant suggests that the phrase “reasonable precaution against apprehended **298 danger” is the sole criterion for defining “good and substantial reason.” He urges that “apprehended danger” is to be viewed from the subjective standpoint of the applicant. Relying on that premise as true, he then states that since a reasonable mind “could not reasonably conclude that Mr. Snowden is not apprehensive of danger,” the Board lacked substantial evidence to deny a permit. If we accept Snowden's reasoning there would never be a time when a lawful person, fearful of his safety, would be denied a permit to carry a gun. Any vague threat would be sufficient to cause apprehension and, thus, the right to have a permit to carry a handgun. We think the phrase “good and substantial reason,” as used in Md.Ann.Code art. 27, s 36E(a)(6), means something more than personal anxiety over having one's name connected publicly with anti-drug and anti-crime activities. It means, we believe, something more than the concern the individual may have because he has been told by another, that she heard some unidentified men threatening to harm the applicant if he journeys to Meade Village. The statute makes clear that it is the Board not the applicant, that decides whether there is “apprehended danger” to the applicant. If the Act were read as Mr. Snowden would have the court read it, there would be no necessity for a review by the Board. Each person could decide for himself or herself that he or she was in danger. The State Police would become a “rubber stamp” agency for the purpose of handing out handgun permits. The carefully considered legislation would be rendered absolutely meaningless insofar as the control of handguns is concerned.
In Scherr
Scherr also maintains that the Review Board’s decision was “arbitrary and capricious” and not based on substantial evidence because, allegedly, the decision was based “largely . . . upon the testimony of Detective Sergeant Galloway,” who testified that he would issue a permit only if he thought the applicant faced a level of danger that was higher than the level “the average person would encounter.” According to Scherr, because Detective Sergeant Galloway admitted he had made up this “danger encountered by an average person” standard, the entire gun permit application process was arbitrary and capricious.
Neither of these cases truely addressed "reasonable precaution" and its history.
In 1886 the md legislature passed a law banning carry by anyone that wasnt a "conservator of the peace". that ban only lasted 8 years.
Chapter 375, Laws of Maryland 1886.
"Every person not being a conservator of the peace entitled or required to carry such weapon as part of his official equipment, who shall wear or carry any pistol ... concealed upon or about his person, and every person who shall carry or wear any such weapon openly with the intent or purpose of injuring any person, shall, upon conviction thereof, be fined not more than five hundred dollars or be imprisoned not more than six months in jail or the House of Correction."
8 years later in 1894 the legislature revisited the law and coined the term "reasonable precaution against apprehended danger". the law gives a very specific reason for the change, and places "reasonable precaution" as an affirmative defense against the ban between the bookends of "travel to dangerous localities" and what would be found to be an unlawful use of a weapon by a judge or jury, ie lawful use.
Chapter 547, Laws of Maryland 1894
CHAPTER 547.
AN ACT to amend and re-enact Section thirty (30), of Arti-
cle twenty-seven (27), of the Code of Public General Laws,
entitled "Crimes and Punishments," sub-title "Concealed
Weapons," and punishing the offense of carrying concealed
weapons.
WHEREAS, It is represented to this General Assembly that
the existing law in reference to the offense of carrying con-
cealed weapons does not make proper discrimination in favor
of those who travel in dangerous localities, or from other
imminent necessity, or prudent precaution in the presence of
threatened injury to their lives or persons, may reasonably
arm themselves for self -protection; and the law has been made
an instrument of injustice to those not deserving of punish-
ment; therefore,
Amendment.
SECTION 1. Be it enacted by the General Assembly of
Maryland, That section thirty (30), of article twenty-seven
(27) of the Code of Public General Laws, entitled "Crimes
,and Punishments," sub-title "Concealed Weapons," be and the
same is hereby amended and re-enacted so as to read as follows :
Carrying
concealed
weapons.
30. Every person not being a conservator of the peace en-
titled or required to carry such weapon as a part of his official
equipment, and not carrying such weapon as a reasonable pre-
caution against apprehended danger, who shall wear or carry
any pistol, dirk knife, bowie knife, slung shot, billy, sand club,
metal knuckles, razor or any other dangerous or deadly weapon
of any kind whatsoever (penknives excepted,) concealed upon
or about his person, and every person who shall carry or wear
any such weapon openly, with the intent or purpose of injur-
ing any person in any unlawful manner, and not for any pro-
Penalty.
per purpose of self-protection, shall, upon conviction thereof,
be fined not more than one thousand dollars, or be imprisoned
not more than two years in jail or in the house of correction ;
and the court or jury before whom any such case may be tried
shall in all cases have the right to judge of the reasonableness
of the carrying of any such weapon, and of the proper occa-
sion therefor, upon satisfactory proof; and in case, upon con-
viction of any offender, the court, in view of the evidence,
shall be of the opinion that such weapon was carried with the
deliberate purpose of inflicting grievous and unlawful injury
to the life or person of another, it shall in that case be the
duty of the court to impose the highest sentence of imprison-
ment hereinbefore prescribed.
Effective.
SEC. 2. And be it enacted, That this act shall take effect
from the date of its passage.
Approved April 6th, 1894
reasonable precaution against apprehended danger remained a staple of md law for nearly a century. in 1972 the legislature stripped firearms from the dangerous weapon carry law and drafted the wear and carry permit law. they also recycled "reasonable precaution against apprehended danger" into wear amd carry permit law, but it stayed an affirmative defense to carry a dangerous weapon other than a firearm in md law for almost another 20 years. the 1894 definition of and reasoning behind "reasonable precaution" co existed with wear and carry in md law. in 1973, the year after wear and carry was enacted, anyone with a question about what reasonable precaution meant, could see it plainly in the dangerous weapons law. Prior to 1972, it was defined by the 1894 law and i believe case law. everyone in the legislature in 1972 knew that reasonable precaution against apprehended danger had a very specific and legally defined meaning, and that it why it was recycled into the new law.
a little history on how the term reasonable precaution made it into the 1972 law, from a momentarily unnamed AAG letter
The handgun permit requirement was initially enacted by Chapter 13, Laws of Maryland 1972, as Article 27 , $ 368(a)(6), As introduced, on January Il ,1972, Senate Bill 205 required that an applicant for a handgun permit have "in the judgment of the Superintendent,l good and substantial reason to wear, carry) or transport a handgun," In a letter from Samuel Dash, Professor atLaw at Georgetown University dated January 21, 1972, the Task Force on the Administrative Justice expressed concern that the bill provided no real criteria to the Superintendent, and were vague enough to permit him to withhold or grant permits in a discriminatory manner. The Task Force expressly suggested that the Superintendent "be given more specific guidelines concerning who should be permitted to carry a handgun than is provided by the broad language of 'has good and substantial reason to wear, carry or transport a handgun."'2
The Maryland and District of Columbia Rifle and Pistol Association also addressed the language of the provision, suggesting, in a letter dated February 2,I972, that if the broad discretion was to be retained, permits should be issued by the clerks of court based on an investigation by the State Police rather than by the Superintendent. They also recommended that the determination of a good and substantial reason be based on the "results of investigation," rather than the judgment of the Superintendent, and that the provision require, rather than permit, the issuance of the permit if the statutory requirements were met. The bill was reported out by the Judicial Proceedings Committee two days later with l7 amendments, one of which changed may to shall as requested, Amendment 14, Senate Journal at274. Amendment 15 added a requirement that the permit be issued "within a reasonable time." Id. The f,rnal relevant Senate amendment was a floor amendment from Senator Bauman, which added the phrase "provided, however, that the phrase 'good and substantial reason' as used herein shall be deemed to include the statement by any applicant under this section that such permit is necessary as a reasonable precaution against apprehended danger." Senate Journal at 439-440. Thus, in the third reader version of the bill as it was sent to the House, $ 36E(a)(6) provided: 36E(a) A permit to carry a handgun may SHALL be issued WITHIN A REASONABLE TIME by the Superintendent of the Maryland Stqte Police, upon application under oath therefor, îo any person whom he finds: (6) has in the judgment of the Superintendent good and substantial reason to wear, corry, or transport a handgzn, PROVIDED, HOV/EVER, THAT THE PHRASE "GOOD AND SUBSTANTIAL REASON" AS USED HEREIN SHALL BE DEEMED TO INCLUDE THE STATEMENT BY ANY APPLICANT UNDER THIS SECTION THAT SUCH A PE,RMIT IS NECESSARY AS A REASONABLE PRECAUTION AGAINST APPREHENDED DANGER. Had that language been retained, the provision would have dehned "good and substantial reason" to include any person who asserted a need for self-defense. The House, however, added two amendments to the paragraph, both of which were concurred in by the Senate. The first of these deleted the phrase "the statement by any applicant under this section," and replaced it with "a finding," Senate Journal at 1004, which would indicate that the intent was that an actual necessity must be shown, rather than a generalized desire to carry a handgun for self-defense. The second struck the phrase "in the judgment of the Superintendent," and substituted "based on the results of investigation," as earlier requested by the Maryland and District of Columbia Rifle and Pistol Association. Senate Journal 1007. This provision also reflects the intent that the necessity of the
permit be examined as a factual matter Thus, as enacted, Article 27, $ 368(a)(6) provided: (a) A permit to carry a handgun may SHALL be issued WITHIN A REASONABLE TIME by the Superintendent of the Maryland State Police, upon application under oath thereþr, to any person whom he finds: (6) has i , BASED ON THE RESULTS OF INVESTIGATION, good and substantial reason to wear, carry, or transport a handgun: , PROVIDED, HOWEVER, THAT THE PHRASE "GOOD AND SUBSTANTIAL REASON" AS USED HEREIN SHALL BE DEEMED TO I}{CLUDE A FINDING THAT SUCH PERMIT IS NECESSARY AS A REASONABLE PRECAUTION AGAINST APPREHENDED DANGER. The current form of the provision is "new language derived without substantive change from former Article 27, $ 368(a)(l) through (6) and the hrst and third clauses of (a)." Revisor's Note to $ 5-306, Public Safety Article (2003 Volume). As a result, it is my view that the current language requires a showing of an actual need for a permit as opposed to a generalized desire for self-defense. This is the precise meaning that has been given to the provision by courts that have considered the issue.
it's only an opinion letter, and you know what they say about opinions... but it does explain a little history, and maybe digging into that record is something worthwhile. remember, "judgement of the superintendant" was struck and replaced with "a finding". "a finding" could be prior case law, or an investigation that the applicant falls somewhere between "dangerous localities" and "criminal intent"? either way, reasonable precaution remained defined at the time and had been clearly defined for 78 years.
finally i'm going to present the most recent pre 1972 case law that i can find that deals with reasonable precaution against apprehended danger, Gunther v State md 1962
https://www.courtlistener.com/opinion/1987893/gunther-v-state/
Gunther decided to carry a rifle to his sister in laws house. He shot and killed his violent brother in law. his rifle was found to be a reasonable precaution against apprehended danger.
Specifically, we think the court, instead of informing the jury that if the defendant prepared for and provoked the affray he could not assert the right of self-defense, should have advised the jury that if it believed that the defendant was not seeking a fight with his brother-in-law, but on the contrary was apprehensive that he might be attacked by him, then the defendant, under such circumstances, would have a right to arm himself in anticipation of the assault. See Perkins on Criminal Law, at p. 48, where the author, in citing State v. Bristol, 84 P.2d 757 (Wyo. 1938), says that "[o]ne who is not in any sense seeking an encounter, but has reason to fear an unlawful attack upon his life, does not forfeit his privilege of self-defense merely by arming himself in advance." See also Gourko v. United States, 153 U.S. 183 (1894); Thompson v. United States, 155 U.S. 271 (1894); Hochheimer, Crimes and Criminal Procedure (2nd ed.), § 344; Wharton, The Law of Homicide (3rd ed.), § 324; 30 Corpus Juris, Homicide, §§ 222 and 223; and the cases cited in 40 C.J.S., Homicide, § 120, fn. 87. And see Code (1957), Art. 27, § 36 (b), where the carrying and wearing of a concealed weapon by any person "as a reasonable precaution against apprehended danger" is expressly excepted from the provisions of the statute regulating concealed weapons.