77R lawsuit successful

[MDFF2008]

Railbird, ask them to refund your money and go somewhere else that does 8th day release.

This is a win. We got them to admit in court, under oath, 8th day release is ok and they won't get anyone in trouble for it. What else could we realistically expect?

We can't make the dealers release early, but you can vote with your wallet and not support dealers who don't.

 

[aray]

The defendant's motion to dismiss (MTD.pdf) makes it quite clear it's ok to release after 7 day wait:

Hand typed from the pdf. (attached)

While I agree this is a clear win (for those FFLs who want to utilize it) I must say this is the most arrogant concession I've ever read. They sound like they just scored a huge victory:

"Plaintiffs have failed to state a claim upon which relief can be granted"
"Plaintiffs cleverly mischaracterize MSP's statutory obligation"
"The implications of reading the statute correctly are fatal for Plaintiff's claim"
"Thus their claims must be dismissed"
"Plaintiff's request for declaratory judgement fails"

and so on and on and on...

Who won this thing? I agree the state folded, but their agreement to dismiss is written like a victory lap. That's some nice language crafting right there... Far be it for Gansler to sign something that admits he failed, eh?

 

[Les Gawlik]

While I agree this is a clear win (for those FFLs who want to utilize it) I must say this is the most arrogant concession I've ever read. They sound like they just scored a huge victory:

"Plaintiffs have failed to state a claim upon which relief can be granted"
"Plaintiffs cleverly mischaracterize MSP's statutory obligation"
"The implications of reading the statute correctly are fatal for Plaintiff's claim"
"Thus their claims must be dismissed"
"Plaintiff's request for declaratory judgement fails"

and so on and on and on...

Who won this thing? I agree the state folded, but their agreement to dismiss is written like a victory lap. That's some nice language crafting right there... Far be it for Gansler to sign something that admits he failed, eh?

What they're saying is that the law is so clear no one could reasonably conclude that an FFL would NOT be able to release after 7 days. Most of us thought that, but it wasn't our livelihood on the line.

We don't realize how over- and hyper-criminalization has affected us all. If the FFLs caught a rap over this, it wouldn't have been a $50.00 fine. The enormous ability of the state to destroy our lives over trivia has made us into cowards.

 

[ShallNotInfringe]

After pondering this all day, I seriously don't understand why the case was dropped by the plaintiffs. There was more win to be had.

When I consider the public safety aspect and need for the NICS.... anyone can walk into Bed Bath and Beyond and purchase as many deadly weapons as they want as cash n carry right now with no background check...

Would BBB be sued if someone were harmed with that purchase?

 

[FWPhoto]

After pondering this all day, I seriously don't understand why the case was dropped by the plaintiffs. There was more win to be had.

When I consider the public safety aspect and need for the NICS.... anyone can walk into Bed Bath and Beyond and purchase as many deadly weapons as they want as cash n carry right now with no background check...

Would BBB be sued if someone were harmed with that purchase?

I don't think we've seen all the documents yet. MSI posted on their FB that the sworn statement from the MSP hasn't been digitized and posted yet. It would probably be best to reserve judgement until we read that statement.

Here's the link the their FB page. In the comment section of the post about the lawsuit they talk about what the statement included. I haven't looked to see if they updated the thread here about the lawsuit yet.

https://www.facebook.com/pages/Maryland-Shall-Issue/44771249761

 

[swinokur]

Excellent News !!! So in effect, MSP admits that they have broken the State Law for the past 6 months? Even if you don't have a dog in this fight, it is disturbing that a State agency can abuse it's power. Only a matter of time before this happens again.

MSP didn't break the law per se. They were wrong in telling dealers not to release after 8 days if no response by them, but they didn't break the law by not doing anything. They are guilty of incompetence for sure. They would have broken the law by trying to DISAPPROVE past 8 days as I read this.

Either way it's a win, even if small in nature.

My read of this.

ETA-this still doesn't protect an FFL from a civil suit, so I understand their concern.

 

[Gryphon]

Excellent News !!! So in effect, MSP admits that they have broken the State Law for the past 6 months? Even if you don't have a dog in this fight, it is disturbing that a State agency can abuse it's power. Only a matter of time before this happens again.

The State and MSP haven't "admitted" doing anything wrong or violating any statute. They have simply acknowledged the clear language of the statute which allows ("may") a dealer to transfer after 7 days absent a disapproval. They also acknowledge that they prefer dealers not to do so, but concur there is no legal ramifications to dealers if they do so - that is the important that the dealers were hoping for. Yes, the flood gates should open entirely. If your FFL refuses to release now get another FFL.

 

[TapRackBang]

This is a win. We got them to admit in court, under oath, 8th day release is ok and they won't get anyone in trouble for it. What else could we realistically expect?

Jack-booted thugs in federal prison for, under the color of law, violating our civil rights and the Constitution they swore an oath to uphold?

Thank you very much for your work on this. It is definitely a win. But without consequences other than a little public embarrassment, they will do it again and again and again.

 

[dblas]

The defendant's motion to dismiss (MTD.pdf) makes it quite clear it's ok to release after 7 day wait:

"In this case no actual controversy exists. Defendants agree with Plaintiffs that, in the absence of receiving a disapproval from MSP, seller, lessors, and transferors may lawfully complete the transactions involving regulated firearms after the conclusion of the 7 day waiting period provided they have complied with all other requirements of the Public Safety Article and provided they do not know or have reason to believe the purchaser or transferee is disqualified from owning a regulated firearm. See PS 5-123(a), 5-134(b), COMAR 29.03.01.10. Defendents further agree with Plaintiffs that such sellers, lessors, and transforers would not be subject to imposition of any civil or criminal sanctions by the MSP as a result of making such transfers after the seven day waiting period, even if the application is later disapproved."

Hand typed from the pdf. (attached)

I call BS on the state, in order to provide a dis-approval in the 7 day window as they say, they would also have to go through every application and complete them in the 7 day window and thus also be able to provide a "not disapproved" as well in that time frame.

The fact that they can't even provide a "not disapproved" in 7 days goes to proof that they are not meeting the 7 day period for disapproved as they claim.

I don't see how we have won anything as AGC has claimed.

 

[Mark75H]

We have not. The lawsuit asks that the approvals be done, not that MSP OK's release of guns, there is no such request in the lawsuit.

Its a feeble PR attempt by the state; not a legitimate reason for dismissal. Unless the judge hearing the case really thinks MOM is going to give him a federal judgeship after the election ... not a chance for dismissal on those grounds ... it goes on and ... MSI has MSP over a barrel

 

[JustCuz]

...transforers would not be subject to imposition of any civil or criminal sanctions by the MSP as a result of making such transfers after the seven day waiting period, even if the application is later disapproved."

...
ETA-this still doesn't protect an FFL from a civil suit, so I understand their concern.

This. Some smaller dealers simply cannot afford to defend against a wrongful death suit or risk losing their insurance by having their carriers defend them (and I know this all too well because it happened to me). Call Blue Fins and ask them why they aren't releasing. This concern is exactly why they aren't.

Capitalism should deal with the dealers who won't release

They have to protect their businesses, so I don't blame them for their decisions.

The lawsuit's results are positive, to be certain, but dealers still have legitimate concerns that have not been remedied.

 

[JustCuz]

... not a chance for dismissal on those grounds ... it goes on and ... MSI has MSP over a barrel

It is my understanding that the plaintiffs have asked that the lawsuit be dismissed without prejudice. Is this not the case?

 

[Ab_Normal]

This. Some smaller dealers simply cannot afford to defend against a wrongful death suit or risk losing their insurance by having their carries defend them (and I know this all too well because it happened to me). Call Blue Fins and ask them why they aren't releasing. This concern is exactly why they aren't.



They have to protect their businesses, so I don't blame them for their decisions.

The lawsuit's results are positive, to be certain, but dealers still have legitimate concerns that have not been remedied.

Those concerns will never be remedied without some sort of tort reform. People will always be able to sue without repercussions until then.

 

[JustCuz]

Couldn't a judge issue a Declaratory Judgment stating that dealers who release according to the law are not subject to civil liability based on the decision to do so?

 

[swinokur]

It wasn't requested, so in this case none will be issued. I'm sure any ruling would be appealed by the other side. i don't know if judges even have the power to do what you asked.

Fabsroman? answer?

 

[JustCuz]

I'm not sure, either. I'm asking a sincere question, not trying to make a statement in the form of a question.

Here's the section on Declaratory Judgments in Maryland:

Section 10-125 - Declaratory judgment.
§ 10-125. Declaratory judgment.


(a) Petition authorized.-

(1) A person may file a petition for a declaratory judgment on the validity of any regulation, whether or not the person has asked the unit to consider the validity of the regulation.

(2) A petition under this section shall be filed with the circuit court for the county where the petitioner resides or has a principal place of business.

(b) Authority to consider.- A court may determine the validity of any regulation if it appears to the court that the regulation or its threatened application interferes with or impairs or threatens to interfere with or impair a legal right or privilege of the petitioner.

(c) Unit as party.- The unit that adopted the regulation shall be made a party to the proceeding under this section.

(d) Finding of invalidity.- Subject to § 10-128 of this subtitle, the court shall declare a provision of a regulation invalid if the court finds that:

(1) the provision violates any provision of the United States or Maryland Constitution;

(2) the provision exceeds the statutory authority of the unit; or

(3) the unit failed to comply with statutory requirements for adoption of the provision.


[An. Code 1957, art. 41, § 249; 1984, ch. 284, § 1.]

My non-lawyer reading of (a)(2)(b) makes it seem possible that such relief could be granted. It might even be better to petition a declaratory judgment in a separate action from the MSP case since they really have no position in such consideration.

 

[CrueChief]

While I agree this is a clear win (for those FFLs who want to utilize it) I must say this is the most arrogant concession I've ever read. They sound like they just scored a huge victory:

"Plaintiffs have failed to state a claim upon which relief can be granted"
"Plaintiffs cleverly mischaracterize MSP's statutory obligation"
"The implications of reading the statute correctly are fatal for Plaintiff's claim"
"Thus their claims must be dismissed"
"Plaintiff's request for declaratory judgement fails"

and so on and on and on...

Who won this thing? I agree the state folded, but their agreement to dismiss is written like a victory lap. That's some nice language crafting right there... Far be it for Gansler to sign something that admits he failed, eh?

This is the thing that keeps the left "winning" they have the ability to take a loss and make it seem like a win. They are winning the battle of words for some reason. And until conservatives learn this skill even a win for us will be made to look like a win for the left.

 

[Mark75H]

It is my understanding that the plaintiffs have asked that the lawsuit be dismissed without prejudice. Is this not the case?

If they have it was foolish. All the state has to do is ... nothing ... dramatically increasing the time and monetary costs to MSI.

 

[rambling_one]

Authority to consider.- A court may determine the validity of any regulation if it appears to the court that the regulation or its threatened application interferes with or impairs or threatens to interfere with or impair a legal right or privilege of the petitioner.

This could as easily apply to the G&S fiasco, no?

 

[Mark75H]

Authority to consider.- A court may determine the validity of any regulation if it appears to the court that the regulation or its threatened application interferes with or impairs or threatens to interfere with or impair a legal right or privilege of the petitioner.

This could as easily apply to the G&S fiasco, no?

No, the G&S went directly into Federal Court, this is from MD law, not federal