Maryland Shall Issue Files Suit Against the Maryland State Police

[teratos]

The impact of this lawsuit has been near nothing. Wait times haven't gone down, dealers are still holding onto our (paid for) firearms, and we, the law abiding citizens, are still unable to purchase and take home regulated firearms in anything close to a reasonable time frame. I know who the 8th day dealers are, as I can read the spreadsheet just like anyone else, so no need to tell me about that. But again, taken as a whole, this "win", has resulted in little impact to the issue.

I'm wondering what, if anything is next from MSI, AGC, and NRA? I've received no phone calls, no emails (well, NRA keeps asking for more money and promises to send me another pocket knife made in China), and I find nothing on web sites as to what might be happening. It's hard to support the above organizations, which I currently do, into the future, when I'm not seeing progress. True, things may be much worse without them, no argument there, but I'd like to see something done so we can all enjoy our 2A rights. I'm still a believer, but it's getting harder and harder.

So my question to MSI, or anyone who knows with authority: What is happening next, or are we done and just have to wait at the mercy of MOM and MSP?

How do you propose we fix this? Shall we sue the dealers? We can't sue MSP. Why? There is nothing MSP is doing that is keeping dealers from releasing on day 8.

 

[trickg]

How do you propose we fix this? Shall we sue the dealers? We can't sue MSP. Why? There is nothing MSP is doing that is keeping dealers from releasing on day 8.

We do the talking with our wallets - if a dealer doesn't want to release, simply stop patronizing their business. You had best believe that when it's time for my next purchase, I won't be using a dealer or FFL who won't release on day 8.

 

[Jim M]

How do you propose we fix this? Shall we sue the dealers? We can't sue MSP. Why? There is nothing MSP is doing that is keeping dealers from releasing on day 8.

If I knew the answer, I would have already taken the action. Shooting is one of many of my hobbies, and one I care deeply about. I'm also into boating, hunting, fishing, off roading, and a few other things. Most of my outdoor activities (of which I include shooting) are regulated and face threats of closures on a regular basis. I give to groups I entrust in each hobby area. I have to believe they know the answers as to how to address threats to the hobby/sport. As a single voice, I get lost in the din. However, as a chorus, we can be heard.

So I'll kick the question back as, How does MSI/AGC/NRA propose we fix this? IANAL: How many time do you see that? The three organizations above have the lawyers. They should be on here, on email blast, or at least on their own web sites saying, "IAAL, therefore we will..." Fill in the ellipses with their intended course of action. I'm not expecting total victory, or every dealer to get on board, but at least tell those of use who have donated time and/or money to their cause what they plan to do on our behalf. The silence is becoming deafening.

I still believe, I still give, and I'll still fight. I just want some help.

 

[JustCuz]

That is illogical. Liability over what? The paperwork they have in hand says MSP has thoroughly vetted this person and found no reason the handgun on the paperwork should not be released to them as of the fax date. If there is no liability for releasing one regulated firearm, there should be no liability in releasing all of their firearms that very moment.

Ask an attorney or an insurance provider about potential liability for early release. Anyone can sue you for wrongful death, even if you follow the law. I know this from personal experience. There is more to it than simply following the law. Civil cases are not based on crimes; they are based on negligence or recklessness.

So I'll kick the question back as, How does MSI/AGC/NRA propose we fix this?

I had a discussion about this very issue with a respected member of our community, and he happens to be a pretty good lawyer. Here are the relevant parts of the exchange regarding both liability and the disposition of the subject MSI case againt MSP (posted with his permission):

re: Liability

There is certainly little chance that a dealer would be found liable by a court, but the prospect of defending against a lawsuit alone is daunting...

... As a real-world example of the problems remaining, I know of at least one FFL that was planning to release early following the MSP declaration, but backed out when they did not like their insurance company's response to their questions about coverage for claims and legal defense if they decided to do so.

I fully understand the dealer's reticence. You can never stop people from suing, for sure. And insurance companies are risk adverse (and ignorant about guns) by nature. But I see little possibility of actual civil or criminal liability (entry of judgment) from an otherwise legal release on the 8th day. A complaint alleging only that should be dismissed for failure to state a claim or on summary judgment and never get to a jury.

I agree with you that such claims should be immediately dismissed on summary judgment, and I agree that civil litigation procedure is in drastic need of reform, but I am not so confident that judges would be so quick to toss them without precedents or a declarative judgment in this books.

Here's the hypothetical (layman's) claim in a nutshell: XYZ Firearms, Inc. sold convicted felon, John Doe, an AR-15 and released the firearm to him before receiving the results of their requested background check. Doe used the firearm to kill 20 men, women, and children at a shopping mall. While XYZ's actions were not technically criminal, the dealer was not required by law to release the firearm without the benefit of the background check results. Moreover, prior to XYZ's decision to release the firearm to Doe, Maryland State Policy had repeatedly urged dealers not to release firearms to customers until checks were complete. XYZ's decision was to ignore the advice of police and release a firearm to a felon. But for that decision, the background check results would have prevented Doe from acquiring that firearm, and <list of 20 names> would be alive today. XYZ's actions were reckless, or, at best, negligent.

I don't think many lawyers would offer much of a guarantee that a case like that wouldn't be dragged through court for years, or even that it would be won. I think the probability of such a case ending with a a cost-of-defense settlement is much higher that it would be for it to end in a summary judgment.

IANAL

...no lawyer with half a brain ever gusrantees [sic] a result. Dealer should still win but It might take an appeal

re: legal process

...MSP's role in our government is not to interpret our laws. That is the job of the judiciary, so why are we taking an affidavit instead of demanding a declaratory judgment?

Also, MSP can't affirm anything other than what MSP can/will do. It does nothing to prevent anyone else from filing any type of criminal or civil charges. Only a clarification of law can do that, and I have to believe that's why the suit called for exactly that as the alternative relief if MSP was unable to complete checks within 7 days...

This debate is completely appropriate. I too would like to have a judicial declaration of the law. Here's the the problem. A circuit court (the trial level in MD) decision is binding only as to the particular parties and is not binding in any other circuit court, much less the court of special appeals or the state Court of Appeals. A declaration that is not appealed by the MSP will thus have limited precedential value. Second, a declaration is not enforceable with contempt and no judge is likely to issue an actual injunction where the MSP says they agree with plaintiffs. Injunctive relief is appropriate only where there is a showing of irreparable injury -- which can't be shown if the MSP tells the court that they won't do what we are complaining about.

And here is the crux. MSP is correct in the affidavit and in their motion to dismiss that the law simply does not give anyone a *right* to receive on the 8th day -- that is left up to the dealer and the marketplace. Nor does the statute necessarily force the MSP to act by the 7th day. It provides that the MSP must disapprove within 7 days, meaning that a dealer can release on the 8th day without sanction, a position that the MSP says, in their affidavidt and their advisory release, that they agree with. See Section 522(b)(1). Now, we could argue that the 7 days is mandatory and that, consequently, a disapproval issued after 7th days is void and unenforceable, but if the dealer isn't sanctioned and cannot be sanctioned for releasing after the 7th day, that argument is pointless. If disqualified person took possession on the 8th day, the MSP can still enforce the firearms disability and seize the firearm and arrest the buyer for illegal posession under state and federal law. The person at risk here is the dealer as it is the dealer who is governed by the 7 day transfer provision. The MSP issued its advisory to dealers saying that the transfer can take place. The dealers have thus been officially told that they can release. As far as a judge is concerned that dealer advisory moots the issue concerning whether the dealer can release. A judge is not likely going to issue a declaration on mooted issue. See Alston v. State, --- A.3d ----, 2013 WL 3213307 Md.,2013 ("We have opined often that '[a] question is [rendered] moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.'”) citations omitted.

In sum, if the 8th day transfer is to a bad guy then, under the statute, the dealer has no responsibility for that transfer -- it becomes the MSP's problem (and of course society's problem too -- nobody wants bad guys to have guns). In short, it is hard to see that the further expenditure of resources will gain us much, if anything. A judge is simply not going to order MSP to stop the background investigation on the 8th day and is not going to order MSP to provided additional resources to do a background check by the 8th day. We have gotten everything we could reasonably expect to get from a court. If the MSP deviates and starts threatening or sanctioning dealers, we would then have a new case. People need to understand that the courts are not supposed to run the government but must await concrete controversies with actual parties and facts. Federal courts are prohibited by the Constitution from entering advisory opinions. State courts are not so limited but, as a matter of precedent and practice, will do so only very rarely. See Alston, above. It is a limitation build into the judicial branch and thus part of the checks and balances associated with having three branches of government.

This exchange addressed a lot of my questions and concerns about the case, how it was handled, and what else can be or could have been done. I hope it is helpful to others, as well.

 

[dblas]

If I knew the answer, I would have already taken the action. Shooting is one of many of my hobbies, and one I care deeply about. I'm also into boating, hunting, fishing, off roading, and a few other things. Most of my outdoor activities (of which I include shooting) are regulated and face threats of closures on a regular basis. I give to groups I entrust in each hobby area. I have to believe they know the answers as to how to address threats to the hobby/sport. As a single voice, I get lost in the din. However, as a chorus, we can be heard.

So I'll kick the question back as, How does MSI/AGC/NRA propose we fix this? IANAL: How many time do you see that? The three organizations above have the lawyers. They should be on here, on email blast, or at least on their own web sites saying, "IAAL, therefore we will..." Fill in the ellipses with their intended course of action. I'm not expecting total victory, or every dealer to get on board, but at least tell those of use who have donated time and/or money to their cause what they plan to do on our behalf. The silence is becoming deafening.

I still believe, I still give, and I'll still fight. I just want some help.

What would you like to see?

Yes, NRA has lawyers, but MSI and AGC are local, grass roots organizations made up entirely of volunteers. None of the donations to MSI go to pay anyone, anything. Even Patrick, who put his personal life and business on hold for 90 days, didn't get paid or reimbursed for his time. Not sure you knew that about these organizations.

I agree, more information would be nice, but since most of the work gets done during the session and the session is over, there isn't much. Should there have been a statement from MSI, on the lawsuit outcome? Absolutely. Should there be an e-mail about upcoming litigation? Other than yes, it is coming, what else would you like? Details? I don't think so, would you tell you opponent what you plan to do and how?

So back to my original question, not only to you, but to everyone else that would like more done.

What would you like to see?

 

[Storm40]

What would you like to see?

Dealers doing what they would have gleefully done before all this nonsense started. Release on the 8th day, as they have in the past. As has been pointed out in this thread - NOTHING CHANGED. So why did something change this radically?

 

[6pack]

Things did change. There are dealers releasing after 7 days. There were very few that were doing that before the lawsuit, and they were very quiet about it. The ones that still won't are in their right to wait. And we, as consumers, are in our right to take our business elsewhere.

 

[rob-cubed]

The Gun Shop started releasing on day 8 as a result of the lawsuit, as did many other FFLs. I call that a win, even if some FFLs are still refusing to do so.

With only a few months left until D-day, what more do you honestly expect to be done? You can sue an individual FFL for early release, or sue the MSP regarding the continued 3-month-plus wait times... but both would be useless at this point. Let's save our rather limited time and energy for a post-October lawsuit challenging the constitutionality of certain provisions of the new law.

 

[dblas]

Dealers doing what they would have gleefully done before all this nonsense started. Release on the 8th day, as they have in the past. As has been pointed out in this thread - NOTHING CHANGED. So why did something change this radically?

So going from 2-3 FFLs releasing on the 8th day before the lawsuit to over 50 (about half of the total FFLs in the state) releasing on the 8th day isn't a win in your book?

How about having the MSP formally acknowledge that there is no liability from MSP to FFLs releasing on the 8th day?

 

[Gryphon]

Things did change. There are dealers releasing after 7 days. There were very few that were doing that before the lawsuit, and they were very quiet about it. The ones that still won't are in their right to wait. And we, as consumers, are in our right to take our business elsewhere.

Ditto - Two separate FFLs have made two separate regulated transfers (yes I waited 30 days) to me after the MSP issued the letters it was compelled to issue to set up a "defense" to the pending MSI litigation. Neither would have done prior to the MSP's letters. Once the letters were issued it would have been a complete waste of time and precious resources to advance the litigation further. Those that are not doing an 8 day release now, do so based on a cautious business decision - but that's their option under the law and it always has been. MSP has said they can release. Some don't feel they can. So in the meantime, deal with the others.

Kudos to MSI, counsel, and the individuals that prosecuted the suit even if just for a short time.

 

[Jim M]

...Should there have been a statement from MSI, on the lawsuit outcome? Absolutely. Should there be an e-mail about upcoming litigation? Other than yes, it is coming, what else would you like? Details? I don't think so, would you tell you opponent what you plan to do and how?

So back to my original question, not only to you, but to everyone else that would like more done.

What would you like to see?

I had typed out some long diatribe, but after reading it, it just made me sound whiny. I'm not. I sincerely appreciate the efforts that have been made on my behalf. I do believe there has been progress. I guess I just want to see more progress, as I'm sure we all do. I mean, is anyone happy with the wait?

So the direct answer to what would I like to see is this: A statement and a promise. Are they done fighting for on time release? If so, tell us. If not, tell us that too. And promise me that they are still taking action. That's it. As I stated earlier, the silence is deafening. Manage my expectations.

Again, I'm still on board, still a supporter, still a fighter for my rights, and still standing in brotherhood with the vast majority here.

 

[ShoreShooter]

My two cents:

"Enough" dealers have taken whatever risk still exists to move toward an 8 day release, that buyers have plenty of options to use those 8 day dealers.

If you choose to not use them, and instead use a dealer and stand in line for 100 days, that's your choice.

If a dealer chooses to not go with an 8 day process, that's their choice, and they can opt for the safer route and probably lose some business to the 8 day dealers.

Freedom of choice is your friend. No need to knock those who opt for the 100 day process, be they buyer or seller.

 

[hvymax]

Whatever you say about OMoney and his minions this was brilliant on his part. He gets his gun ban and creates an untenable position for the firearms industry. Release and be sued out of existence or don't release and loose your customers. Fing Genius!

 

[dblas]

I had typed out some long diatribe, but after reading it, it just made me sound whiny. I'm not. I sincerely appreciate the efforts that have been made on my behalf. I do believe there has been progress. I guess I just want to see more progress, as I'm sure we all do. I mean, is anyone happy with the wait?

So the direct answer to what would I like to see is this: A statement and a promise. Are they done fighting for on time release? If so, tell us. If not, tell us that too. And promise me that they are still taking action. That's it. As I stated earlier, the silence is deafening. Manage my expectations.

Again, I'm still on board, still a supporter, still a fighter for my rights, and still standing in brotherhood with the vast majority here.

That is actually a fair request.

On the "on time release" issue, I would bet that the issue is done, but will ask to see if MSI will do a final statement (it's never too late)

I would also bet that action is still being taken, plans being made for the Oct 1 date, plans for increased activities required of MSI, pre-planning for the next session in January. Again, a statement can't hurt, even a statement of "there is nothing new to report at this time."

 

[JADCecil]

So going from 2-3 FFLs releasing on the 8th day before the lawsuit to over 50 (about half of the total FFLs in the state) releasing on the 8th day isn't a win in your book?

How about having the MSP formally acknowledge that there is no liability from MSP to FFLs releasing on the 8th day?

How about the dealers association, who were party to the suit, taking an official position?

I do not have a dog in this fight at the moment as I have moved on to an 8 day FFL, well before my 101 or 102 day ND came back, but it seems that if a trade group has been party to a suit on behalf of its constituents then they should adopt a formal position. Unity in a community such as ours is what keeps this going, not taking a unified position hurts us all - shops, customers and, more fundamentally, the right to bear arms.

 

[dblas]

How about the dealers association, who were party to the suit, taking an official position?

I do not have a dog in this fight at the moment as I have moved on to an 8 day FFL, well before my 101 or 102 day ND came back, but it seems that if a trade group has been party to a suit on behalf of its constituents then they should adopt a formal position. Unity in a community such as ours is what keeps this going, not taking a unified position hurts us all - shops, customers and, more fundamentally, the right to bear arms.

How do you know they haven't, are you a dealer and a member? MLFDA is not a public organization, they represent dealers, not individual firearms owners.

And what position would you like that to be?

What would you like them to do for dealers that don't apply that position? How would you like them to enforce that action?

 

[fabsroman]

My doctor does not bill me for phone calls, filling out prescriptions, or writing lab orders. The lawyers I worked for billed for EACH and EVERYTHING they did. They charged for THINKING about your case.

Yeah, the NICU came in to check out my daughter when she was born because there was merconium in the fluid. That charge was $500 for 10 minutes.

Everybody bills differently. My policy is not to bill for a simple phone call for a simple question that I can address within that phone call IF the phone call is less than 10 minutes and IF the client has been a long term client or recently had his/her taxes prepared by me.

I try to be as reasonable as possible with my billing.

Thing is, time is money for attorneys. Kind of like an hourly employee not getting paid for the time he is actually on the clock. That would suck.

This is also what most people do not understand about attorneys. They do not understand how a 1 page letter can take 3 hours to prepare, because they do not understand document review, research, or even drafting.

End of the day, I am willing to bet that the average medical doctor salary is higher than the average attorney salary, but I could be wrong. Do not have any hard facts to support that allegation.

 

[Bisleyfan44]

My two cents:

"Enough" dealers have taken whatever risk still exists to move toward an 8 day release, that buyers have plenty of options to use those 8 day dealers.

If you choose to not use them, and instead use a dealer and stand in line for 100 days, that's your choice.

If a dealer chooses to not go with an 8 day process, that's their choice, and they can opt for the safer route and probably lose some business to the 8 day dealers.

Freedom of choice is your friend. No need to knock those who opt for the 100 day process, be they buyer or seller.

I agree; if you start the process with a "non-releaser" now, you get what you get. The problem is all the guns sitting in the shops of "non-releasers" that were there in limbo before the advent of all the "8-day release" dealers starting to release.

I have 3 at one dealer's shop who doesn't release early. The oldest is @ day 92, the youngest at just over a month. All were there before the 8 dayers started popping up everywhere. Believe me, any future business I have with an FFL will be with an 8-dayer, even if the business has nothing to do with a transfer.

I'm done with my current dealer. He's transferred 6-7 guns for me (not counting the 3 there now) in the last couple of years with no hassle, he's a great guy as a person. But when he's seen the ND history I've had with him and that I'm a DC who's supposedly been "checked out" to a greater degree, and he still won't release on time, I don't know what to think. I can just assume he doesn't care about my business and that's fine, I'll find a dealer that does. Lesson learned the hard way

No ill will intended on anybody getting their guns "on time", that's great and I wish I was them! It's just a bit like salt on the wound seeing people picking up guns they just did paperwork on 8-10 days ago while my soonest probably won't be here for another week or more and the newest not until Thanksgiving.

Alright, I'm done whining I think

 

[Clovis]

Whatever you say about OMoney and his minions this was brilliant on his part. He gets his gun ban and creates an untenable position for the firearms industry. Release and be sued out of existence or don't release and loose your customers. Fing Genius!

I would think you should not underestimate how brilliant. Start doing some math...how many regulated firearms have been sold since this started? Each gets a $15.00 fee,right? What's the average price, at least $850.00? Millions of unexpected sales tax revenue=happy politicians. Hard cold cash the life blood of big government. Not to mention what Obummer can get through Pittman-Roberson.

 

[deesly1]

It was told to me, by a friend of mine, who is an FFL, that without a NICs number he is putting his license at risk by releasing early. The ATF has made a deal with the MSP that all regulated firearms, that is firearms which the MSP say are regulated in this state, are to go through the MSP only. Other free states like PA, VA, etc., the FFL does all NICs inquiries instantly. The MSP is telling FFL's that you can release after 7 days but you take responsibility for the firearm. Contrary to that, it is an absolute no-no for FFL to release, by Federal law without a NICs #. Therefore if the FFL can not only lose the ability to sell in MD but across the country, if the Feds see they are doing this. As per my friend the MSP send memoranda's to the FFL on a weekly basis that contradict what the public is hearing. Once again this is per my friend who is an FFL.

It is not the FFL's fault it is the MSP that has created a new class of firearm, passes a law as to their time of release and then infringes on constitutional rights to have them. It is the MSP which need to be tired in federal court for breaking Civil Rights! MSI should have never dropped their law suit!