In re McCloy

321 A.3d 748

488 Md. 326

In the MATTER OF Mark MCCLOY

No. 10, Sept Term, 2023

Supreme Court of Maryland.

August 20, 2024

West Codenotes

Recognized as Unconstitutional

Md. Code Ann., Public Safety § 5-117.1

Circuit Court for Queen Anne’s County, Case No.: C-17-CV-21-000138, Karen A. Murphy Jensen, Judge.

Argued by Dillon Harris (Civil Rights Defense Firm, P.C., Bechtelsville, PA), on brief, for Petitioner.

Argued by Mark H. Bowen, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Pikesville, MD), on brief, for Respondent.

Argued before: Fader, C.J., Watts, ^* Hotten, Booth, Biran, Gould, Eaves, JJ.

Gould, J.

Maryland regulates the purchase, sale, and possession of "regulated firearms." Md. Code Ann., Pub. Safety ("PS") §§ 5-101 to -148 (2003, 2022 Repl. Vol., 2023 Supp.).¹ Regulated firearms include handguns and certain "assault weapons or their copies[.]" PS § 5-101(r)(2). To buy one, you must submit a firearm application to be reviewed by the Maryland State Police ("MSP"). The MSP must deny your application if you have been convicted of a "disqualifying crime," a term defined by PS § 5-101(g). If the MSP does not deny your application within seven days, you may proceed with your purchase. If the MSP timely rejects your application, you may pursue an administrative review and, if you lose there, you may seek a judicial review.

Determining whether a prior conviction in Maryland is a "disqualifying crime" under PS § 5-101(g) is straightforward. But that is not necessarily true if the conviction is from out-of-State²: An out-of-State conviction is disqualifying if the conviction is for a crime that is equivalent to a Maryland disqualifying crime under PS § 5-101(g). The issue in this case is how to determine whether an out-of-State crime is equivalent to a Maryland disqualifying crime.

I

A

To buy a handgun in Maryland, you must first obtain a handgun qualification license ("HQL") from the MSP. PS § 5-117.1.³ To qualify, you must be at least 21 years old, pass an MSP-approved firearms safety course, and reside in Maryland. PS § 5-117.1(d)(1)-(3). You will be denied an HQL if you are barred from buying or possessing a handgun under a "federal or State law." PS § 5417.1(d)(4). Maryland law prohibits you from possessing a regulated firearm if, among other things, you have been convicted of a "disqualifying crime." PS § 5-133(b)(1). A "disqualifying crime" is: "(1) [A] crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years." PS § 5-101(g). Upon receipt of a completed application, the MSP has 30 days to issue an HQL or provide a written explanation for its denial. PS § 5417.1(h); COMAR 29.03.01.32. An HQL is valid for ten years and is renewable. PS § 5-117.1(j).⁴

The HQL is just the first step. Before you can buy a specific handgun, you must complete a firearm application and submit it to the seller, a "licensee," which in turn submits it to the MSP.⁵ PS §§ 5-117, 5-118(a)(1).⁶ The firearm application requires that you provide information about the firearm to be "purchased, rented, or transferred" and detailed personal information. PS § 5-118(b).⁷ And you must represent under penalty of perjury that, among other things, you have "never been convicted of a disqualifying crime[.]" PS § 5-118(b)(3)(ii).⁸

Upon receipt of the application, the MSP "shall conduct an investigation promptly to determine the truth or falsity of the information supplied and statements made in the firearm application." PS § 5-121(a). The MSP "shall disapprove" your application if it "determines that [you] supplied false information or made a false statement" on it.⁹ PS § 5422(a)(1). So, if you have a "disqualifying crime" lurking in your past but represent otherwise on your application, the MSP will have at least two reasons to disapprove your application: (1) you committed a disqualifying crime, PS § 5-133(b)(1); and (2) you "supplied false information or made a false statement" on your application, PS § 5422(a)(1).

The MSP has only seven days from receipt of the application to disapprove the application. PS § 5422(b)(1); see also COMAR 29.03.01.13A. If the MSP disapproves the application, it must notify the seller in writing within the seven-day period, and then it must notify you. PS § 5-122(b)(1), (2). But no news is good news: If the MSP does not disapprove your applica- tion within the seven-day waiting period, you have 90 days to buy your firearm.¹⁰ PS § 5423(b).

Now that you’ve bought a handgun, if you want "to carry, wear, or transport" it, you will need to apply to the MSP for a "permit." PS § 5-301(c); see also PS § 5-303. As with the HQL and firearm application, the MSP must deny your permit application if you have been convicted of a "disqualifying crime." PS § 5-306(a)(10)(ii).

To sum up: (1) To be eligible to buy a handgun, you must obtain an HQL; (2) to buy a specific handgun, you must submit a firearm application and wait seven days; if not disapproved within that time, you have 90 days to complete the transaction; and (3) to wear, carry, or transport your handgun, you need to apply for and receive a permit. All three government-issued approvals must be denied if you have a conviction for a disqualifying crime on your record. This case is about the disapproval of the second application: the firearm application.

B

Petitioner Mark McCloy obtained an HQL in 2015 and subsequently purchased four handguns. On February 8, 2021, he submitted a firearm application to buy another handgun.¹¹ He stated on his application that he had never been convicted, in Maryland or elsewhere, of a misdemeanor that, under Maryland law, carries a maximum penalty of more than two years. As previously noted, a misdemeanor carrying such a sentence is a disqualifying crime under PS § 5401(g)(3).

The MSP’s criminal background check revealed that, in 1999, Mr. McCloy had been charged with witness tampering under 18 U.S.C. § 1512(b) but was convicted, following a guilty plea, under 18 U.S.C. § 1512(c)(1).¹² The MSP determined that 18 U.S.C. § 1512(c)(1) was a disqualifying crime and timely informed the licensee and Mr. McCloy that it disapproved his application. The notice provided no explanation, but in an informal email exchange that followed, the MSP told Mr. McCloy that 18 U.S.C. § 1512(c)(1) was disqualifying because it was comparable to a disqualifying crime in Maryland—Md. Code Ann., Crim. Law ("CR") § 9-302 (2002, 2021 Repl. Vol.).

C

An aggrieved applicant has 30 days after receipt of the disapproval notice to request a hearing before the MSP. PS § 5-126(a)(1). The hearing must be conducted under the contested case provisions of Title 10, Subtitle 2 of the State Government Article. PS § 5426(b); see also Md. Code Ann., State Gov’t ("SG") § 10-202(d) (1984, 2021 Repl. Vol.).¹³ The Office of Adminis- trative Hearings ("OAH") conducts the hearing. SG §§ 10-202(f), 10-205(a)(1). The hearing’s presiding officer, an Administrative Law Judge ("ALJ"), reviews "all information available to the [MSP] which formed the basis for the decision to disapprove the application, as well as any additional information that may be required by the State, the [ALJ], or other sources." COMAR 29.03.01.22E. Unless otherwise provided by law, the MSP must establish by a preponderance of the evidence that the disapproval was proper. SG § 10-217; COMAR 28.02.01.21K(1); COMAR 29.03.01.22H.

Mr. McCloy timely appealed the MSP’s decision to the OAH. Two days before the hearing, the MSP told him that, for purposes of determining whether his conviction under 18 U.S.C. § 1512(c)(1) was disqualifying, the MSP was comparing it to CR § 9-305,¹⁴ not CR § 9-302. Mr. McCloy did not object to the timing of that notice.

At the hearing, the MSP explained that in determining whether an out-of-State conviction disqualifies an applicant, it first determines whether Maryland has an equivalent statute and if so, whether that statute meets the definition of "disqualifying crime." The MSP then compares the elements of the out-of-State statute with the elements of the potentially equivalent Maryland crime, but it does not consider the facts supporting the conviction. Here, the MSP consulted counsel from the Attorney General’s office in determining that CR § 9-305 was the appropriate equivalent Maryland crime. In both the testimony and argument phases of the hearing, the MSP maintained that the facts behind the out-of-State conviction are irrelevant to the analysis.

In response, Mr. McCloy submitted an affidavit from the attorney who handled his 1999 federal case, explaining the factual circumstances of that matter, a subject Mr. McCloy also covered in his testimony. According to Mr. McCloy, the charges against him stemmed from a sexual en- counter that he, then a government employee, had with a coworker. The coworker filed a sexual harassment complaint with the Equal Employment Opportunity Commission ("EEOC"). In a conversation tape-recorded by the FBI, Mr. McCloy agreed to pay the coworker to dismiss the complaint. Mr. McCloy was arrested and subsequently charged with 18 U.S.C. § 1512(b)—a felony that carried a maximum penalty of ten years’ imprisonment. Ultimately, Mr. McCloy pleaded guilty to 18 U.S.C. § 1512(c)(1), a misdemeanor that had a maximum penalty of no more than one year’s imprisonment. Mr. McCloy was fined $2,000 and sentenced to six months of home detention and five years of probation.

In addition to introducing evidence explaining the factual circumstances of his conviction, Mr. McCloy also argued that 18 U.S.C. § 1512(c)(1) was not comparable or equivalent to CR § 9-305, either on the elements or when the facts were considered. Mr. McCloy argued that, as a matter of law, CR § 9-305 could not be comparable to 18 U.S.C. § 1512(c)(1) because CR § 9-305 was not enacted until after his federal conviction.¹⁵

In a ten-page decision, the ALJ affirmed the MSP’s...