Woollard v. Sheridan, Civil Case No. L–10–2068.

863 F.Supp.2d 462

Raymond WOOLLARD, et al., Plaintiffs

v.Terrence SHERIDAN, et al., Defendants.

Civil Case No. L–10–2068.

United States District Court, D. Maryland.

March 2, 2012.

Memorandum Denying Motion for Stay Pending Appeal July 23, 2012.

Held Unconstitutional

West's Ann.Md.Code, Public Safety, § 5-306(a)(5)(ii).

Alan Gura, Gura and Possessky PLLC, Alexandria, VA, Cary Johnson Hansel, III, Joseph Greenwald and Laake PA, Greenbelt, MD, for Plaintiffs.

Matthew John Fader, Maryland Office of the Attorney General, Nicholas G. Stavlas, Hogan Lovells U.S. LLP, Baltimore, MD, Elizabeth Ann Dater Katz, Covington and Burling LLP, Washington, DC, for Defendants.

MEMORANDUM

BENSON EVERETT LEGG, District Judge.

This case calls upon the Court to determine whether the State of Maryland's handgun regulation statute violates the Second Amendment to the United States Constitution insofar as it requires an applicant to demonstrate “good and substantial reason” for the issuance of a handgun permit. Plaintiffs Raymond Woollard and The Second Amendment Foundation ¹ bring suit against Terrence Sheridan, Secretary of the Maryland State Police, and three members of the Maryland Handgun Permit Review Board. The facts of the case are undisputed, and both sides have moved for summary judgment. See Docket Nos. 21 and 25.² The issues have been comprehensively briefed and the Court has heard oral argument.

Because the “good and substantial reason” requirement is not reasonably adapted to a substantial government interest, the Court finds this portion of the Maryland law to be unconstitutional. Woollard is entitled to summary judgment.

I. BACKGROUND

The state of Maryland prohibits the carrying of a handgun outside the home, openly or concealed, without a permit. SeeMd. Code Ann., Crim. Law § 4–203; Md. Code Ann., Pub. Safety § 5–303.³ The Secretary of the State Police (“Secretary”) is required to issue permits, but only to individuals who meet certain enumerated conditions. An applicant must establish that he has not been convicted of a felony or a misdemeanor for which a term of imprisonment greater than one year was imposed, has not been convicted of a drug crime, is not an alcoholic or drug addict, and has not exhibited a propensity for violence or instability. Of significance to this case, the Secretary must also make a determination that the applicant “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.” Md. Code Ann., Pub. Safety§ 5–306(a)(5)(ii).

In deciding whether the applicant has satisfied these criteria, the Handgun Permit Unit (“Permit Unit”), which reviews applications as the Secretary's designee, is required to take various factors into consideration. These include “the reasons given by the applicant as to whether those reasons are good and substantial,” “whether the applicant has any alternative available to him for protection other than a handgun permit,” and “whether the permit is necessary as a reasonable precaution for the applicant against apprehended danger.” Md.Code Regs. 29.03.02.04.

An individual whose permit application has been denied may appeal the decision to the Handgun Permit Review Board (the “Board”). Md. Code Ann., Pub. Safety, § 5–312. The Board may sustain, reverse, or modify the Permit Unit's decision. Id.

Plaintiff Raymond Woollard lives on a farm in a remote part of Baltimore County, Maryland. On Christmas Eve, 2002, Woollard was at home with his wife, children, and grandchildren when an intruder shattered a window and broke into the house. The intruder was Kris Lee Abbott, Woollard's son-in-law. Abbott, who was high on drugs and intent on driving into Baltimore city to buy more, was looking for his wife's car keys. Woollard grabbed a shotgun and trained it on Abbott, but Abbott wrested the shotgun away. Woollard's son restored order by pointing a second gun at Abbott. Woollard's wife called the police, who took two-and-a-half hours to arrive.

Abbott was convicted of first degree burglary and sentenced to three years' probation. He was later incarcerated after he violated his probation by assaulting a police officer and by committing another burglary.

In 2003, Woollard applied for, and was granted, a handgun carry permit. He was allowed to renew the permit in 2006, shortly after Abbott was released from prison.⁴ In 2009, however, when Woollard again sought to renew his permit, he was informed that his request was incomplete. He was directed to submit evidence “to support apprehended fear (i.e.—copies of police reports for assaults, threats, harassments, stalking).” Letter from M. Cusimano, Handgun Permit Section Supervisor, to Robert Woollard (Feb. 2, 2009), Pls.' Mot. Summ. J. Ex. A, Docket No. 12–3. Because Woollard was unable to produce evidence of a current threat, his application was denied.

Woollard appealed this decision, first through the Handgun Permit Unit's informal review procedures and eventually to the Board. On November 12, 2009, in a decision by Defendants Gallagher, Goldstein, and Thomas, the Board affirmed the denial of Woollard's application, finding that Woollard “ha[d] not submitted any documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun.” The Board concluded that Woollard “ha[d] not demonstrated a good and substantial reason to wear, carry or transport a handgun as a reasonable precaution against apprehended danger in the State of Maryland.” Pls.' Mot. Summ. J. Ex. D, Docket No. 12–6.

On July 29, 2010, Woollard filed the instant suit, arguing that Maryland's handgun permitting scheme is facially violative of both the Second Amendment and the Equal Protection Clause of the Fourteenth Amendment. He avers that, separate and apart from any concern he may have regarding Abbott, he wishes to wear and carry a handgun for general self-defense.

II. LEGAL STANDARD

The Court may grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (recognizing that trial judges have “an affirmative obligation” to prevent factually unsupported claims and defenses from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of material fact, the Court must view the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). Hearsay statements or conclusory statements with no evidentiary basis cannot support or defeat a motion for summary judgment. See Greensboro Prof'l Fire Fighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir.1995).

“When both parties file motions for summary judgment ... [a] court applies the same standard of review.” McCready v. Standard Ins. Co., 417 F.Supp.2d 684, 695 (D.Md.2006) (citing Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991)). Furthermore, “each motion [will be considered by a court] separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003).

III. ANALYSIS

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. These 27 words, so long untroubled by significant judicial scrutiny, have become newly fertile ground for interpretation following the Supreme Court's 2008 decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In brief, Heller presented the question whether the Second Amendment confers an individual right to bear arms, or protects only the right to possess and carry a firearm in connection with militia service. After a lengthy examination of the historical record, the Heller majority held that the Constitution guarantees “the individual right to possess and carry weapons in case of confrontation,” but left the contours of that right largely undefined. Id. at 592, 128 S.Ct. 2783. Two years later, in McDonald v. City of Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), the Supreme Court held that the Second Amendment's protections, whatever their bounds, apply fully to the States through the Fourteenth Amendment.

This case requires the Court to answer two fundamental questions. The first asks whether the Second Amendment's protections extend beyond the home, “where the need for defense of self, family, and property is most acute.” Heller, 554 U.S. at 628, 128 S.Ct. 2783. This question was left unanswered in Heller, and has not been authoritatively addressed in the Fourth Circuit's post-Heller decisions. Second, if the right to bear arms does extend beyond the home, the Court must decide whether Maryland's requirement that a permit applicant demonstrate “good and substantial reason” to wear or carry a handgun passes constitutional muster. In undertaking these inquiries, the Court is guided by the Fourth Circuit's recent opinion in United States v. Masciandaro, 638 F.3d 458 (4th Cir.2011), which helpfully laid the foundation for resolution of the case at bar.

A. Level of Scrutiny

The Supreme Court has traditionally chosen among three levels of scrutiny when examining laws challenged on constitutional grounds. The rational basis test presumes the law's validity and asks only whether the law is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living Ctr., ...