Novotny v. Moore - Challenge against aspects of SB 1 and current public carry restrictions
Maryland Shall Issue, the Second Amendment Foundation, the Firearms Policy Coalition, and three individuals have challenged SB 1. That bill passed this last Session of the General Assembly places many unconstitutional restrictions on the right to carry with a permit in Maryland. The case is styled Novotny v. Moore and has been consolidated with Kipke v. Moore in federal district court in Baltimore. Kipke was brought by the Maryland State Rifle and Pistol Association. Plaintiffs in both cases have filed motions for preliminary injunctions and motions for summary judgment with the aim of stopping enforcement of certain restrictions placed by SB 1 by October 1st, the bill’s effective date. Briefing is ongoing in both cases and then the court will decide whether to hold an oral argument and simply move to the issuance of a decision. The court is not required to decide the case within any set time. We will provide updates of importance as they occur. Find all of the filings in both of these cases HERE.
On behalf of our members and in partnership with the Second Amendment Foundation and Firearms Policy Coalition, Maryland Shall Issue and three individual plaintiffs are challenging unconstitutional aspects of SB 1, the so-called “Gun Safety Act of 2023” in the US District Court for the District of Maryland. SB 1 effectively nullifies the "general right to carry in public" for carry permit holders confirmed by the Supreme Court's decision NYSRPA v. Bruen just this last June. It does so by banning firearms in a whole host of locations otherwise open to the public, including places like stores and shops, restaurants, museums, and healthcare facilities. The suit also challenges the general ban on possession of firearms on public transit owned or controlled by the State Mass Transit Administration and in the tens of thousands of acres of woodlands in State parks, State forests, and State Chesapeake forest lands. We have every confidence that we will prevail in whole or in part in this suit.
Enforcement of SB 1 Preliminarily Enjoined In Part: On September 29, 2023, a federal district court enjoined enforcement of (1) that part of SB1 that presumptively banned carry by permit holders in privately owned buildings otherwise open to the public (2) that part of SB1 that flatly banned (except by the owner) firearms in locations licensed to serve alcohol for on-site consumption, and (3) that part of existing State law that banned firearms within 1000 feet of a demonstration. The Court's opinion can be found HERE and the Court's order can be found HERE.
A guide on the effects of the recent changes to legal handgun carry in Maryland can be found HERE.
On the morning of May 3, 2021, Jeff Hulbert passed away after a courageous fight against cancer. On the morning of May 3rd, 2023, his brothers, Kevin and Clayton Hulbert, will be before the US Court of Appeals for the Fourth Circuit in the State’s appeal of a lower court decision that denied qualified immunity for an officer who arrested Jeff and Kevin for exercising their First Amendment rights on the public sidewalk in front of Lawyer’s Mall in 2018. The questions presented on appeal are whether the district court correctly denied qualified immunity for those arrests and whether First Amendment protects right to record the police and, if so, whether that right was “clearly established” for purposes of qualified immunity. Second Amendment rights cannot be defended without advocacy protected by the First Amendment. Cary Hansel will argue on behalf of the Hulberts and Maryland Shall Issue. The Fourth Circuit will stream audio of the oral argument live HERE (and below). There is one case ahead of Hulbert at 9am, which puts the start of oral argument sometime around or after 9:30am. Visit the case page HERE to learn more about this suit.
On September 30th, 2016, Maryland Shall Issue filed suit against Maryland’s enforcement of its Handgun Qualification License (HQL) requirement for the purchase of handguns. After over six years of litigation, the US Court of Appeals for the Fourth Circuit will hear argument against the HQL on its merits on Friday (3/10) in Richmond, VA at 8:30am. Marc A. Nardone of Bradley law firm is arguing on behalf of the plaintiffs. We look forward to promoting and defending Marylanders’ 2nd Amendment rights before the Court.
The hearing can be listened to from the 4th Circuit’s YouTube page HERE.
Find all of the important documents on our case page HERE.
It is now practically impossible for anyone other than active police officers and security guards to lawfully carry a firearm for personal defense in public within Montgomery County.
MSI disagrees strongly with the court’s opinion and will file a notice of appeal to the United States Court of Appeals for the Fourth Circuit. In the meantime, we note that the county has repeatedly refused to suspend enforcement while the court challenges are pending. The county is thus free to enforce the ordinance at any time it so chooses. You can read more on the effects of Bill 21-22E HERE.
Separately, the parallel state claims presented in this suit are progressing before Montgomery County Circuit Court. The County has filed a motion for summary judgment in State court and, on July 5, 2023, plaintiffs have filed a cross-motion for summary judgment. You can find those pleadings HERE under Circuit Court for Montgomery County Case # 485899V. Briefing on these motions will continue into the fall.
Find all of the federal and state court briefings at the case page HERE.
We will provide further updates as appropriate.
On 11/28/2022, Montgomery County Executive Marc Elrich signed Bill 21-22E into law. The Bill goes into effect immediately. The Bill has now banned the possession, transport, sale or transfer of any firearm in countless locations across Maryland's most populous county. It is now legally very risky to carry a firearm in Montgomery County with a wear and carry permit. Bill 21-22E repealed the prior exemption for permit holders and then imposes its bans on a long list of locations, including within 100 yards of such locations. It is simply impossible, as a practical matter, to possess and transport a firearm in the County in public with a wear and carry permit in compliance with the County's gun laws. That is because it is nearly impossible to move around the County without entering one or more of the many 100-yard exclusion zones enacted by Bill 21-22E.
Literally, the entire urban area and many areas in the rural segments of Montgomery County are now off-limits for carry by permit holders, including Interstate 495 and Interstate 270 and Route 355 as well as the other major roads, highways and countless neighborhoods in the County. With the enactment of Bill 21-22E, carrying with a permit in the County will expose the permit holder to arrest and prosecution not only under County law (6 months imprisonment and a fine) but also to arrest and prosecution under MD Code, Public Safety, § 4-203(a), a violation of which is punishable by up to three years imprisonment and a fine. That is because the permit is not valid where firearms are prohibited by law (check the back of the permit). A conviction under Section 4-203(a) creates a lifetime disqualification from the possession of a firearm or ammunition under both federal and state law.
The day after Bill 21-22E went into effect, MSI responded to the bill's enactment by amending its existing lawsuit against the County in federal district court. Though the County Executive and Council may believe and pretend otherwise, Marylanders have a right to carry firearms for their personal defense in public. We have moved quickly to urge the Court to resolve the matter on an emergency basis by asking for leave to file a motion for an emergency TRO and preliminary injunction. Once leave is granted, that motion will be filed and, we hope, adjudicated expeditiously. Stay tuned.
With the bill's signature, it is now criminal to possess, sell, transfer, transport, or carry a firearm, with or without a carry permit, in or within 100 yards of any publicly or privately owned:
park
place of worship
school
library
recreational facility
hospital
community health center, including any health care facility or community-based program licensed by the Maryland Department of Health
long-term facility, including any licensed nursing home, group home, or care home
multipurpose exhibition facility, such as a fairgrounds or conference center
childcare facility
Bill 21-22E also criminalize firearms possession, transport, sale or transfer by any person (including permit holders) at or within 100 yards of a:
government building, including any place owned by or under the control of the County
polling place
courthouse
legislative assembly, and
a gathering of individuals to collectively express their constitutional right to protest or assemble
This includes "all property associated with the place, such as a parking lot or grounds of a building." Essentially, roughly a football field's distance extends in every direction from all of these places and their grounds.
The exceptions are narrow. The [brackets] indicate where language exempting permit holders was removed by Bill 21-22E:
The bill also amended the County's ordinance concerning privately made firearms, in an (unsuccessful) attempt to make the County's existing ban on such firearms consistent with state and federal law concerning privately made firearms (which the County insists on mischaracterizing as "ghost guns"). Bill 21-22E squarely violates the Second Amendment in multiple ways under the Supreme Court's decision in Bruen and conflicts with State and federal laws governing privately owned firearms.
Stay tuned for further developments.
MSI cannot take on any of these challenges without your support. Don't be a free rider. Join or donate to MSI today.
“Over the course of my administration, I have consistently supported the right of law-abiding citizens to own and carry firearms, while enacting responsible and common sense measures to keep guns out of the hands of criminals and the mentally ill.
“Last month, the U.S. Supreme Court struck down a provision in New York law pertaining to handgun permitting that is virtually indistinguishable from Maryland law. In light of the ruling and to ensure compliance with the Constitution, I am directing the Maryland State Police to immediately suspend utilization of the ‘good and substantial reason’ standard when reviewing applications for Wear and Carry Permits. It would be unconstitutional to continue enforcing this provision in state law. There is no impact on other permitting requirements and protocols.
“Today’s action is in line with actions taken by other states in response to the recent ruling.”
In response, the Maryland State Police provided this advisory:
The Maryland State Police Licensing Division is in the process of updating the Licensing Portal to reflect these changes. Until these updates are complete, applicants submitting a Wear and Carry Permit application are directed to select “Personal Protection / Category Not Listed Above” as their “Handgun Permit Category”. Applicants are not required to attach documents to the “PERSONAL PROTECTION DOCUMENTATION” section on the “Upload Documents” page of the Wear and Carry Permit application.
We welcome the Governor's order and the decision to comply with the Supreme Court's decision in Bruen. For the first time in decades, ordinary responsible, law-abiding citizens in Maryland will have their Second Amendment right for self-defense outside the home respected. We stress that permit holders, nationwide, are the most law-abiding persons there are, with crime rates far below that of commissioned police officers. The Second Amendment is not a threat to the public. It protects the right of self-defense and that protection is fully consistent with public safety.
For everything on how to apply for a Maryland Wear and Carry permit, check out our in-depth guide HERE.
We are pleased and gratified that Maryland's "good and substantial reason" requirement will no longer be enforced. MSI has pushed for that result for as long as it has existed and the Supreme Court has now confirmed that carry outside the home by responsible, law-abiding citizens is a fundamental constitutional right. At last, Marylanders will be treated like people in other "shall issue" jurisdictions, like the residents of 43 other States and the District of Columbia.
On June 23, 2022, the United States Supreme Court issued its decision in New York State Rifle and Pistol Association (NYSRPA) v. Bruen, striking down as unconstitutional New York's "proper cause" requirement for issuance of a permit to carry a handgun in public. That decision is directly applicable to Maryland's "good and substantial reason" requirement for the issuance of Maryland carry permits. MD Code, Public Safety, 5-306(b)(6)(ii). As Bruen now holds, the Maryland State Police (MSP) may not require any "good and substantial reason" before issuing a permit. The decision makes clear that law-abiding, responsible adults have a constitutional right to protect themselves beyond their homes with a handgun, which is the "quintessential self-defense" weapon, as the Supreme Court held in District of Columbia v. Heller (2008). While we believe that the Court's holding in Bruen is clear, MSI is currently a party in Call v. Jones, which is a federal court challenge to the "good and substantial reason" requirement. This case is currently before the US Court of Appeals for the Fourth Circuit and was being held in abeyance (on pause) pending the outcome of Bruen. Now that Bruen has been decided, that case will proceed. Indeed, the Fourth Circuit has just issued an order setting a briefing schedule in that appeal.
Maryland has a blanket ban on the carriage and transport of handguns within the state, with exceptions. One of those exceptions is for those who've been issued a license, known as a Wear and Carry Permit, which is required to be able to lawfully carry a handgun in public. State law prohibits the open carry of handguns for permit holders, so they must be carried concealed. This permit is described in State law under Maryland Public Safety Article §§ 5-301 through 5-314 and is issued by the Maryland State Police (MSP) through its Licensing Division (MSPLD). The Licensing Division follows its own Standard Operating Procedures for how permits are issued and managed. Applicants for a permit must satisfy several requirements before being considered qualified. The process typically takes between 60 to 90 days for most applicants. Maryland permits are valid for two years plus until the applicant's birth month for the first permit and for three years for renewals.
The Maryland State Police Licensing Division (MSPLD) issues permits to applicants in accordance with Md. Public Safety Art. § 5-306. Generally, this includes all responsible, law-abiding persons not prohibited by state or federal law from possessing firearms (with exceptions) and of at least 21 years of age and who complete the State's requirements. The right to carry a handgun for self-defense is sufficient reason to apply for an unrestricted permit. Permit applicants must submit completed applications through the Maryland State Police Licensing Portal. That Portal allows the applicant to include proof of training or exemption, fingerprints, passport-style photo, and $125 non-refundable fee. Use of the Portal does require one to have an email address. Maryland does issue permits to residents of other states, but they must be trained (or training exempt) by an MSP Qualified Handgun Instructor and must be LiveScan fingerprinted by an entity in Maryland and meet the other requirements applicable to residents.
(a) Subject to subsections (c) and (d) of this section, the Secretary shall issue a permit within a reasonable time to a person who the Secretary finds: (1)(i) is at least 21 years old; or (ii) is a person who is a member of the armed forces of the United States, the National Guard, or the uniformed services; (2)(i) has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than 1 year has been imposed; or (ii) if convicted of a crime described in item (i) of this item, has been pardoned or has been granted relief under 18 U.S.C. § 925(c); (3) has not been convicted of a crime involving the possession, use, or distribution of a controlled dangerous substance; (4) is not on supervised probation for: (i) conviction of a crime punishable by imprisonment for 1 year or more; (ii) a violation of § 21-902(b) or (c) of the Transportation Article; or (iii) violating a protective order under § 4-509 of the Family Law Article; (5) is not presently an alcoholic, addict, or habitual user of a controlled dangerous substance unless the habitual use of the controlled dangerous substance is under legitimate medical direction; (6) does not suffer from a mental disorder as defined in § 10-101(i)(2) of the Health--General Article and have a history of violent behavior against the person or another; (7) has not been involuntarily admitted for more than 30 consecutive days to a facility as defined in § 10-101 of the Health--General Article; (8) is not a respondent against whom: (i) a current non ex parte civil protective order has been entered under § 4-506 of the Family Law Article; (ii) a current extreme risk protective order has been entered under § 5-601 of this title; or (iii) any other type of current court order has been entered prohibiting the person from purchasing or possessing firearms; (9) except as provided in subsection (b) of this section, has successfully completed prior to application and each renewal, a firearms training course approved by the Secretary that meets the minimum criteria specified in subsection (a-1) of this section; and (10) based on an investigation: (i) has not exhibited a propensity for violence or instability that may reasonably render the person's possession of a handgun a danger to the person or to another; and (ii) is not otherwise prohibited by State or federal law from purchasing or possessing a handgun.
Applicants under the age of 30 face extra scrutiny, as imposed by § 5-306(c)
(c) An applicant under the age of 30 years is qualified only if the Secretary finds that the applicant has not been: (1) committed to a detention, training, or correctional institution for juveniles for longer than 1 year after an adjudication of delinquency by a juvenile court; or (2) adjudicated delinquent by a juvenile court for: (i) an act that would be a crime of violence if committed by an adult; (ii) an act that would be a felony in this State if committed by an adult; or (iii) an act that would be a misdemeanor in this State that carries a statutory penalty of more than 2 years if committed by an adult.
Violations of § 4-104 can also prevent issuance of a carry permit, as outlined in § 5-306(d)
(d)(1) The Secretary may not issue a permit to a person if the person: (i) has been convicted on or after October 1, 2023, of a second or subsequent violation of § 4-104 of the Criminal Law Article; or (ii) has been convicted on or after October 1, 2023, of a violation of § 4-104 of the Criminal Law Article if the violation resulted in the use of a loaded firearm by a minor causing death or serious bodily injury to the minor or another person. (2) Subject to paragraph (1) of this subsection, the Secretary may not issue a permit to a person who has been convicted on or after October 1, 2023, of a violation of § 4-104 of the Criminal Law Article for 5 years following the date of the conviction.
Maryland Wear and Carry Permit Training must be completed before submission of an application. Under Md. Public Safety Art. § 5-306(a-1) and COMAR Sec. 29.03.02.05, these classes must incorporate the curriculum provided by the Maryland State Police and be taught entirely in person (virtual classes are prohibited). Unless otherwise exempt from the training requirements, an applicant must get this training from an MSP Qualified Handgun Instructor and complete a 16-hour training course for an initial application with a minimum 70% accuracy rating by the applicant in the live fire portion of the class. These classes often run anywhere from $250 to $400 and up. An 8-hour course will be required upon renewal of an issued permit. Training certificates are valid for up to three years from course completion.
(b) An applicant for a permit is not required to complete a certified firearms training course under subsection (a) of this section if the applicant:
(1) is a law enforcement officer or a person who is retired in good standing from service with a law enforcement agency of the United States, the State, or any local law enforcement agency in the State; (2) is a member, retired member, or honorably discharged member of the armed forces of the United States or the National Guard; (3) is a qualified handgun instructor; or (4) has completed a firearms training course approved by the Secretary.
Note that law enforcement officers of another State are NOT exempt, only federal and Maryland law enforcement officers are exempt. The Maryland State Police have a list of Instructors HERE, but we also encourage you to visit our 2A-Friendly Businesses section for available lessons from entities that support MSI by becoming Corporate Members. Click on the "Firearms Instruction" tab.
A current firearms instructor who'd like to become an MSP Qualified Handgun Instructor and provide the Wear and Carry Course can submit their credentials through the MSP's website HERE. Once a certificate is returned by the MSP, the instructor will be able to provide Maryland courses and will be listed publicly on their website. Basically, any NRA-certified instructor for the Basic Pistol class can qualify.
Applications for Wear and Carry Permits can only be submitted online via the Maryland State Police Licensing Portal. Applications can be started at any time but may be submitted only after all requirements are fulfilled and the application is complete. All applicants must have a valid email address, as the State Police do not accept paper applications. Here are the steps:
As outlined in the Training section, complete the training or prepare proof of training exemption (scanned copies of documents in filetypes .pdf, .jpg, .jpeg, .png, .doc, and .docx)
Tab over to "HGP Applications" and select the green "START NEW HGP APPLICATION" button
Under "Handgun Permit Category," select "Personal Protection," (unless of course you are applying as related to law enforcement) then underneath select which type of application this is (New, Renewal, Modification, etc... MSP describes the application types HERE)
Complete the "Application Questionnaire" in full. At Question 15, "Reason for a Handgun Permit," enter "Self-Defense."
Continue filling out the application in full
Provide LIVESCAN fingerprints TCN/PCN code (The prints MUST be for a Wear and Carry Permit (AKA Handgun Permit) and from an authorized entity by the MD Dept. of Public Safety and Correctional Services. LiveScan prints for other purposes do not suffice and the prints are not currently interchangeable.)
At the "Documents" section, upload your passport-style photo, and certificate of training completion or exemption. We recommend attaching a scanned copy of your Livescan receipt.
There is no need to upload documentation substantiating "self-defense"
Complete the application, pay the requested fee using a credit card, and submit.
NOTE: For any applicant who has not received their account activation/confirmation email or their forgot password email in the Licensing Portal: Click "LOG IN" on the Portal home page and then click "FORGOT PASSWORD?" on the Account Log In page. Then enter your email address and click "SUBMIT". You should receive your respective email shortly thereafter.
The State Police may take up to and could exceed 90 days before deciding on whether or not to issue a permit. Md. Public Safety § 5-306(a) states that the Maryland State Police shall issue a permit within a "reasonable timeframe" and § 5-312(a)(2) provides:
(2) A person whose application for a permit or renewal of a permit is not acted on by the Secretary within 90 days after submitting the application to the Secretary may request a hearing before the Office of Administrative Hearings by filing a written request with the Secretary and the Office of Administrative Hearings.
Please note, wear and carry permit applications can take up to 90 days to process. If your application has been submitted for more than 90 days, please contact the Handgun Permit Unit for further instructions.
The Handgun Permit Unit personnel will: a. ensure all permits are issued in accordance with: 18 U.S.C. §922(g) (1-9), Annotated Code of Maryland, Public Safety Article, Title 5, Sub-Title 3, Annotated Code of Maryland, Public Safety Article §5-133 and the Code of Maryland Regulations, Title 29.03.02. b. within three business days of receipt, applicable applications will be forwarded to the Administrative Investigation Unit, to conduct a background investigation, as required in the Annotated Code of Maryland, Public Safety Article, §5-306. c. ensure all applicants meet the requirements outlined in the Annotated Code of Maryland, Public Safety Article, §5-306. d. ensure approval or denial of all initial applications within 90 days of the receipt of an accepted application. e. ensure approval or denial of all renewal applications within 45 days of the receipt of an accepted application. f. track all applications, initial and renewal, to ensure issuance within 90 days or 45 days respectively. g. act as the liaison between the Licensing Division, the Handgun Permit Review Board* and the Office of Administrative Hearings. h. maintain all records, and track all decisions issued by the Handgun Permit Review Board* and the Office of the Administrative Hearings.
*The Handgun Permit Review Board no longer exists. It was legislatively repealed in 2018.
(d) The Secretary may issue a handgun qualification license, without an additional application or fee, to a person who:
(1) meets the requirements for issuance of a permit under this section; and
(2) does not have a handgun qualification license issued under § 5-117. 1 of this title.
If you do not already have a Maryland Handgun Qualification License (HQL), the license Maryland requires to be able to purchase handguns, you can request one from the MSP at no added cost, without needing to provide fingerprints again, and without further training after being issued a Wear and Carry Permit. The State Police have a separate portal for applying for the HQL here: https://emdsp.mdsp.org/egov/Home.aspx.
Create an account and then when applying, make the following selections pictured below and click "Start Application"
With respect to the Wear and Carry Permit, on 7/22/2022, the State Police issued an update on their efforts to meet the increased demand for permits and address many of the common problems encountered with incomplete applications.
MSI recommends applying for a $20 modification for a card explicitly without restrictions. Carry permit holders are still exceedingly rare in Maryland and law enforcement agencies do not regularly encounter them. Being wrongfully detained is still a risk.
For those denied outright by the MSP, or if a permit contains unacceptable restrictions, options are available to seek the issuance or modification of a permit. Within 10 days of denial, one must appeal in writing to either the MSP to ask for an "Informal Review" or to the Maryland Office of Administrative Hearings (OAH). Appeals may also be taken to the OAH within 10 days of any decision of the MSP after an Informal Review.
Maryland State Police Informal Review The MSP will allow applicants to present any further information regarding their denial to more senior management within the Licensing Division. Unless provided significant new information at that time, it is unlikely MSP's initial decision will be affected.
Maryland OAH Formal Appeal OAH hearings are run by Administrative Law Judges (ALJs) and are quasi-formal trials with rules and procedures. These proceedings are "de novo" which means that additional evidence can be submitted at these hearings. In an OAH proceeding, the focus is on whether the MSP’s decision should be sustained and the applicant bears the burdens of proof and persuasion. The ALJ gives deference to the MSP’s determination. An attorney is not legally required but is necessary as a practical matter. Decisions of the ALJ can be appealed to circuit court.
(a) Except as provided in subsection (d) of this section, a permit expires on the last day of the holder's birth month following 2 years after the date the permit is issued.
Renewal of permit
(b) Subject to subsection (c) of this section, a permit may be renewed for successive periods of 3 years each if, at the time of an application for renewal, the applicant possesses the qualifications for the issuance of a permit and pays the renewal fee stated in this subtitle.
Permit holders use the Maryland State Police Licensing Portal just as they did for their initial application. Renewal costs $75 and requires that the permit holder take an 8-hour renewal training course, unless training exempt (all described here at (b)). Applicants do not need to submit fingerprints again.
MD Wear and Carry Permits are not valid where firearms are prohibited by law (see rear of permit). The State Police are continuing to create permits with this restriction and will not remove the text, despite the General Assembly's removal of the statutory authority to restrict when permits are valid when it passed SB 1 and HB 824
Any building or any part of a building owned or leased by the state or a local government - MD Code, Criminal Law, § 4-111 Note that a building owned or leased by the State or a local government "must display a clear and conspicuous sign at the main entrance of the building indicating that it is not permissible to wear, carry or transport a firearm" in the building or part of the building.
CURRENTLY ENJOINED FROM ENFORCEMENT Private buildings of all kinds unless the owner or owner's agent has posted a "clear and conspicuous sign stating that it is permissible to wear, carry or transport a firearm" on such property or has given a person "express permission" to do so on the property - MD Code, Criminal Law, § 6-411
Exceptions for places off-limits under § 4-111 and § 6-411 (newly enacted in 2023 by SB 1) Section 4-111 exceptions: - On private property, by persons authorized by the owner or lessee to wear and carry or transport a firearm for the purpose of employment as (1) a security guard OR (2) for the purpose of protecting any individual or property at the location with an express agreement between the parties, remuneration, or compensation. - On public property, at locations being used with the permission of the person or governmental unit that owns, leases, or controls the location for organized shooting activities for educational purposes, historical demonstrations using firearms, or hunting or target shooting -Firearms that are carried or transported in a motor vehicle if the firearm is locked in a container or handguns worn, carried, or transported in compliance with any limitations imposed under § 5-307 of the Public Safety Article by those who permits to wear, carry or transport handguns have been issued under Title 5, Subtitle 3 of the Public Safety Article. This does not affect transport of firearms under current law in areas unaffected by SB 1. -Law enforcement officials or police officers as defined under § 3-201 of the Public Safety Article -Members of the Armed Forces of the United States, the National Guard, or the Uniformed Services while on duty or traveling to or from duty -Members of an ROTC program while participating in an activity for an ROTC program -On-duty employees of a law enforcement agency authorized by the agency to possess firearms on duty or whose duty assignment involves the possession of firearms -Correctional officers or wardens of a correctional facility in the State -Railroad police officers appointed under Title 3, Subtitled 4 of the Public Safety Article -Employees of an armed car company, if acting under the scope of employment and has valid permits to wear, carry, or transport handguns issued under Title 5, Subtitle 3 of the Public Safety Article -Off-duty law enforcement officials or retired law enforcement officials in good standing from the United States, the State or another state, or a local unit in the State or another state who possesses a firearm if their badge or credential is carried in compliance with the requirements of the badge or credential and the firearm is carried or possessed by the official or person is concealed from view. (LEOSA)
Section 6-411 exceptions: - Law enforcement officers and police officers, as defined in Section 3-201 of the Public Safety Article (not retired LEOSA), - Members of the Armed Forces of the United States, while on duty or traveling to and from duty, - Correctional officers - The wearing, carrying or transporting on a portion of real property subject to an easement, a right of way, a servitude or any other property interest by (1) the holder of the interest or (2) the guest or assignee of the holder of the interest.
CURRENTLY ENJOINED FROM ENFORCEMENT Within 1,000 feet of a demonstration in a public place after being notified by law enforcement that guns cannot be carried - MD Code, Criminal Law § 4-208
An innkeeper may refuse to provide lodging or services to or may remove from a lodging establishment an individual where the innkeeper reasonably believes the individual possesses property that may be dangerous to other individuals, such as firearms or explosives - MD Code, Business Regulation, § 15-203(a)(6)
Captain, master or any person on board or having control of any dredge boat may not have or permit to be kept on the dredge boat more than two shotguns not larger than a number ten gauge and using shot not larger than number one - MD Code, Natural Resources, § 4-1013
Chesapeake Forest lands, except at designated shooting ranges and when legally hunting - COMAR 08.01.07.14
State Forests, except at designated shooting ranges and when legally hunting - COMAR 08.01.07.04
State Parks, except at designated shooting ranges and when legally hunting - COMAR 08.07.06.04
State Highway rest areas - COMAR 11.04.07.12 (the regulation bans display and discharge).
Any facility under the jurisdiction of the Maryland Racing Commission - COMAR 09.10.03.03(A)(10)
In child care centers, except for small centers located in residences - COMAR 13A.16.10.04
If under a proclaimed State of Emergency by the Governor when the Governor has issued orders, rules, or regulations controlling the possession, carry, use, and/or sale of firearms - MD Code, Public Safety, § 14-303(b)(8)
Additionally, MD Code, Criminal Law, § 4-209 gives local jurisdictions narrow authority to create their own prohibitions on where firearms may be carried or possessed and by whom. Check local jurisdictions' codes for any restrictions. MSI maintains an informational page containing links to county and local codes and ordinances HERE. Permit holders should be aware of MD Code, Criminal Law, § 4-206, which guides how law enforcement officers may determine whether an individual is armed legally.
Unlawfully carrying a handgun in violation of MD Code, Criminal Law, § 4-203(a)(1)(i) is also a strict liability crime, which means there is no requirement that the individual knowingly or willfully carried in violation of the law. For more on this, read our article on the recent Maryland Court of Appeals case Lawrence v. StateHERE.
Be aware that First Degree Assault includes the illegal threat with a firearm (sometimes called informally "brandishing"). See MD Code, Criminal Law, § 3-202(a)(2). Of course, if your life is truly imminently at risk or you are at imminent risk of great bodily harm, and you can meet the other elements of lawful self-defense (including the duty to retreat if outside the home, if a safe avenue of retreat is available), as defined in the MD case law, your attorney could assert a complete defense to the First Degree Assault charge.
The Rule: Don't pull it, and don't threaten with it, unless you would be otherwise justified in actually firing it. For First Degree Assault, the prosecutor need only show that the defendant used a firearm with an intent to frighten, that the defendant had the present ability to bring about physical harm and that the victim was aware of the threat. See Synder v. State, 210 Md.App.370, 382 (2013). First Degree Assault is a felony in Maryland and is punishable by up to 25 years in prison. The use of, or the threat of lethal force, should always be the last resort.
Maryland does not currently recognize the permits of any other state or American territory. MD Code, Public Safety, § 5-303 states:
A person shall have a permit issued under this subtitle before the person carries, wears, or transports a handgun.
Put simply, unless one has a permit issued by the Maryland State Police, they cannot carry a handgun legally in Maryland (not counting law enforcement or those who may carry a firearm under LEOSA). Residents of other states can apply for a Maryland, and those applications are now being treated no differently than they are for Maryland residents. But, again, applicants must be trained (or training exempt) by a MSP Qualified Handgun Instructor and must be LiveScan fingerprinted by an entity in Maryland. Many states do recognize Maryland permits and some states, like Pennsylvania, will issue a non-resident permit to a Maryland resident who holds a Maryland Wear and Carry permit. MSI strongly recommends obtaining such permits. See the HandgunLaw.us page for Maryland for more information on reciprocity.
It was not until 1809 that Maryland prohibited any carry of weapons, but that legislation criminalized only the carrying of a weapon “with the intent feloniously to assault any person.” Archives of Maryland 570:94. Any carry, concealed or open, with no permit required, was still legal as long as it was without felonious intent. In 1831, in reaction to the Nat Turner Rebellion in Virginia, Maryland enacted a statewide law that requires free blacks (only) to obtain a license from a local court for possession or carry (open or concealed) of firearms. Archives of Maryland 213:448. Maryland did not ban any type of carry for other citizens until 1866, when it banned concealed carry, but still allowed open carry. Archives of Maryland 389:468-9. This law was likely passed as a result of the assassination of President Lincoln in 1865, and the abolition of slavery at the 1864 Maryland Constitutional Convention. Since blacks could no longer be directly legislated against, the 1831 law was dropped and the concealed carry prohibition was made general – but could be selectively enforced.
In 1884, Maryland changed its law to once again permit concealed carry, providing that concealed carry was illegal only when arrested and charged with another crime. Archives of Maryland 390:522-3. That approach likewise allowed discriminatory enforcement. The most likely reason for this enactment was that it was thought that 1866 total ban was unconstitutional. In 1904, after more than 300 years of legal concealed carry for non-black Maryland citizens, with no permit required, concealed carry is again made illegal in Maryland, but this time with the exception for “carrying such weapon as a reasonable precaution against apprehended danger.” Archives of Maryland 209:4025-6. The exception again allowed selective enforcement, while keeping it from being a total ban. It was not until 1972 that open or concealed carry of handguns was banned without a permit from the State Police. Archives of Maryland 708:48-51. This law was likely a reaction to the Baltimore Race Riots of 1968, and is strikingly similar in its licensing requirements to the 1831 legislation that licensed carry by freed blacks.
The common thread that runs throughout this history is racist fears. This history matters legally because, as discussed above, the appropriate test under the Second Amendment is one of text, history and tradition. That is precisely the test adopted by the Supreme Court in Bruen. Maryland’s history is typical of gun control nationwide. See Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (1995) (“The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms or bowie knives .... These restrictive gun laws played a part in provoking Republican efforts to get the Fourteenth Amendment passed.”). That reality was also noted in Heller, 554 U.S. at 614–16, and by Justice Thomas in concurring in McDonald v. City of Chicago, 561 U.S. at 844-847. That is a legacy of shame. Law-abiding persons of all races, not just the privileged few, should be allowed to protect themselves legally.
You can read the bill file from the 1972 handgun control legislation that ushered in Maryland's modern restrictions on carrying handguns in public HERE.
*Prior to Bruen, the following groups wereissued permits under Maryland's unconstitutional "good and substantial reason" scheme. These restrictions and requirements are no longer in effect.*
Businesses Owners and Certain Endorsed Employees Business owners were typically issued permits upon demonstrating that they operate an active business. This usually requires the applicant to have a business bank account and can show that it is conducting business transactions and deposits. An applicant might also be someone who had been endorsed by their employer for a permit based on the nature of the work they do, such as picking up or depositing cash or other goods and valuables.
Assumed Risk Professionals Judges, prosecutors, defense attorneys, and other professionals who could be targeted because of the dangers involved with their work.
Top-Secret Clearance Holders Those with active top-secret government clearances were generally eligible so long as they were able to prove they held such a clearance.
"Personal Protection" Those who could document (with police reports or protective orders) that they were specifically at risk of imminent danger or targeted by others wishing to do them harm.
Bail Bondsmen, Security Guards, Special Police, Private Detectives, Armored Car Drivers, and Private Security Officers Those with these tasks and jobs were typically eligible for carry permits so long as they were able to verify with documentation the work and duties they perform.
NOTE: The cases here refer to the Handgun Permit Review Board, a quasi-judicial body created by the 1972 legislation that established MD's permitting system. The board's existence was eliminated as a result of legislation in 2018. MSI had requested a veto from Governor Larry Hogan, who denied the request.
Snowden v. Handgun Permit Review Board, 413 A.2d 295, 45 Md.App. 464 (Md. App. 1980) - Upholding a reading of "good and substantial reason" to mean that the applicant bears the burden of demonstrating specifically why they need to carry a handgun more than their personal anxiety or say-so. Abrogated by Bruen.
Scherr v. Handgun Permit Review Board, 163 Md.App. 417, 880 A.2d 1137 (Md. App. 2005) - Re-affirming the Court of Special Appeals' prior holdings in Snowden, and additionally rejecting 2nd Amendment arguments in support of the right to keep and bear arms. Abrogated by Bruen.
Williams v. State, 417 Md. 479, 10 A.3d 1167 (Md. 2011) - Holding that regulations on carrying firearms outside the home are "outside of the scope of the Second Amendment, as articulated in Heller and McDonald". Abrogated by Bruen.
Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) - Upholding Maryland's requirement that an applicant for a carry permit demonstrates a "good and substantial reason" for issuance of a permit. Abrogated by Bruen. Also inconsistent with the Matter of William Rounds, No. 1533 (Md. App. 2022).
Whalen v. Handgun Permit Review Board (Md. App. 2020) - Unreported opinion where the Court of Special Appeals agreed with a lower court that plaintiff did not establish a 2nd Amendment claim before the Handgun Permit Review Board in his initial appeal and could not bring it before the court. The court also agreed with the board's finding that the applicant lacked a "good and substantial reason" for issuance of a permit. This case was dismissed.
Call v. Jones III(4th Cir. 2022) - Pre-Bruen challenge filed against Maryland's may-issue carry permitting scheme. The case was jointly moved as moot by plaintiffs and the State of Maryland since the State had come into compliance with the Supreme Court's holding in Bruen and the case was dismissed as such.
New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S. ___ (2022)- Finding that the 2nd and 14th Amendments protect an individual's right to carry handguns publicly for self-defense and in so doing, deeming New York's "proper cause" requirement for issuance unconstitutional. This is indistinguishable from Maryland's "good and substantial reason" requirement. Importantly, the majority in Bruen also finds that the tiered scrutiny, interest balancing approach used by lower courts in deeming the constitutionality in 2nd Amendment challenges is inappropriate:
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's "unqualified command." Konigsberg v. State Bar of Cal.,366 U.S. 36, 50, n. 10 (1961)
New York State Rifle & Pistol Assn., Inc. v. Bruen, No. 20-843, 13 (U.S. Jun. 23, 2022)
Maryland's subjective carry permit requirements were previously upheld in Woollard v. Gallagherunder the two-part test dispensed with in Bruen.
Fooks v. State, No 269 (Md. App. 2022) - Post-Bruen decision upholding prohibitions on gun possession under Sections 5-133(b)(2) and 5-205(b)(2) of the Public Safety Article.
In the Matter of William Rounds, No. 1533 (Md. App. 2022) - The Maryland Court of Special Appeals applies Bruen to hold that Md. Public Safety § 5-306(a)(6)(ii), the "good and substantial reason" requirement for issuance of a permit, is unconstitutional under the 2nd Amendment of the United States Constitution.
In the Matter of Edward Whalen, No. C-03-CV-21-000853 (Balt. Co Cir.Ct) Dismissed as Moot - Challenge of applicant's denial of a permit for lack of "good and substantial reason." Denial of permit reversed in light of Bruen. 6/29/22 - Petitioner's Motion for Summary Reversal 6/30/22 - Petitioner's Notice of Supplemental Authorities 7/12/22 - Reply to Petitioner's Motion for Summary Reversal 7/12/22 - Petitioner's Consent To Dismissal On Grounds Of Mootness
Maryland Shall Issue, Inc. et al. v. Montgomery County (MoCo Cir.Ct) (Ongoing) - Includes a 2nd Amendment challenge to Montgomery County's various firearms prohibitions in 2021's Bill 4-21 and County Code Section 57-11.
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Maryland Shall Issue® (MSI) is an all-volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners' rights in Maryland. It seeks to educate the community about the right of self-protection, the safe handling of firearms, and the responsibility that goes with carrying a firearm in public. MSI is recognized by the IRS as a tax-exempt 501(c)(4) nonprofit organization.
The federal district court dismissed our "compelled speech" case against Anne Arundel County today, holding that the County's ordinance forcing firearms dealers to distribute the County's views on firearms and suicide did not violate the First Amendment. We respectfully disagree with the Court's opinion and will be filing a notice of appeal in due course.
On April 11, Maryland Shall Issue, along with four firearms and ammunition dealers, Field Traders, Cindy's Hot Shots, Pasadena Arms, and Worth-A-Shot, filed a suit in federal district court against Anne Arundel County, MD challenging Bill 108-21, an ordinance that mandates that sellers of firearms or ammunition within the county distribute county-prepared or sponsored literature with each sale and display the materials in their establishments. The complaint alleges that the ordinance is unconstitutional under the First Amendment to the United States Constitution.
Despite all of the necessary attention to the General Assembly and our work to fight off as much bad legislation as possible, MSI has been tirelessly involved in litigation on numerous fronts.
Maryland Shall Issue, along with four dealers, Field Traders, Cindy's Hot Shots, Pasadena Arms, and Worth-A-Shot, have filed a suit in State court against Anne Arundel County, Maryland challenging the enactment of Bill 109-21. This ordinance targets firearms dealers by imposing onerous and vague security requirements as a condition on doing business within the County. The ordinance also imposes harsh fines and other penalties against firearms dealers not in compliance. Whether a dealer is in compliance is determined at the whim and caprice of the police.
In multiple counts, the suit alleges that the ordinance is an impermissible "general law" under the State Constitution and is inconsistent with and preempted by multiple State statutes. The suit also attacks the vague requirements as a violation of the Due Process Clause of the Maryland Constitution. The Plaintiffs are seeking declaratory judgment and an injunction against the enforcement of the ordinance. Citizens have a Second Amendment right to acquire firearms and dealers have the ancillary Second Amendment right to sell them. The Anne Arundel ordinance would drive up dealer costs and hamper the exercise of both those rights. Read the Amended Complaint HERE
On January 14, the Supreme Court ordered the Maryland Attorney General to file a response to the petition for certiorari filed by plaintiffs in Bianchi v. Frosh, No. 21-901. In that case, plaintiffs are challenging Maryland's "assault weapon" ban as unconstitutional.
That order means, at the minimum, that at least one Justice on the Court wants a response. It also likely means that the Court will hold this petition pending a decision in NYSRPA v. Bruen, No. 20-843, in which the Supreme Court is considering the constitutionality of New York's "good cause" requirement for carry permits. Holding Bianchi would be consistent with the hold that the Court has apparently placed on the petition filed in the New Jersey "large-capacity magazine" case, ANJRPC v. Bruck, No. 20-1507. The petition in that case has been pending in the Supreme Court since April of 2021. All of this is good news. A decision in Bruen this Spring may mean that the Court will thereafter vacate the lower court decisions in both Bianchi and ANJRPC and remand for further consideration in light of Bruen. At least, we hope that is the outcome.
On August 12, 2021, Maryland's highest court, the Court of Appeals, ruled that a violation of Md. Criminal Law § 4-203(a)(1)(i) is a strict liability crime. Put simply, if one has a handgun on or about them and is not authorized to do so, they are guilty of violating the law. The case is Lawrence v. State, 471 Md. 101 (2021).
Section 4-203 is the statute that broadly prohibits the wear, carry, or transport of handguns within the State. Specifically, § 4-203(a)(1)(i) states:
(a) (1) Except as provided in subsection (b) of this section, a person may not:
(i) wear, carry, or transport a handgun, whether concealed or open, on or about the person;
There are a few exceptions to this ban (found in subsection (b) of Section 4-203), such as one having a Maryland Wear and Carry Permit, possession in the home or business (by the business owner), or when transporting an unloaded handgun (kept in an enclosed case or enclosed holster) between a gun shop and one's residence or from their residence to a gun range. But, outside these sharply limited exceptions set out in subsection (b), the passage above otherwise broadly criminalizes having a pistol on (or about) the person.
On June 16, 2021, we filed an emergency motion for partial summary judgment on three of our counts against Montgomery County's enactment of Bill 4-21. The motion seeks to enjoin the County from enforcing their new illegal laws which will go into effect on July 16th without action from the Court. Find the motion HERE and the memorandum in support HERE. As we have stated previously, we will not sit idle while politicians make criminals of ordinary and law-abiding residents. You can learn more and find updates about this case at tinyurl.com/msivmoco.
MSI has filed an amended complaint against Montgomery County's enforcement Bill 21-22E, a 'response' bill to NYSRPA v. Bruen. You can read more on this latest phase of our case against the County here: https://bit.ly/3VgQWaD
A Decision More Than Five Years in the Making, But No Jury Trial Date Yet
CASE SUMMARY: This lawsuit against Maryland Capitol Police Sgt. Brian T. Pope for violating the civil rights of two MSI members continues to progress in the U.S. Court of Appeals for the Fourth Circuit, where the case has been briefed. This briefing includes an amicus curiae (“friend of the court”) brief filed in March 2022 by the National Police Association on behalf of Sgt. Pope.
A U.S. District Court ruling in April 2021 denied qualified immunity to Sgt. Pope for his arrests of Jeff and Kevin Hulbert on the public sidewalk in front of the Maryland Statehouse in February 2018, and ordered this lawsuit to proceed to a jury trial on our claims.
However within days, in May 2021, the State filed a motion for reconsideration before the District Court and subsequently, an interlocutory appeal to the US Court of Appeals for the Fourth Circuit. An interlocutory appeal, also known as an interim appeal, is one that is permitted at an intermediate stage of a case, either before a trial is commenced or a final resolution is reached. Interlocutory appeals are allowed by the Federal Rules of civil procedure only in specific circumstances, such as in this case, when there has been a denial of qualified immunity in the Court below. Their motion for reconsideration argued that Sgt. Pope should not have been denied qualified immunity by the District Court, asserting the Hulbert brothers’ arrests by Sgt. Pope were proper and that Kevin Hulbert’s video and audio recording of the police was not a “clearly established” First Amendment right. The Fourth Circuit would later remand the case back to the District Court for it to rule on the motion for reconsideration. That Court denied the motion and the State filed an appeal to the Fourth Circuit.
The Court has ordered the parties to appear before a three-judge Fourth Circuit panel in Richmond, VA for oral argument, tentatively scheduled for the first week of May 2023; that panel would then rule on the State’s pending appeal.
Oral Argument before the US Court of Appeals for the Fourth Circuit, May 3rd, 2023 at 9am.
IN MEMORIAM: Sadly, Jeff Hulbert, the lead plaintiff in this case, passed away on May 3, 2021, after a lengthy and valiant battle against cancer. Jeff’s daughter, his twin brother Kevin and other family members helped care for Jeff during his final days and were with Jeff at his bedside when he passed. We at Maryland Shall Issue send our deepest condolences to the family and friends of Jeff Hulbert.
Jeff was an outspoken and stalwart proponent of individual rights and a fierce supporter of the Right to Keep and Bear Arms. Jeff founded Patriot Picket with his brother Kevin in 2016. Patriot Picket "hits the bricks" of public sidewalks in Annapolis, throughout Maryland, the surrounding states, and the District of Columbia with stylized signs and pointed political messages in promotion and defense of those rights.
Please keep the Hulbert family in your thoughts and prayers; we will continue to remember and honor Jeff as this case progresses.
NOTE: Jeff’s passing does not end his association with this lawsuit. Jeff’s estate, administered by his brother Clayton, continues as a plaintiff. Clayton was appointed by the Court in July 2021 to represent Jeff’s estate in these proceedings, and at that time the legal title of this lawsuit was changed. Whereas Jeff was originally named as the lead plaintiff in this case, Clayton’s name now appears first for the plaintiffs in the revised case title as this lawsuit moves forward:
“CLAYTON R. HULBERT, as personal representative of the Estate of Jeffrey W. Hulbert; KEVIN HULBERT; MARYLAND SHALL ISSUE, INC., for itself and its members …”
CASE HISTORY: On the evening of February 5th, 2018, while holding edgy signs (with five fellow members of “Patriot Picket”) criticizing the powers that be in the General Assembly (and video-recording the demonstration and the approach of Maryland Capitol Police), two Maryland Shall Issue members were detained and arrested by Maryland Capitol Police Sgt. Brian T. Pope, handcuffed and then searched by him and other Maryland Capitol Police (MCP) officers on the Annapolis City sidewalk in front of the historic Maryland Statehouse.
Sgt. Pope had ordered them to move their peaceful, Constitutionally-protected sign-picketing demonstration from their chosen location on that public sidewalk to an area inside the adjacent Lawyers Mall, where the visibility of their signs and a banner to passersby would be obstructed by thick shrubbery growing in nearly waist-high planter boxes in Lawyers Mall. Lawyers Mall itself is within the Statehouse grounds, and the use of it at that time required a permit.
Jeff and Kevin Hulbert refused Sgt. Pope’s order to leave the public sidewalk because neither nor their signs were blocking or obstructing the few pedestrians passing by them on the sidewalk:
Jeff and Kevin Hulbert were transported separately by MCP officers to an Annapolis City PD precinct; escorted inside still in handcuffs, they were each then handcuffed to a steel bench in a booking room; they remained handcuffed until the issuance of criminal citations to them by Sgt. Pope, before being released.
Two additional criminal citations were issued to each of them the following day, also by Sgt. Pope, on orders from MCP Chief of Police Col. Michael Wilson, who was present and personally ordered that the additional citations be signed on the trunk of an MCP patrol cruiser parked at the foot of the Maryland Statehouse north steps, in full view of the public:
Portions of the video below were recorded by Kevin Hulbert of the sign-picketing demonstration the previous evening at the very moment Sgt. Pope approached the group to order the Hulberts and the other sign picketers to leave the sidewalk.
(Kevin Hulbert’s First Amendment right to record this video has become a key element in this lawsuit: the State argues on appeal that Kevin Hulbert had no “clearly established” right, by any precedent declared by the U.S. Court of Appeals for the Fourth Circuit, to record police in the public performance of their duties.)
The video below also depicts the arrival of additional MCP and Annapolis City PD officers, the subsequent arrest of the Hulbert brothers, and the issuance of the additional criminal citations to them the following day:
Within days Jeff and Kevin Hubert retained the distinguished Maryland civil rights attorney Cary Hansel of Hansel Law; joined by MSI (for itself and its members) as co-plaintiffs, a civil rights lawsuit was filed only nine days later in Federal District Court in Baltimore for the violation of their First Amendment and Fourth Amendment rights.
Jeff Hulbert, depicted below in the Hansel Law conference room, displays a set of the three criminal citations issued to both him and his brother Kevin by the MCP following their arrest:
The arresting officer, MCP Sgt. Brian Pope, and the MCP Chief of Police Col. Michael Wilson, were named as defendants in our lawsuit; they are both represented by counsel from the Maryland State Attorney General's Office.
In an opening gambit, the defendants first moved to dismiss the complaint for failure to state a claim, but that effort failed when the District Court didn't buy it. Then a lengthy legal discovery process ensued, which was further delayed by the COVID pandemic.
That discovery showed that the arrest of the Hulbert brothers that night could be traced to a call from the Governor's mansion requesting MCP to move the group because the "mansion" did not want to be bothered with questions or attempts at conversation by the Patriot Picket demonstrators.
Everyone, including the two MCP defendants (as well as other officers from the Maryland Capitol Police and the Maryland State Police), admitted in their court-ordered depositions during discovery that these orders came from the "mansion," but, amazingly, no one at the "mansion" could identify who gave the orders. We did discover that such orders happen as often as twice a month, or whenever someone at the "mansion" decides that the "mansion" does not want to deal with completely peaceful protestors lawfully exercising their First Amendment rights. We can only speculate as to the identity of this "mansion" person.
When discovery was finally completed, defendants once again sought dismissal, this time through a motion for summary judgment. That effort likewise failed on Friday, April 23, 2021, when the Court issued an opinion denying the State's motions for summary judgment on our First Amendment and Fourth Amendment Constitutional claims.
The District Court held that there were "disputed issues" of fact that precluded summary judgment on our First Amendment claim (unlawful interference with the First Amendment right to demonstrate on the public sidewalk) and the Fourth Amendment claim (the arrests were made without probable cause of any crime) by the MCP arresting officer, Sgt. Pope.
In so holding, the District Court also held that there was a "clearly established" First Amendment right for Kevin Hulbert to record video and audio of the police in a public setting, and that disputed issues of fact precluded summary judgment for the defendants as to whether Sgt. Pope's arrest of Kevin Hulbert interfered with that right.
Finally, the Court rejected the State's argument that MSI should be dismissed from the lawsuit on standing grounds. The District Court did dismiss (wrongly in our view) the counts against the MCP Chief of Police, Col. Michael Wilson.
So, presuming we prevail at the U.S. Court of Appeals for the Fourth Circuit, a jury trial in District Court against Sgt. Pope is next. That will take time to happen. By law (the Speedy Trial Act), criminal trials receive priority over civil cases and the COVID pandemic has effectively resulted in a backup of jury trials in civil cases. We hope to get a trial date within the next year.
With this and other cases, MSI has moved to the forefront in advocating for and protecting our First Amendment and Second Amendment rights against infringement at the county, state, and national levels in fundamentally important ways.
Whether advocating for our rights on public sidewalks, lobbying at the State Capitol, testifying in legislative hearing rooms, or filing legal challenges in State and Federal courts, MSI members and our organizational leadership know from personal experience that the First Amendment protects the Second Amendment, and the Fourth Amendment protects against unreasonable searches and seizures, including unlawful arrests, as is alleged to have occurred in this case.
Audit the Audit recently referenced the case in a video about filming police.
Stay tuned. Click the links below to read the relevant documents in the docket for this case. The most recent filings appear at the bottom of this list:
Case Documents and History US District Court for the District of Maryland Case# 1:18-cv-00461-SAG
Novotny v. Moore - Challenge against aspects of SB 1 and current public carry restrictions
Maryland Shall Issue, the Second Amendment Foundation, the Firearms Policy Coalition, and three individuals have challenged SB 1. That bill passed this last Session of the General Assembly places many unconstitutional restrictions on the right to carry with a permit in Maryland. The case is styled Novotny v. Moore and has been consolidated with Kipke v. Moore in federal district court in Baltimore. Kipke was brought by the Maryland State Rifle and Pistol Association. Plaintiffs in both cases have filed motions for preliminary injunctions and motions for summary judgment with the aim of stopping enforcement of certain restrictions placed by SB 1 by October 1st, the bill’s effective date. Briefing is ongoing in both cases and then the court will decide whether to hold an oral argument and simply move to the issuance of a decision. The court is not required to decide the case within any set time. We will provide updates of importance as they occur. Find all of the filings in both of these cases HERE.
Permit Front
