August 2023 Legal Update

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.

In the meantime, it is important to understand what SB 1 does and doesn’t do. We have a guide on public carry and permitting changes in Maryland HERE. Furthermore, HB 824, another bill passed by the General Assembly, requires the State to provide a curriculum that must be taught in person by Qualified Handgun Instructors in courses for Handgun Permits. The State Police released notice that they will unveil this curriculum by September 1st. We’ll share it once it’s available.

Maryland Shall Issue v. Montgomery County - Challenge against Bill 4-21 and Bill 21-22E

This case is currently being litigated in federal and state courts simultaneously. Since our last dispatch, we have filed a notice of appeal before the US Court of Appeals for the Fourth Circuit over the federal district court’s denial of our motion for a preliminary injunction against the County’s numerous firearms restrictions. We also filed a special motion seeking limited relief against the enforcement of 100-yard buffer zones that surround all of the prohibited places in the County. The zones effectively eliminate the right to carry as there is, as a practical matter, no way to move about in the County without entering one or more of these 100-yard gun-free zones. A motions panel of the Fourth Circuit denied our motion for an injunction pending appeal without prejudice (leaving open the option to re-file) and we filed a subsequent motion seeking clarification of that order. The County filed its response and we filed our reply. An order from the court on the motion could come at any time.

The state-law claims of our complaint are concurrently being briefed in the Circuit Court of Montgomery County. The parties have filed cross-motions for summary judgment You can find our motion for summary judgment HERE and the memorandum in support HERE. At 103 pages, this is the longest brief we have ever submitted in any case and it comprehensively details many aspects of Maryland firearms law. Briefing will be complete in September and oral argument on these cross-motions for summary judgment is currently set for October 10, 2023.

A word of caution:
There is no telling how long these fights over the Montgomery County law will last. In the meantime, the County’s multiple restrictions and bans remain in full effect and are entirely enforceable. None of the county’s bans require the County to prove that the permit holder knew they were in violation and the county has repeatedly refused to disavow enforcement of their law. The County’s law can be enforced at the whim and caprice of the County without warning. We recommend staying out of the County while carrying with your permit. Take your shopping trips elsewhere, if possible.

Maryland Shall Issue v. Anne Arundel County - First Amendment challenge against compelled speech of firearms dealers

This case is currently on appeal before the US Court of Appeals for the Fourth Circuit. Briefing is complete and we await an order from the Fourth Circuit setting a date for oral argument. As we explain in our briefs (Initial brief HERE, reply to the County HERE), the government does not get to commandeer the speech of firearms dealers and force them to carry its literature merely because they are in the business of selling arms and ammunition. The county believes that since firearms are used in conflicts and suicide, and that dealers are commercial entities, it has the authority to require the dealers to display and provide pamphlets on suicide prevention and conflict resolution. Though they pretend otherwise, the county’s message comes down to the assertion that guns are bad and you should not exercise your 2nd Amendment right to acquire firearms. Oral argument is not yet scheduled but could be as early as sometime this fall.

Hulbert v. Pope - Suit over the unlawful arrest of two MSI members peacefully demonstrating outside of the General Assembly

In May, a three-judge panel of the Court of Appeals for the Fourth Circuit heard oral argument over the lower court’s denial of Qualified Immunity for Sgt. Pope, one of the arresting officers of brothers Jeff and Kevin Hulbert in February 2018. The panel ruled just over a month later that Sgt. Pope was due Qualified Immunity supposedly because the arrests did not violate any clearly established law. Needless to say, we rather strongly disagree with that ruling. Plaintiffs filed a petition for rehearing en banc (to have the case argued again before all of the court’s judges), but the court did not call for a vote and thus, the petition was denied. We have 90 days from that date to seek a writ of certiorari from the Supreme Court. Stay tuned for further developments in this case.

Maryland Shall Issue v. Moore - Challenge to Maryland’s Handgun Qualification License

It has nearly been seven years since MSI challenged in federal district court against the State’s requirement that Marylanders obtain a “Handgun Qualification License” from the State Police before being able to purchase a handgun. After a successful earlier appeal from a dismissal on standing grounds, the district court again ruled for the State, applying intermediate scrutiny and we appealed. But then certiorari was granted in NYSRPA v. Bruen and the Fourth Circuit, over objection by the State, decided to hold our appeal in abeyance until a decision in Bruen. Bruen abolished intermediate scrutiny (under which plaintiffs always seemed to lose) and set out a new text, history, and tradition standard applicable to all Second Amendment cases. Supplemental briefs were filed and the case was argued before a three-judge panel of the Court of Appeals for the Fourth Circuit in early March. A decision could come at any time. 

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