Maryland Shall Issue, Inc. et al v. Hogan et al

Filing 34

MEMORANDUM AND ORDER granting in part and denying in part #18 Defendants' Motion to Dismiss the Amended Complaint. Signed by Judge Marvin J. Garbis on 9/5/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MARYLAND SHALL ISSUE, INC.,
et al.
Plaintiffs

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vs.

* CIVIL ACTION NO. MJG-16-3311

LAWRENCE HOGAN, in his capacity
Of GOVERNOR OF MARYLAND, et al.

*
*

*

*

Defendants
*
*

*

*

*

*

*

MEMORANDUM AND ORDER RE: DISMISSAL
The Court has before it Defendants’ Motion to Dismiss the
Amended Complaint [ECF No. 18] and the materials submitted
relating thereto.

The Court has held a hearing and has had the

benefit of the arguments of counsel.

I.

BACKGROUND
In 2013, the Maryland General Assembly passed the Firearm

Safety Act of 2013 (“FSA”), to regulate the sale and possession
of firearms within the state.

The FSA includes a Handgun

Qualification License provision (“HQL Provision” or
“Provision”), Md. Code Ann., Pub. Safety § 5-117.1, which
forbids the sale, rental, transfer, purchase, or receipt of a
handgun by any person without a valid HQL issued by the
Secretary, with certain exceptions.
Plaintiffs Maryland Shall Issue, Inc., Atlantic Guns,
Inc., Ana Sliveira, Deborah Kay Miller, Susan Brancato Vizas,

and Christine Bunch (collectively “Plaintiffs”) assert claims
against Defendants Lawrence Hogan, in his official capacity as
Governor of the State of Maryland, and William M. Pallozzi, in
his official capacity as Secretary and Superintendent of the
Maryland State Police (collectively “Defendants”).
The Plaintiffs have filed the instant lawsuit, seeking an
order declaring the HQL Provision unconstitutional on its face
and as applied to the Plaintiffs, and to enjoin enforcement of
Md. Code Ann., Pub. Safety § 5-117.1 and the implementing
regulations and practices adopted by the Maryland State Police
(“MSP”).
Plaintiffs’ Amended Complaint [ECF No. 13] presents
three Counts:
Count I.

Second Amendment (42 U.S.C. § 1983);

Count II.

Fourteenth Amendment, Due Process (42
U.S.C. § 1983);

Count III. Ultra Vires (violation of Md. Code Ann.,
State Gov’t § 10-125(d)).
By the instant motion, Defendants seek dismissal of the
Amended Complaint pursuant to Rule1 12(b)(6) for failure to state
a claim upon which relief can be granted.

II.

DISMISSAL STANDARD
A motion to dismiss filed pursuant to Rule 12(b)(6) tests

1

All “rule” references herein are to the Federal Rules of
Civil Procedure.
2

the legal sufficiency of a complaint.

A complaint need only

contain “‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’”

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (citations omitted).

When evaluating a 12(b)(6)

motion to dismiss, a plaintiff’s well-pleaded allegations are
accepted as true and the complaint is viewed in the light most
favorable to the plaintiff.

However, conclusory statements or

“a formulaic recitation of the elements of a cause of action
will not [suffice].”

Id.

A complaint must allege sufficient

facts “to cross ‘the line between possibility and plausibility
of entitlement to relief.’”

Francis v. Giacomelli, 588 F.3d

186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is “‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’”
(quoting Twombly, 550 U.S. at 557).

Id.

Thus, if “the well-pleaded

facts [contained within a complaint] do not permit the court to
infer more than the mere possibility of misconduct, the
complaint has alleged – but it has not ‘show[n]’ – ‘that the
pleader is entitled to relief.’”

Id. (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).

3

III. DISCUSSION
A. Handgun Qualification License Provision
Plaintiffs challenge the HQL Provision of the FSA.

The

Provision provides that “[a] dealer or any other person may not
sell, rent, or transfer a handgun” unless the purchaser, lessee,
or transferee presents a valid handgun qualification license
(“HQL”).

Md. Code Ann., Pub. Safety § 5-117.1(b).

Furthermore, “[a] person may purchase, rent, or receive a
handgun only if the person:
(1)

possesses a valid HQL [or meets certain statutory
exceptions]2 and

(2)

is not otherwise prohibited from purchasing or
possessing a handgun under State or federal law.”

Id. § 5-117.1(c).
The statute states that the Secretary shall issue an HQL to
a person who is (1) 21 years old, (2) a Maryland resident, (3)
not prohibited by federal or state law from purchasing or
possessing a handgun, and (4) has “demonstrated satisfactory
2

A person does not need an HQL if he or she:
* * *
(ii) possesses valid credentials from a law enforcement
agency or retirement credentials from a law enforcement
agency;
(iii) is an active or retired member of the armed forces of
the United States or the National Guard and possesses a
valid military identification card; or
(iv) is purchasing, renting, or receiving an antique,
curio, or relic firearm, as defined in federal law or in
determinations published by the Bureau of Alcohol, Tobacco,
Firearms and Explosives.
§ 5-117.1 (c).
4

completion” of a firearms safety training course approved by the
Secretary within the three years prior to the application.
§ 5-117.1(d).

Id.

The training course is required to include:

(a)

(b)

classroom instruction on:
(1) State firearm law;
(2) home firearm safety; and
(3) handgun mechanisms and operation; and

(c)

Id.

a minimum of 4 hours of instruction by a qualified
handgun instructor;

a firearms orientation component that demonstrates the
person’s safe operation and handling of a firearm.

Certain individuals are exempt from the training course

requirement.3
HQL applicants must submit:
(1)
(2)

an application in the manner and format designated
by the Secretary;
a nonrefundable application fee to cover the costs
to administer the program of up to $50;

3

An HQL applicant does not have to complete a firearms
safety training course if the applicant:
“(1) has completed a certified firearms training course
approved by the Secretary;
(2) has completed a course of instruction in competency and
safety in the handling of firearms prescribed by the
Department of Natural Resources under § 10-301.1 of the
Natural Resources Article;
(3) is a qualified handgun instructor;
(4) is an honorably discharged member of the armed forces
of the United States or the National Guard;
(5) is an employee of an armored car company and has a
permit issued under Title 5, Subtitle 3 of the Public
Safety Article; or
(6) lawfully owns a regulated firearm.”
§ 5-117.1 (e).
5

(3)

(i) proof of satisfactory completion of [an approved
firearms safety training course]; or
(ii) a valid firearms instructor certification;

(4)

any other identifying information or documentation
required by the Secretary; and

(5)

a statement made by the applicant under the penalty
of perjury that the applicant is not prohibited
under federal or State law from possessing a
handgun.

Id. § 5-117.1(g).
After receiving an application, the Secretary must complete
a State and national criminal history records check using the
applicant’s fingerprints.

The fees for these records checks are

$18.00 and $14.50 respectively.
Within thirty days4 of receiving a complete application, the
Secretary will issue an approval or a written denial containing
the reason for denial and a statement of the applicant’s appeal
rights.5

An HQL is valid for ten years and may be renewed for

successive ten-year periods as long as the applicant possesses
the qualifications for the HQL and pays a $20.00 application
fee.

Id. §§ 5-117.1(i),(j).
A person whose HQL application is denied or whose HQL is

revoked may request a hearing within thirty days of the

4

According to Plaintiffs, the average wait time is 27-28
days before an HQL is received. Amended Compl. [ECF No. 13] ¶ 39.
5
Even if a purchaser has an HQL, he or she must wait seven
days after purchasing a handgun before receiving it. Md. Code.
Ann., Pub. Safety § 5-123.
6

revocation or denial, and the hearing will be granted within
fifteen days of the request.

Id. § 5-117.1(l).

B. The HQL Regulations
The FSA authorizes the Secretary of the Maryland State
Police (“MSP”) to adopt regulations to implement the HQL
requirement.

Id. § 5-117.1(n).

Accordingly, the MSP has

adopted regulations and practices after a notice and comment
period.
The MSP regulations require an HQL application to be
submitted online, and the application must include the
“applicant’s name, address, driver’s license or photographic
identification soundex number, place and date of birth, height,
weight, race, sex, eye and hair color, occupation, and home and
work telephone numbers” and a nonrefundable payment of $50.00.
Md. Code Regs. 29.03.01.28 (2017).

Plaintiffs claim that, as a

matter of practice, the MSP will accept only fingerprints taken
by a State-certified vendor using “livescan” technology.
fee for fingerprinting is $17.00.

The

¶6 37.

Applicants are also required to submit “a Firearms Safety
Training Certificate issued by a Qualified Handgun Instructor”
that “constitute[s] proof that the applicant satisfactorily
completed a Firearms Safety Training Course.”
6

Md. Code Regs.

All ¶ references herein are to the Amended Complaint [ECF
No. 13].
7

29.03.01.29 (2017).

In addition to the statute’s requirements

for the course content, the regulations specify that the course
must include “a practice component in which the applicant safely
fires at least one round of live ammunition.”

Id.

An applicant

will have to pay any charged fee for the training course in
addition to the $50.00 application fee.

C. The Plaintiffs
1. Individual Plaintiffs
The Individual Plaintiffs are four women who reside in
Maryland and are over the age of 21.

They do not currently own

handguns and are “deterred from purchasing a handgun because of
the expense and inconvenience of the HQL application process and
its constituent parts.”

¶¶ 9, 14, 19, 24.

But for the HQL

requirement, they could lawfully purchase and own handguns.
Plaintiff Ana Sliveira is a single mother who is employed
as a Department of Defense federal contractor employee.

She

holds a government security clearance and was a victim of the
Office of Personnel Management data breach.

She has heightened

concern for her family’s safety because her personal information
has been disclosed as a result of that breach.

She would like

to purchase a handgun to protect herself and her family inside
of her home.

She does not own any other firearms.

Plaintiff Deborah Kay Miller is a General Member of

8

Plaintiff organization Maryland Shall Issue, Inc.

Ms. Miller

wants a handgun for self-defense, target practice, and other
lawful purposes.
Plaintiff Susan Brancato Vizas has passed Hunter Safety
Training and would like to purchase a handgun for self-defense,
target practice, and other lawful purposes, but has not taken
further steps to obtain an HQL because the process is
burdensome.

Ms. Vizas is a mother of three school-aged

children.
Plaintiff Christine Bunch wants a handgun for self-defense,
target practice, and other lawful purposes; however, she “cannot
afford the time or excessive cost of acquiring an HQL.”

¶ 24.

2. Plaintiffs Maryland Shall Issue
Plaintiff Maryland Shall Issue, Inc. (“MSI”) is a Maryland
non-profit organization “dedicated to the preservation and
advancement of gun owners’ rights in Maryland.”

¶ 25.

MSI

“seeks to educate the community about the right of selfprotection, the safe handling of firearms, and the
responsibility that goes with carrying a firearm in public.”
Id.

MSI claims that the HQL requirements undermine its message

and objectives.
MSI brings this action on behalf of itself and its
approximately 772 members.

Some MSI members do not possess HQLs

9

and “have been deterred from purchasing a handgun because of the
expense and inconvenience of the HQL application process and its
constituent parts.” Id.
3. Plaintiff Atlantic Guns
Plaintiff Atlantic Guns, Inc. (“Atlantic Guns”) is a
federally-licensed firearms dealer and Maryland Regulated
Firearms Dealer.
Atlantic Guns is unable to sell handguns to persons without
HQLs and persons who are deterred by the HQL application
process.

Atlantic Guns has experienced a “significant reduction

in its business due to the HQL requirement.”

¶ 26.

Atlantic

Guns also represents the interests of customers who would like
to purchase handguns but cannot buy them because of the HQL
requirement.

D. Constitutional Claims
Plaintiffs contend that the HQL Provision and implementing
regulations violate individuals’ Second Amendment rights to
purchase or acquire a handgun and the Due Process Clause of the
Fourteenth Amendment.
The Plaintiffs present their federal constitutional claims
pursuant to 42 U.S.C. § 1983 (2012).

To establish a § 1983

claim, a plaintiff must prove that a defendant acted under color

10

of state law and deprived him/her of a right secured by the
Constitution.

1. Color of State Law
There is no doubt that all pertinent actions of Defendants
were performed under color of state law, i.e., acting as state
officials.

2. Deprivation of Rights
a. Count I: Second Amendment Claims
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.”
Const. amend. II.

U.S.

At its core, the Second Amendment protects an

individual right of “law-abiding, responsible citizens to use
arms in defense of hearth and home.”

District of Columbia v.

Heller, 554 U.S. 570, 635 (2008); see also McDonald v. City of
Chicago, 561 U.S. 742, 748 (2010)(holding that the Second
Amendment is applicable to the States).
Although the Supreme Court has not delineated the exact
scope of the Second Amendment, the Heller Court cautioned that
“nothing in our opinion should be taken to cast doubt on . . .
laws imposing conditions and qualifications on the commercial

11

sale of arms,” which are “presumptively lawful.”7
& n.26.

Id. at 626-27

The Fourth Circuit has not had the occasion to address

a law requiring persons to obtain a license before possessing a
handgun.
The United States Court of Appeals for the Fourth Circuit
follows a two-step analysis when assessing laws regulating
firearms.
The first question is “whether the challenged law
imposes a burden on conduct falling within the scope
of the Second Amendment’s guarantee.” . . . If the
challenged regulation burdens conduct that was within
the scope of the Second Amendment as historically
understood, then we move to the second step of
applying an appropriate form of means-end scrutiny.
United States v. Chester, 628 F.3d 673, 680 (4th Cir.
2010)(internal citations omitted).
At step two, the level of scrutiny applied “depends on the
nature of the conduct being regulated and the degree to which
the challenged law burdens the right.”

Id. at 682.

A severe burden on the core Second Amendment right of
armed
self-defense
should
require
strong
justification. But less severe burdens on the right,
laws that merely regulate rather than restrict, and
laws that do not implicate the central self-defense
concern of the Second Amendment, may be more easily
7

Since Heller, the Fourth Circuit has upheld several gun
regulations, including laws banning assault weapons, Kolbe v.
Hogan, 849 F.3d 114, 161 (4th Cir. 2017), prohibiting possession
of loaded firearms in a national park, United States v.
Masciandaro, 638 F.3d 458, 460 (4th Cir. 2011), and requiring
persons to demonstrate a “good and substantial reason” before
receiving a concealed carry permit, Woollard v. Gallagher, 712
F.3d 865, 882 (4th Cir. 2013).
12

justified.
Id. (quoting United States v. Skoien, 587 F.3d 803, 813-14 (7th
Cir. 2009)), reh’g en banc granted, opinion vacated, No. 083770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010), and on reh’g en
banc, 614 F.3d 638 (7th Cir. 2010).
Defendants do not deny that the HQL Provision and
implementing regulations burden conduct within the scope of the
Second Amendment, namely, the ability of a law-abiding citizen
to attain a handgun for use in the home for self defense.

See

Heller, 554 U.S. at 629 (recognizing that the handgun is
considered to be “the quintessential self-defense weapon”).
However, the Defendants contend that:
1. Plaintiffs lack standing to challenge certain
aspects of the HQL requirements;
2. The HQL requirements are nevertheless valid under
intermediate scrutiny; and
3. Plaintiffs fail to allege facts sufficient to
maintain a facial or as-applied challenge.
These assertions will be addressed in turn.

i.

Standing

To have standing, an individual plaintiff must allege a
concrete injury, causation, and redressability.

An association

has standing only when its individual members have standing in
their own rights.

See Lujan v. Defenders of Wildlife, 504 U.S.

13

555, 560 (1992); Hunt v. Wa. State Apple Adver. Comm’n, 432 U.S.
333, 343 (1977).

“At the pleading stage, general factual

allegations of injury resulting from the defendant’s conduct may
suffice, for on a motion to dismiss we ‘presum[e] that general
allegations embrace those specific facts that are necessary to
support the claim.’”

Lujan v. Defs. of Wildlife, 504 U.S. 555,

561 (1992)(quoting Lujan v. National Wildlife Federation, 497
U.S. 871, 889 (1990)).
Generally, a person may not bring a constitutional
challenge to a statute on grounds that do not apply to that
plaintiff.

See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)

(“[C]onstitutional rights are personal and may not be asserted
vicariously.”).
Plaintiffs allege that the HQL Provision and regulations
are “unduly burdensome, particularly for people who hunt for
food, require a firearm to earn a living, are elderly,
terminally ill and/or who have an urgent need for firearms for
self-defense because they live in a high crime area or have been
threatened.”

¶ 44.

Plaintiffs also allege that the MSP

regulations are burdensome because they require computer and
internet access, a scanner to scan and attach the supporting
documentation to an HQL application, a permanent home address
and phone number, and a credit or debit card to pay the fee.
Additionally, Plaintiffs allege that the MSP regulations
14

discriminate against and act as a barrier to “the poor or
disadvantaged citizens of Maryland who live in urban areas” who
lack access or means to travel to State-certified “livescan”
fingerprint vendors, handgun training course instructors, or a
public shooting range for live fire instruction.

¶ 46.

Defendants contend that the Plaintiffs lack standing to
bring a facial or as-applied Second Amendment claim based on
this alleged discrimination (other than time and cost) because
none of the Plaintiffs allege that they themselves or one of
their members or customers are negatively impacted by those
requirements, i.e., they do not allege that there is any
pertinent individual with a need to hunt for food, who lacks
access to the internet or a scanner, or lives in an urban area
with no access to a shooting range, etc.

See Heller v. District

of Columbia, 45 F. Supp. 3d 35, 71 (D.D.C. 2014) aff’d in part,
rev’d in part on other grounds, Heller v. District of Columbia,
801 F.3d 264 (D.C. Cir. 2015) (determining that plaintiffs
lacked standing to challenge the D.C. gun registry provision
that a registrant not be blind because none of the plaintiffs
were blind).
The Amended Complaint does not contain even general factual
allegations that any individual Plaintiff or any member/customer
of the entity Plaintiffs are affected by aspects of the
Provision other than time and cost, nor do they make allegations
15

that would allow the Court to derive an inference that they are
burdened by some of these provisions, such as the need for
access to a computer, a debit card, or a fixed address.
However, MSI, a gun advocacy organization, contends that at
least some of its many members across the state are affected by
all of these burdens, and that it can identify specific
individuals after discovery.
members statewide.”).

¶ 25 (“MSI has approximately 772

“[T]he Supreme Court has made it clear

that ‘the presence of one party with standing is sufficient to
satisfy Article Ill’s case-or-controversy requirement.’”
Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014)(quoting
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547
U.S. 47, 52 n.2, (2006)).
Taken in a light most favorable to Plaintiffs, with all
inferences that can be derived from the facts alleged, it is
plausible that some MSI members do hunt for their food or live
in urban areas, and thus have standing as to those challenges.
Ultimately, to prevail, Plaintiffs must prove the identity of
specific individuals who are personally injured or deterred by
each contested aspect of the challenged requirements in order to
have standing.

Count I shall not be dismissed for lack of

standing.

16

ii.

Standard of Scrutiny

Plaintiffs disagree with Defendants’ position that
intermediate scrutiny applies and assert that it is
inappropriate for the Court to select and apply means-end
scrutiny prior to discovery.
The facts and Statute at issue in this case are different
from those previously addressed by the Fourth Circuit, thus the
issue of what scrutiny should or could apply is unsettled.8

For

example, in Kolbe, the en banc panel held that assault weapons
and large-capacity magazines are not constitutionally protected,
and even if they were, only intermediate scrutiny applies
because those weapons did not fall under the core protection of
the Second Amendment.

Kolbe, 849 F.3d at 137-38.

Similarly, in

Chester, the Fourth Circuit held that intermediate scrutiny
applied because the defendant’s claim did not implicate the core
right of the Second Amendment because he was not a law-abiding
citizen. 628 F.3d at 683.

The Plaintiffs’ claims in the instant

8

But see Wrenn v. D.C., No. 16-7025, 2017 WL 3138111, at *11
(D.C. Cir. July 25, 2017)(noting that the Second Amendment is
subject to longstanding restrictions, including licensing
requirements); Kwong v. Bloomberg, 723 F.3d 160, 168 (2d Cir.
2013)(finding in review of a summary judgment motion that
heightened scrutiny does not apply unless a restriction
“operates as a substantial burden” on an individual’s Second
Amendment rights, such as a complete prohibition of handgun
ownership); Heller v. D.C., 670 F.3d 1244, 1254-55, 1257 (D.C.
Cir. 2011)(applying intermediate scrutiny to gun registration
laws because they “are self- evidently de minimis, for they are
similar to other common registration or licensing schemes”).
17

case, however, do implicate the core right of the Second
Amendment.
Even Kwong v. Bloomberg, 723 F.3d 160 (2d Cir. 2013),
wherein the United States Court of Appeals for the Second
Circuit applied intermediate scrutiny to a New York City handgun
licensing law and a $340.00 fee, noted that “[t]his challenge
does not present us with the hypothetical situation where a
plaintiff was unable to obtain a residential handgun license on
account of an inability to pay the $340 fee.”

Id. at 167 n.12.

The HQL Provision and regulations do not effect an absolute
ban on handguns, but, based on the facts alleged in the Amended
Complaint, at least one Plaintiff, Ms. Bunch, cannot afford the
fees or time necessary to get an HQL, and therefore allegedly
has been prevented from owning a handgun under the FSA.

¶ 24.

The Court concludes that it is wise to have a fully
developed record before weighing in on this matter of first
impression.

See id. at 683 (noting the importance of having

evidence on the record to assess whether the government had
established a substantial relationship to an important state
goal); Heller v. D.C., 670 F.3d 1244, 1259 (D.C. Cir. 2011)
(remanding the case to district court for further evidentiary
proceedings because the parties failed to produce sufficient
evidence to enable the court to apply intermediate scrutiny).

18

Thus, it is premature to select and apply a form of
scrutiny to assess the merits of Plaintiffs’ claims without
giving the parties a chance to conduct discovery.9

See Tobey v.

Jones, 706 F.3d 379, 387 (4th Cir. 2013)(acknowledging that a
Rule 12(b)(6) motion does not resolve the merits of a claim).

iii.

Adequacy of As-Applied Challenge

Defendants assert that Plaintiffs do not allege facts
sufficient to present a plausible claim that their Second
Amendment rights have been burdened.
The Individual Plaintiffs allege that they do not have
handguns and want to obtain handguns for self-defense and other
lawful purposes, but are deterred by the expense and
inconvenience of the HQL application process.

Similarly, MSI

alleges that some of its members, including Ms. Miller, want to
obtain handguns but have been deterred or prevented by the HQL
requirements.

Atlantic Guns alleges that it suffers business

losses because the HQL Provision prevents it from selling to

9

Although Defendants contend that it is appropriate for the
Court to take judicial notice of certain statistics and studies,
the Court concludes that it would be inappropriate to rely on
those pieces of evidence, which are disputed by Plaintiffs,
without providing Plaintiffs an opportunity to conduct discovery
and/or contest the validity of Defendants’ evidence. Cf.
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 516 (4th Cir.
2002)(allowing a governmental entity to rely on evidentiary
foundation established in other cases “unless the plaintiff
produces clear and convincing evidence to the contrary”).
19

customers who want a handgun, which in turn, burdens the Second
Amendment rights of its customers.10
The Amended Complaint details the burdens associated with
the application process, including the specific costs11 and the
27 or more days of wait time to receive an HQL.

It is not

necessary for a Plaintiff to explain why she specifically lacks
the resources to pay for the application.

Common-sense allows

an inference that a person could be burdened in some capacity by
the HQL application process, which could cost hundreds of
dollars, requires at least four hours of training time, plus
time spent on completing forms and getting fingerprints, and
many days of wait time.

These allegations are sufficient to

plead a Second Amendment claim.

The extent of the burden is

relevant to the analysis on the merits.
Accepting the pleadings as true, the Court finds that the
Plaintiffs allege adequate facts to present a plausible claim
that the HQL Provision and regulations have deprived them (or
their members or customers) of the Second Amendment right to
possess a handgun in the home for self-defense.

Accordingly,

Count I shall not be dismissed.
10

See Craig v. Boren, 429 U.S. 190, 195 (1976)(“[V]endors and
those in like positions have been uniformly permitted to resist
efforts at restricting their operations by acting as advocates
of the rights of third parties who seek access to their market
or function.”).
11
At least $99.50, plus whatever is charged for a training
course.
20

iv.

Facial Challenge

“As the Supreme Court has repeatedly observed, [a] facial
challenge to a legislative Act is, of course, the most difficult
to mount successfully, since the challenger must establish that
no set of circumstances exists under which the Act would be
valid.

The fact the [relevant statute] might operate

unconstitutionally under some conceivable set of circumstances
is insufficient to render it wholly invalid . . . .”

Jordan by

Jordan v. Jackson, 15 F.3d 333, 343 (4th Cir. 1994)(quoting
United States v. Salerno, 481 U.S. 739, 745 (1987)).
An exception relating to third party rights exists in the
First Amendment context for overbreadth claims, but no circuit
has accepted such a Second Amendment overbreadth challenge.
United States v. Chester, 514 F. App’x 393, 395 (4th Cir. 2013);
United States v. Masciandaro, 638 F.3d 458, 474 (4th Cir.
2011)(calling a Second Amendment overbreadth challenge a “novel
notion,” but declining to reach the issue).
Plaintiffs contend that the HQL Provision and regulations
are facially unconstitutional because they were intended to act
“as a rationing of Second Amendment rights by discouraging and
burdening the exercise of a law-abiding citizen’s right to
purchase or acquire a handgun,” and thus the Provision is
illegitimate and unconstitutional.

¶ 57.

In addition,

Plaintiffs contend that the HQL requirements are facially
21

unconstitutional because they bar a person from exercising the
Second Amendment right until or unless that person has “borne
all the burdens imposed by the HQL Statute and navigated all the
obstacles.”

Pls.’ Opp’n [ECF No. 29] at 17.

Defendants assert that the Amended Complaint fails to
present a facial challenge because the HQL Provision has a
legitimate sweep and because Plaintiffs either do not have
standing or have not alleged facts to support a claim that the
individual burdens, such as cost or access to a shooting range,
impose an unconstitutional burden in every circumstance.
The Court has already addressed the standing issue, and
concludes that if it is later determined that the law is
constitutional as-applied to Plaintiffs, at that point it will
be unnecessary to address the facial challenges.

See United

States v. Masciandaro, 638 F.3d 458, 474 (4th Cir. 2011) (“[W]e
conclude that a person, . . . to whom a statute was
constitutionally applied, ‘will not be heard to challenge that
statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the
Court.’”)(quoting Broadrick, 413 U.S. at 610); see also Woollard
v. Gallagher, 712 F.3d 865, 882-83 (4th Cir. 2013).
Accordingly, the claims in Count I remain pending.

22

b. Count II: Fourteenth Amendment Due Process
Claims
Plaintiffs allege that the HQL requirement violates the
Fourteenth Amendment Due Process Clause12 in two ways:
(1) the MSP regulations vest “Qualified Handgun
Instructors” with unreviewable authority to grant or deny
an individual the certification needed to apply for an HQL,
and
(2) the terms “receive” or “receipt” used in the HQL
Provision are void for vagueness.
These contentions will be addressed in turn.
i. Instructor Certification Requirement
The MSP regulations provide that an HQL applicant must
submit “a Firearms Safety Training Certificate issued by a
Qualified Handgun Instructor” to prove that the applicant
“satisfactorily completed a Firearms Safety Training Course.”
Md. Code Regs. 29.03.01.29 (2017).

Plaintiffs’ claims are based

on the possibility that an Instructor could refuse to issue such
a certificate, thereby preventing an applicant from successfully
completing the application and being considered to receive an
HQL.

The statute and the regulations do not provide for a

hearing or judicial review of an Instructor’s denial of a
Certificate.

12

“[N]or shall any state deprive any person of life, liberty,
or property, without due process of law.” U.S. Const. amend.
XIV, § 1.
23

To state a procedural due process claim, Plaintiffs must
show that:
(1)

they had a constitutionally cognizable life, liberty,
or property interest;

(2)

the deprivation of that interest was caused by some
form of state action; and

(3)

the procedures employed were constitutionally
inadequate.

See Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir.
2013).
Plaintiffs’ procedural due process claims are speculative
and fail to meet this standard because they do not allege a
deprivation due to the denial of a Training Certificate.13
Plaintiffs are not harmed by merely complying with the
regulation, and would be harmed only if an Instructor wrongfully
denied a Certificate.14

Nor have Plaintiffs pointed to any part

of the regulations that vest Training Instructors with a
discretionary determination.

13

In this way, Plaintiffs’ claims are also not ripe. See
Andrew v. Lohr, 445 F. App’x 714, 715 (4th Cir. 2011)(finding
case “not fit for review” when the constitutional violation
rested on contingent future events and plaintiff had not
demonstrated any present hardship).
14
At which point a person could possibly have a valid claim.
See State of Washington ex rel. Seattle Title Trust Co. v.
Roberge, 278 U.S. 116, 121–22 (1928)(finding a due process
violation when private citizens were delegated authority to
control the use of a landowner’s property for any reason without
being subject to official review).
24

Accordingly, Plaintiffs have failed to plausibly allege
that the Instructor Certification Requirement violates
procedural due process.

ii. Vagueness Challenge
The HQL Provision provides that a person may not “purchase,
rent, or receive a handgun” without an HQL.
Safety § 5-117.1(c).

Md. Code Ann., Pub.

Section 5-144(a) of the Maryland Public

Safety Code prohibits the “receipt of a regulated firearm in
violation of this subtitle.”

Md. Code Ann., Pub. Safety § 5-

144(a)(2011 Repl. Vol., 2016 Supp.).

Plaintiffs assert that the

HQL Provision is void for vagueness because the terms “receive”
and “receipt” are undefined by the Code and regulations.
MSI submitted comments to the MSP during the rulemaking
proceedings and requested that the MSP define those terms, but
the MSP failed to do so.

MSI contends that its members without

HQLs who wish to temporarily handle a handgun at home or a
shooting range or to receive training are exposed to the threat
of arbitrary prosecution under § 5-144 due to the ambiguous
meaning of the terms “receive” and “receipt.”
A statute is impermissibly vague under the Due Process
Clause only if it “[1] fails to provide a person of ordinary
intelligence fair notice of what is prohibited, or [2] is so
standardless that it authorizes or encourages seriously

25

discriminatory enforcement.”

United States v. Passaro, 577 F.3d

207, 217 (4th Cir. 2009)(quoting United States v. Williams, 553
U.S. 285 (2008)).

Although “the standard of certainty is

higher” for criminal statutes, “[s]triking down ordinances . . .
as facially void for vagueness is a disfavored judicial
exercise.”

Schleifer by Schleifer v. City of Charlottesville,

159 F.3d 843, 853 (4th Cir. 1998)(quoting Kolender v. Lawson,
461 U.S. 352, 359 n.8 (1983)).

“In evaluating a facial

challenge to a state law, a federal court must, of course,
consider any limiting construction that a state court or
enforcement agency has proffered.”

Vill. of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.5 (1982).
Defendants contend that the words “receive” and “receipt”
are not vague in light of the structure of the statute, which
pairs “transfer” in § 5-117.1 subsection (b), with “receive” in
subsection (c).

The Maryland Court of Appeals has defined the

word “transfer” as used in § 5-124 of the Maryland Public Safety
Article, to refer only to “permanent gratuitous transfers,” Chow
v. State, 903 A.2d 388, 401-02 (Md. 2006); thus, Defendants
argue that “receipt” means a permanent receipt of a firearm.
To address Defendants’ arguments, the Court would have to
analyze the merits of Plaintiffs’ vagueness claim, which is
inadvisable and unnecessary at the motion to dismiss stage.

26

It suffices now to note that Plaintiffs adequately allege a
plausible claim that the HQL Provision is impermissibly vague15
and thus deprives them of due process under the Fourteenth
Amendment.

Specifically, MSI alleges that its members routinely

handle handguns in the presence of other people who do not
possess HQLs, yet who wish to temporarily possess the handgun
for training or shooting, or MSI members are not certain of what
the law forbids regarding temporary possession of a handgun by
nonlicensed guests in their homes.
Accordingly, Count II shall not be dismissed.

E. Count III: Ultra Vires Claim
In Count III, Plaintiffs bring a claim under the Maryland
Administrative Procedure Act, which provides that “[a] person
may file a petition for a declaratory judgment on the validity
of any regulation” and “the court shall declare a provision of a
regulation invalid if the court finds that:
(1) the provision violates any provision of the United
States or Maryland Constitution;
15

The Court does not read the Amended Complaint to present a
facial vagueness challenge. See McCree v. State, 76 A.3d 400,
409 (Md. Ct. App. 2013), aff’d, 105 A.3d 456 (Md. 2014)(noting
that “we normally do not evaluate whether the statute is of
questionable applicability in foreseeable marginal situations”
unless “the statute appears to impinge upon fundamental
constitutional rights such as the First Amendment guarantees of
free speech” (internal citations omitted)).

27

(2) the provision exceeds the statutory authority of the
unit; or
(3) the unit failed to comply with statutory requirements
for adoption of the provision.”
Md. Code Ann., State Gov’t § 10-125(a),(d).

An agency’s rules

or regulations should be upheld “as long as they d[o] not
contradict the language or purpose of the statute.”

Christ by

Christ v. Maryland Dep’t of Nat. Res., 644 A.2d 34, 39 (Md.
1994).
Plaintiffs contend that the MSP regulations are invalid
because MSP:


imposed requirements16 for the application process
beyond what was specified by § 5-117.1;



acted arbitrarily and unreasonably in failing to
approve alternative handgun training courses as
contemplated by § 5-117.1(e)(1); and



“impermissibly shifted the burden of paying for the
required training to the applicant” by not including
the training and fingerprinting fees in the $50 fee
limitation in § 5-117.1(g)(2). ¶ 86.

Plaintiffs also allege that the regulations violate the Second
Amendment.
The Maryland Court of Appeals has held “[i]t is proper to
dismiss a declaratory judgment action only where there is a lack
of jurisdiction or where a declaratory judgment is not an
16

Such as the live fire training requirement, requiring
applications to be submitted online, requiring training by a
private State-certified instructor and not providing training by
the MSP, not providing fingerprinting at the MSP, and requiring
payments to be made by credit or debit card. See ¶ 80.
28

available or appropriate type of remedy.” Christ by Christ, 644
A.2d at 37.

When considering a motion to dismiss a claim under

Maryland’s declaratory judgment statute,
“it is immaterial that the ultimate ruling may be
unfavorable to the plaintiff. The test of the
sufficiency of the [complaint] is not whether it shows
that the plaintiff is entitled to the declaration of
rights or interest in accordance with his theory, but
whether he is entitled to a declaration at all; so,
even though the plaintiff may be on the losing side of
the dispute, if he states the existence of a
controversy which should be settled, he states a cause
of suit for a declaratory decree.”
Id. at 38 (quoting Shapiro v. County Comm., 149 A.2d 396, 399
(Md. 1959)).

Therefore, Plaintiffs have adequately pled an

ultra vires claim under § 10-125.17
Accordingly, Count III shall not be dismissed.

17

In their Opposition Memorandum, Plaintiffs contend that
this Court can also set aside MSP’s actions as “arbitrary and
capricious” under the common law and Md. Code Ann., State Gov’t
§ 10-222. However, § 10-222 governs judicial review of a
decision in a “contested case,” not the promulgation of a
regulation. And the scope of a court’s inherent authority to
review an agency’s quasi-legislative actions, which is the type
of action involved here, is “limited to ‘assessing whether the
agency was acting within its legal boundaries.’” See Maryland
Bd. of Pub. Works v. K. Hovnanian’s Four Seasons at Kent Island,
LLC, 42 A.3d 40, 58 n.15 (Md. 2012)(quoting Schade v. Board of
Elections, 930 A.2d 304, 326 (Md. 2007)).
29

V.

CONCLUSION
For the foregoing reasons:
1.

Defendants’ Motion to Dismiss the Amended Complaint
[ECF No. 18] is GRANTED in part and DENIED in part.
a. Counts I and III remain pending.
b. As to Count II:
i. The challenge to the Instructor
Certification Requirement is DISMISSED.
ii. The void for vagueness challenge remains
pending.

SO ORDERED, on Tuesday, September 05, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

30