April Love v. Robert G. Pepersack, Sr. Merrill A. Messick, Jr. Ernest Eldon Pletcher Elmer Hunt Tippett, Jr. State of Maryland
47 F.3d 120
4th Cir.
1995
Check Treatment

*1 Virgi- sum, concluded above does not dangers exist under well aware of the involved. Buettner, nia F.Supp. law. at 476-77. affirm we the district court’s dismissal of warranty Were we to find the inclusion of a Buettner’s failure to warn claim. disclaimer in the sales contract unconsciona- simply ble as to Buettner because she was V. contract, party not a to the we would in reasons, For foregoing judgment every warranty effect hold such limitation of the district court is respect

unconscionable with to all foreseeable nonpurchasing clearly users. This result AFFIRMED. 8.2-316, contrary § would run which al- implied lows vendors to disclaim all warran- long requirements

ties so as the of the stat-

ute are met.2

IV.

Finally, argues Buettner that Martin duty had a dangers to warn her of the associ April LOVE, Plaintiff-Appellant, with ated the feed drive unit in which cloth ing could entangled specifically become to warn her guard of the absence of a cover PEPERSACK, Sr.; Robert G. Merrill A. ing the feed drive roll. Messick, Jr.; Pletcher; Ernest Eldon noted, As the district court Buettner’s Tippett, Jr.; Mary- Elmer Hunt State of employer knowledgeable was about the haz land, Defendants-Appellees. ards associated with the flatwork ironer and No. 94-1582. specifically was aware dangers of the wearing clothing loose that could become en United Appeals, States Court of tangled Buettner, machinery. Fourth Circuit. F.Supp. at 478. aWhere seller or manufac Argued Dec. turer has reason employer to believe that an acting would protect safety be of its Decided Feb. employees, may justifiably the seller rely upon Indus., that fact. Raymark Willis v.

Inc., (4th Cir.1990). See Goodbar, (“in F.Supp.

also Virgi at 560 duty

nia product there is no suppliers employees

warn knowledgeable industrial

purchasers hazards”). produet-related as to every

Here Martin had reason to believe that

SHS, laundry a commercial experience ironers,

operating flatwork would exercise instructing

care in employees its in the cor

rect use of the ironer. It is also worth

noting years’ that after experience fourteen ironers,

with flatwork Buettner herself was 2. Buettner also cites Hiett v. Lake Com- volved in liability this case is not a disclaimer for Barcroft Ass'n, Inc., munity negligence Va. 418 S.E.2d 894 for complete but rather a exclusion of (1992), proposition for the that because she has expressly permitted by warranties § 8.2-316. personal injury, 8.2-719(3) sustained a severe limitation of Nor does claimer; prohibit Va.Code the dis- warranty in this contrary case would be void merely that section establishes that lim- is, however, Virginia public policy. personal Hiett in- injury itations of remedies in cases in- applicable. pre-injury Hiett held a volving goods release prima from consumer are facie uncon- liability negligence against public void as injured scionable. The flatwork ironer that Bu- policy. 418 S.E.2d at clearly 897. The disclaimer in- good. ettner is not a consumer *2 Frederick, MD, Fezell, ap- for

Howard J. Bowen, Asst. pellant. Mark Holdsworth MD, Gen., Pikesville, appellees. for Atty. Curran, Jr., Atty. Joseph BRIEF: J. ON Pikesville, MD, appel- reporting cation. A letter to Ms. Maryland, Gen. of lees. signed denial was Lieutenant Merrill separate correspondence, Messiek. Mes- LUTTIG, HALL Before *3 sick instructed the dealer not to sell Ms. CURRIE, United States District Judges, and handgun. Love the Carolina, sitting by Judge, District of South prior The reason for the denial was the designation. itself, arrest record and both Pletcher and opinion. Judge by published Affirmed Pepersack later testified that it was standard Court, opinion of the in HALL wrote the deny practice applications to on that basis. joined. Judge Judge CURRIE which Maryland grounds The Code lists several separate concurring wrote a LUTTIG denying application, prior an a but arrest is opinion. ground. not a such OPINION Love exhausted state administrative reme- success, dies in without and then sued state HALL, Judge: K.K. court. She won. The court ordered the 42 April appeals Love the dismissal of her police approve application. state to her Love rights against § 1983 civil suit various U.S.C. § alleging then filed this 1983 viola- Maryland troopers. suit — state We affirm. process, “right tions of substantive due a I. contract,” and the Second Amendment— Pletcher, against Pepersack, Messiek, and According complaint, September, to her in police commander, 1990, the state April purchase handgun a Colonel Elmer Love tried to George’s County, Mary- dismiss, shop Tippett. at a in Prince The defendants moved to application required land. out an She filled granted and the district court the motion. All state law. of her answers to the appeals. Love questions posed true and were correct. licensing Maryland division of the II. police application Sep received the on process We divide due into “substan 18, strapped tember 1990. It was for time— “procedural” prongs, though tive” and the Maryland only gives police seven law the is, latter term is redundant and the first days deny application; if it does not the strictly speaking, a conflict terms. Love act, may legally the the firearm. dealer sell only process asserts a substantive due claim. 442(b) (1992). Sep Ann. Md.Code On process Substantive due is a far narrower 21, tember Corporal Ernest Pletcher re concept procedural; than it is an absolute application computer print viewed the a and governmental check on certain actions not Maryland police out from Federal Bu and Investigation reau of withstanding procedures files. He discovered “the fairness of the that Ms. Love had been arrested on four implement Dep’t used to them.” Weller v. of 1976, working strip occasions. In a while Services, (4th 387, Social Cir. per, Ms. Love had been arrested twice for 1990) Williams, (quoting Daniels v. 474 U.S. participating in an obscene show and once for 327, 331, 662, 665, 106 S.Ct. 88 L.Ed.2d 662 exposure. indecent she had been (1986)). charged arrested two counts of case, To win her Love must first have battery resisting and one of arrest. She was property right approval a appli the of her convicted of of these one crimes —a mis purchase cation handgun. Property though disposition demeanor the 1— charges rights apparent computer can be was not the created defined printout. laws, Roth, Regents Board v. 408 U.S. 2701, 2709, 92 S.Ct. 33 L.Ed.2d 548 investigation, Without further Pletcher (1972), calling but laws for issuance of a application that the recommended be denied. permit license or Sergeant Pepersack property cannot create Robert reviewed the file deny and made final appli- rights decision to the unless “the all [state actor] lacks dis- paid upon 1. She participating a fine conviction in Florida of in an obscene show. 278, 281 County, 946 F.2d to Rucker permit of the deny issuance Harford eretion denied, (4th Cir.1991), 502 U.S. cert. dis- Any significant approval. its withhold L.Ed.2d 420 de- agency upon local conferred cretion property interest.” aof claim feats the agree with district Here we City Coun- Mayor & v. Baltimore Gardner Though their claim fails. that Love’s court Cir.1992). cil, F.2d po these violated state apparently acts un- interest property has Whether time by the forced extreme were lice officers call, as is whether a close der Gardner investigations. to streamline constraints apply outside even ought to Gardner by denying of caution on the side They erred permitting The state land use.2 context *4 computer check a showed applications where 442, the requires statute, Ann. 27 Md.Code can dispositions. We unknown arrests with disqualifying potentially deny all applicant “unjusti corner-cutting was this say that not The itself. application in the circumstances inter governmental or by circumstance fied application deny the power the police have “literally incapable its effect was or that est” on any information or incomplete it only if is by any post- adequate rectification ... of power that deem It is a stretch it is false. Indeed, de the remedies.” deprivation state Nonetheless, we because “discretionary.” State fully rectified. was here privation the sec- fails claim Love’s that below decide things, to, among other in exist order courts process due substantive prong of the ond of misapplications against protect citizens deciding that test, without will assume we Pro the Due trivialize law. We would state has Love that here and govern does Gardner citi every time it the to invoke cess Clause appli- of her approval in property interest a The court. in state state zen defeats the cation.3 courts the state where is violated Clause pro due “substantive” of A violation injury the rectify that the nothing to can do ac government’s the only where cess occurs arbitrarily inflicted.4 already has life, or liberty, of person a depriving tions in fair amount of unjust that no are so property III. rectify them. can

procedure of “substantive protections residual [T]he articles, argues Citing law review (or run any) context this process” in due federal constitu- individual has an that she arbitrary or irra- so action only to state handgun, bear” “keep and right to tional by any circumstance tional, unjustified so this infringe upon may not Maryland and literally interest, to be as governmental right. any pre-depriva- by of avoidance incapable adequate or of protections procedural tion wrong both counts. She is any post-deprivation rectification apply to the not does Amendment Second Irrationality arbitrariness and remedies. Illinois, 6 116 U.S. v. Presser against states. stringent standard imply a most (1886); United States 580, 29 L.Ed. S.Ct. in measured is to be state action which Cruikshank, 23 L.Ed. 92 U.S. v. claim. process due assessing a substantive pled a not why has fully explains she "property" which is use of land Ownership and free process. procedural due for denial known to claim sense ancient perhaps the most in opinion Throughout our Anglo-American law. disapproval of her argues that the also Gardner, context 4.Love land-use emphasized the we with "right to contract” standard, her see, application e.g., violated discretion” “lack of all of our positive federal no is gun There dealer. unwilling it 68-69, to extend we are and id. at subjects, on all at all “right times unnecessary to contract” here, where, an extension as such contract generally free to though are individuals decision. to our not that do objectives and a manner may give liberty rise this hand, local procedural violate full she had On the other Amend- Fourteenth interest, protected interest property an supposed protections for this Roth, generally, See Clause. Due right Process hearing ment’s including an administrative This at 2706-07. 92 S.Ct. at U.S. under state’s courts to the state of access component of the just a is therefore these "claim” used procedures She act. administrative process claim. right. due property substantive her procedures and vindicated (1876).5 Moreover, against even federal Cir.1992), F.2d 63 is the law the regulation, the amendment does not confer circuit. an right absolute any individual to bear type Supreme .firearm. In Court held

that the federal statute prohibiting posses

sion of a shotgun sawed-off was constitution

al, because the defendant had not shown that possession

his gun of such a bore a “reason relationship

able preservation to the or effi

ciency regulated of a well militia.” United Miller, States v. 307 U.S. LOWE, Gina Plaintiff-Appellant, 816, 818, then, L.Ed. 1206 Since the lower federal uniformly courts have held that the Second Amendment preserves a col INTERNATIONAL, SPORICIDIN lective, individual, rather right. than This Defendant-Appellee. precedent court’s is United States v. John No. 94-1821. son, (4th Cir.1974). 497 F.2d 548 In John *5 son, the defendant challenged the constitu United States Appeals, Court of tionality of the federal prohibiting statute Fourth Circuit. possession of firearms convicted felons. Argued Nov. 1994. (id. 550): We impressed were not at argument

Johnson’s that Decided Feb. [18 §] U.S.C.

922(g)is an unconstitutional violation of his

Second right Amendment keep and bear See,

arms e.g., is not new. United States Miller, U.S. L.Ed. 1206 The courts have con-

sistently held that the Second Amendment

only right confers collective of keeping

and bearing arms which must bear a “rea- relationship

sonable to the preservation or

efficiency well-regulated of a militia.” 307 U.S. at at S.Ct. Johnson

presents no that evidence section 922(g)

any way affects the maintenance of a well

regulated militia.

Love has likewise not identified how her

possession of handgun preserve will

insure the effectiveness the militia. judgment is affirmed.

AFFIRMED.

LUTTIG, Judge, concurring in the

judgment: I only concur judgment reached majority, I only and do so because Gard-

ner v. Mayor Baltimore City Council,

5. Love argument makes an does, Mary- odd that the it as a matter land incorporates Constitution the Second violations of law cognizable are not under Amendment, and that therefore the Second Link, 1983. Clark v. “applies" Amendment Maryland. may It well Cir.1988). "apply" Maryland manner, but, in this it if