IN THE MATTER OF MARK MCCLOY
No. 10
IN THE SUPREME COURT OF MARYLAND
August 20, 2024
Opinion by Gould, J.
September Term,
In the Matter of Mark McCloy, No. 10, September Term, 2023. Opinion by Gould, J.
DISQUALIFYING CRIMES - FIREARMS
The Supreme Court of Maryland held that, in determining whether an out-of-State crime is disqualifying under
DISQUALIFYING CRIMES - FIREARMS
The Supreme Court of Maryland held that an out-of-State crime is equivalent to a Maryland crime under Maryland‘s Public Safety Article (“PS“) if the elements of the out-of-State crime are the same as or narrower than the Maryland crime. If the out-of-State crime is equivalent to a “disqualifying crime” in Maryland under
Fader, C.J.,
Watts,
*Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Opinion by Gould, J.
Filed: August 20, 2024
* Hotten, J., now a Senior Justice, participated in the hearing and conference of this case while an active member of this Court. After being recalled pursuant to the Maryland Constitution, Article IV, § 3A, she also participated in the decision and adoption of this opinion.
Maryland regulates the purchase, sale, and possession of “regulated firearms.”
Determining whether a prior conviction in Maryland is a “disqualifying crime” under
I
A
To buy a handgun in Maryland, you must first obtain a handgun qualification license (“HQL“) from the MSP.
The HQL is just the first step. Before you can buy a specific handgun, you must complete a firearm application and submit it to the seller, a “licensee,” which in turn submits it to the MSP.5
Upon receipt of the application, the MSP “shall conduct an investigation promptly to determine the truth or falsity of the information supplied and statements made in the firearm application.”
The MSP has only seven days from receipt of the application to disapprove the application.
Now that you‘ve bought a handgun, if you want “to carry, wear, or transport” it, you will need to apply to the MSP for a “permit.”
To sum up: (1) To be eligible to buy a handgun, you must obtain an HQL; (2) to buy a specific handgun, you must submit a firearm application and wait seven days; if not disapproved within that time, you have 90 days to complete the transaction; and (3) to wear, carry, or transport your handgun, you need to apply for and receive a permit. All three government-issued approvals must be denied if you have a conviction for a disqualifying crime on your record. This case is about the disapproval of the second application: the firearm application.
B
Petitioner Mark McCloy obtained an HQL in 2015 and subsequently purchased four handguns. On February 8, 2021, he submitted a firearm application to buy another handgun.11 He stated on his application that he had never been convicted, in Maryland or elsewhere, of a misdemeanor that, under Maryland law, carries a maximum penalty of more than two years. As previously noted, a misdemeanor carrying such a sentence is a disqualifying crime under
The MSP‘s criminal background check revealed that, in 1999, Mr. McCloy had been charged with witness tampering under
C
An aggrieved applicant has 30 days after receipt of the disapproval notice to request a hearing before the MSP.
Mr. McCloy timely appealed the MSP‘s decisiоn to the OAH. Two days before the hearing, the MSP told him that, for purposes of determining whether his conviction under
At the hearing, the MSP explained that in determining whether an out-of-State conviction disqualifies an applicant, it first determines whether Maryland has an equivalent statute and if so, whether that statute meets the definition of “disqualifying crime.” The MSP then compares the elements of the out-of-State statute with the elements of the potentially equivalent Maryland crime, but it does not consider the facts supporting the conviction. Here, the MSP consulted counsel from the Attorney General‘s office in determining that
In response, Mr. McCloy submitted an affidavit from the attorney who handled his 1999 federal case, explaining the factual circumstances of that matter, a subject Mr. McCloy also covered in his testimony. According to Mr. McCloy, the charges against him stemmed from a sexual encounter
In additiоn to introducing evidence explaining the factual circumstances of his conviction, Mr. McCloy also argued that
In a ten-page decision, the ALJ affirmed the MSP‘s disapproval of Mr. McCloy‘s application, but on different grounds. Looking only at the elements of the federal and Maryland statutes, the ALJ agreed with Mr. McCloy that
D
Mr. McCloy sought judicial review in the Circuit Court for Queen Anne‘s County, which affirmed the ALJ‘s decision in a written opinion.17 And just as the ALJ affirmed the MSP‘s decision, but on different grounds than the MSP, the circuit court affirmed the ALJ‘s decision, but on a different ground than the ALJ. The circuit court agreed with Mr. McCloy “that the ALJ exceeded her statutory authority in finding that Section 9-306 was the analogous statute, and in doing so violated his procedural due process [rights] to notice and an opportunity to be heard.” The court then determined that the ALJ erroneously found that Mr. McCloy had made a false statement on his application. Those determinations were uncontested by the MSP on appeal and are therefore not before us.
But the circuit court came full circle and held that the MSP correctly identified
Mr. McCloy timely noted an appeal to the Appellate Court of Maryland, which affirmed in a reported decision. In re McCloy, 257 Md. App. 668 (2023). Mr. McCloy argued that because his federal conviction occurred in 1999, that crime could not be compared to
Mr. McCloy next argued that his federal crime was not equivalent to
F
We granted Mr. McCloy‘s petition for writ of certiorari. In re McCloy, 485 Md. 133 (2023). He presents four questions for our review, which we have distilled into one:
Did the ALJ properly determine that Mr. McCloy‘s 1999 conviction under
18 U.S.C. § 1512(c)(1) was a disqualifying crime requiring disapproval of his firearm application?
II
A
An aggrieved firearm applicant‘s right to judicial review is authorized by
Here, the ALJ agreed with Mr. McCloy that
The standard of review of an agency‘s final decision in a contested case is set forth in
under
B
Mr. McCloy argues that “it is a legal impossibility for [his] cоnduct or conviction to constitute a prohibiting offense in Maryland, when [he] could not have been, under any circumstances, charged for a violation of § 9-305 in Maryland in 1999.” That‘s because he was convicted in 1999, but
The MSP contends that the Appellate Court correctly determined that only the Maryland statutes in effect at the time of the application may be considered in the disqualifying crime analysis. We agree.20
Our conclusion rests on a foundation first articulated by the Attorney General of Maryland in 2006 and later embraced by both this Court and the Appellate Court of Maryland. 91 Op. Att‘y Gen. 68, 68-80 (Md. 2006). As noted above,
The Attorney General‘s opinion was tested five years later in Maryland State Police v. McLean, 197 Md. App. 430 (2011). In 1983, McLean was convicted of breaking and entering a storehouse. Id. at 433. At that time, the maximum sentence was at most six months, which did not constitute a disqualifying crime. Id. But when McLean applied to renew his carry permit in 2008, the offense had been changed to a misdemeanor and carried a maximum sentence of more than two years, which is disqualifying. Id. at 436. McLean argued that, in determining whether an offense is a “disqualifying crime” under
Adopting the Attorney General‘s reasoning, the Appellate Court agreed. As the court оbserved,
The issue here is a variation of the one addressed in McLean, with three notable but inconsequential differences. First, in McLean, the applicаnt was denied a carry permit; here, Mr. McCloy was denied approval to purchase a handgun. But in both cases, the reason for the denial was the same: The MSP determined that the applicant had committed a “disqualifying crime.” So, this distinction is immaterial here.
Second, in McLean, the applicant was convicted under a Maryland statute; here, Mr. McCloy was convicted under a federal statute. That too is immaterial because, as we held in McCloud v. Department of State Police, Handgun Permit Review Board, 426 Md. 473, 487 (2012), an out-of-State conviction is disqualifying if there an “equivalent offense in Maryland.” Our goal was to treat in-State and out-of-State crimes consistently. Id. at 484-85. A conviction
And third, in McLean, the issue was whether the disqualification analysis applies to the penalty at the time of the conviction or at the time of the application; here, for equivalency purposes, the issue is whether we look to Maryland crimes at the time of the conviction or at the time of the application. This distinction too is immaterial because, at bottom, both cases raise the same temporal question of law: Do we apply the law in effect then or the law in effect now?
The Appellate Court determined that it‘s the latter, McCloy, 257 Md. App. at 689, and we agree. As the court in McLean observed,
C
As noted above, in McCloud, this Court held that an out-of-State conviction is disqualifying if there is an “equivalent offense in Maryland.” 426 Md. at 487. But there, we did not take the additional step of explaining how equivalency is determined in this context; nor have we done so until now. To make this determination, Mr. McCloy urges us to adopt the United States Supreme Court‘s “categorical approach,” under which the elements of the out-of-State offense must be “no broader than the elements” of the comparable Maryland offense. Using that approach, Mr. McCloy argues,
broader range of conduct than the former. Mr. McCloy adds that the same result obtains if the facts behind his 1999 conviction are considered.
In contrast, the MSP defends the two-step analysis adopted by the Appellate Court and argues that becаuse “substantial evidence exists to support the conclusion that Mr. McCloy had been convicted of a ‘disqualifying crime,’ the Appellate Court correctly affirmed.” MSP further argues that
1
Our task is essentially one of statutory construction, the goal of which is to understand and implement the General Assembly‘s intent. Westminster Mgmt., LLC v. Smith, 486 Md. 616, 644-45 (2024). We begin our analysis with the text of the relevant provisions and interpret the same in the context of the overall statutory scheme. Id. If the text is unambiguous, we apply the plain meaning, and our inquiry is over. Id. at 645. If the statute is ambiguous, we may examine the legislative history to ascertain the General Assembly‘s intent. Id.
If the MSP‘s investigation uncovers a prior conviction under an out-of-State law on the appliсant‘s record, the MSP‘s process is the same, but with one additional, preliminary step: The MSP must determine whether the applicant was convicted of an offense that would be disqualifying had it been committed in Maryland. McCloud, 426 Md. at 487. Although not entirely sufficient, the categorical approach advocated by Mr. McCloy is an appropriate starting point for making this determination.
The categorical approach was articulated by the United States Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), a case involving the Armed Career Criminal Act,
To import the categorical approach into the MSP‘s decisional process in the context presented here, an out-of-State offense would be equivalent to a Maryland disqualifying crime if the elements of the former are the same as or narrower than any crime that is “disqualifying” under
But if the elements of the out-of-State crime are broader than the Maryland crime, then the analysis is not over because, depending on the information available to the MSP, the MSP may yet determine that the applicant was convicted of an offense that satisfies all the elements of a
Now assume the applicant has a prior conviction under a statute of another state which has the same elements as
Now let‘s take the same hypothetical and assume that the applicant‘s out-of-State conviction was based on a written plea agreement. Assume also that during its investigation the MSP obtains an authentic copy of the plea agreement, and in it the applicant stipulated that, when he committed the offense, he was 21 years old and the victim was 14 years old. Recall that the MSP‘s task under
2
Applying this test, we agree with the ALJ that Mr. McCloy‘s 1999 conviction under
| | |
|---|---|
| A person can be convicted of this offense when they: | |
| 1. Intentionally harass another; and | 1. Use threat, force, or corrupt means; |
| 2. Thereby hinder, delay, prevent, or dissuade; | 2. To try to influence, intimidate, or impede; |
| 3. Any person; | 3. A juror, witness, or an officer of a court of the State or of the United States; |
| 4. From attending or testifying in an official proceeding. | 4. In the performance of the person‘s official duties. |
As this table shows, the third and fourth elements of
Further,
Because the categorical approach does not resolve the inquiry, we next consider whether there was conclusive evidence that Mr. McCloy was convicted of having committed acts that establish all the elements of
As discussed above, the only evidence before the ALJ was that Mr.
3
We will briefly explain why we prefer the approach articulated above over the two-step test adopted by the Appellate Court. Under thе Appellate Court‘s test, the first step is to compare the elements of the out-of-State crime with the elements of the Maryland crime. McCloy, 257 Md. App. at 693. In this step, the relevant penalty for the comparable Maryland statute is the one in effect at the time of the application, not at the time of the out-of-State conviction. Id. If the elements of the two statutes are comparable, the second step under the Appellate Court‘s test is to determine “whether a reasonable mind could conclude that the out-of-[S]tate and Maryland statutes prohibit similar conduct, based upon a comparison of the elements of the respective statutes.” Id. The Appellate Court noted that “[i]n that context, we determine if a reasonable mind, in the position of the authority determining whether the out-of-[S]tate conviction is a disqualifying crime, could conclude that the conduct producing the applicant‘s out-of-[S]tate conviction could be considered prohibited by the purportedly ‘equivalent’ Maryland statute.” Id. If the two statutes prohibit similar conduct, then they are equivalent; if the out-of-State crime is equivalent to a disqualifying Maryland statute, then the former is also disqualifying. Id. The outcome of this exercise is reviewed under the substantial evidence test. Id. at 696.
Our concern with the Appellate Court‘s two-part test stems from its inherently subjective nature. First, there is no standard for determining whether the two statutes prohibit “similar” conduct. We can use Venn diagrams to illustrate this point. In the diagrams below, two statutes are represented by circles that capture the universe of their prohibited conduct. The shaded areas depict the conduct prohibited by both statutes—that is, the overlap of the two statutes. If two statutes do not prohibit any of the same conduct, the diagram would look like this:
But if two statutes prohibit some, but not all, of the same conduct, the diagram could look like this:
Or this:
As these diagrams illustrate, the Appellate Court‘s similarity prong invites the question: Just how much similarity or overlap is necessary to establish equivalency? One person might conclude that a 45 percent overlap is similar enough; another might say 65 percent is the appropriate threshold.24 Like beauty, similarity is in the eye of the beholder.
Second, by asking whether a reasonable person could conclude that the conduct “could be considered prohibited by the purportedly ‘equivalent’ Maryland statute[,]” and subjecting that determination to a substantial evidence test on judicial review, id. at 693, it appears that the Appellate Court‘s test would invite the MSP to consider and determine disputed facts underlying the out-of-State convictiоn. To illustrate the point, assume that the applicant was convicted under the same out-of-State statute as in our hypothetical above. This time, however, assume that the conviction resulted not from a guilty plea in which the defendant admitted to the underlying facts, but instead from a jury trial, and assume further that the MSP does not have access to any document that conclusively identifies the facts underlying the conviction. Suppose that there was different testimony as to the age of the victim: One witness testified that the victim was 15 at the time of the offense, while another witness testified that the victim had just recently turned 16. The jury would not have had to resolve that factual dispute because, either way, the evidence before the jury conclusively established that the victim was under the age of 17, which was all that was required to convict under our hypothetical out-оf-State statute. But that factual dispute is relevant to the equivalency analysis because the Maryland statute requires the victim to be either 14 or 15 years old. So, if the victim was 16, the applicant could not have been convicted under the Maryland statute. The second step of the Appellate Court‘s test, as we understand it, allows for the MSP to act as a factfinder to resolve conflicting evidence about the victim‘s age. Thus, two reasonable minds weighing the same evidence could reach different conclusions, both of which could be affirmed on judicial review under the substantial evidence test. We see no basis in the text of the statute to conclude that the General Assembly intended to assign the MSP such a factfinding task.
III
In sum, we hold that the relevant Maryland law in determining whether an out-of-State crime is equivalent to a disqualifying crime in Maryland under
Accordingly, this case shall be remanded to the Appellate Court of Maryland, and then from the Appellate Court to the circuit court, and then from the circuit court to the OAH, with instructions to reverse the MSP‘s disapproval of Mr. McCloy‘s firearm application.
JUDGMENT OF THE APPELLATE COURT OF MARYLAND IS REVERSED. CASE REMANDED TO THAT COURT WITH REMAND INSTRUCTIONS AS OUTLINED ABOVE. COSTS TO BE PAID BY RESPONDENT.
Notes
- is at least 21 years old;
- has never been convicted of a disqualifying crime;
- has never been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years;
- is not a fugitive from justice;
- is not a habitual drunkard;
- is not addicted to a controlled dangerous substance or is not a habitual user;
- 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 firearm applicant or another;
- has never been found incompetent to stand trial under § 3-106 of the Criminal Procedure Article;
- has never been found not criminally responsible under § 3-110 of the Criminal Procedure Article;
- has never been voluntarily admitted for more than 30 consecutive days to a facility as defined in § 10-101 of the Health--General Article;
- has never been involuntarily committed to a facility as defined in § 10-101 of the Health--General Article;
- is not under the protection of a guardian appointed by a court under § 13-201(c) or § 13-705 of the Estates and Trusts Article, except for cases in which the appointment of a guardian is solely a result of a physical disability;
- is not a respondent against whom:
- a current non ex parte civil protective order has been entered under § 4-506 of the Family Law Article; or
- an order for protection, as defined in § 4-508.1 of the Family Law Article, has been issued by a court of another state or a Native American tribe and is in effect; and
- if under the age of 30 years at the time of application, has not been adjudicated delinquent by a juvenile court for an act that would be a disqualifying crime if committed by an adult[.]
[A] proceeding before an agency to determine:
- a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing; or
- the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by statute or constitution to be determined only after an opportunity for an agency hearing.
Prohibited--In general
(a) A person may not, by threat, force, or corrupt means, try to influence, intimidate, or impede a juror, a witness, or an officer of a court of the State or of the United States in the performance of the person‘s official duties.
Prohibited--Solicitation
(b) A person may not solicit another person to, by threat, force, or corrupt means, try to influence, intimidate, or impede a juror, a witness, or an officer of the court of the State or of the United Stаtes in the performance of the person‘s official duties.
Penalty
(c) (1) Except as provided in paragraph (2) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding $5,000 or both.
(2) If an act described in subsection (a) of this section is taken in connection with a proceeding involving a felonious violation of Title 5 of this article or the commission of a crime of violence as defined in § 14-101 of this article, or a conspiracy or solicitation to commit such a crime, a person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years.
Sentencing
(d) A sentence imposed under this section may be separate from and consecutive to or concurrent with a sentence fоr any crime based on the act establishing the violation of this section.
In a proceeding under this section, the court may:
- remand the case for further proceedings;
- affirm the final decision; or
- reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision:
- is unconstitutional;
- exceeds the statutory authority or jurisdiction of the final decision maker;
- results from an unlawful procedure;
- is affected by any other error of law;
- is unsupported by competent, material, and substantial evidencе in light of the entire record as submitted;
- in a case involving termination of employment or employee discipline, fails to reasonably state the basis for the termination or the nature and extent of the penalty or sanction imposed by the agency; or
- is arbitrary or capricious.