Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND *
STEPHEN V. KOLBE, et al. *
*
* v. * Civil No. CCB-13-2841
*
*
MARTIN J. O’MALLEY, et al. *
*
****** AMENDED MEMORANDUM
On May 16, 2013, in the wake of a number of mass shootings, the most recent of which claimed the lives of twenty children and six adult staff members at Sandy Hook Elementary School in Connecticut, the Governor of Maryland signed into law the Firearm Safety Act of 2013. The Act bans certain assault weapons and large-capacity magazines (“LCMs”).
Plaintiffs Stephen V. Kolbe, Andrew C. Turner, Wink’s Sporting Goods, Inc., Atlantic Guns, Inc., Associated Gun Clubs of Baltimore, Inc. (“AGC”), Maryland Shall Issue, Inc., Maryland State Rifle and Pistol Association, Inc., National Shooting Sports Foundation, Inc. (“NSSF”), and Maryland Licensed Firearms Dealers Association, Inc. (“MLFDA”) [1] brought this action against defendants Martin J. O’Malley, Douglas F. Gansler, Marcus L. Brown, and Maryland State Police (“MSP”), [2] requesting a judgment declaring Maryland’s gun control legislation unconstitutional. [3] Now pending before the court are the defendants’ motion for summary judgment and the plaintiffs’ cross-motion for summary judgment. Also pending are the plaintiffs’ motion to exclude testimony, which the defendants have opposed, and a number of unopposed motions, including the defendants’ motions for protective orders and John Cutonilli’s motion for leave to file a brief as amicus curiae. The parties have fully briefed the issues, and oral argument was held on July 22, 2014. For the reasons stated below, I find the law constitutional, and accordingly will grant the defendants’ motion for summary judgment and deny the plaintiffs’ cross motion. [4] The plaintiffs’ motion to exclude will be denied, the defendants’ motions for protective orders will be granted, and Cutonilli’s motion to file an amicus brief will be denied. [5]
BACKGROUND
The Firearm Safety Act of 2013 provides in general that, after October 1, 2013, a person
may not possess, sell, offer to sell, transfer, purchase, or receive “assault pistols,”
[6]
“assault long
Act, he indicates that, but for the Act, he would purchase one along with detachable magazines holding more than
ten rounds. (
Id.
¶¶ 4–5.) Turner currently owns three long guns classified as assault weapons, all of which come
with detachable magazines holding in excess of ten rounds. (Turner Decl., ECF No. 55-3, ¶ 3.) He claims that, but
for the Act, he would purchase other banned firearms and large capacity magazines. (
Id.
¶¶ 4–5.)
Cf. New York
State Rifle and Pistol Ass’n, Inc. v. Cuomo
(
NYSRPA
), -- F. Supp. 2d --,
The Act exempts from the ban the transfer of an assault weapon from a law enforcement agency to a retired law enforcement officer as long as: (1) it is sold or transferred on retirement or (2) it “was purchased or obtained by the person for official use with the law enforcement agency before retirement.” Id. § 4-302(7). The Act also exempts retired law enforcement officers from the ban on LCMs. Id. § 4-305(a)(2), (b).
Just days before the Firearm Safety Act was to go into effect, on September 26, 2013, the plaintiffs filed their complaint, followed the next day by a motion for a temporary restraining order (“TRO”), challenging the law’s constitutionality with respect to its ban on assault long guns, copycat weapons, and LCMs. The court heard argument on the TRO on October 1, 2013, and decided that the plaintiffs did not show they were entitled to the extraordinary relief. Following the hearing on the TRO, the parties agreed that, instead of considering a preliminary injunction request, the court should proceed to consider this matter on the merits.
Accordingly, the court will now consider the plaintiffs’ claims that the Firearm Safety Act (1) infringes their Second Amendment rights, (2) violates the Equal Protection Clause of the Fourteenth Amendment, and (3) is void for vagueness.
ANALYSIS
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
“if the movant shows that there is no
genuine
dispute as to any
material
fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a) (emphasis added). Whether a fact
is material depends upon the substantive law.
Anderson v. Liberty Lobby, Inc.
,
II. Motion to Exclude Testimony
The plaintiffs ask the court to exclude various expert and fact testimony offered by the defendants. Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony, states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The party seeking to introduce expert testimony has the burden of establishing its admissibility
by a preponderance of the evidence.
Daubert v. Merrell Dow Pharm.
,
Rule 701 of the Federal Rules of Evidence, which governs the admissibility of lay testimony, states:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
“[L]ay opinion testimony
must
be based on personal knowledge . . . .”
United States v. Perkins
,
A. Koper Dr. Christopher Koper, as the plaintiffs admit, is the only social scientist to have studied the effects of the federal assault weapons ban that was in place from 1994 to 2004. ( Koper Decl., ECF No. 44-7, ¶ 5.) In addition, he has studied issues related to firearms policy for twenty years, publishing numerous studies in peer-reviewed journals on topics related to crime and firearms. ( Id. ¶¶ 3, 6–7.) The plaintiffs ask the court to exclude Koper’s expert testimony on two grounds, neither of which is persuasive.
First, the plaintiffs claim that Koper’s opinion that the Firearm Safety Act is likely to advance Maryland’s interest in protecting public safety is not based on sufficient data, as required by Rule 702, because his study of the federal ban found that the ban did not decrease firearms-related crimes, the lethality and injuriousness of gun crimes, or the criminal use of banned LCMs. (Pls.’ Mot. to Exclude, ECF No. 65, at 3–4.) Further, the plaintiffs claim, his previous research revealed that state-level bans did not result in any reduction in crime. ( Id. at 4.) The plaintiffs also allege that many of Koper’s opinions regarding the efficacy of the Firearm Safety Act contradict deposition testimony. ( Id. at 7.)
As an initial matter, the plaintiffs often mischaracterize Koper’s statements and his research, cherry-picking items and presenting them out of context. For example, they cite Koper’s acknowledgment in 2004 that a few studies suggest state-level assault weapons bans did not reduce crime as inconsistent with his conclusions regarding the Firearm Safety Act. ( Compare Koper Decl., Ex. B, at 81 n.95 (“[A] few studies suggest that state-level AW bans have not reduced crime . . . .”), with Koper Decl. ¶¶ 77–86 (opining that the Firearm Safety Act is likely to, inter alia , limit the number of long guns in Maryland, limit the number of LCMs in circulation, reduce the number and lethality of gunshot victimizations, and reduce the use of assault weapons and LCMs in crime).) But the plaintiffs omit Koper’s numerous qualifications of those state studies. ( See Koper Decl., Ex. B, at 81 n.95 (“[I]t is hard to draw definitive conclusions from these studies . . . : there is little evidence on how state AW bans affect the availability and use of AWs . . . ; studies have not always examined the effects of these laws on gun homicides and shootings . . . ; and the state AW bans that were passed prior to the federal ban . . . were in effect for only three months to five years . . . before the imposition of the federal ban, after which they became largely redundant with the federal legislation and their effects more difficult to predict and estimate.”).) Even ignoring the context in which Koper’s 2004 statement was made, there is nothing necessarily inconsistent about a 2004 statement that a few state-level bans were not shown to reduce overall crime and Koper’s opinion that a different state-level ban, enacted in 2013, likely will reduce the negative effects of gun violence.
To the extent Koper’s prior research concluded the federal ban was not effective in various ways, his opinions in the current case are based on several other pieces of data, which the plaintiffs entirely ignore in arguing his testimony should be excluded. ( See, e.g. , Koper Decl. ¶¶ 13–43.) Further, Koper is clear in noting that the federal weapons ban had several features that may have limited its efficacy that are not present with Maryland’s ban. ( Id. at ¶¶ 79–81.)
The plaintiffs also challenge Koper’s testimony on the basis that he is unable to conclude
the Firearm Safety Act will have the desired effects to a “reasonable degree of scientific
certainty.” It appears the plaintiffs are claiming that expert opinions may not be considered in
determining the constitutionality of the bans at issue here unless they are stated with such
scientific certainty. In making their argument, however, the plaintiffs fail to recognize that the
inquiry under Rule 702, as noted above, is flexible,
see Daubert
,
B. Webster The plaintiffs argue that Dr. Daniel Webster’s testimony should be excluded because he has not conducted any original research but rather has relied on the work of Koper and the data he acquired from the Mother Jones publication. [12]
It is acceptable for an expert to rely on the studies of other experts in reaching his own
opinions, although courts have excluded testimony where the expert failed to conduct any
independent examination or research to ensure the reliability of the information on which he
relies.
See Doe v. Ortho-Clinical Diagnostics, Inc.
,
Here, over a nearly thirty-year career, Webster has devoted most of his research to gun- related injuries and violence, has directed numerous studies related to gun violence and its prevention, and has published seventy-nine articles in scientific, peer-reviewed journals. ( See Webster Decl., ECF No. 44-6, ¶¶ 2–5.) Although it is true he relies on Koper’s research in his declaration, Webster served as editor of the book that included Koper’s 2013 report and, as editor, he subjected Koper’s 2013 report to a peer review process. ( See Koper Decl., Ex. A; Webster Dep., ECF No. 70-4, at 57:11–18.) Likewise, Webster relies on data from the Mother Jones publication, but the data were subject to independent analysis by Koper and his graduate student. ( See Koper Decl. ¶¶ 25–28.) In any event, the plaintiffs have offered nothing to suggest the Mother Jones data are unreliable or inaccurate. Accordingly, the court is satisfied that the information on which Webster relies in forming his expert opinion is reliable, and will not exclude his testimony.
C. Vince and Law Enforcement Officers The plaintiffs argue that the “ballistics opinions” of Joseph Vince and executive law enforcement officers should be excluded, as the opinions are outside the scope of their expertise. [13] They do not, however, identify the paragraphs of Vince’s declaration to which they take objection. As the court neither relies on nor refers to any testimony by Vince on “ballistics,” the court need not resolve this issue. Turning to the disputed testimony offered by Baltimore County Police Department Chief James Johnson, Baltimore City Police Department Commissioner Anthony Batts, and Prince George’s County Police Department Deputy Chief Henry Stawinski, the court agrees with the defendants that none of this testimony contains expert opinions on ballistics. Johnson merely acknowledges that some shots that may be loaded into a shotgun have a risk of over-penetration; [14] Batts offers testimony about research he directed and which was reported to him in connection with his official duties; and Stawinksi testifies on his personal observations of assault weapons piercing soft body armor. ( See Johnson Decl., ECF No. 44-3, ¶ 35 (opining that “[a] shotgun would . . . be a superior self-defense weapon to an assault weapon, at least if it is loaded with [an] appropriate shot that does not give rise to too great a risk of over penetration”); Batts Decl., ECF No. 44-4, ¶ 21 (testifying about research he personally directed regarding various rounds fired by officers under his command); Stawinski Decl., ECF No. 44-5, ¶ 30 (stating that “[m]ost assault weapons have significant penetration capabilities that are especially dangerous to both law enforcement officers and civilians alike”).) The officers’ testimony, based on their personal knowledge and experiences, is properly admissible. [15]
D. Allen
The plaintiffs claim that the court should exclude Lucy Allen’s expert opinions related to
the frequency with which the banned weapons are used defensively for two reasons. First, they
claim that her conclusions are based on the coding of stories she did not independently verify.
The court notes, however, that the database which Allen studied is maintained by the NRA,
suggesting, if anything, that her study may have a bias in favor of finding more instances of the
defensive use of firearms. Moreover, the plaintiffs proffer nothing to suggest the stories
collected by the NRA are unreliable or inaccurate. Second, they argue that she cannot base her
opinions on stories, which, they claim, are inappropriate anecdotal evidence. In light of the
apparent dearth of other evidence demonstrating that the firearms at issue here are used for self-
defense, Allen’s use of the NRA database is appropriate and acceptable. Not only do the cases to
which the plaintiffs cite for the opposite conclusion not stand for the proposition that an expert
can never rely on anecdotal evidence, they expressly contemplate the use of such evidence.
[16]
Allison v. McGhan Med. Corp.
,
E. Johnson and Bulinski Finally, the plaintiffs seek to exclude Johnson’s testimony in front of the Maryland General Assembly and Maximillian Bulinski’s declaration because the defendants did not disclose them in accordance with Federal Rule of Civil Procedure 26(a) or (e). See also Fed. R. Civ. P. 37(c)(1) (“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion . . . .”). Evidence a party has failed to timely disclose will not be excluded if the failure is substantially justified or harmless. S. States Rack and Fixture, Inc v. Sherwin-Williams Co. , 318 F.3d 592, 595–96 (4th Cir. 2003) (articulating five factors the court should consider when deciding whether exclusion is proper: the surprise to the party against whom the evidence is offered, the ability of the party to cure that surprise, the extent to which the testimony would disrupt trial, the explanation for the failure, and the importance of the testimony).
Any failure to disclose Johnson’s testimony in front of the General Assembly was harmless. The portions of Johnson’s testimony relevant to the plaintiffs’ challenge here are not substantively different from his statements in his declaration. Nor do the plaintiffs allege any manner in which they are different. The plaintiffs thus were not prejudiced because they were not deprived of a full opportunity to examine Johnson on his views of the Firearm Safety Act or gun-related crime.
The defendants’ failure to disclose Bulinski’s testimony is substantially justified. The defendants first had notice they would need to investigate evidence related to Bulinski’s declaration when the plaintiffs filed their opposition memorandum on March 17, 2014. The defendants did not learn they would want to offer Bulinski’s testimony until March 27, 2014, when he attempted to make the purchases about which he testifies. This was only fifteen days before they filed their reply memorandum. In addition, because the testimony is responsive to the plaintiffs’ evidence, the testimony does not raise new issues of which the plaintiffs were unaware such that the plaintiffs are prejudiced. In fact, the plaintiffs do not claim any prejudice in their papers. Further, Bulinski’s testimony offers valuable information given the plaintiffs’ limited evidence as to the availability of firearms magazines with capacities of ten rounds or less.
The court will not exclude Johnson’s testimony or Bulinski’s declaration.
III. Second Amendment
The plaintiffs claim that Maryland’s ban on various assault weapons and LCMs infringes
their Second Amendment rights. The Second Amendment states: “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.” U.S. Const. amend. II. It is applicable to the states through the Fourteenth
Amendment.
McDonald v. City of Chicago, Ill.
,
In
District of Columbia v. Heller
(
Heller I
), the Supreme Court found that the Second
Amendment codified a pre-existing, individual right to keep and bear arms and that its core
protection was the right of “law-abiding, responsible citizens to use arms in defense of hearth
and home.”
The Court also recognized, however, that the right to bear arms is not unlimited, and
articulated some of its boundaries. With respect to the types of weapons protected, the Court
found that the Second Amendment does not protect “a right to keep and carry any weapon
whatsoever in any manner whatsoever and for whatever purpose.”
Heller I
,
Given that the right to bear arms is not boundless, the Fourth Circuit, like several others,
applies a two-part approach to Second Amendment claims.
Woollard
,
A. Infringement of the Second Amendment Right
The court must first determine whether the weapons at issue here are of the type falling
within the Second Amendment’s scope. The defendants do not appear to claim Maryland’s ban
on assault weapons and LCMs is longstanding such that it is presumptively valid.
See Heller II
,
The plaintiffs contend that, according to data from the MSP, the banned long guns have been generally increasing in popularity since 1995. ( See Dalaine Brady Decl., Ex. C, ECF No. 44-10.) Indeed, over the past three years in Maryland, there have been approximately 35,000 transfers of assault weapons and frames and receivers of such weapons. [21] ( Id. ) The plaintiffs also claim that at least 5 million of the banned assault weapons are possessed nationwide, and that the number may be as high as 8.2 million. ( See Johnson Dep., ECF No. 55-17, at 43:2–9; see also James Curcuruto Decl., Ex. A, ECF No. 55-9, ¶ 1 (“Figures from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Annual Firearms Manufacturers and Exports Reports (AFMER) show that between 1990 and 2012, United States manufacturers produced approximately 4,796,400 AR-platform rifles for sale in the United States commercial marketplace. . . . During these same years, . . . approximately 3,415,000 AR- and AK-platform rifles were imported into the United States for sale in the commercial marketplace.”).) The popularity of these firearms, the plaintiffs claim, is further evidenced by the frequency with which they are manufactured and sold. ( Curcuruto Decl., Ex. A, ¶ 1 (noting that, in 2012, more AR- and AK-platform rifles were manufactured in or imported to the United States than the most commonly sold vehicle); see also id. ¶ 3 (indicating that retailers reported that AR- and AK-platform rifles accounted for 20.3% of the firearms they sold in 2012).)
As for the LCMs banned by the Firearm Safety Act, the plaintiffs assert that they are standard with the purchase of most new pistols, and have been sold in the civilian market for over one hundred years. ( See Guy Rossi Decl., Ex. A, ECF No. 55-11, at 2; see also James Supica Decl., Ex. A, ECF No. 55-14, at 7.) They claim that, across the nation, LCMs represent seventy-five million, or forty-six percent, of all magazines in U.S. consumer possession between 1990 and 2012. (Curcuruto Decl., Ex. A, ¶ 6; see also Koper Decl., Ex. B, at 1 (stating that gun industry sources estimated that, as of 1995, there were 25 million LCMs available in the United States, and that an additional 4.7 million LCMs were imported into the country from 1995 to 2000).) Marylanders owned about 725,000 of those LCMs during that time. (Curcuruto Decl., Ex. A, ¶ 6.) Based on the absolute numbers of assault weapons and LCMs, the plaintiffs ask the court to conclude that they are in common use.
Further, the plaintiffs argue that the banned assault weapons and LCMs are commonly possessed for self-defense and competitive marksmanship. They claim that assault weapons banned by the Firearm Safety Act represent about sixty percent of the firearms used at AGC’s firing range in Marriottsville, Maryland. ( See John Josselyn Decl., ECF No. 55-6, ¶ 7.) In addition, “[f]or the past quarter of a century AR15’s have consistently been used by winning competitors at the U.S. Civilian Marksmanship National Match target shooting championships held each year at Camp Perry, Ohio.” (Gary Roberts Decl., ECF No. 55-10, ¶ 18.) Likewise, some competitions “are designed specifically for pistols, rifles and shotguns capable of holding a greater number of rounds than the Act permits.” (Rossi Decl., Ex. A, at 2.) Finally, the plaintiffs assert that the banned firearms and LCMs are used in a small percentage of crime in Maryland, are used infrequently in mass shootings and murders of law enforcement officers, and are no more dangerous to law enforcement officers than other rifles. ( See Mark Gius Decl., Ex. A, ECF No. 55-12, at 2 (estimating that, at most, 2.52% of murder victims in the United States were killed with assault rifles); Table 27, Law Enforcement Officers Feloniously Killed, ECF No. 55- 28 (indicating that, from 2003 to 2012, of the 493 law enforcement murders caused by firearms, 92 of those, or 18.7%, involved rifles, an unspecified subset of which were assault rifles); Webster Dep., ECF No. 55-18, at 104:9–17 (suggesting that rifles not banned under the Firearm Safety Act are equally effective in penetrating law enforcement armor as the assault rifles that are banned); see also Roberts Decl. ¶ 5 (“There is nothing ballistically special or different about a .223/5.56mm bullet whether fired from an AR-15 or some other rifle of the same caliber.”); Buford Boone Decl., ECF No. 55-13, ¶ 4 (“[T]he soft body armor commonly worn by law enforcement officers is rated only to stop handgun rounds. It is not rated to stop most center-fire rifle rounds.”).) The plaintiffs, therefore, maintain that the banned assault weapons and LCMs are commonly used for lawful purposes.
According to the defendants, by contrast, assault weapons comprise a small portion of the current civilian gun stock in the United States. ( See Lawrence Tribe Testimony, ECF No. 44-74, at 24 (estimating that approximately seven million assault weapons are owned in the United States today); see also Marylanders to Prevent Gun Violence Br., ECF No. 40, at 4, 6–7 (estimating that the number of assault weapons in the United States is closer to the number of machineguns than the number of handguns).) Koper estimates that, at the time of the 1994 federal ban, assault weapons comprised less than one percent of the civilian gun stock. (Koper Decl. ¶ 19.) Assuming that recent sales have increased the number of assault weapons in the current civilian market to nine million, such weapons would represent about three percent of the civilian gun stock. ( See William J. Krouse, Cong. Research Serv., Gun Control Legislation , ECF No. 44-28, at 8 (estimating that, by 2009, the total number of firearms available to U.S. civilians was approximately 310 million).) The defendants also assert that the absolute number of assault weapons far exceeds the number of people who own them. In recent decades, gun ownership in the United States has become increasingly concentrated; fewer households own firearms, but those households owning guns own more of them. ( See Webster Decl. ¶¶ 13–14; see also NSSF Rep., ECF No. 44-75, at 13 (indicating that the average owner of modern sporting rifles had 2.6 such weapons in 2010 and 3.1 such weapons in 2013).) Using NSSF’s figure that the average assault weapons owner has 3.1 such weapons, this means less than 1% of Americans own an assault weapon. In Maryland specifically, from 1994 to 2012, there were a total of 604,051 transfers of regulated firearms, of which only 46,577 were assault weapons. ( Brady Decl., Ex. C.) Assuming again that the average assault weapons owner has 3.1 such weapons, this means approximately 15,000 Marylanders own 46,577 assault weapons. The defendants assert that, in light of Maryland’s approximately 4.5 million adult residents, the number of Marylanders owning assault weapons is well below 1%. [24] See U.S. Census Bureau: State & County QuickFacts, Maryland (last revised July 8, 2014), available at
http://quickfacts.census.gov/qfd/states/24000.html.
The defendants further claim that assault weapons and LCMs
[25]
are not commonly used
for self-defense, and indeed the plaintiffs fail to identify a single incident in which a Marylander
defended herself using an assault weapon. With the exception of one incident not relevant
here,
[26]
Maryland law enforcement officials are unaware of any Marylander using an assault
weapon, or needing to fire more than ten rounds, to protect himself. (Johnson Decl. ¶¶ 30–31,
39–40; Batts Decl. ¶¶ 29–31, 37; Stawinski Decl. ¶¶ 24–25, 34; Marcus Brown Decl., ECF No.
44-2, ¶ 18;
see also
Webster Decl. ¶ 20 (stating that he is aware of no study or data suggesting
that assault weapons features and LCMs are necessary for personal defense); Tribe Testimony at
14 (explaining that “in the case of high-capacity magazines, significant market presence does not
is when he sees it);
see also id.
at 69:9–72:16, 92:6–9 (indicating that NSSF created the term “modern sporting
rifles” to cover,
inter alia
, “semiautomatic AR- or AK-platform rifle[s] and the variances thereof”).)
[24]
The defendants recognize that, in 2013, the number of Marylanders owning assault weapons was likely higher due
to the many last-minute sales leading up to the implementation of the Firearm Safety Act.
The defendants dispute that LCMs are “bearable arms” falling within the scope of the Second Amendment’s
protection.
See Heller
,
necessarily translate into heavy reliance by American gun owners on those magazines for self- defense”).) The defendants’ expert, Lucy Allen, confirms that it is rare for a self-defender to fire more than ten rounds. (Allen Decl., ECF No. 44-9, ¶ 8.) Upon analyzing the NRA Institute for Legislative Action’s reports on self-defense incidents occurring between January 2011 and December 2013, she determined that, on average, 2.1 bullets were fired. ( Id. ¶¶ 11–12.) Put simply, the defendants argue that, although the plaintiffs may believe that particular assault weapons and LCMs are well-suited for self-defense, there is no evidence to support their claims.
The defendants finally argue that the banned assault weapons and LCMs fall outside
Second Amendment protection as dangerous and unusual arms. They assert that the banned
firearms, which are substantially similar—and indeed, as discussed below, possibly more
effective—in functioning, dangerousness, and killing capacity as their fully automatic
counterparts, are military-style weapons designed for offensive use. (
See
Supica Dep., ECF No.
44-41, at 75:7–77:8; Boone Dep., ECF No. 44-42, at 95:8–25; Curcuruto Dep., ECF No. 44-44,
at 91:3–11; Rossi Dep., ECF No. 44-43, at 94:15–95:11; H.R. Rep. 103-489, ECF No. 44-23, at
18–20;
see also
2011 Bushmaster Product Catalogue, ECF No. 44-70, at 3 (advertising the
Bushmaster ACR (adaptive combat rifle) as “the ultimate military combat weapons system” and
“[b]uilt specifically for law enforcement and tactical markets”));
see also Staples v. United
States
,
This capacity, the defendants reason, can allow a criminal to cause mass casualties, while depriving victims and law enforcement of an opportunity to escape or overwhelm an assailant as he reloads his weapon. ( See Gary Kleck Dep., ECF No. 44-51, at 139:11–25 (explaining that, in the mass shooting at an Aurora, Colorado movie theater, the assailant was able to fire 100 rounds without reloading); see also Newspaper Articles, ECF No. 44-40 (documenting situations in which bystanders or law enforcement officers were able to intervene as the assailant attempted to reload); Batts Decl. ¶ 49 (reasoning that, when a mass shooter must load ten 10-round magazines to fire 100 rounds, as opposed to a single 100-round drum, bystanders have about 6 to 9 more chances to escape and bystanders or law enforcement officers have about 6 to 9 more chances to intervene during a pause in firing).) Indeed, assault weapons and LCMs are disproportionately represented in mass shootings. ( Koper Decl. ¶ 25 (explaining that 21% of 62 mass shootings between 1982 and 2012 involved the use of an assault rifle, and that more than half of those incidents involved assault weapons, LCMs, or both); Allen Decl. ¶ 15 (indicating that, over the last three decades, LCMs were used in 85% of mass shootings where the magazine capacity was known, and that, in the past two years, LCMs were used in 5 of the 7 mass shootings with known magazine capacity); see also Webster Decl. ¶ 15). And the use of assault weapons and LCMs in mass shootings is correlated with more fatalities and more injuries than shootings in which they were not used. ( See Koper Decl. ¶¶ 27, 37–43.) Beyond mass shootings, the defendants claim that assault weapons and LCMs are also disproportionately represented in murders of law enforcement officers. ( See id. ¶¶ 16, 22–23, 29, 35 (explaining that, before the federal assault weapons ban went into effect, assault weapons accounted for up to nine percent of murders of law enforcement officers, and that, in 1994, LCMs were involved in thirty-one to forty-one percent of murders of officers); Webster Decl. ¶ 18 (internal citations omitted) (“[A] study of murders of police officers while on duty in 1994 found that assault weapons were used in 16% of the murders and 31% to 41% of the police officers were murdered with a firearm with a[n] LCM. The Violence Policy Center examined data on law enforcement officers murdered in the line of duty from the FBI for 1998-2001 and found 19.4% (41 of 211) had been shot with an assault weapon.”).) In sum, the defendants claim that assault weapons and LCMs are not commonly used and, in any event, are not useful or commonly used for self-defense.
Upon review of all the parties’ evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual. First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population. The court is also not persuaded by the plaintiffs’ claims that assault weapons are used infrequently in mass shootings and murders of law enforcement officers. The available statistics indicate that assault weapons are used disproportionately to their ownership in the general public and, furthermore, cause more injuries and more fatalities when they are used. [27] As for their claims that assault weapons are well-suited for self-defense, the plaintiffs proffer no evidence beyond their desire to possess assault weapons for self-defense in the home that they are in fact commonly used, or possessed, for that purpose. [28] Finally, despite the plaintiffs’ claims that they would like to use assault weapons for defensive purposes, assault weapons are military-style weapons designed for offensive use, and are equally, or possibly even more effective, in functioning and killing capacity as their fully automatic versions. [29]
Nevertheless, the court need not resolve whether the banned assault weapons and LCMs
are useful or commonly used for lawful purposes,
see Woollard
,
B. The Appropriate Level of Means-End Scrutiny
Because the court assumes the Firearm Safety Act infringes on the Second Amendment, it must decide what level of means-ends scrutiny to apply to determine the law’s constitutionality.
The Supreme Court held in
Heller I
that a heightened level of scrutiny applies to
regulations found to burden the Second Amendment right,
The Fourth Circuit has likened the analysis to that under the First Amendment, where
content-based regulations must survive strict scrutiny, while time, place, and manner restrictions
only must survive intermediate scrutiny.
Id.
at 470–71;
Chester
,
Applying that framework here, the court finds intermediate scrutiny is appropriate for
assessing the constitutionality of Maryland’s ban because it does not seriously impact a person’s
ability to defend himself in the home, the Second Amendment’s core protection. It does not ban
the quintessential weapon—the handgun—used for self-defense in the home. Nor does it prevent
an individual from keeping a suitable weapon for protection in the home. In fact, the plaintiffs
can point to no instance where assault weapons or LCMs were used or useful in an instance of
self-defense in Maryland. As already discussed, four law enforcement agents leading state and
local law enforcement offices in Maryland could not identify a single instance in which an
assault weapon or more than ten rounds of ammunition were used or were necessary to ward off
an attacker. (Johnson Decl. ¶¶ 30–31, 39–40; Batts Decl. ¶¶ 29–31, 37; Stawinski Decl. ¶¶ 24–
25, 34; Brown Decl. ¶ 18;
see also
Webster Decl. ¶ 20.) Therefore, although the bans remove a
class of weapons that the plaintiffs
desire
to use for self-defense in the home, (
see, e.g.
, Kolbe
Decl. ¶ 8), there is no evidence demonstrating their removal will significantly impact the core
protection of the Second Amendment. Accordingly, intermediate scrutiny applies.
See Heller II
,
The plaintiffs raise two arguments as to why strict scrutiny should apply, but they are not
persuasive. First, they contend that, any time a firearm is in common use and used for lawful
purposes, a ban on ownership is per se unconstitutional. There is nothing in the relevant case
law to support such a claim and, in fact, such a holding would be contrary to established Fourth
Circuit precedent.
See Masciandaro
,
Second, the plaintiffs claim that strict scrutiny should apply any time a regulation touches
the core right of self-defense in the home, regardless of the extent to which the regulation
burdens it. To support their position, the plaintiffs point to the Fourth Circuit’s assumption in
dicta in
Masciandaro
that “
any law
that would burden” the core right would be subject to strict
scrutiny.
C. Applying Intermediate Scrutiny
To survive intermediate scrutiny, the government must demonstrate that the laws at issue
are “reasonably adapted to a substantial government interest.”
Woollard
,
The Fourth Circuit has expressly found that the government has a substantial interest in
providing for public safety and preventing crime,
id.
at 877;
see also Masciandaro
, 638 F.3d at
473 (finding that the government has a substantial interest in providing for public safety in
national parks), the interests the defendants advance here. In fact, the court has implied that
protecting public safety may even be a compelling interest.
Masciandaro
,
Finding the government has a sufficient interest, the court must decide whether
Maryland’s ban on assault weapons and LCMs substantially serves that interest. As a
preliminary matter, the plaintiffs contend that the court should look only to the evidence that was
in front of the legislature when it enacted the law to determine whether the law passes
intermediate scrutiny. Plaintiffs base their claim on the Supreme Court’s statement in
Turner I
that when applying intermediate scrutiny, a court must “assure that, in formulating its judgments,
[the legislature] has drawn reasonable inferences based on substantial evidence.” 512 U.S. at
666. In the only case plaintiffs cite to support their interpretation of this language, the Third
Circuit did not hold that the court could consider only evidence that was in front of the
legislature. Instead, it found that what the legislature relied on was unclear and then decided that
the state could point to other means of support, such as common sense, history, and studies.
Drake v. Filko
,
The Fourth Circuit has held that “the Constitution does not mandate a specific method by
which the government must satisfy its burden under heightened judicial scrutiny,” and that the
government “may resort to a wide range of sources, such as legislative text and history, empirical
evidence, case law, and common sense.”
United States v. Carter
,
Turning to the record in this case, Maryland’s ban on assault long guns and LCMs
survives intermediate scrutiny. The evidence demonstrates that assault weapons have several
military-style features making them especially dangerous to law enforcement and civilians.
(ATF, Importability of Certain Semiautomatic Rifles, ECF No. 44-14, at 6–7 (describing the
military features of semi-automatic assault rifles); 1998 ATF Study at 1 (same).) The AR-15, for
example, is essentially the same as the military’s M-16 rifle, with the exception that the AR-15 is
semi-automatic instead of fully automatic. (
See
Johnson Decl. ¶ 36 (“The only difference
between automatic firearms actually used by the military, such as the M16, and assault weapons
covered by the ban, such as the AR-15, is that the M16 is fully automatic.”));
see also Staples
,
Having the features of military weapons, assault weapons are designed to cause extensive damage and can fire many rounds in quick succession, from a greater distance and with greater accuracy than many other types of guns—including, in some respects, their automatic counterparts. ( U.S. Army’s M16/M4 Training Manual, ECF No. 44-25, at 7-9 (stating that “rapid semi-automatic fire is superior to automatic fire in all measures: shots per target, trigger pulls per hit, and time to hit”); Brown Decl. ¶ 12 (explaining that the banned weapons are “designed for the battlefield, for the soldier to be able to shoot a large number of rounds across a battlefield at a high rate of speed”); 1998 ATF Study at 1 (noting that semi-automatic rifles “had a military configuration that was designed for killing and disabling the enemy and that distinguished the rifles from traditional sporting rifles”); see also Johnson Decl. ¶¶ 22, 25–26, 32–33; Batts Decl. ¶¶ 20, 33; Stawinski Decl. ¶ 44; Siebel Testimony at 197–98.) Further, as already discussed above, the evidence demonstrates that assault weapons are often used in mass shootings and cause more fatalities and injuries when used. ( See, e.g. , Koper Decl. ¶¶ 21–29.)
The evidence also demonstrates that criminals using assault rifles pose a heightened risk to law enforcement. ( See Batts Decl. ¶ 45 (indicating that the military features of assault weapons, such as flash suppressors and pistol grips, provide criminals with a “military-style advantage” in a firefight with law enforcement).) For example, rounds shot from such weapons have the capability—more so than rounds shot from many other types of guns—to penetrate the soft body armor worn by law enforcement officers, as well as many kinds of bullet-resistant glass used by law enforcement. (Johnson Decl. ¶ 45 (reasoning that assault weapons pose a particular threat to law enforcement officers because their rounds easily penetrate soft body armor); Stawinski Decl. ¶¶ 30–32 (offering personal observations of bullets from assault weapons piercing soft body armor and bullet-resistant glass where bullets from handguns and other firearms did not); see also Brown Decl. ¶ 23.) Further, assault weapons allow criminals to engage law enforcement officers with greater firepower, (Johnson Decl., Ex. A, at 2 (reasoning that assault weapons allow criminals to “up the ante with firepower in excess of what police officers typically use”); Johnson Decl., Ex. B, at 2 (“Assault weapons are routinely the weapons of choice for gang members and drug dealers . . . and are all too often used against police officers.”)), and they have been used to murder law enforcement officers in a rate disproportionate to their presence in civilian society, ( see Violence Policy Ctr., “Officer Down” Assault Weapons and the War on Law Enforcement , ECF No. 44-56, at 5 (citing FBI data demonstrating that 19.4% of law enforcement officers killed in the line of duty were killed by assault weapons between 1998 and 2001); see also Koper Decl. ¶¶ 16, 22–23, 29, 35; Webster Decl. ¶¶ 15, 18.) Finally, several law enforcement officers offered affidavit statements regarding their experience with criminals obtaining assault weapons through straw purchases from authorized retailers, on the secondary market from legal owners, or through theft from legal owners, ( e.g. , Johnson Decl. ¶ 48; Batts Decl. ¶ 48); see also Abramski v. United States , 134 S. Ct. 2259, 2267–68, 2267 n.7 (2014) (describing a typical straw purchase in which a felon or other person barred from gun ownership purchases a gun through an intermediary and citing a Department of the Treasury report from 2000 that, in several prior years, almost half of all ATF firearm trafficking investigations involved straw purchases), suggesting that limiting the availability of the firearms generally will limit their availability to criminals.
abilities does not undermine the legislature’s conclusion that banning assault weapons would protect public safety and decrease the effects of violent firearm-related crime.
Assault weapons pose a heightened risk to civilians as well. For civilians in their homes, the penetrating capabilities of bullets fired from assault weapons pose a higher risk than that posed by other firearms. They can penetrate walls and other home structures and remain more effective than penetrating bullets fired from other guns, endangering those in neighboring rooms, apartments, or even other homes. (Brady Ctr. to Prevent Gun Violence, Assault Weapons “Mass Produced Mayhem” , ECF No. 44-58, at 16 (citing a statement by Jim Pasco, executive director of the Fraternal Order of Police, that he would not be surprised if a bullet fired from an AK-47 went through six walls of conventional drywall in a home); see also Stawinski Decl. ¶ 33.) Further, with the military-style features of assault weapons, they are made even more dangerous because civilians often do not receive the same kind of training that law enforcement officers receive. (Vince Decl. ¶ 21.)
The evidence demonstrates, therefore, that the ban on assault weapons is likely to further the government’s interest in protecting public safety by removing weapons that cause greater harm when used—to both civilians and police—and create greater obstacles for law enforcement in stopping and detaining criminals who are using them.
The record also shows a reasonable fit between banning LCMs and the government’s substantial interest in protecting public safety and reducing the negative effects of firearm crimes. First, more rounds available equates with more shots fired and more individuals injured. ( E.g. , Brown Decl. ¶ 24; Johnson Decl. ¶ 44; see also Koper Decl. ¶ 15 (noting that the “best available evidence” indicates that attacks with guns with LCMs “generally result in more shots fired, persons wounded, and wounds per victim”).) In addition, the evidence demonstrates that over the last three decades LCMs of more than ten rounds were used in thirty-four out of forty mass shootings [35] in which the magazine capacity was known, and that the average number of shots fired, in the twenty-seven shootings for which the number was available, was seventy-five. (Allen Decl. ¶¶ 15–16.) They are also disproportionately used in the killing of law enforcement officers. (Koper Decl. ¶ 35 (noting that in 1994, LCMs were estimated to have been used in thirty-one to forty-one percent of gun murders of police).) There is also evidence that LCMs contribute to more fatalities per incident than in non-LCM cases. ( Id. ¶¶ 38–42.) Further, the evidence demonstrates that the break in time when a shooter must reload because he has spent a magazine is critical to disabling someone engaged in a violent, offensive attack or to allow potential victims to escape. [36] ( Johnson Decl. ¶¶ 54–56; Stawinski Decl. ¶ 40; see also Newspaper Articles, ECF No. 44-40 (citing several examples where a shooter was disabled while attempting to reload his firearm).)
With respect to civilians, untrained civilians using LCMs tend to fire more rounds than
necessary, thus endangering more bystanders. (Johnson Decl. ¶ 38; Stawinski Decl. ¶ 35;
see
also
Batts Decl. ¶ 42 (“The risk of indiscriminate firing from untrained or undertrained
individuals with access to large numbers of highly-lethal rounds, especially combined with the
improbability that such rounds will actually be necessary to end any particular attack, is an
additional and, in my view, unacceptable risk to public safety . . . .”); Josselyn Dep. at 74:7–9
(“It’s not uncommon to have the police arrive on a scene and see someone there still pulling the
trigger, even though the gun is long empty . . . .”));
see also Heller II
,
The plaintiffs make several claims as to why the assault weapons ban does not further the
government’s substantial interests. Some of their arguments rely, however, on a misapplication
of the intermediate scrutiny standard and are therefore not persuasive. For example, the
plaintiffs claim there are several other types of guns which are not banned that can pierce soft
body armor and walls as well. This argument ignores, however, that the fit between a regulation
and the government’s purpose need not be perfect.
See Woollard
,
The remainder of the plaintiffs’ arguments rely on mischaracterizations of Koper’s expert
opinions and reports, as discussed earlier in this opinion. Plaintiffs place particular emphasis on
Koper’s findings regarding the federal assault weapons ban. The fact that some effects of the
federal ban were hard to measure, however, or the fact that the ban was not entirely effective in
eliminating all crime involving assault weapons, does not undermine Koper’s conclusion that
Maryland’s ban on assault weapons and LCMs is likely to reduce the number and lethality of
gunshot victimizations, and reduce the use of assault weapons and LCMs in crimes. (Koper
Decl. ¶¶ 77–86.) First, Koper’s expert opinion is based on more than the effects of the federal
assault weapons ban. Second, as Koper points out, the federal assault weapons ban and the
Maryland Firearm Safety Act are different, with Maryland’s law closing some of the loopholes
that may have made the federal ban less effective. (
Id.
¶¶ 79–81.) The plaintiffs do not appear
to dispute this fact. Nor do they appear to claim that the differences have no impact on the bans’
relative effectiveness. Finally, the court emphasizes again that to pass intermediate scrutiny the
law need not be the best solution for furthering the government’s interest; it must only
substantially further it.
See Woollard
,
In sum, the defendants have met their burden to demonstrate a reasonable fit between the Firearm Safety Act and the government’s substantial interests in protecting public safety and reducing the negative effects of firearm-related crime. Accordingly, the Act does not violate the Second Amendment.
IV. Equal Protection
The plaintiffs argue that the Firearm Safety Act violates the Equal Protection Clause of
the Fourteenth Amendment by treating retired law enforcement officers differently than other
individuals. The Equal Protection Clause guarantees that “[n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
Accordingly, “all persons similarly situated should be treated alike.”
City of Cleburne, Tex. v.
Cleburne Living Ctr.
,
This standard for considering equal protection challenges affords “the States a wide scope
of discretion in enacting laws which affect some groups of citizens differently than others.”
McGowan v. State of Md.
,
The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
Id. at 425–26. Accordingly, in general, when considering an equal protection challenge to legislation, the court should first determine whether the government is treating similarly situated individuals differently, and then decide whether there is a rational basis for the differential treatment.
The court agrees with the defendants that retired law enforcement officers are differently
situated by virtue of their experiences ensuring public safety and their extensive training on the
use of firearms.
See Shew
,
In Maryland, law enforcement officers who wish to carry firearms must successfully complete the applicable firearms classroom instruction, training, and qualification. See COMAR 12.04.02.03A; see, e.g. , COMAR 12.04.02.06 (requirements applicable to long guns). They must then submit to firearms training every year thereafter. See COMAR 12.04.02.08A. If the officers do not submit to the required annual training, their firearms are seized until the training is completed. See COMAR 12.04.02.08E. In addition to receiving extensive training on the use of firearms generally, law enforcement officers must receive further specialized training to use assault weapons. They are taught how and when assault weapons may be used, as well as techniques to minimize the risk of harm to innocent civilians. ( See Batts Decl. ¶ 27; see also Johnson Decl. ¶¶ 18–22.) Even after they have received this training, they must undergo periodic requalification to continue carrying assault weapons in the line of duty. ( See Batts Decl. ¶ 27; Johnson Decl. ¶ 20–21.) Retired law enforcement officers have also received training on the use of LCMs; in particular, they have been taught how to assess each shot for effectiveness and how to evaluate the circumstances before continuing to fire additional rounds. ( Johnson Decl. ¶ 27.) Finally, they have received judgment training on the use of deadly force and how to safely handle and store firearms, including in their homes. See COMAR 12.04.02.10C–D.
The plaintiffs attempt to argue that retired law enforcement officers are similarly situated to the general public because they may not have had training specific to the banned firearms or magazines. In making this argument, however, the plaintiffs overlook the broader point that retired law enforcement officers are not similarly situated to other persons with respect to firearms training and experience generally. In any event, one of the exceptions in the Firearm Safety Act allows the transfer of an assault weapon from a law enforcement agency to a retired law enforcement officer if it was used by the officer in the course of duty before retirement. Thus, any officer qualifying for this exception must have had extensive training on that particular assault weapon. Moreover, in at least the MSP, Baltimore County Police Department, Baltimore Police Department, and Prince George’s County Police Department, standard service weapons issued to law enforcement personnel come with LCMs. ( Brown Decl. ¶ 32 (MSP standard service weapons come with fifteen-round magazines); Johnson Decl. ¶ 23 (Baltimore County Police Department standard service weapons come with fourteen-round magazines); Batts Decl. ¶ 25 (Baltimore Police Department standard service weapons come with fifteen-round magazines); Stawinksi Decl. ¶ 11 (Prince George’s County Police Department standard service weapons come with fifteen-round magazines).) Accordingly, officers retiring from those departments, at least in the recent past, have had training with respect to LCMs.
Based on all the training and instruction retired law enforcement officers have received, they are better equipped than the general public to handle and store firearms safely and to prevent them from getting into the wrong hands. The court cannot conclude that the State of Maryland is treating differently persons who are in all relevant respects alike, and the plaintiffs’ equal protection challenge must fail.
V. Void for Vagueness
Finally, the plaintiffs argue that the Firearm Safety Act is void because the list of banned assault weapons is unconstitutionally vague. In particular, they assert that the Act fails to inform a reasonable person as to what constitutes a “copy” of the banned assault long guns. See CR § 4- 301(d) (emphasis added) (stating that an “[a]ssault weapon” is “(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon ”); see also PS § 5-101(r)(2) (emphasis added) (stating that a “[r]egulated firearm” means “a firearm that is any of the following specific assault weapons or their copies , regardless of which company produced and manufactured that assault weapon”).
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.”
Grayned v. City of Rockford
,
In considering a facial vagueness challenge, the court must “first determine whether the
enactment implicates a substantial amount of constitutionally protected conduct.”
Martin v.
Lloyd
,
Nevertheless, the Fourth Circuit has made clear that a statute is not impermissibly vague
simply because it does not “spell out every possible factual scenario with celestial precision.”
United States v. Hager
,
Turning to the present case, the court notes that the term “copies” is not new to Maryland
firearms law. In
NYSRPA
, the court considered how long the language at issue had existed in
rejecting a vagueness challenge to New York’s ban on “any magazine that ‘can be
readily
restored or converted to accept’ more than 10 rounds of ammunition.”
Moreover, the plaintiffs fail to show the Firearm Safety Act lacks an identifiable “core”
of prohibited conduct, even under the stricter standard for criminal statutes. The Act bans certain
firearms listed by make and model, as well as their copies.
See
CR § 4-301(d); PS § 5-101(r)(2).
Although the Act does not list all prohibited weapons—indeed it would be impossible to do so—
the court cannot conclude the term “copies” is vague when read together with the list of banned
firearms.
See Shew
,
The term “copies” has been further clarified through a formal opinion of the Attorney
General of Maryland and a Firearms Bulletin from MSP, the state entity primarily charged with
enforcing the firearms law.
See Whitman
,
Even the plaintiffs’ own statements confirm that there is an identifiable core of prohibited conduct. For example, Wink’s admits that a “substantial number” of the long guns it sells are now classified as assault weapons. (Carol Wink Decl., ECF No. 44-63, ¶ 4; see also Stephen Schneider Decl., ECF No. 44-62, ¶ 6 (admitting that regulated long guns classified now as assault weapons represent a “substantial number of all long guns sold by MLFDA’s individual members, including Atlantic Guns”).) Kolbe likewise indicates that he would like to purchase an AR-15, but that he knows he cannot do so under the Act. (Kolbe Dep., ECF No. 44-55, at 57:19–58:9.) In light of the plaintiffs’ demonstrated understanding of the firearms prohibited by the Firearms Safety Act, the court cannot conclude that the Act fails to provide sufficient notice of banned conduct.
As for the plaintiffs’ claims that the Firearm Safety Act encourages arbitrary
enforcement, they do not offer any facts to suggest that MSP has engaged or will engage in
arbitrary enforcement. “When the terms of a regulation are clear and not subject to attack for
vagueness, the plaintiff bears a high burden to show that the standards used by officials enforcing
the statute nevertheless give rise to a vagueness challenge.”
Wag More Dogs, Ltd. Liability
Corp. v. Cozart
,
CONCLUSION
In summary, the Firearm Safety Act of 2013, which represents the considered judgment of this State’s legislature and its governor, seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines. The Act substantially serves the government’s interest in protecting public safety, and it does so without significantly burdening what the Supreme Court has now explained is the core Second Amendment right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Accordingly, the law is constitutional and will be upheld.
A separate order follows. August 22, 2014 ________/S/___________________ Date Catherine C. Blake
United States District Judge
Notes
[1] The plaintiffs are various associations of gun owners and advocates, companies in the business of selling firearms and magazines, and individual gun-owning citizens of Maryland.
[2] All the defendants are sued in their official capacities.
[3] The defendants do not challenge the plaintiffs’ standing to bring this lawsuit. Exercising its independent duty to
ensure that jurisdiction is proper, the court is satisfied that individual plaintiffs Kolbe and Turner face a credible
threat of prosecution under the Firearm Safety Act.
Susan B. Anthony List v. Driehaus
,
[7] The Firearm Safety Act defines assault long guns by reference to § 5-101(r)(2) of the Public Safety Article. Md. Code Ann., Crim. Law § 4-301(b). Thus, the Act bans: a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon: (i) American Arms Spectre da Semiautomatic carbine; (ii) AK-47 in all forms; (iii) Algimec AGM-1 type semi-auto; (iv) AR 100 type semi-auto; (v) AR 180 type semi-auto; (vi) Argentine L.S.R. semi-auto; (vii) Australian Automatic Arms SAR type semi-auto; (viii) Auto-Ordnance Thompson M1 and 1927 semi- automatics; (ix) Barrett light .50 cal. semi-auto; (x) Beretta AR70 type semi-auto; (xi) Bushmaster semi-auto rifle; (xii) Calico models M-100 and M-900; (xiii) CIS SR 88 type semi-auto; (xiv) Claridge HI TEC C-9 carbines; (xv) Colt AR-15, CAR-15, and all imitations except Colt AR-15 Sporter H-BAR rifle; (xvi) Daewoo MAX 1 and MAX 2, aka AR 100, 110C, K-1, and K-2; (xvii) Dragunov Chinese made semi-auto; (xviii) Famas semi-auto (.223 caliber); (xix) Feather AT-9 semi-auto; (xx) FN LAR and FN FAL assault rifle; (xxi) FNC semi-auto type carbine; (xxii) F.I.E./Franchi LAW 12 and SPAS 12 assault shotgun; (xxiii) Steyr-AUG-SA semi-auto; (xxiv) Galil models AR and ARM semi-auto; (xxv) Heckler and Koch HK-91 A3, HK-93 A2, HK-94 A2 and A3; (xxvi) Holmes model 88 shotgun; (xxvii) Avtomat Kalashnikov semiautomatic rifle in any format; (xxviii) Manchester Arms “Commando” MK-45, MK-9; (xxix) Mandell TAC-1 semi- auto carbine; (xxx) Mossberg model 500 Bullpup assault shotgun; (xxxi) Sterling Mark 6; (xxxii) P.A.W.S. carbine; (xxxiii) Ruger mini-14 folding stock model (.223 caliber); (xxxiv) SIG 550/551 assault rifle (.223 caliber); (xxxv) SKS with detachable magazine; (xxxvi) AP-74 Commando type semi-auto; (xxxvii) Springfield Armory BM-59, SAR-48, G3, SAR-3, M-21 sniper rifle, M1A, excluding the M1 Garand; (xxxviii) Street sweeper assault type shotgun; (xxxix) Striker 12 assault shotgun in all formats; (xl) Unique F11 semi-auto type; (xli) Daewoo USAS 12 semi-auto shotgun; (xlii) UZI 9mm carbine or rifle; (xliii) Valmet M-76 and M-78 semi-auto; (xliv) Weaver Arms “Nighthawk” semi-auto carbine; or (xlv) Wilkinson Arms 9mm semi-auto “Terry”. Md. Code Ann., Pub. Safety (“PS”) § 5-101(r)(2). According to the plaintiffs, the most widely owned firearms of those banned by the Act are the AR-15, the AK-47, and their copies.
[8] Individuals who lawfully possessed assault long guns or copycat weapons before October 1, 2013, however, may continue to possess those weapons. Md. Code Ann., Crim. Law § 4-303(b)(3).
[9] The court will refer to such detachable magazines as “large capacity magazines” or “LCMs.” It does not appear that CR § 4-305 bans mere possession of LCMs.
[10] The plaintiffs challenge the bans imposed by the Firearm Safety Act on their face, not merely as applied to their
particular circumstances.
See, e.g.
,
Ezell v. City of Chicago
,
[11] It does not appear that the admissibility of similar testimony by Koper was challenged in any other case in which he was cited.
[12] The plaintiffs also claim that Webster’s opinions in paragraphs seven through nine of his declaration, as to the dangerousness of particular firearms, are outside the scope of his expertise and, in any event, are not relevant to the present case. Because the court does not rely on or refer to Webster’s opinions in that part of his declaration for its findings here, the court need not resolve the issue.
[13] Additionally, the plaintiffs claim that Vince’s “firearms-related opinions,” ( see Vince Decl., ECF No. 44-8, ¶¶ 10– 19, 31–32), should be excluded as outside his area of expertise. Because the court neither relies on nor refers to Vince’s opinions in that part of his declaration, the court does not need to decide the issue.
[14] Johnson’s familiarity with shotguns stems from his formal law enforcement training, as well as his personal ownership of a shotgun that he uses for hunting. ( Johnson Dep., ECF No. 62-2, at 6:8–12; 67:5–69:19.)
[15] In any event, the court does not rely on or refer to Johnson’s or Batts’s disputed testimony, and the plaintiffs, therefore, are not prejudiced by its admission.
[16] The court fails to see how one would find the rate with which guns are used for defensive purposes without relying on anecdotal evidence.
[17] To the extent the plaintiffs challenge Allen’s reliance on the Mother Jones data, their challenge must fail. As explained above, the data were subject to independent review by Koper and his graduate student.
[18] The Supreme Court has not articulated the time during which common use is measured. Most courts that have
addressed the issue have looked at the current use of a weapon. At least one court has noted the Supreme Court’s
failure to clarify the time frame, although it still referenced statistics on current use.
See Shew
,
[19] With its holding, the Court rejected claims that the Second Amendment protects the right to possess weapons that
would be effective in modern military combat, such as M-16 rifles, but that are “highly unusual in society at large.”
Heller I
,
[20] There is an apparent tension between the requirement of a historical analysis that examines the scope of the right
as understood in 1868,
see McDonald
,
[21] Since 1994, Maryland has gathered information regarding the transfer of regulated firearms. ( Brady Decl. ¶¶ 21–29.) It is important to note, however, that all transfers were recorded, even if the transfer was of a firearm previously transferred. ( Id. ¶ 33.) Thus, for example, if a single firearm was transferred five times over the past two decades, it would appear as five separate transactions. ( Id. ) In this way, the information collected by Maryland may overstate the number of regulated firearms.
[22] The plaintiffs also claim that the banned assault long guns and LCMs are in common use for hunting, which the
Supreme Court has indicated may be a use protected by the Second Amendment.
See Heller I
,
[23] Although it is not entirely clear what weapon qualifies as a modern sporting rifle, it appears NSSF began using this term in an effort to rebrand assault weapons, and the plaintiffs use this term to refer to AR- and AK-platform rifles. ( Curcuruto Dep., ECF No. 44-44, at 79:14–80:21 (suggesting that he knows what a modern sporting rifle
[27] In their papers and at the hearing on the parties’ motions, the plaintiffs claim assault weapons are not used disproportionately in crimes, pointing to, for example, the fact that law enforcement officers are more likely to be killed by motor vehicles or handguns. ( See, e.g. , Hr’g Tr., ECF No. 76, at 42:21–43:6.) The plaintiffs misunderstand the disproportionality to which the defendants are referring and which the court finds supports the legislature’s conclusion. It may be that police officers are killed more often by handguns than assault weapons, but the evidence also demonstrates assault weapons are used disproportionately to their ownership in the population.
[28] Plaintiffs cite an NSSF survey of 5,070 “modern sporting rifle” owners in which “home defense” was the second most important reason responders gave for owning the guns, behind recreational target shooting, as evidence that assault weapons are commonly owned for self-defense. (Curcuruto Decl., Ex. B, at 33.) The survey question only asked how important home defense was for owning the weapon and provided an average rating between one and ten. The court is not persuaded that these data demonstrate assault weapons are commonly owned for self-defense.
[29] The Supreme Court indicated in Heller I that M-16 rifles could be banned as dangerous and unusual. 554 U.S. at 627. Given that assault rifles like the AR-15 are essentially the functional equivalent of M-16s—and arguably more effective—the same reasoning would seem to apply here.
[30] The Fourth Circuit has applied intermediate scrutiny to laws regulating the ability to carry arms outside the home
and to laws prohibiting misdemeanants from possessing a firearm.
See, e.g.
,
Woollard
,
[31] The plaintiffs include a letter in the record from a former Maryland State Trooper in which the Trooper recounts an instance where, while on duty, he fired twenty-one rounds at a criminal who had a hostage—completely emptying the magazines in his two firearms—and actually shot the criminal eight times. (Letter from Lawrence J. Nelson, ECF No. 55-34, at 1.) The letter provides no evidence as to whether it was necessary to dispense all twenty- one rounds.
[32] To the extent the plaintiffs cite the Supreme Court’s recent opinion in
McCullen v. Coakley
,
[33] Every court that has addressed the issue has considered evidence very similar—and sometimes identical—to that
presented by the parties here and found bans on assault weapons and LCMs to survive intermediate scrutiny.
See,
e.g.
,
Heller II
,
[34] Plaintiffs claim the law enforcement officers’ observations cannot support this finding because they are not ballistics experts. Although they may not be ballistics experts, their anecdotal and experience-based testimony is appropriately considered here. The plaintiffs also claim that assault weapons are not unique in their penetration capabilities. As discussed more fully below, however, that some other firearms also have increased penetration
[35] For the purpose of these figures, mass shootings were those in which four or more people were killed and that did not include armed robbery or gang violence. (Allen Decl. ¶¶ 13–14.)
[36] The plaintiffs state in their brief that a “shooter intent on firing as many rounds as possible can fire thirty rounds using three ten-round magazines and reloading equally as fast as a shooter firing deliberately can fire thirty rounds from a thirty-round magazine.” (Pls.’ Mem. at 77.) They point to no support in the record for such a claim.
[37] For similar reasons, the plaintiffs’ claim that there is no reasonable fit because the evidence does not demonstrate all mass shootings would be eliminated is not persuasive.
[38] “The general rule gives way,” for example, “when a statute classifies by race, alienage, or national origin.”
City
of Cleburne
,
[39] The plaintiffs rely on
Silveira v. Lockyer
,
[40] The defendants argue that the plaintiffs may not bring a facial vagueness challenge to the Firearm Safety Act, as it
in no way implicates the First Amendment. While the Fourth Circuit has stated that a facial vagueness challenge to
a criminal statute is allowed only when the statute implicates First Amendment rights,
see United States v. Klecker
,
[41] The plaintiffs attempt to rely on
Springfield Armory, Inc. v. City of Columbus
,
[42] According to the plaintiffs, the Act is vague with respect to its application to the “Colt AR-15 Sporter H-BAR
rifle.” PS § 5-101(r)(2)(xv) (emphasis added) (banning “Colt AR-15, CAR-15, and all imitations
except Colt
AR-15 Sporter H-BAR rifle
”). They claim that they cannot figure out if a given rifle is permitted as a copy of a Colt
AR-15 Sporter H-BAR rifle, or is banned as a copy of a Colt AR-15. As explained by the defendants, however,
MSP relies on a “manufacturer’s designation of a firearm as an H-BAR or heavy-barreled version of an AR-15 to
determine whether it is exempt from the ban as a copy of a Colt AR-15 Sporter H-BAR.” (Brady Decl. ¶ 17.) The
plaintiffs simply need to inquire as to the manufacturer’s designation to determine whether a particular firearm
qualifies for the exception in § 5-101(r)(2)(xv). The plaintiffs also claim that the Act is vague because LWRC
International, LLC, a Maryland-based firearms manufacturer, does not know whether the AR-style rifles it
manufactures are banned. But, according to LWRC, MSP orally advised that the rifles it manufactures are exempt
from the assault weapons ban. (
See
John Brown Decl., ECF No. 69-9, ¶¶ 3–6.) To the extent LWRC is still
uncertain as to the status of particular AR-style rifles, the court concludes that it nevertheless has notice of the
“core” group of banned weapons.
See Richmond Boro Gun Club, Inc.
,
[43] The plaintiffs argue that MSP’s change in interpretation as to certain firearms—in particular, the Saiga 12 shotgun, .22 caliber replicas of AR-15s, and the Bushmaster H-BAR—means the term “copies” is unconstitutionally vague. But MSP’s change in interpretation with respect to the Saiga 12 shotgun and .22 caliber replicas of AR-15s resulted from the Attorney General’s opinion, which in fact narrowed the interpretation of copies and thereby decreased the number of possible prosecutions. (Brady Supp. Decl., ECF No. 62-5, ¶¶ 2–5.) In any event, “[a]n agency is allowed to change its mind, so long as its new interpretation is reasonable.” United States v. Deaton , 332 F.3d 698, 711 (4th Cir. 2003). As for MSP’s changed interpretation regarding the status of the Bushmaster H-BAR, Brady explains that the change is the product of statutory interpretation based on a unique provision of the law applying specifically to Bushmaster semi-automatic rifles. ( Brady Decl. ¶¶ 18–20.) The court agrees with the defendants that this unique issue, limited to this specific firearm and based on a question of statutory interpretation, does not warrant a facial challenge to the entire Firearm Safety Act.