Civil Rights – No Maryland Gun Rights for Va. Felon

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Hamilton v. Pallozzi, Sup’t of Md. State Police (Lawyers Weekly No. 001-044-17, 26 pp.) (Floyd, J.) No. 16-1222, Feb. 17, 2017; USDC at Baltimore, Md. (Bredar, J.) 4th Cir.

Holding: Although a Virginia convicted felon who now works as a private security contractor had his civil rights restored by the Virginia governor and his firearm rights restored by the Virginia courts, Maryland’s denial of a gun permit does not violate the U.S. Constitution, the 4th Circuit holds.

Credit Card Crimes

Appellant pleaded guilty in 2006 to three felonies: credit card fraud, credit card theft and credit card forgery. Now a Maryland resident, he wishes to obtain a permit for a handgun and possession a long gun, both of which he is unable to do in Maryland absent a full pardon from the Virginia governor. He brought this as-applied Second Amendment challenge to Maryland’s firearms regulatory scheme.

After restoration of his rights in Virginia, appellant was registered as an armed security officer with the Virginia Department of Criminal Justice Services, and he is certified in the use of handguns and shotguns. He is employed through a contractor as a protective security officer with the Department of Homeland Security. He is married, has three children, serves as a head coach of a junior league wrestling team and had no history of violent behavior.

First, we affirm the district court finding that the case is justiciable and proceed to the merits of appellant’s claim. The Maryland laws at issue are substantially similar to the federal prohibition on possession of guns by convicted felons found at 18 U.S.C. § 922(g)(1). Thus, our discussion focuses primarily on case law surrounding § 922(g).

The streamlined analysis of U.S. v. Moore, 666 F.3d 313 (4th Cir. 2012), requires that we determine at step one whether appellant is a “law-abiding, responsible citizen.” We today hold that a challenger convicted of a state law felony generally cannot satisfy step one of the inquiry under U.S. v. Chester, 628 F.3d 673 (4th Cir. 2010), and accordingly disagree that these are bases on which a challenger may attempt to satisfy step one of the Chester inquiry.

‘Law-Abiding Citizen’

The dicta on which appellant relies has been overruled in a recent fractured en banc opinion from the 3rd Circuit in Binderup v. Att’y Gen. U.S., 836 F.3d 336 (3rd Cir. 2016). We find the main opinion in Binderup well-reasoned and thoughtful, but we decline to adopt it in its entirety. Rather than adopting the “seriousness” test elucidated in Binderup at step one of the Chester inquiry, we simply hold that conviction of a felony necessarily removes one from the class of “law-abiding, responsible citizens” for the purposes of the Second Amendment, absent certain narrow exceptions.

A felon cannot return to the category of law-abiding, responsible citizens for the purposes of the Second Amendment and cannot succeed at the Chester step-one inquiry unless the felony conviction is pardoned or the law defining the crime of conviction is found unconstitutional or otherwise unlawful. By confining the step one analysis to the challenger’s criminal history, we consider only the conviction/s causing the disability to the challenger. We reject rehabilitation, recidivism and passage of time evidence at this step.

We now apply our two-step approach to this case and find that appellant fails at step one. He cannot rebut the presumption that he falls outside the category of law-abiding, responsible citizens and so cannot succeed in his as-applied challenge. The district court rejected the contention that merely having committed non-violent offenses meant that appellant should be considered a law-abiding, responsible citizen. Theft, fraud and forgery are not merely errors in filling out a form or some regulatory misdemeanor offense; these are significant offenses reflecting disrespect for the law.

For the purposes of Maryland law, appellant is deemed a felon. Maryland has determined that, unless and until Virginia issues appellant a full pardon, he will continue to be deemed a felon in Maryland. With respect to his ability to possess arms in the course of his employment, this again is a matter of different sovereigns making different determinations about gun ownership rights, bound only by the strictures of the Second Amendment.

Judgment affirmed.