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April 10, 2017
  Hamilton v. Pallozzi -- Fourth Circuit
Fourth Circuit Issues New Rules Governing Second Amendment Challenges

Areas of Law: Second Amendment, Civil Procedure

Issues Presented: Whether the appellant's Second Amendment challenge to Maryland's permitting scheme for handgun possession is justiciable and whether the appellant qualifies as a "law-abiding, responsible citizen" such that Maryland's regulatory scheme is unconstitutional as applied to him.

Brief Summary: The appellant brought an as-applied Second Amendment challenge against the appellees related to Maryland's firearms regulatory scheme. The appellant desired to purchase firearms in the state, but his disqualifying convictions from Virginia meant he would not be successful in his permit application. The United States District Court for the District of Maryland dismissed his complaint for failure to state a claim. Upon appeal, the Fourth Circuit affirmed the district court's decision and held, for the first time in this circuit, that the case was justiciable despite the appellant never having formally applied for a firearm permit. The Fourth Circuit then found that the appellant was not a "law-abiding, responsible citizen" as required for his challenge to be successful under United States v. Chester, 628 F.3d 673 (4th Cir. 2010). In so holding, the Fourth Circuit issued a new rule, which found that, absent two narrow exceptions, "conviction of a felony necessarily removes one from the class of 'law-abiding, responsible citizens' for the purposes of the Second Amendment."

Extended Summary: The appellant James Hamilton pleaded guilty in Virginia in 2006 to three nonviolent felonies. In 2013, the Governor of Virginia restored some of the appellant's civil rights, but neither pardoned the appellant for his crimes nor restored his right to possess firearms. That right was restored, pursuant to state statute, in 2014 by the Circuit Court for Spotsylvania County. Mr. Hamilton, a resident of Maryland, then sought to purchase and possess firearms, specifically a handgun and a long gun, for self-defense within his own home. After seeking guidance, the appellant was told by an Assistant Attorney General of Maryland that he could not possess a firearm in Maryland unless he obtained a full pardon from the Governor of Virginia. That guidance was in line with Maryland law, which prohibits possession of a firearm by anyone who has been convicted of a disqualifying crime. Md. Code, Pub. Safety § 5-133(b)(1), 5-205(b)(1). Because the appellant's Virginia convictions had equivalent felony counterparts under Maryland law and therefore constituted disqualifying crimes for purposes of firearm possession, Mr. Hamilton never went forward with the application process for a firearm permit in Maryland.

Instead, in 2015, the appellant brought a lawsuit in the United States District Court for the District of Maryland against the appellees (William Pallozzi in his official capacity as the Superintendent of the Maryland State Police and Brian Frosh in his official capacity at the Attorney General of Maryland). Mr. Hamilton sought a declaration that Maryland's regulatory scheme was unconstitutional as applied to him under the Second Amendment and an injunction against the appellees enforcing that scheme upon him. The appellees moved to dismiss the complaint for failure to state a claim and the appellant in turn moved for summary judgment. In their response to the summary judgment motion, the appellees raised a question regarding the justiciability of the appellant's challenge. The district court ultimately granted the motion to dismiss, finding that the case was justiciable but that the appellant failed to state a claim. More specifically, the district court found that Mr. Hamilton could not "remove his challenge from the realm of ordinary challenges" and accordingly could not meet his burden in the test laid out in United States v. Chester, 628 F.3d 673 (4th Cir. 2010).

Upon appeal, the Fourth Circuit first examined the justiciability of the claim before examining its merit. Both parties and the Fourth Circuit agreed that the appellant's pre-enforcement challenge as to the criminalization of possession of a long gun met the necessary requirements and was therefore justiciable. However, the appellant also challenged the permitting scheme for a handgun in Maryland, a challenge that the appellees argued was not justiciable. More specifically, the appellees said that the issue was not ripe because of Mr. Hamilton's failure to actually apply for a permit and because he may be denied a permit for reasons other than a disqualifying conviction. The appellant argued that this challenge was justiciable because he need not have gone through the process knowing his application would be rejected, based on the guidance of a government official. For the first time, the Fourth Circuit held that "plaintiffs are not required to undertake futile exercises in order to establish ripeness, and may demonstrate futility by a substantial showing." Because the appellant made that substantial showing, the Fourth Circuit affirmed the district court's finding of justiciability.

Turning to the merits of the appellant's claim, the Fourth Circuit affirmed the judgment of the district court in dismissing Mr. Hamilton's claim under United States v. Chester, 628 F.3d 673 (4th Cir. 2010). Chester established a two-prong test by which the Fourth Circuit determines whether an as-applied challenge to a felon disarmament law could succeed in rebutting the presumption of lawfulness for these types of restrictions. The first prong requires the court to conduct a "historical review to evaluate whether those rights, as understood in 1791, are 'burdened or regulated' by the statute in question." United States v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012). If the first prong is met, the second prong requires the challenged statute to pass through the appropriate level of judicial scrutiny. The appellant challenged this approach, arguing that there could be no justification for disarming someone who is a "law-abiding, responsible citizen" and that the second Chester prong would not need to be reached in that scenario. The Fourth Circuit disagreed with this approach, clarifying that precedent requires that the second prong must be considered if the first prong is met.

In asserting that he was a "law-abiding, responsible citizen" under the first Chester prong, the appellant argued that evidence of rehabilitation and the passage of time from the underlying conviction were relevant considerations. The Fourth Circuit disagreed and issued a new holding, that "conviction of a felony necessarily removes one from the class of 'law-abiding, responsible citizens' for the purposes of the Second Amendment" unless the felony conviction is pardoned or the law underlying the conviction is found to be either unconstitutional or unlawful. In a footnote, the Fourth Circuit noted it was leaving open the possibility that individuals convicted of misdemeanors may still potentially satisfy the first prong of the Chester test. Additionally, the Fourth Circuit held that "evidence of rehabilitation, likelihood of recidivism, and passage of time are not bases for which a challenger might remain in the protected class of 'law-abiding, responsible' citizen." In another footnote, the Fourth Circuit noted that it expressly did not exclude such evidence from being potentially relevant in other types of as-applied challenges to disarmament laws, specifically those involving the mentally ill.

Applying its new holdings to the facts of Mr. Hamilton's case, the Fourth Circuit found that the appellant was a state law felon who had neither received a pardon nor had the basis for his convictions declared unconstitutional or unlawful. Accordingly, the Fourth Circuit found that the appellant did not meet the first Chester prong and therefore could not state a claim for an as-applied Second Amendment challenge.

To read the full opinion, click here.

Panel: Judges Shedd, Duncan, and Floyd

Argument Date: 10/25/2016

Date of Issued Opinion: 2/17/2016

Docket Number: No. 16-1222

Decided: Affirmed by published opinion

Case Alert Author: Patrick J.L. Dillon, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Alan Gura, GURA & POSSESSKY, PLLC, Alexandria, Virginia, for Appellant. Mark Holdsworth Bowen, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Pikesville, Maryland, for Appellees. ON BRIEF: Cary Hansel, HANSEL LAW, P.C., Baltimore, Maryland, for Appellant. Brian E. Frosh, Attorney General of Maryland, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. Michael Connelly, Ramona, California, for Amicus United States Justice Foundation; Robert J. Olson, Herbert W. Titus, William J. Olson, John S. Miles, Jeremiah L. Morgan, WILLIAM J. OLSON, P.C., Vienna, Virginia, for Amici Conservative Legal Defense and Education Fund, Downsize DC Foundation,, Gun Owners Foundation, Gun Owners of America, Inc., Institute on the Constitution, and The Heller Foundation

Author of Opinion: Judge Floyd

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/10/2017 01:03 PM     4th Circuit  

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