New Maryland Handgun Permit Appellate Opinion

The Maryland Appellate Court decided in the Matter of Mark McCloy, a handgun permit case.

In 1999, Mark McCloy pleaded guilty to witness tampering in the United States District Court for the District of Columbia. He was sentenced to six months of home detention and five years of probation.

In 2015, McCloy applied for a Maryland Handgun Qualification License (HQL). The Maryland State Police (MSP) approved his application. McCloy used this license to purchase several firearms. When he applied for a renewal of his HQL in 2021, police did another background check and discovered his 1999 conviction. The MSP sent McCloy a letter informing him of the permit denial and his right to appeal the decision.

Appellate Process

There are many appeals for denying a handgun license in Maryland.

Administrative Appeal

So McCloy appealed the MSP’s decision to the Office of Administrative Hearings (OAH).  At the hearing, Senior Trooper David Simmons, the officer responsible for examining McCloy’s background and 2021 application, couldn’t precisely explain why the 2015 HQL application was approved after the initial denial. However, he speculated that it may have been due to the 2015 FBI criminal background report and the subsequent MSP investigation, which didn’t provide enough clarity and proof of the exact crime McCloy was convicted of.

Because police have the burden of proving that a conviction is disqualifying and has a limited time to make its decision, Simmons said that without a record showing the nature of McCloy’s conviction, “we would overturn the disapproval because we don’t have hard proof to show what he was convicted of and approve if this is a disqualifying crime.” Simmons noted that the MSP can still disqualify an application if “in a subsequent background check we did catch the mistake,” as he claimed happened in the current dispute regarding the 2021 application.

The OAH affirmed the MSP’s denial of McCloy’s application. The ALJ concluded that McCloy’s federal conviction met the definition of a disqualifying crime under Maryland law. The ALJ also found that McCloy provided false information on his application to hide the federal conviction.

Circuit Court Appeal

McCloy appealed the OAH’s decision to the Queen Anne’s County Circuit Court. The circuit court affirmed its decision to deny McCloy’s application, concluding that his federal conviction is a “disqualifying crime.” This classification is based on the conviction being equivalent to a misdemeanor in Maryland, with a maximum penalty of over two years imprisonment.

Maryland Appellate Court

In the case, McCloy argued that his 1999 conviction could not be considered a disqualifying crime, barring his ability to possess a handgun. He contended that since the equivalent Maryland statute, CR § 9-305, only became effective in 2002, he could not have been charged or convicted under it in 1999. He also argued that the federal law under which he was convicted, 18 U.S.C. § 1512(c)(1), does not sufficiently align with the Maryland statute to be considered equivalent.

Judge Berger wrote that the way to look at a case like this is to compare the elements of the out-of-state statute, which led to the applicant’s conviction, with the elements of an equivalent Maryland misdemeanor statute that carries a penalty of more than two years imprisonment. The court must determine if a reasonable mind could conclude that both statutes aim to prohibit the same conduct. Importantly, and agreeing least in part with McCloy’s argument, the court said that the Maryland statute (and its maximum penalty) should be considered as it existed at the time the applicant requested a Handgun Qualification License (HQL), not at the time of the applicant’s out-of-state conviction.