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Hamilton v. Pallozzi

United States Court of Appeals, Fourth Circuit

February 17, 2017

JAMES HAMILTON, Plaintiff - Appellant,
v.
WILLIAM L. PALLOZZI, Superintendent of the Maryland State Police; BRIAN E. FROSH, Attorney General of Maryland, Defendants-Appellees. CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; DOWNSIZE DC FOUNDATION; DOWNSIZEDC.ORG; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA, INC.; INSTITUTE ON THE CONSTITUTION; THE HELLER FOUNDATION; UNITED STATES JUSTICE FOUNDATION, Amici Supporting Appellant.

          Argued: October 25, 2016

         Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, District Judge. (1:15-cv-02142-JKB)

         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, DownsizeDC.org, Gun Owners Foundation, Gun Owners of America, Inc., Institute on the Constitution, and The Heller Foundation.

          Before SHEDD, DUNCAN, and FLOYD, Circuit Judges.

          FLOYD, Circuit Judge

         Appellant James Hamilton is a convicted felon in Virginia who has had his civil rights restored by the Governor of Virginia and his firearms rights restored by the Virginia courts. Now, as a resident of Maryland, he desires to obtain a permit for a handgun and possess a long gun, both of which he is unable to do in Maryland absent a full pardon from the Governor of Virginia. He brought this as-applied Second Amendment challenge to Maryland's firearms regulatory scheme, arguing that the scheme is unconstitutional as applied to him. The district court dismissed his complaint for failure to state a claim, and Hamilton appealed. For the reasons discussed below, we affirm.

         I.

         Hamilton pleaded guilty on November 6, 2006, in Virginia to three felonies: (1) credit card fraud, in violation of Va. Code § 18.2-195; (2) credit card theft, in violation of Va. Code § 18.2-192; and (3) credit card forgery, in violation of Va. Code § 18.2-193(1)(a). He was sentenced to four years imprisonment, which was suspended, a term of four years of probation, and ordered to pay $1, 247.90 in restitution and an additional $1, 090.00 in court costs.[1]

         On November 20, 2013, the Governor of Virginia restored Hamilton's rights to vote, hold public office, sit on a jury, and serve as a notary, but specifically did not restore his "right to ship, transport, possess or receive firearms, which must be restored in accordance with Va. Code. § 18.2-308.2." J.A. 22; see also J.A. 7, ¶ 10. His firearms rights were restored pursuant to that code section on April 22, 2014, by the Circuit Court for Spotsylvania County, Virginia. Hamilton subsequently was registered as an Armed Security Officer with the Virginia Department of Criminal Justice Services, and is certified in the use of handguns and shotguns. Additionally, as of the filing of his reply brief before this Court, he is employed through a contractor as a Protective Security Officer with the Department of Homeland Security (DHS). See Appellant's Reply Br. at 1. Hamilton is married, has three children, serves as the head coach of a junior league wrestling team, and has no history of violent behavior.

         Hamilton desires to purchase and possess both a handgun and a long gun for self-defense within his own home, but asserts that he is unable to do so due to Maryland's regulatory scheme for firearm ownership. Maryland prohibits possession of a handgun, rifle, or shotgun by anyone who has been "convicted of a disqualifying crime." See Md. Code Ann., Pub. Safety §§ 5-133(b)(1), 5-205(b)(1). A "disqualifying crime" includes both a violation classified as a felony in Maryland and a violation classified as a misdemeanor in Maryland that is punishable by more than two years imprisonment. Id. § 5-101(g).[2]

         Additionally, in order to possess a handgun, a person must first apply for and obtain a permit from the Maryland State Police (MSP). See id. §§ 5-101(r)(1), 5-117, 5-118, 5-303. As part of that application, the applicant must state under penalty of perjury that the applicant "has never been convicted of a disqualifying crime, " and must certify that the applicant is not otherwise prohibited from possessing a handgun under § 5-133(b). Id. §§ 5-118(b)(3), 5-306(a)(2)(i). Possession of a handgun without a permit is a misdemeanor punishable by up to five years imprisonment, id. § 5-144, and possession of a rifle or shotgun in violation of the regulatory scheme is a misdemeanor punishable by up to three years imprisonment, id. § 5-205(d).

         The crimes for which Hamilton was convicted in Virginia each have a Maryland equivalent: (1) receiving property by stolen, counterfeit, or misrepresented credit card, in violation of Md. Code Ann., Crim. Law § 8-209, a felony under the facts of Hamilton's conviction; (2) credit card theft, in violation of Md. Code Ann., Crim. Law § 8-204, a misdemeanor subject to eighteen months imprisonment; and (3) credit card counterfeiting, in violation of Md. Code Ann., Crim. Law § 8-205, a felony. Thus, on the basis of at least two of his Virginia felony convictions, Hamilton has two disqualifying convictions in Maryland.

         Hamilton wanted to obtain a permit to carry a handgun from the MSP, and although he did not formally apply for such a permit, he made inquiries regarding obtaining a permit and was ultimately informed by an Assistant Attorney General that he could not possess a firearm in Maryland unless he obtained a full pardon from the Governor of Virginia. Fearing arrest, prosecution, incarceration, and fines, Hamilton has refrained from attempting to obtain a handgun, rifle, or shotgun.

         This suit was brought in July 2015 against Appellees William L. Pallozzi, Superintendent of the MSP, and Brian E. Frosh, Attorney General of Maryland (collectively, the "Maryland Defendants"), both in their official capacities. Hamilton seeks a declaration that the regulatory scheme is unconstitutional under the Second Amendment as applied to him, and further seeks a permanent injunction against the Maryland Defendants and their employees from enforcing the regulatory scheme against him as it pertains to his Virginia convictions. The Maryland Defendants moved to dismiss the complaint for failure to state a claim, and Hamilton subsequently moved for summary judgment. In their opposition to summary judgment, the Maryland Defendants raised a concern regarding justiciability.

         With both motions fully briefed, the district court proceeded to decide the matter on the Maryland Defendants' motion to dismiss in a published opinion. Hamilton v. Pallozzi, 165 F.Supp.3d 315 (D. Md. 2016). The district court first, with a great deal of hesitation, determined that the case was justiciable. Id. at 323. Then, the district court found that under our two-step approach to Second Amendment challenges as announced in United States v. Chester, 628 F.3d 673 (4th Cir. 2010), Hamilton failed to state a claim at the first step. Specifically, the court held:

[B]ecause of [Hamilton]'s criminal past, the State of Maryland has acted well within its discretion in choosing to withhold firearms privileges from him-at least until he obtains a full pardon under Virginia law. [Hamilton] has not shown that his factual circumstances "remove his challenge from the realm of ordinary challenges." Accordingly, he has not carried-and cannot carry-his burden at Chester prong one, and the Court will dismiss his § 1983 claim.

Hamilton, 165 F.Supp.3d at 328 (quoting United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012)). The court dismissed the complaint with prejudice, and Hamilton timely noticed this appeal.

         II.

         Although the Maryland Defendants did not notice a cross-appeal of the district court's determination that the case was justiciable, the issue was briefed by the parties. See Appellant's Br. at 15-24; Appellee's Br. at 5-11. Justiciability is an issue of subject-matter jurisdiction, and we have an independent obligation to evaluate our ability to hear a case before reaching the merits of an appeal. Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 389 (4th Cir. 2004) (en banc). Once satisfied that we have jurisdiction, we will reach the merits of the appeal.

         The district court decided this case on the basis of the Maryland Defendants' motion to dismiss rather than Hamilton's competing motion for summary judgment. Hamilton, 165 F.Supp.3d at 318 n.1. As to justiciability, we review the factual findings for clear error and the legal conclusions de novo. Al Shimari v. CACI Premier Tech., Inc., 840 F.3d 147, 154 (4th Cir. 2016). As to the merits of Hamilton's claim, we review de novo a dismissal for failure to state a claim, assume as true all factual allegations in Hamilton's complaint, and draw all reasonable inferences in Hamilton's favor. Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006). However, "we need not accept the legal conclusions drawn from the facts, and we need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id. (internal quotations and citations omitted).

         III.

         Hamilton challenges two different statutes that have two different requirements for justiciability. The first challenge, as to the permitting scheme for a handgun, is one in which he argues the injury has already occurred. The second challenge, as to the criminalization of possession of a long gun, is a pre-enforcement challenge.

         "When a party . . . brings a preenforcement challenge to a statute or regulation, it must [1] allege 'an intention to engage in a course of conduct arguably affected with constitutional interest, ' and [2] there must exist 'a credible threat of persecution' under the statute or regulation." Va. Soc'y for Human Life, Inc. v. Fed. Election Comm'n, 263 F.3d 379, 386 (4th Cir. 2001) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). There is no dispute that Hamilton meets both requirements for the ...


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