In the Matter of McCloy

In the Matter of Mark McCloy, No. 10, September Term, 2023. Opinion by Gould, J. DISQUALIFYING CRIMES – FIREARMS The Supreme Court of Maryland held that, in determining whether an out-of-State crime is disqualifying under Md. Code Ann., Pub. Safety § 5-101 (g), the out-of-State crime is compared with the potentially equivalent Maryland crime in effect at the time the applicant submitted the firearm application, not at the time the applicant was convicted of the out-of-State crime. DISQUALIFYING CRIMES – FIREARMS The Supreme Court of Maryland held that an out-of-State crime is equivalent to a Maryland crime under Maryland’s Public Safety Article (“PS”) if the elements of the out-of-State crime are the same as or narrower than the Maryland crime.

If the out-of-State crime is equivalent to a “disqualifying crime” in Maryland under PS § 5-101(g), then the out-of-State crime is also disqualifying. If the elements of the out-of-State crime are broader than the Maryland crime and there is a sufficient basis to conclusively determine the acts that formed the basis of the conviction for the out-of-State crime, then the out-of-State crime is disqualifying if those acts would support a conviction under a disqualifying Maryland crime. Circuit Court for Queen Anne’s County Case No.: C-17-CV-21-000138 Argued: November 3, 2023 IN THE SUPREME COURT OF MARYLAND No. 10 September Term, 2023 ______________________________________ IN THE MATTER OF MARK MCCLOY ______________________________________ Fader, C.J., Watts, *Hotten, Booth, Biran, Gould, Eaves, JJ. ______________________________________ Opinion by Gould, J. ______________________________________ Filed: August 20, 2024 * Hotten, J., now a Senior Justice, participated in the hearing and conference of Pursuant to the Maryland Uniform Electronic Legal this case while an active member of this Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Court.

After being recalled pursuant to the 2024.08.20 Maryland Constitution, Article IV, § 3A, she 13:06:10 also participated in the decision and adoption -04'00' of this opinion. Gregory Hilton, Clerk Maryland regulates the purchase, sale, and possession of “regulated firearms.” MD. CODE ANN., PUB. SAFETY (“PS”) §§ 5-101 to -148 (2003, 2022 Repl.

Vol., 2023 Supp.).1 Regulated firearms include handguns and certain “assault weapons or their copies[.]” PS § 5-101(r)(2). To buy one, you must submit a firearm application to be reviewed by the Maryland State Police (“MSP”). The MSP must deny your application if you have been convicted of a “disqualifying crime,” a term defined by PS § 5-101(g). If the MSP does not deny your application within seven days, you may proceed with your purchase.

If the MSP timely rejects your application, you may pursue an administrative review and, if you lose there, you may seek a judicial review. Determining whether a prior conviction in Maryland is a “disqualifying crime” under PS § 5-101(g) is straightforward. But that is not necessarily true if the conviction is from out-of-State2: An out-of-State conviction is disqualifying if the conviction is for a crime that is equivalent to a Maryland disqualifying crime under PS § 5-101(g). The issue in this case is how to determine whether an out-of-State crime is equivalent to a Maryland disqualifying crime. 1 PS § 5-148 was approved on May 16, 2024, and took effect on June 1, 2024.

Thus, while it is currently Maryland law, it is not captured in the 2023 Supplement. When capitalized herein, “State” refers to the State of Maryland. MD. CODE ANN., 2 GEN.

PROVIS. § 1-115(b) (2014, 2019 Repl. Vol.). I A To buy a handgun in Maryland, you must first obtain a handgun qualification license (“HQL”) from the MSP. PS § 5-117.1.3 To qualify, you must be at least 21 years old, pass an MSP-approved firearms safety course, and reside in Maryland.

PS § 5-117.1(d)(1)-(3). You will be denied an HQL if you are barred from buying or possessing a handgun under a “federal or State law.” PS § 5-117.1(d)(4). Maryland law prohibits you from possessing a regulated firearm if, among other things, you have been convicted of a “disqualifying crime.” PS § 5-133(b)(1). A “disqualifying crime” is: “(1) [A] crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.” PS § 5-101(g).

Upon receipt of a completed application, the MSP has 30 days to issue an HQL or provide a written explanation for its denial. PS § 5-117.1(h); COMAR 29.03.01.32. An HQL is valid for ten years and is renewable. PS § 5-117.1(j).4 The HQL is just the first step.

Before you can buy a specific handgun, you must complete a firearm application and submit it to the seller, a “licensee,” which in turn 3 To be precise, HQLs, along with firearm applications and handgun permits, are issued or approved by the Secretary of State Police (“Secretary”) or the Secretary’s designee. PS §§ 5-101(u), 5-301(e), 5-121, 5-122, 5-306. The Secretary’s designee for firearm applications is the Firearms Registration Section of the MSP’s Licensing Division, see COMAR 29.03.01.01B(18), which, for the sake of simplicity, we also refer to as the “MSP.” 4 In Maryland Shall Issue, Inc. v. Moore, 86 F.4th 1038 (4th Cir. 2023), the United States Court of Appeals for the Fourth Circuit held unconstitutional Maryland’s 2 submits it to the MSP.5 PS §§ 5-117, 5-118(a)(1).6 The firearm application requires that you provide information about the firearm to be “purchased, rented, or transferred” and detailed personal information. PS § 5-118(b).7 And you must represent under penalty of perjury that, among other things, you have “never been convicted of a disqualifying crime[.]” PS § 5-118(b)(3)(ii).8 requirement to obtain an HQL before obtaining a handgun, as stated in PS § 5-117.1.

A rehearing en banc was granted, see Maryland Shall Issue, Inc. v. Moore, No. 21-2017 (L), 2024 WL 124290 (4th Cir. Jan. 11, 2024), and the en banc Court’s decision is pending. The issue in Maryland Shall Issue is whether Maryland’s requirement to obtain an HQL is unconstitutional under the test the United States Supreme Court established in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Because the case before us involves the disapproval of a firearm application rather than an HQL, we do not believe the outcome of the Maryland Shall Issue litigation affects this case. 5 Those “in the business of selling, renting, or transferring regulated firearms” must obtain a “dealer’s license.” PS § 5-106. The holder of a dealer’s license is called a “licensee.” PS § 5-101(p). 6 Although not relevant here, applications may also be submitted to a “designated law enforcement agency[.]” PS § 5-118(a)(1). 7 The specific information required is “the firearm applicant’s name, address, Social Security number, place and date of birth, height, weight, race, eye, and hair color, signature, driver’s or photographic identification soundex number, occupation, and regulated firearm information for each regulated firearm to be purchased, rented, or transferred[.]” PS § 5- 118(b)(1). 8 Under PS § 5-118(b)(3), the applicant must represent that he or she: (i) is at least 21 years old; (ii) has never been convicted of a disqualifying crime; (iii) has never been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years; (iv) is not a fugitive from justice; (v) is not a habitual drunkard; 3 Upon receipt of the application, the MSP “shall conduct an investigation promptly to determine the truth or falsity of the information supplied and statements made in the firearm application.” PS § 5-121(a).

The MSP “shall disapprove” your application if it “determines that [you] supplied false information or made a false statement” on it.9 PS § 5- 122(a)(1). So, if you have a “disqualifying crime” lurking in your past but represent (vi) is not addicted to a controlled dangerous substance or is not a habitual user; (vii) does not suffer from a mental disorder as defined in § 10-101(i)(2) of the Health--General Article and have a history of violent behavior against the firearm applicant or another; (viii) has never been found incompetent to stand trial under § 3-106 of the Criminal Procedure Article; (ix) has never been found not criminally responsible under § 3-110 of the Criminal Procedure Article; (x) has never been voluntarily admitted for more than 30 consecutive days to a facility as defined in § 10-101 of the Health--General Article; (xi) has never been involuntarily committed to a facility as defined in § 10-101 of the Health--General Article; (xii) is not under the protection of a guardian appointed by a court under § 13-201(c) or § 13-705 of the Estates and Trusts Article, except for cases in which the appointment of a guardian is solely a result of a physical disability; (xiii) is not a respondent against whom: 1. a current non ex parte civil protective order has been entered under § 4-506 of the Family Law Article; or 2. an order for protection, as defined in § 4-508.1 of the Family Law Article, has been issued by a court of another state or a Native American tribe and is in effect; and (xiv) if under the age of 30 years at the time of application, has not been adjudicated delinquent by a juvenile court for an act that would be a disqualifying crime if committed by an adult[.] 9 The MSP must also disapprove your application if it determines that your “application [was] not properly completed” or if your attending physician notifies the MSP that you suffer “from a mental disorder and [are] a danger to [yourself] or to another.” PS § 5-122(a)(2), (3). Neither of those provisions is at issue here. 4 otherwise on your application, the MSP will have at least two reasons to disapprove your application: (1) you committed a disqualifying crime, PS § 5-133(b)(1); and (2) you “supplied false information or made a false statement” on your application, PS § 5- 122(a)(1). The MSP has only seven days from receipt of the application to disapprove the application.

PS § 5-122(b)(1); see also COMAR 29.03.01.13A. If the MSP disapproves the application, it must notify the seller in writing within the seven-day period, and then it must notify you. PS § 5-122(b)(1), (2). But no news is good news: If the MSP does not disapprove your application within the seven-day waiting period, you have 90 days to buy your firearm.10 PS § 5-123(b).

Now that you’ve bought a handgun, if you want “to carry, wear, or transport” it, you will need to apply to the MSP for a “permit.” PS § 5-301(c); see also PS § 5-303. As with the HQL and firearm application, the MSP must deny your permit application if you have been convicted of a “disqualifying crime.” PS § 5-306(a)(10)(ii). To sum up: (1) To be eligible to buy a handgun, you must obtain an HQL; (2) to buy a specific handgun, you must submit a firearm application and wait seven days; if not disapproved within that time, you have 90 days to complete the transaction; and (3) to wear, carry, or transport your handgun, you need to apply for and receive a permit. All three 10 PS § 5-125(b) mentions the possibility of the MSP putting an application on hold when there is an open disposition of criminal proceedings against the applicant.

However, neither the firearms statutes nor the regulations explicitly state that the MSP may put an application on hold or provide additional detail as to when the MSP may do so. In any event, the issue of putting an application on hold is not before us. 5 government-issued approvals must be denied if you have a conviction for a disqualifying crime on your record. This case is about the disapproval of the second application: the firearm application. B Petitioner Mark McCloy obtained an HQL in 2015 and subsequently purchased four handguns.

On February 8, 2021, he submitted a firearm application to buy another handgun.11 He stated on his application that he had never been convicted, in Maryland or elsewhere, of a misdemeanor that, under Maryland law, carries a maximum penalty of more than two years. As previously noted, a misdemeanor carrying such a sentence is a disqualifying crime under PS § 5-101(g)(3). The MSP’s criminal background check revealed that, in 1999, Mr. McCloy had been charged with witness tampering under 18 U.S.C. § 1512 (b) but was convicted, following a guilty plea, under 18 U.S.C. § 1512 (c)(1).12 The MSP determined that 18 U.S.C. § 1512 (c)(1) was a disqualifying crime and timely informed the licensee and Mr. McCloy that it disapproved his application. The notice provided no explanation, but in an informal email exchange that followed, the MSP told Mr. McCloy that 18 Before the Appellate Court of Maryland, Mr. McCloy argued that the MSP’s 2015 11 approval of his HQL application precluded the MSP from denying his 2021 firearm application.

In re McCloy, 257 Md. App. 668 , 698-99 (2023). The Appellate Court rejected that argument, id., and it is not before us. 12 That provision is now located at 18 U.S.C. § 1512 (d) and has identical language to the 1999 version, except that the maximum term of imprisonment is now three years. When referring to 18 U.S.C. § 1512 (c) in this opinion, we are referring to the 1999 version. 6 U.S.C. § 1512 (c)(1) was disqualifying because it was comparable to a disqualifying crime in Maryland—MD. CODE ANN., CRIM.

LAW (“CR”) § 9-302 (2002, 2021 Repl. Vol.). C An aggrieved applicant has 30 days after receipt of the disapproval notice to request a hearing before the MSP. PS § 5-126(a)(1).

The hearing must be conducted under the contested case provisions of Title 10, Subtitle 2 of the State Government Article. PS § 5-126(b); see also MD. CODE ANN., STATE GOV’T (“SG”) § 10-202(d) (1984, 2021 Repl. Vol.).13 The Office of Administrative Hearings (“OAH”) conducts the hearing.

SG §§ 10-202(f), 10-205(a)(1). The hearing’s presiding officer, an Administrative Law Judge (“ALJ”), reviews “all information available to the [MSP] which formed the basis for the decision to disapprove the application, as well as any additional information that may be required by the State, the [ALJ], or other sources.” COMAR 29.03.01.22E. Unless otherwise provided by law, the MSP must establish by a preponderance of the evidence that the disapproval was proper. SG § 10-217; COMAR 28.02.01.21K(1); COMAR 29.03.01.22H. 13 Under SG § 10-202(d), a “[c]ontested case” means: [A] proceeding before an agency to determine: (i) a right, duty, statutory entitlement, or privilege of a person that is required by statute or constitution to be determined only after an opportunity for an agency hearing; or (ii) the grant, denial, renewal, revocation, suspension, or amendment of a license that is required by statute or constitution to be determined only after an opportunity for an agency hearing. 7 Mr. McCloy timely appealed the MSP’s decision to the OAH.

Two days before the hearing, the MSP told him that, for purposes of determining whether his conviction under 18 U.S.C. § 1512 (c)(1) was disqualifying, the MSP was comparing it to CR § 9-305,14 not CR § 9-302. Mr. McCloy did not object to the timing of that notice. 14 CR § 9-305 states: Prohibited--In general (a) A person may not, by threat, force, or corrupt means, try to influence, intimidate, or impede a juror, a witness, or an officer of a court of the State or of the United States in the performance of the person's official duties. Prohibited--Solicitation (b) A person may not solicit another person to, by threat, force, or corrupt means, try to influence, intimidate, or impede a juror, a witness, or an officer of the court of the State or of the United States in the performance of the person's official duties. Penalty (c) (1) Except as provided in paragraph (2) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding $5,000 or both.

(2) If an act described in subsection (a) of this section is taken in connection with a proceeding involving a felonious violation of Title 5 of this article or the commission of a crime of violence as defined in § 14-101 of this article, or a conspiracy or solicitation to commit such a crime, a person who violates this section is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years. Sentencing (d) A sentence imposed under this section may be separate from and consecutive to or concurrent with a sentence for any crime based on the act establishing the violation of this section. 8 At the hearing, the MSP explained that in determining whether an out-of-State conviction disqualifies an applicant, it first determines whether Maryland has an equivalent statute and if so, whether that statute meets the definition of “disqualifying crime.” The MSP then compares the elements of the out-of-State statute with the elements of the potentially equivalent Maryland crime, but it does not consider the facts supporting the conviction. Here, the MSP consulted counsel from the Attorney General’s office in determining that CR § 9-305 was the appropriate equivalent Maryland crime. In both the testimony and argument phases of the hearing, the MSP maintained that the facts behind the out-of-State conviction are irrelevant to the analysis.

In response, Mr. McCloy submitted an affidavit from the attorney who handled his 1999 federal case, explaining the factual circumstances of that matter, a subject Mr. McCloy also covered in his testimony. According to Mr. McCloy, the charges against him stemmed from a sexual encounter that he, then a government employee, had with a coworker. The coworker filed a sexual harassment complaint with the Equal Employment Opportunity Commission (“EEOC”). In a conversation tape-recorded by the FBI, Mr. McCloy agreed to pay the coworker to dismiss the complaint.

Mr. McCloy was arrested and subsequently charged with 18 U.S.C. § 1512 (b)—a felony that carried a maximum penalty of ten years’ imprisonment. Ultimately, Mr. McCloy pleaded guilty to 18 U.S.C. § 1512 (c)(1), a misdemeanor that had a maximum penalty of no more than one year’s imprisonment. Mr. McCloy was fined $2,000 and sentenced to six months of home detention and five years of probation. 9 In addition to introducing evidence explaining the factual circumstances of his conviction, Mr. McCloy also argued that 18 U.S.C. § 1512 (c)(1) was not comparable or equivalent to CR § 9-305, either on the elements or when the facts were considered. Mr. McCloy argued that, as a matter of law, CR § 9-305 could not be comparable to 18 U.S.C. § 1512 (c)(1) because CR § 9-305 was not enacted until after his federal conviction.15 In a ten-page decision, the ALJ affirmed the MSP’s disapproval of Mr. McCloy’s application, but on different grounds.

Looking only at the elements of the federal and Maryland statutes, the ALJ agreed with Mr. McCloy that 18 U.S.C. § 1512 (c)(1) was not comparable to CR § 9-305, but sua sponte determined that it was comparable to CR § 9-306, which is also disqualifying under PS § 5-101(g)(3). The ALJ also found that Mr. McCloy’s application falsely represented that he had not been convicted “in Maryland or elsewhere of a misdemeanor which, under Maryland law, carries a maximum penalty of more than two years.”16 This misrepresentation, the ALJ concluded, also justified the disapproval of Mr. McCloy’s application. 15 Mr. McCloy argued additional points as well; none are relevant to our analysis. 16 The MSP did not raise this issue before the ALJ. 10 D Mr. McCloy sought judicial review in the Circuit Court for Queen Anne’s County, which affirmed the ALJ’s decision in a written opinion.17 And just as the ALJ affirmed the MSP’s decision, but on different grounds than the MSP, the circuit court affirmed the ALJ’s decision, but on a different ground than the ALJ. The circuit court agreed with Mr. McCloy “that the ALJ exceeded her statutory authority in finding that Section 9-306 was the analogous statute, and in doing so violated his procedural due process [rights] to notice and an opportunity to be heard.” The court then determined that the ALJ erroneously found that Mr. McCloy had made a false statement on his application. Those determinations were uncontested by the MSP on appeal and are therefore not before us.

But the circuit court came full circle and held that the MSP correctly identified CR § 9-305 as an appropriate equivalent crime to 18 U.S.C. § 1512 (c)(1), reasoning that both seek “to prevent any person from interfering or otherwise impeding another person’s participation in official proceedings.” So, despite rejecting the ALJ’s reasoning, the court affirmed the ALJ’s ultimate disposition. E Mr. McCloy timely noted an appeal to the Appellate Court of Maryland, which affirmed in a reported decision. In re McCloy, 257 Md. App. 668 (2023). Mr. McCloy argued that because his federal conviction occurred in 1999, that crime could not be 17 McCloy was entitled to judicial review under PS § 5-127, which states that “[a]ny subsequent judicial review shall be held in accordance with Title 10, Subtitle 2 of the State Government Article.” Under this subtitle, “a party who is aggrieved by the final decision in a contested case” may seek “judicial review of the decision[.]” SG § 10-222(a). 11 compared to CR § 9-305, which was not enacted until 2002.

McCloy, 257 Md. App. at 685- 86. The court rejected this argument, holding that the out-of-State crime should be compared to the equivalent Maryland offense in effect at the time of the application. Id. at 686-89. Mr. McCloy next argued that his federal crime was not equivalent to CR § 9-305.

Id. at 690. The court also rejected this argument. Id. at 696-97. Looking to Brown v. Handgun Permit Review Board, 188 Md. App. 455 (2009), the court fashioned a two-step approach to determine whether a non-Maryland statute is disqualifying.

McCloy, 257 Md. App. at 692-93. We provide more specifics on this approach later. In short, the court’s approach involves comparing the elements of the Maryland and non-Maryland statutes and then determining whether a “reasonable mind” could conclude that the statutes prohibit similar conduct, based on the elements of the statutes and the conduct underlying the applicant’s out-of-State conviction. Id. at 693.

Using this approach, the court concluded that Mr. McCloy’s 1999 federal crime was equivalent to CR § 9-305 and was therefore a disqualifying crime. Id. at 696-97. As a result, the court upheld the ALJ’s affirmance of the MSP’s disapproval of Mr. McCloy’s firearm application. Id.

F We granted Mr. McCloy’s petition for writ of certiorari. In re McCloy, 485 Md. 133 (2023). He presents four questions for our review, which we have distilled into one: Did the ALJ properly determine that Mr. McCloy’s 1999 conviction under 18 U.S.C. § 1512 (c)(1) was a disqualifying crime requiring disapproval of his firearm application? 12 II A An aggrieved firearm applicant’s right to judicial review is authorized by PS § 5-127: “Any subsequent judicial review shall be held in accordance with Title 10, Subtitle 2 of the State Government Article.” Judicial review is limited to the ALJ’s final decision.18 See SG § 10-222(a)(1) (“[A] party who is aggrieved by the final decision in a contested case is entitled to judicial review of the decision as provided in this section.”). Here, the ALJ agreed with Mr. McCloy that 18 U.S.C. § 1512 (c)(1) is not equivalent to CR § 9-305 for disqualification purposes, but it affirmed the MSP’s decision on alternative grounds, none of which are before us.

So, if the ALJ correctly determined that CR § 9-305 is not equivalent to 18 U.S.C. § 1512 (c)(1), then the ALJ’s affirmance of the MSP’s decision was incorrect. The standard of review of an agency’s final decision in a contested case is set forth in SG § 10-222(h).19 The primary issue here—whether Mr. McCloy’s conviction in 1999 18 See also COMAR 28.02.01.25D (“Except as otherwise provided by law, when an ALJ is the final decision maker, the ALJ’s decision is the final agency decision for purposes of judicial review.”); Motor Vehicle Admin. v. Smith, 458 Md. 677, 685 (2018). 19 SG § 10-222(h) states: In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; 13 under 18 U.S.C. § 1512 (c)(1) is equivalent to a conviction under CR § 9-305 for disqualification purposes under PS § 5-133(b)—involves the interpretation and application of Maryland statutes and caselaw which, as issues of law, are reviewed without deference. Motor Vehicle Admin. v. Smith, 458 Md. 677, 686 (2018). But we “give weight to the administrative agency’s interpretation and application of the statute that the agency administers.” Id.

(citation omitted). That said, we do not credit an agency’s erroneous interpretation of a statute. Md. Ins. Admin. v. State Farm Mut.

Auto. Ins. Co., 451 Md. 323, 335 (2017). An agency decision tainted by an error of law is subject to reversal or modification.

SG § 10-222(h)(3)(iv). B Mr. McCloy argues that “it is a legal impossibility for [his] conduct or conviction to constitute a prohibiting offense in Maryland, when [he] could not have been, under any circumstances, charged for a violation of § 9-305 in Maryland in 1999.” That’s because he was convicted in 1999, but CR § 9-305 went into effect in 2002. So, he argues, “[a]s there did not exist an equivalent