Scherr v. Handgun Permit Review Board

SALMON, Judge. With certain exceptions, some of which will be discussed infra, section 4-203(a)(l) of the Criminal Law Article of the Annotated Code of Maryland (2002) makes it illegal for anyone to (i) wear, carry, or transport a handgun, whether concealed or open, on or about the person; or (ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a vehicle traveling on a road or parking lot generally used by the public, highway, waterway, or airway of the State. One of the exceptions to the foregoing prohibition is set forth in section 4-203(b)(2) of the Criminal Law Article. That section allows the wearing, carrying, or transporting of a handgun by a person to whom a permit to wear, carry, or transport the handgun has been issued under Article 27, § 36E of the Code.

Md.Code Ann., Ceim. Law § 4-203(b)(2) (2002). Article 27, Section 36E, 1 of the Maryland Annotated Code (1996 Repl., 2000 Supp.), provides: ⁴²³ (ii) has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger. (a) Issuance. — A permit to carry a handgun shall be issued within a reasonable time by the Secretary of the State Police, upon application under oath therefor, to any person whom the Secretary finds: (1) Is eighteen years of age or older; and (2) Has not been convicted of a felony or of a misdemeanor for which a sentence of imprisonment for more than one year has been imposed or, if convicted of such a crime, has been pardoned or has been granted relief pursuant to Title 18, § 925(c) of the United States Code; and (3) If the person is less than 30 years of age and who has not been: (i) Committed to any detention, training, or correctional institution for juveniles for longer than one year after an adjudication of delinquency by a juvenile court; or (ii) Adjudicated delinquent by a juvenile court for: 1.

A crime of violence; ⁴²⁴ 2. Any violation classified as a felony in this State; or 3. Any violation classified as a misdemeanor in this State that carries a statutory penalty of more than 2 years; and (4) Has not been convicted of any offense involving the possession, use, or distribution of controlled dangerous substances; and is not presently an addict, an habitual user of any controlled dangerous substance not under legitimate medical direction, or an alcoholic; and (5) Has, based on the results of investigation, not exhibited a propensity for violence or instability which may reasonably render his possession of a handgun a danger to himself or other law-abiding persons; and (6) Has, based on the results of investigation, good and substantial reason to wear, carry, or transport a handgun, provided however, that the phrase “good and substantial reason” as used herein shall be deemed to include a finding that such permit is necessary as a reasonable precaution against apprehended danger. (Emphasis added.) On September 23, 2002, H. Robert Scherr, Esq., applied to the Maryland State Police, pursuant to Article 27, section 36E, for a permit to carry a handgun.

The Secretary of the Maryland State Police denied the permit because, allegedly, Scherr had not shown, based on the results of the police investigation, “good and substantial reason to wear, carry, or transport a handgun.” Scherr appealed that denial to the Handgun Permit Review Board (“the Review Board”). After a hearing, the Review Board affirmed the denial. Scherr then filed a petition for judicial review in the Circuit Court for Baltimore County. Judge Thomas Bollinger conducted a hearing at the conclusion of which he remanded the matter to the Review Board because (1) there was evidence in the record that Scherr was “a former prosecutor”; (2) neither the Review Board nor the state police official who made the determination to deny the permit considered the fact that Scherr was a former prosecutor; and (3) a former prosecutor, ⁴²⁵ due to “past adverse dealings with criminals,” would “certainly have a level of apprehended danger more than the average person would encounter.” A second hearing was held before the Review Board on November 5, 2003.

Eight days after the hearing, on November 13, the Review Board, in a three to two decision, once again affirmed the denial of the handgun permit by the Secretary. A second petition for judicial review was then filed by Scherr. In a written opinion and order dated May 26, 2004, Judge Christian M. Kahl affirmed the Review Board’s decision to deny the permit. Scherr filed a timely appeal in which he raises five questions, which we have reworded: 1.

Was the conclusion of the Review Board that appellant has failed to demonstrate a good and substantial reason to wear, carry, or transport a handgun supported by substantial evidence? 2. Did the Review Board err in failing to find that appellant had “good and substantial reason to wear, carry, or transport a handgun”? 3. Do the provisions of Article 27, Section 36E(a)(6) violate the due process clause of the Fourteenth Amendment because those provisions do not bear a real and substantial relation to the public health, morals, safety, and welfare of the citizens of the State of Maryland? 4. Is Article 27, Section 36E(a)(6), unconstitutional because it violates the Second Amendment to the Constitution of the United States? 5.

Does the Maryland Declaration of Rights provide a state constitutional right to bear arms? I. EVIDENCE PRESENTED AT THE FIRST HEARING BEFORE THE REVIEW BOARD A state police background check of Scherr was conducted shortly after he applied for a handgun permit. The investiga ⁴²⁶ tion revealed that Seherr was a law abiding citizen with an excellent reputation. He was a member of the National Guard between 1970 and 1976 and received an honorable discharge.

Seherr, a lawyer, resides in Baltimore County. As part of the investigation, Seherr was interviewed by Maryland State Police Trooper Richard Kelly. Seherr told Trooper Kelly that he was a divorce lawyer and wanted a gun permit due to the “nature of his work.” After the interview by Kelly, Scherr’s application for a permit was reviewed by Detective Sergeant Anthony Galloway, a supervisor of the State Police Handgun Permit Unit. Detective Sergeant Galloway noted that Scherr’s application contained “no evidence and/or reference” to previously having been subjected to either “assaults, threats, or robberies.” As a result of Galloway’s review, the state police sent Seherr a “shortage letter” asking him to provide them with evidence of prior assaults, robberies, and/or threats.

The letter asked that the prior assaults, etc., be corroborated by police reports. On November 22, 2002, Seherr returned the “shortage letter” with the word “none” handwritten next to the block requesting evidence of assaults and/or threats supported by police reports; he also wrote the word “none” next to the block requesting evidence that he had been a robbery victim. Detective Sergeant Galloway, on November 22, 2002, recommended that the handgun permit be denied because Seherr had produced no evidence: (1) showing that he was the recipient of threats and/or assaults as a result of his activities as a divorce lawyer; (2) showing that the applicant’s “level of threat and/or danger” was any greater than that of an ordinary citizen; and (3) demonstrating a “good or substantial reason” why he should be allowed to “wear, carry, or transport a handgun.” At the hearing before the Review Board, Detective Sergeant Galloway was cross-examined extensively by Seherr, who acted as his own attorney, concerning the criteria that Galloway used to establish whether an applicant’s level of threat and/or danger “was any greater than that of the ⁴²⁷ ordinary citizen.” The cross-examination included the following exchange: Q [MR. SCHERR] What is your criteria to determine whether a person has a good or substantial reason to carry a handgun?

A Whether or not that person’s level of danger warrants the issuance of a Handgun Permit. Q What is an acceptable level of danger, and what is not an acceptable level of danger? A An acceptable level of danger is that which is more than the average person would expect to encounter. Unacceptable would be anything other than that.

And we require that you have police reports to substantiate that, because often, people come to us and say that they’ve been involved in activities or have been threatened and assaulted, when it never occurred. And the only way for us to know that it actually did occur is whether or not there’s been something to substantiate it, reports of witnesses, something, other than the person just coming to me and saying, you know, I was threatened, I was assaulted. Q All right. So what you’re testifying to is that an acceptable level of danger to you, which would merit your issuing a permit, would be, I think you said more than the average person would encounter?

A Yes. Q What would the average person encounter, in your mind? I’m just trying to figure out what all your, what your standards are. You said that an acceptable level of danger to get a permit would be more than the average person would encounter.

I’m asking you, what is the standard that an average person would encounter, so that I can determine what’s more and what’s less? A There is no definitive standard. I look at that, and I interpret that as meaning more than someone saying, “I’m going to harm you,” or someone bumping into you or someone making gestures, that we all encounter every day. ⁴²⁸ You’re at the supermarket, and someone bumps into you and gives you the evil stare. We all encounter that from time to time.

Someone cuts you off on the road. We all have encountered that. Verbal arguments between people. We all encounter that.

We all have, and we all will. But there is no definitive standard, that I’m aware of. We have to use good judgment. Q So your testimony, then, is that the definite — you have indicated that an acceptable level of danger to you, which would then — based on that, you would then issue a permit.

That is more than what — you said, is more than an average person would encounter. That phrase is your own A Yes. Q ... thinking, right? A Uh-huh.

Q In other words, for lack of a better word, you made that up? A Yes. Scherr testified that fifty percent of his cases as an attorney concerned divorce matters. Due to his domestic relations practice, he had at times “felt uncomfortable” based on “the demeanor of specific litigants.” He explained that, although he had never been threatened by a litigant, he nevertheless wanted to carry a handgun “for protection.” Scherr further explained: I live near Baltimore City.

I generally, at times, am in fear of danger to myself and my family. I drive into the city. I drive into the city at night at times, whether to go out socially or whatever. I go with my family; and at times, I feel unsafe.

There is a lot of crime in the city. There’s over 260 homicides a year, and I feel uneasy when I go out ... my main reason for asking for a handgun permit is because I feel that we live in a dangerous society. I feel there is a difference living near Baltimore City, as opposed to living on the Eastern Shore or in other areas of Maryland and I feel that as a law abiding citizen, I do, and the ⁴²⁹ fears that I do have in general, I think I’m entitled to carry a handgun. (Emphasis added.) During the course of his testimony, Scherr twice mentioned that he was a “former prosecutor,” but he did not say when he held that position, nor did he specify how his former occupation was relevant to his need to carry a handgun.

II

THE BOARD’S INITIAL DECISION On February 5, 2003, the Review Board issued its decision, which, in material part, read: The Board finds no evidence or documentation or police reports in the record of threats or assaults against the applicant as a result of his activities as an attorney. The Board finds no evidence or documentation or police reports of any robberies, threats, assaults, or injuries to the applicant or his property during the course of his daily activities. There is no evidence in the record that the applicant’s life is in danger or that the applicant is being targeted by individuals wishing to do him harm. Conclusions of Law Based upon its findings of fact, the Board concludes, pursuant to Article 27, Section 36E(a)(6) of the Annotated Code of Maryland, that the applicant has not demonstrated a good and substantial reason to wear, carry or transport a handgun as a reasonable precaution against apprehended danger.

The Board concludes that the applicant’s vague apprehensions of danger and personal anxiety over the crime situation are not sufficient to support the issuance of a handgun permit. It is for the Board, not the individual concerned, to determine whether the facts involved constitute apprehended danger sufficient to carry a handgun. Utilizing the objective test enunciated in Snowden v. Handgun Permit Review Board, 45 Md.App. 464 , 413 A.2d 295 ⁴³⁰ (1980), the Board concludes that the degree of apprehended danger to which the applicant is exposed is not sufficient to warrant the issuance of a handgun permit.

III

EVIDENCE INTRODUCED AT THE SECOND HEARING BEFORE THE BOARD At the second hearing, Scherr called Detective Sergeant Galloway as an adverse witness. Galloway testified that he had, on behalf of the state police, made “hundreds” of decisions as to whether to issue handgun permits. These decisions had been made over a period of approximately three years. Detective Sergeant Galloway had, on approximately fifteen to twenty occasions, approved applications when there had been no prior police report of a threat against the applicant, but, except for former police officers, he had never approved an application where the applicant had failed to produce evidence of a threat.

Scherr and Detective Sergeant Galloway next engaged in the following colloquy: Q [MR. SCHERR] Have you ever granted permits to retired police officers who have not been threatened, who have not presented evidence of threats? A Yes. Q Why?

A Because while they’re on the job, they’re continually subjected to threats by people. And the date that they retire does not mean that someone who they may have arrested the week before or the day before would not seek some type of retaliation against them. Q All right. But in granting the permit, you’re indicating that these people have not come to you when they have applied for their permit, the retired police officer, and said I need a permit because Joe Blow who I arrested last week threatened me, correct?

A Yes. ⁴³¹ Q What you’re saying is you granted permits because the fact that their position was that they were a police officer and they had arrested people, that fact alone gives them a greater apprehension of danger because of the profession they held and the fact they did arrest a lot of people and that level of danger continues after they have retired, correct? A Yes. The chairman of the Review Board and Detective Sergeant Galloway then had this exchange: Q [CHAIRMAN PRETL:] There is an issue of immediacy, is there not? In other words, you have denied permits to somebody who retired ten or fifteen or twenty years ago as a police officer— A Certainly.

Q — because you felt that the immediacy of the risk was no longer there? A Certainly. Q So if there is a factor — I mean, if he retired and a week later came in for a permit, it would be different than if he came in fifteen years after he retired? A Certainly.

Q So it’s a question of degree, it’s a question of your perception of whether there is still a danger there— A Yes. Q — given the lapse of time and the circumstances of their occupation— A Yes. Scherr testified that he had been a prosecutor in Baltimore City for approximately two and one-half years from 1975 through 1977. He was a member of a “felony trial team” and, in that capacity, prosecuted “murders, rapes, robberies, every kind of violent crime, burglaries, hundreds of them in two and a half years.” The sentences meted out for the convictions he obtained “ranged from probation to life imprisonment and everything in between.” ⁴³² Scherr admitted on cross-examination that he could not recall receiving any threats as a result of his prosecutorial activities, nor had he subsequently met anyone he had previously prosecuted.

Upon questioning by the chairman, Scherr conceded that in neither his application for a handgun permit nor in his initial conversation with Trooper Kelly did he ever claim that he “had an apprehension or fear” brought about by his previous work as a prosecutor. Nevertheless, Scherr testified that, although he did not have a “strong fear” of retaliation by those he had prosecuted previously, the matter was “sometimes in the back of my mind” due to the fact that he had “put a lot of people in jail” who could now be “getting out.” As an additional reason for wanting a gun permit, Scherr testified: And the fact that I am in the public eye because I’m a talk show host, and I’m on radio in Baltimore — I’m also on radio nationwide at times and I talk about it. And people call me and it just comes up that I’m a former prosecutor. And it’s always been in the back of my mind that people that could be getting out of jail hear me on the radio.

It’s one thing if I got lost in the crowd and, you know, people — you know, I wasn’t a public figure. And it crosses my mind all the time. Does it keep me up at night? No. And is there any specific threat?

No. But do I have a fear of it? Yes.

IV

The Review Board issued its second decision on November 13, 2003. The “Findings and Conclusions” of the Board’s majority read: The Board did not find credible the applicant’s testimony that he today has a reasonable apprehension of danger related to his two-year stint as a City prosecutor ending 26 years ago. The Board finds this alleged apprehension neither objectively nor subjectively sustainable. ⁴³³ On an objective level of proof, applicant conceded that he had no threats or even encounters with his criminal defendants from the 1970s, but merely was concerned that some of them might soon be discharged from prison, and seek him out, because of his “high profile.” However, he conceded that he has not sought a permit during the intervening 26 years, when such fears presumably would be more immediate or real. More importantly, on a subjective level, it is clear to the Board that his prior role as a prosecutor, and “apprehension” related to that role, was no genuine factor at all in Mr. Scherr’s request for a permit.

He failed to mention his prosecutorial role in the mid-70s — or any related concerns — when he filed his application with the MSP, nor did he bring this up when he was interviewed at length by Trooper Kelly of the MSP, nor when he testified before this Board in January, nor even when he filed his appeal from the prior ruling. His memorandum filed in [cjircuit [cjourt reiterates at some length the arguments above, including the constitutional arguments, but this document (which Scherr prepared as his own attorney) makes no reference at all to the stint he served as a prosecutor. In fact, Mr. Scherr conceded at the second hearing that the issue was actually raised for the first time at the July oral argument by Judge Bollinger himself, who had personal knowledge dehors the record of applicant’s prosecutorial experience, from the judge’s prior dealings with the applicant in court. The Board concludes from the record taken as a whole that applicant’s insistence that he lives in fear of criminal retaliation is merely a convenient, after-the-fact justification, in an effort to take advantage of a circumstance that clearly did not enter into his thinking or motivation when he originally applied for a permit.

The Board is also compelled to accept the adverse testimony of D/Sgt. Galloway that the date and lack of “immediacy” of applicant’s prior role— together with a lack of threats — would have been a strong negative factor in MSP’s determination, as in similar cases, even had that delayed “apprehension” been suggested by ⁴³⁴ Mr. Scherr last year, when the application was originally filed and investigated. In short, the Board concludes that even with his additional evidence, applicant has still not shown a good and substantial reason for a permit, under the statute — now Section 5 — 306(5)(ii) of the Public Safety Article. Finally, the Board cannot accept applicant’s contention that Judge Bollinger intended in his August 28 ruling, to order the Board to grant him a permit, irrespective of additional evidence.

It would be illogical to conclude (and therefore the Court did not rule as a matter of law) that any “former prosecutor” has an “elevated level of apprehended danger” sufficient to meet the objective standard of Snowden v. Handgun Permit Review Board, supra — regardless of the location of the courts in which he served, the types of offenses prosecuted, or the lapse of time since the last case was prosecuted. Just as in the case of ex-police officers and prison guards, it is the statutory duty of the Superintendent to make an informed judgment, consistent with Snowden , whether the applicant’s alleged apprehension of danger is reasonable, unreasonable or feigned. V. ANALYSIS A. ISSUE 1 — THE SUBSTANTIAL EVIDENCE ISSUE A decision that is not supported by substantial evidence is arbitrary and capricious and will not be affirmed. In deciding whether substantial evidence exists to support an administrative finding, the reviewing court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.

The reviewing court also must review the agency’s decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity. Furthermore, not only is it the province of the agency to resolve conflicting evidence, but ⁴³⁵ where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences. Baltimore Lutheran High School Ass’n, Inc. v. Employment Security Admin., 302 Md. 649, 662-63 , 490 A.2d 701 (1985). As stressed by the Review Board, in order to grant a permit to carry a handgun, the Secretary of the state police, or his/her designee, must find, inter alia, that the applicant has, based on the results of investigation, “good and substantial reason to wear, carry, or transport a handgun.... ” See Article 27, Section 36E(a)(6).

A “good and substantial reason” includes, but is not limited to, situations that support “a finding that [the handgun] permit is necessary as a reasonable precaution against apprehended danger.” Id. In the subject case, the Review Board’s bottom-line conclusion, enunciated after the second hearing, was that appellant had not demonstrated a “good and substantial reason” why he should be granted a permit to carry a handgun. Scherr contests that conclusion. He argues that he proved that a handgun permit was necessary as a reasonable precaution against danger he apprehended.

Scherr also maintains that the Review Board’s decision was “arbitrary and capricious” and not based on substantial evidence because, allegedly, the decision was based “largely ... upon the testimony of Detective Sergeant Galloway,” who testified that he would issue a permit only if he thought the applicant faced a level of danger that was higher than the level “the average person would encounter.” According to Scherr, because Detective Sergeant Galloway admitted he had made up this “danger encountered by an average person” standard, the entire gun permit application process was arbitrary and capricious. Scherr’s premise that the Review Board based its decision “in large part” on Detective Sergeant Galloway’s standard is not supported by the record. The test the Review Board used was the one mandated by section 36E(a)(6), i.e., whether Scherr had shown that he had a “good and substantial reason ⁴³⁶ for obtaining a handgun permit.” Under the statute, one can show a substantial reason for a permit without showing that a gun permit is needed as a reasonable precaution against apprehended danger. But Scherr’s sole argument as to why he should be issued a permit was based on the (alleged) fact that he needed a gun permit as a reasonable precaution against apprehended danger.

In its second opinion, the Board addressed the issue of whether appellant needed a permit because of his former job. The Board found that no permit was needed because (1) it rejected Scherr’s testimony that he presently has a “reasonable apprehension of danger related to his two-year stint as a [cjity prosecutor,” and (2) the apprehension of danger originating from his former job as a prosecutor was not reasonable, inasmuch as no threats from criminals he had prosecuted had ever been received by him. In the Board’s view, Scherr’s testimony that he feared criminal retaliation was “merely a convenient, after-the-fact justification” for a handgun permit, which in no way motivated his original application. In its initial decision, which was rendered before appellant even mentioned his fear that criminals might retaliate against him because he was a former prosecutor, the Review Board characterized Scherr’s “apprehension of danger and personal anxiety over the crime situation” in Baltimore City as “vague” and insufficient to support the issuance of a permit.

Taking, as we must, the decision of the Review Board as presumptively correct and valid, Baltimore Lutheran High School Ass’n, Inc., supra, 302 Md. at 662-63 , 490 A.2d 701 , we can find no fault in the Review Board’s finding of fact or conclusion regarding appellant’s testimony at the first hearing. Usually, a well-educated person, like appellant, who actually apprehends danger, can be expected to give a solid explanation as to why his apprehension is reasonable. But here, appellant’s explanation as to why he apprehended danger was, as the Review Board noted, “ill-defined and vague,” viz: (1) based on the demeanor of litigants he has encountered in his divorce practice, he felt “uncomfortable” in their presence, ⁴³⁷ even though he had never been threatened by those litigants; (2) he lives near Baltimore City, a place that has a lot of murders, and he feels unsafe when driving either alone or with his family through Baltimore; (3) he lives in a dangerous society. If fears of this sort justified issuance of a handgun permit, it is hard to see how the Review Board could deny any law-abiding citizen a permit.

The Review Board’s reliance upon our decision in Snowden v. Handgun Permit Review Board, 45 Md.App. 464 , 413 A.2d 295 (1980), contradicts appellant’s contention that the Review Board primarily based its denial on the “apprehension of an average person” testimony of Detective Sergeant Galloway. In Snowden , the applicant was a community activist, “working in anti-drug and anti-crime programs.” Id. at 465 , 413 A.2d 295 . The applicant reported that “he had heard from various people of threats to do him bodily harm.” Id. He did not, however, provide the names of any persons who had threatened him, nor did he claim that he had ever been assaulted.

In the words of the Snowden Court, “the information [the applicant] possessed as to the threats was passed to him by others who said they had heard the threats or heard of them.” Id. In Snowden , we said: The appellant suggests that the phrase “reasonable precaution against apprehended danger” is the sole criterion for defining “good and substantial reason.” He urges that “apprehended danger” is to be viewed from the subjective standpoint of the applicant. Relying on that premise as true, he then states that since a reasonable mind “could not reasonably conclude that Mr. Snowden is not apprehensive of danger,” the Board lacked substantial evidence to deny a permit. If we accept Snowden’s reasoning there would never be a time when a lawful person, fearful of his safety, would be denied a permit to carry a gun.

Any vague threat would be sufficient to cause