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KOLBE v. HOGAN, NO. 14-1945

Decided: February 4, 2016  

The Fourth Circuit vacated the district court’s denial of Plaintiffs’ Second Amendment claims and remanded for the district court to apply strict scrutiny. Additionally, the Fourth Circuit affirmed the district court’s denial of Plaintiffs’ Equal Protection claim to the statutory exception allowing retired law enforcement officers to possess prohibited semi-automatic rifles. Finally, the Fourth Circuit affirmed the conclusion of the district court that the term “copies” as used by the statute is not unconstitutionally vague.

Prior to the passage of the Firearm Safety Act (FSA), Maryland law permitted citizens in good standing to possess semi-automatic rifles after passing an extensive background check. Here, the FSA substantially expanded Maryland’s gun control laws, making it a crime to “possess, sell, offer to sell, transfer, purchase, or receive” or to transport into Maryland any firearm designated as an “assault weapon.” Md. Code, Crim. Law § 4-303(a). Assault weapons include “assault long gun[s]” and is defined as any one of the more than 60 semi-automatic rifle or shotgun models specifically listed in section 5-101(r)(2) of the Maryland Public Safety Code, “or their copies.” The FSA does not define the term “copies.” Plaintiffs make several challenges to the FSA, contending that: (1) the assault weapons ban violates the Second Amendment right to keep firearms in defense of hearth and home; (2) the FSA’s ban of large capacity detachable magazines (LCMs) are also a violation of the Second Amendment; (3) the exception to the ban for retired officers is a violation of the Equal Protection clause; and (4) the FSA is void for vagueness to the extent that it prohibits possession of “copies” of the specifically identified semi-automatic rifles banned by the FSA. The district court granted summary judgment to the State for each of the Plaintiffs’ claims. Plaintiffs appealed.

The Fourth Circuit first looked at the Plaintiffs’ Second Amendment challenge to the FSA’s ban on semi-automatic rifles and LCMs. The Second Amendment states, “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The approach to resolving Second Amendment challenges involves: (1) whether the challenged law imposes a burden on conduct falling within the scope of the guarantee of the Second Amendment, and if yes, (2) an application of the appropriate form of means-end scrutiny is necessary. The Fourth Circuit determined that the bans imposed by the FSA burden conduct that falls within the scope of the Second Amendment because the law prohibits the ownership of assault weapons and LCMs, commonly used as “arms” by law-abiding citizens that are not unusually dangerous, to be used in the home for self defense; therefore, an application of the correct means of scrutiny is appropriate. The Fourth Circuit decided that the district court erred in applying intermediate scrutiny, and noted strict scrutiny was appropriate because what is at stake is a fundamental right that is substantially burdened by the FSA. The law here goes beyond simple regulation and is instead a total prohibition of possession of certain types of arms, which is similar to District of Columbia v. Heller where the Supreme Court stated that strict scrutiny was appropriate. The Fourth Circuit remanded this issue back to the district court to require the government to prove its restrictions are “narrowly tailored to achieve a compelling government interest” in order for the FSA to be constitutional.

Next, the Fourth Circuit looked at the Plaintiffs’ Equal Protection argument. To succeed on an Equal Protection claim, a plaintiff is required to demonstrate that he or she has been treated differently from others with whom he or she is similarly situated. The “similarly situated” standard requires a plaintiff to identify persons materially identical to him or her who have received different treatment. Here, under the FSA, a retired officer enjoys two privileges that the public does not. One, he or she may possess an “assault weapon” as long as it was sold or transferred to the officer by the law enforcement agency on retirement or the officer purchased it or obtained it for official use with the law enforcement agency before retirement. Two, he or she is not subject to any of the restrictions on LCMs. Plaintiffs argue that, when it comes to owning semi-automatic weapons and LCMs, retired law enforcement officers and the public at large are “similarly situated.” However, the Fourth Circuit concluded this argument failed because law enforcement officers are different from the public in several fundamental aspects; therefore, there is not a violation of Equal Protection. These differences include the level of training and experience of an officer; the special degree of trust of a law enforcement officer; and the special threats that retired police officers face.  

The last argument alleged by Plaintiffs contend that the FSA is void for vagueness on its face because it is not drafted with sufficient clarity to permit an ordinary citizen to understand when a firearm qualifies as a “copy” of a banned semi-automatic rifle. Due process creates a requirement that a criminal statute provides adequate notice to a person of ordinary intelligence that his or her contemplated conduct is illegal, for no man or woman should be responsible for conduct which could not be reasonably understood to be criminal. The issue is whether the section of the FSA is set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with. Here, the Fourth Circuit determined the phrase “assault weapons and their copies” has a plainly legitimate sweep and is not unconstitutionally vague. Despite the FSA not specifically defining “copy,” the plain meaning of the word is not beyond the grasp of the ordinary citizen.

In summary, the Fourth Circuit vacated the district court’s award of summary judgment order on Plaintiffs’ Second Amendment claims and remanded the case for the district court to apply strict scrutiny. The Fourth Circuit affirmed the district court’s grant of summary judgment stating that there was no violation of Equal Protection with respect to the FSA’s exception permitting retired law enforcement officers to possess semi-automatic rifles. Finally, the Fourth Circuit affirmed the conclusion of the district court that the FSA is not unconstitutionally vague.

Dissenting, Judge King determined that it would have been appropriate to wholly affirm the judgment of the district court on the basis of the summary judgment decision. Additionally, Chief Judge Traxler wrote a dissenting opinion for the Equal Protection part of the opinion determining that remanding this issue to the district court to decide whether the FSA’s exception permitting retired law enforcement personnel to possess semi-automatic rifles and LCMs can be justified would be appropriate.  

Full Opinion

Austin T. Reed