CATHERINE C. BLAKE, District Judge.
On May 16, 2013, in the wake of a number of mass shootings, the most recent of which claimed the lives of twenty children and six adult staff members at Sandy Hook Elementary School in Connecticut, the Governor of Maryland signed into law the Firearm Safety Act of 2013. The Act bans certain assault weapons and large-capacity magazines ("LCMs").
Plaintiffs Stephen V. Kolbe, Andrew C. Turner, Wink's Sporting Goods, Inc., Atlantic Guns, Inc., Associated Gun Clubs of Baltimore, Inc. ("AGC"), Maryland Shall Issue, Inc., Maryland State Rifle and Pistol Association, Inc., National Shooting Sports Foundation, Inc. ("NSSF"), and Maryland Licensed Firearms Dealers Association, Inc. ("MLFDA")
The Firearm Safety Act of 2013 provides in general that, after October 1, 2013, a person may not possess, sell, offer to sell, transfer, purchase, or receive "assault pistols,"
The Act exempts from the ban the transfer of an assault weapon from a law enforcement agency to a retired law enforcement officer as long as: (1) it is sold or transferred on retirement or (2) it "was purchased or obtained by the person for official use with the law enforcement agency before retirement." Id. § 4-302(7). The Act also exempts retired law enforcement officers from the ban on LCMs. Id. § 4-305(a)(2), (b).
Just days before the Firearm Safety Act was to go into effect, on September 26, 2013, the plaintiffs filed their complaint, followed the next day by a motion for a temporary restraining order ("TRO"), challenging the law's constitutionality with respect to its ban on assault long guns, copycat weapons, and LCMs. The court heard argument on the TRO on October 1, 2013, and decided that the plaintiffs did not show they were entitled to the extraordinary relief. Following the hearing on the TRO, the parties agreed that, instead of considering a preliminary injunction request, the court should proceed to consider this matter on the merits.
Accordingly, the court will now consider the plaintiffs' claims that the Firearm Safety Act (1) infringes their Second Amendment rights,
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (emphasis added). Whether a fact is material depends upon the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Id. "A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (alteration in original) (quoting Fed. R.Civ.P. 56(e)). The court must view the evidence in the light most favorable to the nonmovant and draw all justifiable inferences in his favor. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted); see also Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (citation omitted). At the same time, the court must not yield its obligation "to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (citation and internal quotation marks omitted).
II. Motion to Exclude Testimony
The plaintiffs ask the court to exclude various expert and fact testimony offered by the defendants. Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony, states:
The party seeking to introduce expert testimony has the burden of establishing its admissibility by a preponderance of the evidence. Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 n. 10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). A district court is afforded "great deference . . . to admit or exclude expert testimony under Daubert." TFWS, Inc. v. Schaefer, 325 F.3d 234, 240 (4th Cir.2003) (citations and internal quotation marks omitted); see also Daubert, 509 U.S. at 594, 113 S.Ct. 2786 ("The inquiry envisioned by Rule 702 is . . . a flexible one. . . ."). "In applying Daubert, a court evaluates the methodology or reasoning that the proffered scientific or technical expert uses to reach his conclusion; the court does not evaluate the conclusion itself," Schaefer, 325 F.3d at
Rule 701 of the Federal Rules of Evidence, which governs the admissibility of lay testimony, states:
"[L]ay opinion testimony must be based on personal knowledge. . . ." United States v. Perkins, 470 F.3d 150, 155-56 (4th Cir. 2006) (emphasis in original). "At bottom,. . . Rule 701 forbids the admission of expert testimony dressed in lay witness clothing. . . ." Id. at 156 (quoting United States v. Santos, 201 F.3d 953, 963 (7th Cir.2000)).
Dr. Christopher Koper, as the plaintiffs admit, is the only social scientist to have studied the effects of the federal assault weapons ban that was in place from 1994 to 2004. (See Koper Decl., ECF No. 44-7, ¶ 5.) In addition, he has studied issues related to firearms policy for twenty years, publishing numerous studies in peer-reviewed journals on topics related to crime and firearms. (Id. ¶¶ 3, 6-7.) The plaintiffs ask the court to exclude Koper's expert testimony on two grounds, neither of which is persuasive.
First, the plaintiffs claim that Koper's opinion that the Firearm Safety Act is likely to advance Maryland's interest in protecting public safety is not based on sufficient data, as required by Rule 702, because his study of the federal ban found that the ban did not decrease firearms-related crimes, the lethality and injuriousness of gun crimes, or the criminal use of banned LCMs. (Pls.' Mot. to Exclude, ECF No. 65, at 3-4.) Further, the plaintiffs claim, his previous research revealed that state-level bans did not result in any reduction in crime. (Id. at 4.) The plaintiffs also allege that many of Koper's opinions regarding the efficacy of the Firearm Safety Act contradict deposition testimony. (Id. at 7.)
As an initial matter, the plaintiffs often mischaracterize Koper's statements and his research, cherry-picking items and presenting them out of context. For example, they cite Koper's acknowledgment in 2004 that a few studies suggest state-level assault weapons bans did not reduce crime as inconsistent with his conclusions regarding the Firearm Safety Act. (Compare Koper Decl., Ex. B, at 81 n. 95 ("[A] few studies suggest that state-level AW bans have not reduced crime. . . ."), with Koper Decl. ¶¶ 77-86 (opining that the Firearm Safety Act is likely to, inter alia, limit the number of long guns in Maryland, limit the number of LCMs in circulation, reduce the number and lethality of gunshot victimizations, and reduce the use of assault weapons and LCMs in crime).) But the plaintiffs omit Koper's numerous qualifications of those state studies. (See Koper Decl., Ex. B, at 81 n. 95 ("[I]t is hard to draw definitive conclusions from these studies. . .: there is little evidence on how state AW bans affect the availability and use of AWs . . .; studies have not always examined the effects of these laws on gun homicides and shootings . . .; and the state AW
To the extent Koper's prior research concluded the federal ban was not effective in various ways, his opinions in the current case are based on several other pieces of data, which the plaintiffs entirely ignore in arguing his testimony should be excluded. (See, e.g., Koper Decl. ¶¶ 13-43.) Further, Koper is clear in noting that the federal weapons ban had several features that may have limited its efficacy that are not present with Maryland's ban. (Id. at ¶¶ 79-81.)
The plaintiffs also challenge Koper's testimony on the basis that he is unable to conclude the Firearm Safety Act will have the desired effects to a "reasonable degree of scientific certainty." It appears the plaintiffs are claiming that expert opinions may not be considered in determining the constitutionality of the bans at issue here unless they are stated with such scientific certainty. In making their argument, however, the plaintiffs fail to recognize that the inquiry under Rule 702, as noted above, is flexible, see Daubert, 509 U.S. at 594, 113 S.Ct. 2786, and that, although a reasonable degree of scientific certainty is required for the admission of expert testimony to prove causation in medical malpractice cases—the types of cases the plaintiffs cite to support their position— applying such a standard here would misapprehend the court's inquiry. In attempting to further the state's important interests, the legislature is not required to refrain from acting until it has evidence demonstrating proposed legislation will certainly have the desired effects. It is allowed to make predictions. See Turner Broadcasting Sys., Inc. v. F.C.C. (Turner I), 512 U.S. 622, 665, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ("Sound policymaking often requires legislators to forecast future events and to anticipate the likely impact of these events based on deductions and inferences for which empirical support may be unavailable."). The court will defer to those predictions as long as they are the result of reasonable inferences and deductions based on substantial evidence. See Heller v. District of Columbia (Heller III), ___ F.Supp.3d ____, 2014 WL 1978073, at *8 (D.D.C. May 15, 2014) (citing Turner Broadcasting Sys., Inc. v. F.C.C. (Turner II), 520 U.S. 180, 211, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997)). Koper's testimony is well-suited to answer the question facing the court and is precisely the kind of evidence upon which other courts have relied in assessing similar assault weapon and LCM bans. See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1263 (D.C.Cir.2011); Fyock v. City of Sunnyvale, 25 F.Supp.3d 1267, 1279-81, 2014 WL 984162, at *8-9 (N.D.Cal. Mar. 5, 2014); San Francisco Veteran Police Officers Ass'n v. San Francisco, 18 F.Supp.3d 997, 1003, 1005, 2014 WL 644395, at *5, *7 (N.D.Cal. Feb. 19, 2014); Shew v. Malloy, 994 F.Supp.2d 234, 249 n. 50 (D.Conn.2014); NYSRPA, 990 F.Supp.2d at 368-72.
The plaintiffs argue that Dr. Daniel Webster's testimony should be excluded because he has not conducted any original research but rather has relied on the work of Koper and the data he acquired from the Mother Jones publication.
It is acceptable for an expert to rely on the studies of other experts in reaching his own opinions, although courts have excluded testimony where the expert failed to conduct any independent examination or research to ensure the reliability of the information on which he relies. See Doe v. Ortho-Clinical Diagnostics, Inc., 440 F.Supp.2d 465, 470 (M.D.N.C.2006) (citation and internal quotation marks omitted) ("Where proffered expert testimony is not based on independent research, but instead on such a literature review, the party proffering such testimony must come forward with other objective, verifiable evidence that the testimony is based on scientifically valid principles. One means of showing this is by proof that the research and analysis supporting the proffered conclusions have been subjected to normal scientific scrutiny through peer review and publication."); Berlyn, Inc. v. Gazette Newspapers, Inc., 214 F.Supp.2d 530, 539-40 (D.Md.2002) (excluding an expert because his methods were "wholly lacking in independent research," and there was no evidence that his opinion was "the product of reliable principles and methods, and [was] based upon sufficient facts or data").
Here, over a nearly thirty-year career, Webster has devoted most of his research to gun-related injuries and violence, has directed numerous studies related to gun violence and its prevention, and has published seventy-nine articles in scientific, peer-reviewed journals. (See Webster Decl., ECF No. 44-6, ¶¶ 2-5.) Although it is true he relies on Koper's research in his declaration, Webster served as editor of the book that included Koper's 2013 report and, as editor, he subjected Koper's 2013 report to a peer review process. (See Koper Decl., Ex. A; Webster Dep., ECF No. 70-4, at 57:11-18.) Likewise, Webster relies on data from the Mother Jones publication, but the data were subject to independent analysis by Koper and his graduate student. (See Koper Decl. ¶¶ 25-28.) In any event, the plaintiffs have offered nothing to suggest the Mother Jones data are unreliable or inaccurate. Accordingly, the court is satisfied that the information on which Webster relies in forming his expert opinion is reliable, and will not exclude his testimony.
C. Vince and Law Enforcement Officers
The plaintiffs argue that the "ballistics opinions" of Joseph Vince and executive law enforcement officers should be excluded, as the opinions are outside the scope of their expertise.
The plaintiffs claim that the court should exclude Lucy Allen's expert opinions related to the frequency with which the banned weapons are used defensively for two reasons. First, they claim that her conclusions are based on the coding of stories she did not independently verify. The court notes, however, that the database which Allen studied is maintained by the NRA, suggesting, if anything, that her study may have a bias in favor of finding more instances of the defensive use of firearms. Moreover, the plaintiffs proffer nothing to suggest the stories collected by the NRA are unreliable or inaccurate. Second, they argue that she cannot base her opinions on stories, which, they claim, are inappropriate anecdotal evidence. In light of the apparent dearth of other evidence demonstrating that the firearms at issue here are used for self-defense, Allen's use of the NRA database is appropriate and acceptable. Not only do the cases to which the plaintiffs cite for the opposite conclusion not stand for the proposition that an expert can never rely on anecdotal evidence, they expressly contemplate the use of such evidence.
E. Johnson and Bulinski
Finally, the plaintiffs seek to exclude Johnson's testimony in front of the Maryland General Assembly and Maximillian Bulinski's declaration because the defendants did not disclose them in accordance with Federal Rule of Civil Procedure 26(a) or (e). See also Fed. R.Civ.P. 37(c)(1) ("If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion. . . ."). Evidence a party has failed to timely disclose will not be excluded if the failure is substantially justified or harmless. S. States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595-96 (4th Cir.2003) (articulating five factors the court should consider when deciding whether exclusion is proper: the surprise to the party against whom the evidence is offered, the ability of the party to cure that surprise, the extent to which the testimony would disrupt trial, the explanation for the failure, and the importance of the testimony).
Any failure to disclose Johnson's testimony in front of the General Assembly was harmless. The portions of Johnson's testimony relevant to the plaintiffs' challenge here are not substantively different from his statements in his declaration. Nor do the plaintiffs allege any manner in which they are different. The plaintiffs thus were not prejudiced because they were not deprived of a full opportunity to examine Johnson on his views of the Firearm Safety Act or gun-related crime.
The defendants' failure to disclose Bulinski's testimony is substantially justified. The defendants first had notice they would need to investigate evidence related to Bulinski's declaration when the plaintiffs filed their opposition memorandum on March 17, 2014. The defendants did not learn they would want to offer Bulinski's testimony until March 27, 2014, when he attempted to make the purchases about which he testifies. This was only fifteen days before they filed their reply memorandum. In addition, because the testimony is responsive to the plaintiffs' evidence, the testimony does not raise new issues of which the plaintiffs were unaware such that the plaintiffs are prejudiced. In fact, the plaintiffs do not claim any prejudice in their papers. Further, Bulinski's testimony offers valuable information given the plaintiffs' limited evidence as to the availability of firearms magazines with capacities of ten rounds or less.
The court will not exclude Johnson's testimony or Bulinski's declaration.
III. Second Amendment
The plaintiffs claim that Maryland's ban on various assault weapons and LCMs infringes their Second Amendment rights. 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." U.S. Const. amend. II. It is applicable to the states through the Fourteenth Amendment. McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 3026, 3050, 177 L.Ed.2d 894 (2010).
In District of Columbia v. Heller (Heller I), the Supreme Court found that the Second Amendment codified a pre-existing, individual right to keep and bear arms and that its core protection was the right of "law-abiding, responsible citizens to use arms in defense of hearth and home." 554 U.S. 570, 592, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Accordingly, the Court found that a complete prohibition on handguns—the class of weapon "overwhelmingly chosen by American society for [the] lawful purpose [of self-defense]"
The Court also recognized, however, that the right to bear arms is not unlimited, and articulated some of its boundaries. With respect to the types of weapons protected, the Court found that the Second Amendment does not protect "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller I, 554 U.S. at 626, 128 S.Ct. 2783. Instead, it only protects those that are "`in common use at the time,'"
Given that the right to bear arms is not boundless, the Fourth Circuit, like several others, applies a two-part approach to Second Amendment claims. Woollard, 712 F.3d at 874-75; see also Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1150 (9th Cir.2014); Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 194 (5th Cir.2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Heller II, 670 F.3d at 1252; Ezell, 651 F.3d at 703-04; United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010). First, the court determines whether the challenged law "imposes a burden on conduct falling within the scope of the Second Amendment's guarantee." Woollard, 712 F.3d at 875 (quoting United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010)). "This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification." Id. (quoting Chester, 628 F.3d at 680) (internal quotation marks omitted). If it was not, then the law regulating such conduct is valid. Id. If the conduct does fall within the scope of the Second Amendment right, then the court must move to the second part of the inquiry and apply "the appropriate form of means-end scrutiny." Id. (quoting Chester,
A. Infringement of the Second Amendment Right
The court must first determine whether the weapons at issue here are of the type falling within the Second Amendment's scope. The defendants do not appear to claim Maryland's ban on assault weapons and LCMs is longstanding such that it is presumptively valid. See Heller II, 670 F.3d at 1253 ("A requirement of newer vintage is not ... presumed valid."). The court must instead evaluate whether the banned assault long guns and LCMs are in common use for lawful purposes. See Heller I, 554 U.S. at 625, 627, 128 S.Ct. 2783; Heller II, 670 F.3d at 1260; Shew, 994 F.Supp.2d at 244-46; NYSRPA, 990 F.Supp.2d at 363-65. If they are not—or if they are dangerous and unusual—they fall outside the Amendment's protections, and Maryland's law banning the weapons is valid without further analysis. See Heller I, 554 U.S. at 627, 128 S.Ct. 2783; Woollard, 712 F.3d at 875.
The plaintiffs contend that, according to data from the MSP, the banned long guns have been generally increasing in popularity since 1995. (See Dalaine Brady Decl., Ex. C, ECF No. 44-10.) Indeed, over the past three years in Maryland, there have been approximately 35,000 transfers of assault weapons and frames and receivers of such weapons.
As for the LCMs banned by the Firearm Safety Act, the plaintiffs assert that they are standard with the purchase of
Further, the plaintiffs argue that the banned assault weapons and LCMs are commonly possessed for self-defense and competitive marksmanship.
According to the defendants, by contrast, assault weapons comprise a small portion of the current civilian gun stock in the United States. (See Lawrence Tribe Testimony, ECF No. 44-74, at 24 (estimating that approximately seven million assault weapons are owned in the United States today); see also Marylanders to Prevent Gun Violence Br., ECF No. 40, at 4, 6-7 (estimating that the number of assault weapons in the United States is closer to the number of machineguns than the number of handguns).) Koper estimates that, at the time of the 1994 federal ban, assault weapons comprised less than one percent of the civilian gun stock. (Koper Decl. ¶ 19.) Assuming that recent sales have increased the number of assault weapons in the current civilian market to nine million, such weapons would represent about three percent of the civilian gun stock. (See William J. Krouse, Cong. Research Serv., Gun Control Legislation, ECF No. 44-28, at 8 (estimating that, by 2009, the total number of firearms available to U.S. civilians was approximately 310 million).) The defendants also assert that the absolute number of assault weapons far exceeds the number of people who own them. In recent decades, gun ownership in the United States has become increasingly concentrated; fewer households own firearms, but those households owning guns own more of them. (See Webster Decl. ¶¶ 13-14; see also NSSF Rep., ECF No. 44-75, at 13 (indicating that the average owner of modern sporting rifles had 2.6 such weapons in 2010 and 3.1 such weapons in 2013).)
The defendants further claim that assault weapons and LCMs
The defendants finally argue that the banned assault weapons and LCMs fall outside Second Amendment protection as dangerous and unusual arms. They assert that the banned firearms, which are substantially similar—and indeed, as discussed below, possibly more effective—in functioning, dangerousness, and killing capacity as their fully automatic counterparts, are military-style weapons designed for offensive use. (See Supica Dep., ECF No. 44-41, at 75:7-77:8; Boone Dep., ECF No. 44-42, at 95:8-25; Curcuruto Dep., ECF No. 44-44, at 91:3-11; Rossi Dep., ECF No. 44-43, at 94:15-95:11; H.R. Rep. 103-489, ECF No. 44-23, at 18-20; see also 2011 Bushmaster Product Catalogue, ECF No. 44-70, at 3 (advertising the Bushmaster ACR (adaptive combat rifle) as "the ultimate military combat weapons system" and "[b]uilt specifically for law enforcement and tactical markets")); see also Staples v. United States, 511 U.S. 600, 602-03 & n. 1, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (identifying the AR-15 as "the civilian version of the military's M-16 rifle" and explaining that, although the AR-15 is only semi-automatic, it nevertheless "requires no manual manipulation by the operator to place another round in the chamber after each round is fired"). Likewise, LCMs serve an obvious military function by allowing the shooter to fire many rounds without having to pause to reload. (See 2011 ATF Study, ECF No. 44-16, at 10 (reporting the working group's determination that "magazines capable of holding large amounts of ammunition, regardless of type, are particularly designed and most suitable for military and law enforcement applications"); see also 1998 ATF Study, ECF No. 44-15, at 38 (explaining that a firearm's ability "to accept a detachable large capacity military magazine gives [it] the capability to expel large amounts of ammunition quickly," which "serves a function in combat and crime, but serves no sporting purpose").)
This capacity, the defendants reason, can allow a criminal to cause mass casualties, while depriving victims and law enforcement
Upon review of all the parties' evidence, the court seriously doubts that the banned assault long guns are commonly possessed for lawful purposes, particularly self-defense in the home, which is at the core of the Second Amendment right, and is inclined to find the weapons fall outside Second Amendment protection as dangerous and unusual. First, the court is not persuaded that assault weapons are commonly possessed based on the absolute number of those weapons owned by the public. Even accepting that there are 8.2 million assault weapons in the civilian gun stock, as the plaintiffs claim, assault weapons represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population. The court is also not persuaded by the plaintiffs' claims that assault weapons are used infrequently in mass shootings and murders of law enforcement officers. The available statistics indicate that assault weapons are used disproportionately to their ownership in the general public and, furthermore, cause more injuries and more fatalities when they are used.
Nevertheless, the court need not resolve whether the banned assault weapons and LCMs are useful or commonly used for lawful purposes, see Woollard, 712 F.3d at 875-76 (making clear that courts need not decide the infringement issue to rule on Second Amendment claims), and will assume, although not decide, that the Firearm Safety Act places some burden on the Second Amendment right. See Heller II, 670 F.3d at 1260-61.
B. The Appropriate Level of Means-End Scrutiny
Because the court assumes the Firearm Safety Act infringes on the Second Amendment, it must decide what level of means-ends scrutiny to apply to determine the law's constitutionality.
The Supreme Court held in Heller I that a heightened level of scrutiny applies to regulations found to burden the Second Amendment right, 554 U.S. at 628 n. 27, 128 S.Ct. 2783, but did not further articulate whether and when strict or intermediate scrutiny applies. From the Court's holding in Heller, I, the Fourth Circuit has subsequently determined that whether strict or intermediate scrutiny applies requires the court to consider "the nature of the person's Second Amendment interest, the extent to which those interests are burdened by government regulation, and the strength of the government's justifications for the regulation." United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir.2011).
The Fourth Circuit has likened the analysis to that under the First Amendment, where content-based regulations must survive strict scrutiny, while time, place, and manner restrictions only must survive intermediate scrutiny. Id. at 470-71; Chester, 628 F.3d at 682; see also Heller II, 670 F.3d at 1262; United States v. Marzzarella, 614 F.3d 85, 97-98 (3d Cir.2010). Applying a similar framework to Second
Applying that framework here, the court finds intermediate scrutiny is appropriate for assessing the constitutionality of Maryland's ban because it does not seriously impact a person's ability to defend himself in the home, the Second Amendment's core protection. It does not ban the quintessential weapon—the handgun—used for self-defense in the home. Nor does it prevent an individual from keeping a suitable weapon for protection in the home. In fact, the plaintiffs can point to no instance where assault weapons or LCMs were used or useful in an instance of self-defense in Maryland.
The plaintiffs raise two arguments as to why strict scrutiny should apply, but they are not persuasive. First, they contend that, any time a firearm is in common use and used for lawful purposes, a ban on ownership is per se unconstitutional. There is nothing in the relevant case law to support such a claim and, in fact, such a holding would be contrary to established Fourth Circuit precedent. See Masciandaro, 638 F.3d at 470 (applying intermediate scrutiny to a regulation presumed to infringe on the Second Amendment's protections). Further, Heller I does not require such a holding. Although the Supreme Court found commonly used weapons to fall within the Second Amendment's protection, it said nothing of when intermediate or strict scrutiny applies. See Heller I, 554 U.S. at 628-29, 128 S.Ct. 2783; see also Chester, 628 F.3d at 682 ("We do not apply strict scrutiny whenever a law impinges upon a right specifically enumerated in the Bill of Rights.").
Second, the plaintiffs claim that strict scrutiny should apply any time a regulation touches the core right of self-defense in the home, regardless of the extent to which the regulation burdens it. To support their position, the plaintiffs point to the Fourth Circuit's assumption in dicta in Masciandaro that "any law that would burden" the core right would be subject to strict scrutiny. 638 F.3d at 470 (emphasis added). The plaintiffs, however, ignore the rest of the Fourth Circuit's opinion. Immediately before the cited language, the Fourth Circuit recognized that not all burdens are treated the same under the Second Amendment and that it is only those that impose a "severe burden" on the core right that require "strong justification." Id. (quoting Chester, 628 F.3d at 682). The court concludes, therefore, that Fourth Circuit precedent is in line with the holdings of other circuits: where the burden is not severe, even assuming a regulation touches the core right, intermediate scrutiny applies.
C. Applying Intermediate Scrutiny
To survive intermediate scrutiny, the government must demonstrate that
The Fourth Circuit has expressly found that the government has a substantial interest in providing for public safety and preventing crime, id. at 877; see also Masciandaro, 638 F.3d at 473 (finding that the government has a substantial interest in providing for public safety in national parks), the interests the defendants advance here. In fact, the court has implied that protecting public safety may even be a compelling interest. Masciandaro, 638 F.3d at 473 (noting that cases have described the government's interest in public safety as "compelling" and citing cases). In any event, the plaintiffs admit that the government has a "compelling government interest" in ensuring public safety. (Pls.' Mem., ECF No. 55-1, at 31.)
Finding the government has a sufficient interest, the court must decide whether Maryland's ban on assault weapons and LCMs substantially serves that interest. As a preliminary matter, the plaintiffs contend that the court should look only to the evidence that was in front of the legislature when it enacted the law to determine whether the law passes intermediate scrutiny. Plaintiffs base their claim on the Supreme Court's statement in Turner I that when applying intermediate scrutiny, a court must "assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence." 512 U.S. at 666, 114 S.Ct. 2445. In the only case plaintiffs cite to support their interpretation of this language, the Third Circuit did not hold that the court could consider only evidence that was in front of the legislature. Instead, it
The Fourth Circuit has held that "the Constitution does not mandate a specific method by which the government must satisfy its burden under heightened judicial scrutiny," and that the government "may resort to a wide range of sources, such as legislative text and history, empirical evidence, case law, and common sense." United States v. Carter, 669 F.3d 411, 418 (4th Cir.2012). In Woollard, for example, although citing several pieces of evidence that led to its finding that a reasonable fit existed between a "good and substantial reason" requirement for issuing handgun permits and the purpose of public safety, the court never mentioned or investigated whether the evidence was also in front of the legislature. 712 F.3d at 879-80; see also United States v. Chester, 847 F.Supp.2d 902, 906-07 (S.D.W.V.2012) (on remand from the Fourth Circuit, considering evidence from non-legislative sources to find the government had satisfied its burden under intermediate scrutiny). Even where the Fourth Circuit has articulated the standard from Turner I, it has stated that the court could "look to evidence outside the legislative record in order to confirm the reasonableness of Congress's predictions." Satellite Broadcasting and Comm. Ass'n v. Fed. Commc'ns Comm'n, 275 F.3d 337, 357 (4th Cir.2001) (citing Turner II, 520 U.S. at 196, 117 S.Ct. 1174).
Turning to the record in this case, Maryland's ban on assault long guns and LCMs survives intermediate scrutiny.
Having the features of military weapons, assault weapons are designed to cause extensive damage and can fire many rounds in quick succession, from a greater distance and with greater accuracy than many other types of guns—including, in some respects, their automatic counterparts. (See U.S. Army's M16/M4 Training Manual, ECF No. 44-25, at 7-9 (stating that "rapid semi-automatic fire is superior to automatic fire in all measures: shots per target, trigger pulls per hit, and time to hit"); Brown Decl. ¶ 12 (explaining that the banned weapons are "designed for the battlefield, for the soldier to be able to shoot a large number of rounds across a battlefield at a high rate of speed"); 1998 ATF Study at 1 (noting that semi-automatic rifles "had a military configuration that was designed for killing and disabling the enemy and that distinguished the rifles from traditional sporting rifles"); see also Johnson Decl. ¶¶ 22, 25-26, 32-33; Batts Decl. ¶¶ 20, 33; Stawinski Decl. ¶ 44; Siebel Testimony at 197-98.) Further, as already discussed above, the evidence demonstrates that assault weapons are often used in mass shootings and cause more fatalities and injuries when used. (See, e.g., Koper Decl. ¶¶ 21-29.)
The evidence also demonstrates that criminals using assault rifles pose a heightened risk to law enforcement. (See Batts Decl. ¶ 45 (indicating that the military features of assault weapons, such as flash suppressors and pistol grips, provide criminals with a "military-style advantage" in a firefight with law enforcement).) For example, rounds shot from such weapons have the capability—more so than rounds shot from many other types of guns—to penetrate the soft body armor worn by law enforcement officers, as well as many kinds of bullet-resistant glass used by law enforcement.
Assault weapons pose a heightened risk to civilians as well. For civilians in their homes, the penetrating capabilities of bullets fired from assault weapons pose a higher risk than that posed by other firearms. They can penetrate walls and other home structures and remain more effective than penetrating bullets fired from other guns, endangering those in neighboring rooms, apartments, or even other homes. (Brady Ctr. to Prevent Gun Violence, Assault Weapons "Mass Produced Mayhem", ECF No. 44-58, at 16 (citing a statement by Jim Pasco, executive director of the Fraternal Order of Police, that he would not be surprised if a bullet fired from an AK-47 went through six walls of conventional drywall in a home); see also Stawinski Decl. ¶ 33.) Further, with the military-style features of assault weapons, they are made even more dangerous because civilians often do not receive the same kind of training that law enforcement officers receive. (Vince Decl. ¶ 21.)
The evidence demonstrates, therefore, that the ban on assault weapons is likely to further the government's interest in protecting public safety by removing weapons that cause greater harm when used—to both civilians and police—and create greater obstacles for law enforcement in stopping and detaining criminals who are using them.
The record also shows a reasonable fit between banning LCMs and the government's substantial interest in protecting public safety and reducing the negative effects of firearm crimes. First, more rounds available equates with more shots fired and more individuals injured. (E.g., Brown Decl. ¶ 24; Johnson Decl. ¶ 44; see also Koper Decl. ¶ 15 (noting that the "best available evidence" indicates that attacks with guns with LCMs "generally result in more shots fired, persons wounded, and wounds per victim").) In addition, the evidence demonstrates that over the last three decades LCMs of more than ten rounds were used in thirty-four out of forty mass shootings
With respect to civilians, untrained civilians using LCMs tend to fire more rounds than necessary, thus endangering more bystanders. (Johnson Decl. ¶ 38; Stawinski Decl. ¶ 35; see also Batts Decl. ¶ 42 ("The risk of indiscriminate firing from untrained or undertrained individuals with access to large numbers of highly-lethal rounds, especially combined with the improbability that such rounds will actually be necessary to end any particular attack, is an additional and, in my view, unacceptable risk to public safety...."); Josselyn Dep. at 74:7-9 ("It's not uncommon to have the police arrive on a scene and see someone there still pulling the trigger, even though the gun is long empty....")); see also Heller II, 670 F.3d at 1263-64 (finding an aggravated risk from "the tendency ... for defenders to keep firing until all bullets have been expended" (quoting Siebel Testimony)). The court thus finds a reasonable fit between the ban on LCMs and the government's interest in public safety.
The plaintiffs make several claims as to why the assault weapons ban does not further the government's substantial interests. Some of their arguments rely, however, on a misapplication of the intermediate scrutiny standard and are therefore not persuasive. For example, the plaintiffs claim there are several other types of guns which are not banned that can pierce soft body armor and walls as well. This argument ignores, however, that the fit between a regulation and the government's purpose need not be perfect. See Woollard, 712 F.3d at 877. The law at issue here does not have to eliminate all guns that have the ability to pierce soft body armor. The court cannot find the ban unconstitutional simply because it does not by itself solve an entire problem.
The remainder of the plaintiffs' arguments rely on mischaracterizations of Koper's expert opinions and reports, as discussed earlier in this opinion. Plaintiffs place particular emphasis on Koper's findings regarding the federal assault weapons ban. The fact that some effects of the federal ban were hard to measure, however, or the fact that the ban was not entirely effective in eliminating all crime involving
In sum, the defendants have met their burden to demonstrate a reasonable fit between the Firearm Safety Act and the government's substantial interests in protecting public safety and reducing the negative effects of firearm-related crime. Accordingly, the Act does not violate the Second Amendment.
IV. Equal Protection
The plaintiffs argue that the Firearm Safety Act violates the Equal Protection Clause of the Fourteenth Amendment by treating retired law enforcement officers differently than other individuals. The Equal Protection Clause guarantees that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Accordingly, "all persons similarly situated should be treated alike." City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); see also Morrison v. Garraghty, 239 F.3d 648, 653-54 (4th Cir. 2001) (citation and internal quotation marks omitted) (stating that the Equal Protection Clause "keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike"). Nevertheless, when legislation is challenged on equal protection grounds, "[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest."
This standard for considering equal protection challenges affords "the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others." McGowan v. State of Md., 366 U.S. 420, 425, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). As further explained by the Supreme Court:
The court agrees with the defendants that retired law enforcement officers are differently situated by virtue of their experiences ensuring public safety and their extensive training on the use of firearms. See Shew, 994 F.Supp.2d at 249-53 (emphasis added) (rejecting an equal protection challenge to Connecticut legislation allowing on- and off-duty law enforcement officers to possess assault weapons and LCMs because "[t]he charge of protecting the public, and the training that accompanies that charge, is what differentiates the exempted personnel from the rest of the population"); see also Williams v. Puerto Rico, 910 F.Supp.2d 386, 399-400 (D.P.R. 2012) (deciding that Puerto Rico's Weapons Act of 2000, which allowed certain former and current government officials to possess and carry firearms but prohibited other citizens from doing so, passed the rational basis test).
In Maryland, law enforcement officers who wish to carry firearms must successfully complete the applicable firearms classroom instruction, training, and qualification. See COMAR 12.04.02.03A; see, e.g., COMAR 12.04.02.06 (requirements applicable to long guns). They must then submit to firearms training every year thereafter. See COMAR 12.04.02.08A. If the officers do not submit to the required annual training, their firearms are seized until the training is completed. See COMAR 12.04.02.08E. In addition to receiving extensive training on the use of firearms generally, law enforcement officers must receive further specialized training to use assault weapons. They are taught how and when assault weapons may be used, as well as techniques to minimize the risk of harm to innocent civilians. (See Batts Decl. ¶ 27; see also Johnson Decl. ¶¶ 18-22.) Even after they have received this training, they must undergo periodic requalification to continue carrying assault weapons in the line of duty. (See Batts Decl. ¶ 27; Johnson Decl. ¶ 20-21.) Retired law enforcement officers have also received training on the use of LCMs; in particular, they have been taught how to assess each shot for effectiveness and how to evaluate the circumstances before continuing to fire additional rounds. (See Johnson Decl. ¶ 27.) Finally, they have received judgment training on the use of
The plaintiffs attempt to argue that retired law enforcement officers are similarly situated to the general public because they may not have had training specific to the banned firearms or magazines. In making this argument, however, the plaintiffs overlook the broader point that retired law enforcement officers are not similarly situated to other persons with respect to firearms training and experience generally. In any event, one of the exceptions in the Firearm Safety Act allows the transfer of an assault weapon from a law enforcement agency to a retired law enforcement officer if it was used by the officer in the course of duty before retirement. Thus, any officer qualifying for this exception must have had extensive training on that particular assault weapon. Moreover, in at least the MSP, Baltimore County Police Department, Baltimore Police Department, and Prince George's County Police Department, standard service weapons issued to law enforcement personnel come with LCMs. (See Brown Decl. ¶ 32 (MSP standard service weapons come with fifteen-round magazines); Johnson Decl. ¶ 23 (Baltimore County Police Department standard service weapons come with fourteen-round magazines); Batts Decl. ¶ 25 (Baltimore Police Department standard service weapons come with fifteen-round magazines); Stawinksi Decl. ¶ 11 (Prince George's County Police Department standard service weapons come with fifteen-round magazines).) Accordingly, officers retiring from those departments, at least in the recent past, have had training with respect to LCMs.
Based on all the training and instruction retired law enforcement officers have received, they are better equipped than the general public to handle and store firearms safely and to prevent them from getting into the wrong hands. The court cannot conclude that the State of Maryland is treating differently persons who are in all relevant respects alike, and the plaintiffs' equal protection challenge must fail.
V. Void for Vagueness
Finally, the plaintiffs argue that the Firearm Safety Act is void because the list of banned assault weapons is unconstitutionally vague. In particular, they assert that the Act fails to inform a reasonable person as to what constitutes a "copy" of the banned assault long guns. See CR § 4-301(d) (emphasis added) (stating that an "[a]ssault weapon" is "(1) an assault long gun; (2) an assault pistol; or (3) a copycat weapon"); see also PS § 5-101(r)(2) (emphasis added) (stating that a "[r]egulated firearm" means "a firearm that is any of the following specific assault weapons or their copies, regardless of which company produced and manufactured that assault weapon").
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A law may be impermissibly
In considering a facial vagueness challenge, the court must "first determine whether the enactment implicates a substantial amount of constitutionally protected conduct." Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir.2012). If the enactment does not, "then the challenge should only succeed if the law is impermissibly vague in all of its applications." Id. (citation and internal quotation marks omitted); see also United States v. Comstock, 627 F.3d 513, 518 (4th Cir.2010) (citation and internal quotation marks omitted) (indicating that "a facial challenge cannot succeed if a statute has a plainly legitimate sweep"). Where a statute imposes criminal penalties, however, "the standard of certainty is higher and the statute can be invalidated on its face even where it could conceivably have ... some valid application." Martin, 700 F.3d at 135 (citation and internal quotation marks omitted); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ("The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.").
Nevertheless, the Fourth Circuit has made clear that a statute is not impermissibly vague simply because it does not "spell out every possible factual scenario with celestial precision." United States v. Hager, 721 F.3d 167, 183 (4th Cir.2013) (citation and internal quotation marks omitted); see also, e.g., Richmond Boro Gun Club, Inc. v. City of New York, 896 F.Supp. 276, 289-90 (E.D.N.Y.1995) (rejecting a facial vagueness challenge to a New York City law's definition of an "assault weapon" because citizens had notice of the "core" group of banned weapons), aff'd, 97 F.3d 681 (2d Cir.1996). Rather, "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." Hager, 721 F.3d at 183 (citation and internal quotation marks omitted).
Turning to the present case, the court notes that the term "copies" is not new to Maryland firearms law. In NYSRPA, the court considered how long the language at issue had existed in rejecting a vagueness challenge to New York's ban on "any magazine that `can be readily restored or converted to accept' more than 10 rounds of ammunition." 990 F.Supp.2d at 375-77 (citation omitted) (emphasis added). Noting that the "readily" language had been used in federal law since 1994, and was adopted by New York in 2000, the court found no evidence of any confusion in the years since. Id. at 375-76. Similarly, here, Maryland firearms law has regulated certain assault weapons and their copies for over two decades. See 1994 Laws of Md., Ch. 456. Yet, the plaintiffs have not identified any arrest or conviction resulting from a misunderstanding of the term
Moreover, the plaintiffs fail to show the Firearm Safety Act lacks an identifiable "core" of prohibited conduct, even under the stricter standard for criminal statutes. The Act bans certain firearms listed by make and model, as well as their copies. See CR § 4-301(d); PS § 5-101(r)(2). Although the Act does not list all prohibited weapons—indeed it would be impossible to do so—the court cannot conclude the term "copies" is vague when read together with the list of banned firearms. See Shew, 994 F.Supp.2d at 254-57 (rejecting a facial vagueness challenge to a Connecticut gun control statute that listed numerous banned firearm models and their "copies or duplicates"); Coal. of New Jersey Sportsmen, Inc. v. Whitman, 44 F.Supp.2d 666, 679-80 (D.N.J.1999) (rejecting a vagueness challenge to a New Jersey gun control statute that included a ban on certain firearms listed by make and model as well as any firearms "substantially identical" to the listed firearms); Wilson v. Cnty. of Cook, 360 Ill.Dec. 148, 968 N.E.2d 641, 652 (Ill.2012) (determining that the phrase "copies or duplicates," used in a Cook County ordinance banning particular models of assault weapons, was not vague when read together with the list of banned weapons); see also Benjamin v. Bailey, 234 Conn. 455, 662 A.2d 1226, 1241-42 (1995) (deciding that use of the word "type" to capture like weapons—for example, the "AK-47 type"—did not render the statute facially vague).
The term "copies" has been further clarified through a formal opinion of the Attorney General of Maryland and a Firearms Bulletin from MSP, the state entity primarily charged with enforcing the firearms law. See Whitman, 44 F.Supp.2d at 680 ("A court should consider limiting constructions of the law offered by enforcement agencies."); see also Village of Hoffman Estates, 455 U.S. at 504, 102 S.Ct. 1186 (indicating that a jurisdiction may "adopt administrative regulations that will sufficiently narrow potentially vague or arbitrary interpretations of [an] ordinance"). According to the Attorney General, "[c]osmetic similarity to an enumerated assault weapon alone would not bring a weapon within the regulated firearms law;" rather, "to come within the definition of `regulated firearm,' a copy of a designated assault weapon must be similar in its internal components and function to the designated weapon." 95 Op. Att'y Gen. Md. 101, 101 (2010). Relying on this opinion, MSP issued its bulletin explaining that it considers a firearm that is cosmetically similar to one of the enumerated assault weapons to be a copy only if it also possesses "completely interchangeable internal components
Even the plaintiffs' own statements confirm that there is an identifiable core of prohibited conduct. For example, Wink's admits that a "substantial number" of the long guns it sells are now classified as assault weapons. (Carol Wink Decl., ECF No. 44-63, ¶ 4; see also Stephen Schneider Decl., ECF No. 44-62, ¶ 6 (admitting that regulated long guns classified now as assault weapons represent a "substantial number of all long guns sold by MLFDA's individual members, including Atlantic Guns").) Kolbe likewise indicates that he would like to purchase an AR-15, but that he knows he cannot do so under the Act. (Kolbe Dep., ECF No. 44-55, at 57:19-58:9.) In light of the plaintiffs' demonstrated understanding of the firearms prohibited by the Firearms Safety Act, the court cannot conclude that the Act fails to provide sufficient notice of banned conduct.
As for the plaintiffs' claims that the Firearm Safety Act encourages arbitrary enforcement, they do not offer any facts to suggest that MSP has engaged or will engage in arbitrary enforcement. "When the terms of a regulation are clear and not subject to attack for vagueness, the plaintiff bears a high burden to show that the standards used by officials enforcing the statute nevertheless give rise to a vagueness challenge." Wag More Dogs, Ltd. Liability Corp. v. Cozart, 680 F.3d 359, 372 (4th Cir.2012). As stated above, the plaintiffs have not pointed to a single arrest or prosecution based on a misunderstanding of the "copies" language, nor have they indicated that an arrest or prosecution has been threatened. MSP has published its standards for determining whether a firearm constitutes a copy and, to the extent consumers or dealers still have questions about specific firearms, it is available to respond to their inquiries.
In summary, the Firearm Safety Act of 2013, which represents the considered judgment of this State's legislature and its governor, seeks to address a serious risk of harm to law enforcement officers and the public from the greater power to injure and kill presented by assault weapons and large capacity magazines. The Act substantially serves the government's interest in protecting public safety, and it does so without significantly burdening what the Supreme Court has now explained is the core Second Amendment right of "law-abiding, responsible citizens to use arms in defense of hearth and home." Accordingly, the law is constitutional and will be upheld.
A separate order follows.
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The defendants' motion to dismiss (ECF No. 20) is
2. The defendants' motion to dismiss the third amended complaint (ECF No. 32) is
3. The defendants' motion for summary judgment (ECF No. 44) is
4. The plaintiffs' cross motion for summary judgment (ECF No. 55) is
5. The plaintiffs' motion to exclude (ECF No. 65) is
6. John Cutonilli's motion for leave to file a brief as amicus curiae (ECF No. 47) is
7. The defendants' unopposed motions to seal (ECF Nos. 45, 63) are
8. Judgment is entered in favor of the defendants;
9. The Clerk shall
10. The Clerk shall send copies of this Order and the accompanying Memorandum to counsel of record.
Md.Code Ann., Pub. Safety ("PS") § 5-101(r)(2). According to the plaintiffs, the most widely owned firearms of those banned by the Act are the AR-15, the AK-47, and their copies.