Novotny v. Moore - Challenge against aspects of SB 1 and current public carry restrictions
Maryland Shall Issue, the Second Amendment Foundation, the Firearms Policy Coalition, and three individuals have challenged SB 1. That bill passed this last Session of the General Assembly places many unconstitutional restrictions on the right to carry with a permit in Maryland. The case is styled Novotny v. Moore and has been consolidated with Kipke v. Moore in federal district court in Baltimore. Kipke was brought by the Maryland State Rifle and Pistol Association. Plaintiffs in both cases have filed motions for preliminary injunctions and motions for summary judgment with the aim of stopping enforcement of certain restrictions placed by SB 1 by October 1st, the bill’s effective date. Briefing is ongoing in both cases and then the court will decide whether to hold an oral argument and simply move to the issuance of a decision. The court is not required to decide the case within any set time. We will provide updates of importance as they occur. Find all of the filings in both of these cases HERE.
On behalf of our members and in partnership with the Second Amendment Foundation and Firearms Policy Coalition, Maryland Shall Issue and three individual plaintiffs are challenging unconstitutional aspects of SB 1, the so-called “Gun Safety Act of 2023” in the US District Court for the District of Maryland. SB 1 effectively nullifies the "general right to carry in public" for carry permit holders confirmed by the Supreme Court's decision NYSRPA v. Bruen just this last June. It does so by banning firearms in a whole host of locations otherwise open to the public, including places like stores and shops, restaurants, museums, and healthcare facilities. The suit also challenges the general ban on possession of firearms on public transit owned or controlled by the State Mass Transit Administration and in the tens of thousands of acres of woodlands in State parks, State forests, and State Chesapeake forest lands. We have every confidence that we will prevail in whole or in part in this suit.
Find the complaint in Novotny v. Moore HERE.
A guide on the effects of the recent changes to legal handgun carry in Maryland can be found HERE.
Here's a brief look at our ongoing legal efforts from around the state.
In response, the Maryland State Police provided this advisory:
We welcome the Governor's order and the decision to comply with the Supreme Court's decision in Bruen. For the first time in decades, ordinary responsible, law-abiding citizens in Maryland will have their Second Amendment right for self-defense outside the home respected. We stress that permit holders, nationwide, are the most law-abiding persons there are, with crime rates far below that of commissioned police officers. The Second Amendment is not a threat to the public. It protects the right of self-defense and that protection is fully consistent with public safety.
For everything on how to apply for a Maryland Wear and Carry permit, check out our in-depth guide HERE.
We are pleased and gratified that Maryland's "good and substantial reason" requirement will no longer be enforced. MSI has pushed for that result for as long as it has existed and the Supreme Court has now confirmed that carry outside the home by responsible, law-abiding citizens is a fundamental constitutional right. At last, Marylanders will be treated like people in other "shall issue" jurisdictions, like the residents of 43 other States and the District of Columbia.
On June 23, 2022, the United States Supreme Court issued its decision in New York State Rifle and Pistol Association (NYSRPA) v. Bruen, striking down as unconstitutional New York's "proper cause" requirement for issuance of a permit to carry a handgun in public. That decision is directly applicable to Maryland's "good and substantial reason" requirement for the issuance of Maryland carry permits. MD Code, Public Safety, 5-306(b)(6)(ii). As Bruen now holds, the Maryland State Police (MSP) may not require any "good and substantial reason" before issuing a permit. The decision makes clear that law-abiding, responsible adults have a constitutional right to protect themselves beyond their homes with a handgun, which is the "quintessential self-defense" weapon, as the Supreme Court held in District of Columbia v. Heller (2008). While we believe that the Court's holding in Bruen is clear, MSI is currently a party in Call v. Jones, which is a federal court challenge to the "good and substantial reason" requirement. This case is currently before the US Court of Appeals for the Fourth Circuit and was being held in abeyance (on pause) pending the outcome of Bruen. Now that Bruen has been decided, that case will proceed. Indeed, the Fourth Circuit has just issued an order setting a briefing schedule in that appeal.
We've brought a lawsuit against the enforcement of parts of SB 1 and current carry restrictions. Learn about Novotny v. Moore here.
See our guide here for how SB 1 and HB 824 affect your right to keep and bear arms.
Maryland has a blanket ban on the carriage and transport of handguns within the state, with exceptions. One of those exceptions is for those who've been issued a license, known as a Wear and Carry Permit, which is required to be able to lawfully carry a handgun concealed or openly in public for self-defense (concealed and open carry are both lawful with a permit). This permit is described in State law under Maryland Public Safety Article §§ 5-301 through 5-314 and is issued by the Maryland State Police (MSP) through its Licensing Division (MSPLD). The Licensing Division follows its own Standard Operating Procedures for how permits are issued and managed. Applicants for a permit must satisfy several requirements before being considered qualified. The process typically takes between 60 to 90 days for most applicants. Maryland permits are valid for two years plus until the applicant's birth month for the first permit and for three years for renewals.
While the "good and substantial reason" requirement is now unenforceable, Maryland's other requirements for a carry permit are not directly affected by the decision in Bruen. Those other requirements include training, fingerprinting, and background checks. Bruen did NOT convert Maryland (or any other state) into a permitless state. Carry permits issued by Maryland are still required by law to carry a handgun in public. Maryland still does not currently recognize carry permits issued by any other state.
The Maryland State Police Licensing Division (MSPLD) issues permits to applicants in accordance with Md. Public Safety Art. § 5-306. Generally, this includes all responsible, law-abiding persons not prohibited by state or federal law from possessing firearms (with exceptions) and of at least 21 years of age and who complete the State's requirements. The right to carry a handgun for self-defense is sufficient reason to apply for an unrestricted permit. Permit applicants must submit completed applications through the Maryland State Police Licensing Portal. That Portal allows the applicant to include proof of training or exemption, fingerprints, passport-style photo, and $75 non-refundable fee. Use of the Portal does require one to have an email address. Maryland does issue permits to residents of other states, but they must be trained (or training exempt) by an MSP Qualified Handgun Instructor and must be LiveScan fingerprinted by an entity in Maryland and meet the other requirements applicable to residents.
Applicants under the age of 30 face extra scrutiny, as imposed by § 5-306(c)
Maryland Wear and Carry Permit Training must be completed before submission of an application. Under Md. Public Safety Art. § 5-306 and COMAR Sec. 29.03.02.05, these classes must incorporate the curriculum provided by the Maryland State Police. Unless otherwise exempt from the training requirements, an applicant must get this training from an MSP Qualified Handgun Instructor and complete a 16-hour training course for an initial application with a minimum 70% accuracy rating by the applicant in the live fire portion of the class. These classes often run anywhere from $250 to $400 and up. An 8-hour course will be required upon renewal of an issued permit. Training certificates are valid for up to three years from course completion. Starting 10/1/2023, these courses must be taught entirely in person.
Who is exempt from the training?
Note that law enforcement officers of another State are NOT exempt, only federal and Maryland law enforcement officers are exempt. The Maryland State Police have a list of Instructors HERE, but we also encourage you to visit our 2A-Friendly Businesses section for available lessons from entities that support MSI by becoming Corporate Members. Click on the "Firearms Instruction" tab.
Qualified Handgun Instructors are defined in Md. Public Safety Art. § 5-101(q) as:
They are further described in Code of Maryland Regulations (COMAR) Title 29, Subtitle 3, Chapter 29.03.01, §§ 29.03.01.37 - 29.03.01.41.
A current firearms instructor who'd like to become an MSP Qualified Handgun Instructor and provide the Wear and Carry Course can submit their credentials through the MSP's website HERE. Once a certificate is returned by the MSP, the instructor will be able to provide Maryland courses and will be listed publicly on their website. Basically, any NRA-certified instructor for the Basic Pistol class can qualify.
Applications for Wear and Carry Permits can only be submitted online via the Maryland State Police Licensing Portal. Applications can be started at any time but may be submitted only after all requirements are fulfilled and the application is complete. All applicants must have a valid email address, as the State Police do not accept paper applications. Here are the steps:
NOTE: For any applicant who has not received their account activation/confirmation email or their forgot password email in the Licensing Portal: Click "LOG IN" on the Portal home page and then click "FORGOT PASSWORD?" on the Account Log In page. Then enter your email address and click "SUBMIT". You should receive your respective email shortly thereafter.
Currently, applications are being processed within a few weeks, but the State Police may take up to and could exceed 90 days before deciding on whether or not to issue a permit. Md. Public Safety § 5-306(a) states that the Maryland State Police shall issue a permit within a "reasonable timeframe" and § 5-312(a)(2) provides:
In their Frequently Asked Questions section of the Wear and Carry Permit page, the State Police say:
Also, Processing of Handgun Permit Applications SOP 29-19-004 at .05 Procedures, A. Responsibilities 3. states:
*The Handgun Permit Review Board no longer exists. It was legislatively repealed in 2018.
Maryland Code, Public Safety, § 5-306(d) provides:
If you do not already have a Maryland Handgun Qualification License (HQL), the license Maryland requires to be able to purchase handguns, you can request one from the MSP at no added cost, without needing to provide fingerprints again, and without further training after being issued a Wear and Carry Permit. The State Police have a separate portal for applying for the HQL here: https://emdsp.mdsp.org/egov/Home.aspx.
With respect to the Wear and Carry Permit, on 7/22/2022, the State Police issued an update on their efforts to meet the increased demand for permits and address many of the common problems encountered with incomplete applications.
As of 7/7/2022, except for the restriction, "NOT VALID WHERE FIREARMS ARE PROHIBITED BY LAW," any restrictions printed on the reverse side of previously-issued permits are no longer in effect and are no longer being issued prospectively. See Maryland State Police Licensing Division Advisory LD-HPU-22-003 "W&C Permit Modifications".
MSI recommends applying for a $10 modification for a card explicitly without restrictions. Carry permit holders are still exceedingly rare in Maryland and law enforcement agencies do not regularly encounter them. Being wrongfully detained is still a risk.
For those denied outright by the MSP, or if a permit contains unacceptable restrictions, options are available to seek the issuance or modification of a permit. Within 10 days of denial, one must appeal in writing to either the MSP to ask for an "Informal Review" or to the Maryland Office of Administrative Hearings (OAH). Appeals may also be taken to the OAH within 10 days of any decision of the MSP after an Informal Review.
Looking for federal laws? Check out the USA page from Handgunlaw.us.
Additionally, MD Code, Criminal Law, § 4-209 gives local jurisdictions narrow authority to create their own prohibitions on where firearms may be carried or possessed and by whom. Check local jurisdictions' codes for any restrictions. MSI maintains an informational page containing links to county and local codes and ordinances HERE. Permit holders should be aware of MD Code, Criminal Law, § 4-206, which guides how law enforcement officers may determine whether an individual is armed legally.
Unlawfully carrying a handgun in violation of MD Code, Criminal Law, § 4-203(a)(1)(i) is also a strict liability crime, which means there is no requirement that the individual knowingly or willfully carried in violation of the law. For more on this, read our article on the recent Maryland Court of Appeals case Lawrence v. State HERE.
Be aware that First Degree Assault includes the illegal threat with a firearm (sometimes called informally "brandishing"). See MD Code, Criminal Law, § 3-202(a)(2). Of course, if your life is truly imminently at risk or you are at imminent risk of great bodily harm, and you can meet the other elements of lawful self-defense (including the duty to retreat if outside the home, if a safe avenue of retreat is available), as defined in the MD case law, your attorney could assert a complete defense to the First Degree Assault charge.
The Rule: Don't pull it, and don't threaten with it, unless you would be otherwise justified in actually firing it. For First Degree Assault, the prosecutor need only show that the defendant used a firearm with an intent to frighten, that the defendant had the present ability to bring about physical harm and that the victim was aware of the threat. See Synder v. State, 210 Md.App.370, 382 (2013). First Degree Assault is a felony in Maryland and is punishable by up to 25 years in prison. The use of, or the threat of lethal force, should always be the last resort.
For more info on laws important to gun owners in Maryland, visit our Maryland State and Local Weapons Laws page.
Maryland does not currently recognize the permits of any other state or American territory. MD Code, Public Safety, § 5-303 states:
Put simply, unless one has a permit issued by the Maryland State Police, they cannot carry a handgun legally in Maryland (not counting law enforcement or those who may carry a firearm under LEOSA). Residents of other states can apply for a Maryland, and those applications are now being treated no differently than Maryland residents. But, again, applicants must be trained (or training exempt) by a MSP Qualified Handgun Instructor and must be LiveScan fingerprinted by an entity in Maryland. Many states do recognize Maryland permits and some states, like Pennsylvania, will issue a non-resident permit to a Maryland resident who holds a Maryland Wear and Carry permit. MSI strongly recommends obtaining such permits. See the HandgunLaw.us page for Maryland for more information on reciprocity.
It was not until 1809 that Maryland prohibited any carry of weapons, but that legislation criminalized only the carrying of a weapon “with the intent feloniously to assault any person.” Archives of Maryland 570:94. Any carry, concealed or open, with no permit required, was still legal as long as it was without felonious intent. In 1831, in reaction to the Nat Turner Rebellion in Virginia, Maryland enacted a statewide law that requires free blacks (only) to obtain a license from a local court for possession or carry (open or concealed) of firearms. Archives of Maryland 213:448. Maryland did not ban any type of carry for other citizens until 1866, when it banned concealed carry, but still allowed open carry. Archives of Maryland 389:468-9. This law was likely passed as a result of the assassination of President Lincoln in 1865, and the abolition of slavery at the 1864 Maryland Constitutional Convention. Since blacks could no longer be directly legislated against, the 1831 law was dropped and the concealed carry prohibition was made general – but could be selectively enforced.
You can read the bill file from the 1972 handgun control legislation that ushered in Maryland's modern restrictions on carrying handguns in public HERE.
*Prior to Bruen, the following groups were issued permits under Maryland's unconstitutional "good and substantial reason" scheme. These restrictions and requirements are no longer in effect.*
Snowden v. Handgun Permit Review Board, 413 A.2d 295, 45 Md.App. 464 (Md. App. 1980) - Upholding a reading of "good and substantial reason" to mean that the applicant bears the burden of demonstrating specifically why they need to carry a handgun more than their personal anxiety or say-so. Abrogated by Bruen.
Williams v. State, 417 Md. 479, 10 A.3d 1167 (Md. 2011) - Holding that regulations on carrying firearms outside the home are "outside of the scope of the Second Amendment, as articulated in Heller and McDonald". Abrogated by Bruen.
Whalen v. Handgun Permit Review Board (Md. App. 2020) - Unreported opinion where the Court of Special Appeals agreed with a lower court that plaintiff did not establish a 2nd Amendment claim before the Handgun Permit Review Board in his initial appeal and could not bring it before the court. The court also agreed with the board's finding that the applicant lacked a "good and substantial reason" for issuance of a permit. This case was dismissed.
Call v. Jones III (4th Cir. 2022) - Pre-Bruen challenge filed against Maryland's may-issue carry permitting scheme. The case was jointly moved as moot by plaintiffs and the State of Maryland since the State had come into compliance with the Supreme Court's holding in Bruen and the case was dismissed as such.
New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S. ___ (2022) - Finding that the 2nd and 14th Amendments protect an individual's right to carry handguns publicly for self-defense and in so doing, deeming New York's "proper cause" requirement for issuance unconstitutional. This is indistinguishable from Maryland's "good and substantial reason" requirement. Importantly, the majority in Bruen also finds that the tiered scrutiny, interest balancing approach used by lower courts in deeming the constitutionality in 2nd Amendment challenges is inappropriate:
Maryland's subjective carry permit requirements were previously upheld in Woollard v. Gallagher under the two-part test dispensed with in Bruen.
In the Matter of William Rounds, No. 1533 (Md. App. 2022) - The Maryland Court of Special Appeals applies Bruen to hold that Md. Public Safety § 5-306(a)(6)(ii), the "good and substantial reason" requirement for issuance of a permit, is unconstitutional under the 2nd Amendment of the United States Constitution.
Maryland Shall Issue, Inc. et al. v. Montgomery County (MoCo Cir.Ct) (Ongoing) - Includes a 2nd Amendment challenge to Montgomery County's various firearms prohibitions in 2021's Bill 4-21 and County Code Section 57-11.
-MSI Guide: Maryland State and Local Weapons Laws
Maryland Shall Issue® (MSI) is an all-volunteer, non-partisan organization dedicated to the preservation and advancement of gun owners' rights in Maryland. It seeks to educate the community about the right of self-protection, the safe handling of firearms, and the responsibility that goes with carrying a firearm in public. MSI is recognized by the IRS as a tax-exempt 501(c)(4) nonprofit organization.
MSI Statement on March 22nd, 2023:
3/22/23 - Memorandum Opinion
3/22/23 - Order Granting Denying Plaintiffs' Motion for Summary Judgement, Granting Defendant's Cross-Motion for Summary Judgment
On April 11, Maryland Shall Issue, along with four firearms and ammunition dealers, Field Traders, Cindy's Hot Shots, Pasadena Arms, and Worth-A-Shot, filed a suit in federal district court against Anne Arundel County, MD challenging Bill 108-21, an ordinance that mandates that sellers of firearms or ammunition within the county distribute county-prepared or sponsored literature with each sale and display the materials in their establishments. The complaint alleges that the ordinance is unconstitutional under the First Amendment to the United States Constitution.
Despite all of the necessary attention to the General Assembly and our work to fight off as much bad legislation as possible, MSI has been tirelessly involved in litigation on numerous fronts.
Maryland Shall Issue, along with four dealers, Field Traders, Cindy's Hot Shots, Pasadena Arms, and Worth-A-Shot, have filed a suit in State court against Anne Arundel County, Maryland challenging the enactment of Bill 109-21. This ordinance targets firearms dealers by imposing onerous and vague security requirements as a condition on doing business within the County. The ordinance also imposes harsh fines and other penalties against firearms dealers not in compliance. Whether a dealer is in compliance is determined at the whim and caprice of the police.
In multiple counts, the suit alleges that the ordinance is an impermissible "general law" under the State Constitution and is inconsistent with and preempted by multiple State statutes. The suit also attacks the vague requirements as a violation of the Due Process Clause of the Maryland Constitution. The Plaintiffs are seeking declaratory judgment and an injunction against the enforcement of the ordinance. Citizens have a Second Amendment right to acquire firearms and dealers have the ancillary Second Amendment right to sell them. The Anne Arundel ordinance would drive up dealer costs and hamper the exercise of both those rights. Read the Amended Complaint HERE
US Supreme Court Orders Response from MD Attorney General Brian Frosh in "Assault Weapon" Ban Challenge
On January 14, the Supreme Court ordered the Maryland Attorney General to file a response to the petition for certiorari filed by plaintiffs in Bianchi v. Frosh, No. 21-901. In that case, plaintiffs are challenging Maryland's "assault weapon" ban as unconstitutional.
That order means, at the minimum, that at least one Justice on the Court wants a response. It also likely means that the Court will hold this petition pending a decision in NYSRPA v. Bruen, No. 20-843, in which the Supreme Court is considering the constitutionality of New York's "good cause" requirement for carry permits. Holding Bianchi would be consistent with the hold that the Court has apparently placed on the petition filed in the New Jersey "large-capacity magazine" case, ANJRPC v. Bruck, No. 20-1507. The petition in that case has been pending in the Supreme Court since April of 2021. All of this is good news. A decision in Bruen this Spring may mean that the Court will thereafter vacate the lower court decisions in both Bianchi and ANJRPC and remand for further consideration in light of Bruen. At least, we hope that is the outcome.
On August 12, 2021, Maryland's highest court, the Court of Appeals, ruled that a violation of Md. Criminal Law § 4-203(a)(1)(i) is a strict liability crime. Put simply, if one has a handgun on or about them and is not authorized to do so, they are guilty of violating the law. The case is Lawrence v. State, 471 Md. 101 (2021).
Section 4-203 is the statute that broadly prohibits the wear, carry, or transport of handguns within the State. Specifically, § 4-203(a)(1)(i) states:
There are a few exceptions to this ban (found in subsection (b) of Section 4-203), such as one having a Maryland Wear and Carry Permit, possession in the home or business (by the business owner), or when transporting an unloaded handgun (kept in an enclosed case or enclosed holster) between a gun shop and one's residence or from their residence to a gun range. But, outside these sharply limited exceptions set out in subsection (b), the passage above otherwise broadly criminalizes having a pistol on (or about) the person.
On June 16, 2021, we filed an emergency motion for partial summary judgment on three of our counts against Montgomery County's enactment of Bill 4-21. The motion seeks to enjoin the County from enforcing their new illegal laws which will go into effect on July 16th without action from the Court. Find the motion HERE and the memorandum in support HERE. As we have stated previously, we will not sit idle while politicians make criminals of ordinary and law-abiding residents. You can learn more and find updates about this case at tinyurl.com/msivmoco.
MSI has filed an amended complaint against Montgomery County's enforcement Bill 21-22E, a 'response' bill to NYSRPA v. Bruen. You can read more on this latest phase of our case against the County here: https://bit.ly/3VgQWaD
A Decision More Than Five Years in the Making, But No Jury Trial Date Yet
CASE SUMMARY: This lawsuit against Maryland Capitol Police Sgt. Brian T. Pope for violating the civil rights of two MSI members continues to progress in the U.S. Court of Appeals for the Fourth Circuit, where the case has been briefed. This briefing includes an amicus curiae (“friend of the court”) brief filed in March 2022 by the National Police Association on behalf of Sgt. Pope.
A U.S. District Court ruling in April 2021 denied qualified immunity to Sgt. Pope for his arrests of Jeff and Kevin Hulbert on the public sidewalk in front of the Maryland Statehouse in February 2018, and ordered this lawsuit to proceed to a jury trial on our claims.
However within days, in May 2021, the State filed a motion for reconsideration before the District Court and subsequently, an interlocutory appeal to the US Court of Appeals for the Fourth Circuit. An interlocutory appeal, also known as an interim appeal, is one that is permitted at an intermediate stage of a case, either before a trial is commenced or a final resolution is reached. Interlocutory appeals are allowed by the Federal Rules of civil procedure only in specific circumstances, such as in this case, when there has been a denial of qualified immunity in the Court below. Their motion for reconsideration argued that Sgt. Pope should not have been denied qualified immunity by the District Court, asserting the Hulbert brothers’ arrests by Sgt. Pope were proper and that Kevin Hulbert’s video and audio recording of the police was not a “clearly established” First Amendment right. The Fourth Circuit would later remand the case back to the District Court for it to rule on the motion for reconsideration. That Court denied the motion and the State filed an appeal to the Fourth Circuit.
The Court has ordered the parties to appear before a three-judge Fourth Circuit panel in Richmond, VA for oral argument, tentatively scheduled for the first week of May 2023; that panel would then rule on the State’s pending appeal.
Oral Argument before the US Court of Appeals for the Fourth Circuit, May 3rd, 2023 at 9am.
IN MEMORIAM: Sadly, Jeff Hulbert, the lead plaintiff in this case, passed away on May 3, 2021, after a lengthy and valiant battle against cancer. Jeff’s daughter, his twin brother Kevin and other family members helped care for Jeff during his final days and were with Jeff at his bedside when he passed. We at Maryland Shall Issue send our deepest condolences to the family and friends of Jeff Hulbert.
Jeff was an outspoken and stalwart proponent of individual rights and a fierce supporter of the Right to Keep and Bear Arms. Jeff founded Patriot Picket with his brother Kevin in 2016. Patriot Picket "hits the bricks" of public sidewalks in Annapolis, throughout Maryland, the surrounding states, and the District of Columbia with stylized signs and pointed political messages in promotion and defense of those rights.
Please keep the Hulbert family in your thoughts and prayers; we will continue to remember and honor Jeff as this case progresses.
NOTE: Jeff’s passing does not end his association with this lawsuit. Jeff’s estate, administered by his brother Clayton, continues as a plaintiff. Clayton was appointed by the Court in July 2021 to represent Jeff’s estate in these proceedings, and at that time the legal title of this lawsuit was changed. Whereas Jeff was originally named as the lead plaintiff in this case, Clayton’s name now appears first for the plaintiffs in the revised case title as this lawsuit moves forward:
“CLAYTON R. HULBERT, as personal representative of the Estate of Jeffrey W. Hulbert; KEVIN HULBERT; MARYLAND SHALL ISSUE, INC., for itself and its members …”
CASE HISTORY: On the evening of February 5th, 2018, while holding edgy signs (with five fellow members of “Patriot Picket”) criticizing the powers that be in the General Assembly (and video-recording the demonstration and the approach of Maryland Capitol Police), two Maryland Shall Issue members were detained and arrested by Maryland Capitol Police Sgt. Brian T. Pope, handcuffed and then searched by him and other Maryland Capitol Police (MCP) officers on the Annapolis City sidewalk in front of the historic Maryland Statehouse.
Sgt. Pope had ordered them to move their peaceful, Constitutionally-protected sign-picketing demonstration from their chosen location on that public sidewalk to an area inside the adjacent Lawyers Mall, where the visibility of their signs and a banner to passersby would be obstructed by thick shrubbery growing in nearly waist-high planter boxes in Lawyers Mall. Lawyers Mall itself is within the Statehouse grounds, and the use of it at that time required a permit.
Jeff and Kevin Hulbert refused Sgt. Pope’s order to leave the public sidewalk because neither nor their signs were blocking or obstructing the few pedestrians passing by them on the sidewalk:
Jeff and Kevin Hulbert were transported separately by MCP officers to an Annapolis City PD precinct; escorted inside still in handcuffs, they were each then handcuffed to a steel bench in a booking room; they remained handcuffed until the issuance of criminal citations to them by Sgt. Pope, before being released.
Two additional criminal citations were issued to each of them the following day, also by Sgt. Pope, on orders from MCP Chief of Police Col. Michael Wilson, who was present and personally ordered that the additional citations be signed on the trunk of an MCP patrol cruiser parked at the foot of the Maryland Statehouse north steps, in full view of the public:
Portions of the video below were recorded by Kevin Hulbert of the sign-picketing demonstration the previous evening at the very moment Sgt. Pope approached the group to order the Hulberts and the other sign picketers to leave the sidewalk.
(Kevin Hulbert’s First Amendment right to record this video has become a key element in this lawsuit: the State argues on appeal that Kevin Hulbert had no “clearly established” right, by any precedent declared by the U.S. Court of Appeals for the Fourth Circuit, to record police in the public performance of their duties.)
The video below also depicts the arrival of additional MCP and Annapolis City PD officers, the subsequent arrest of the Hulbert brothers, and the issuance of the additional criminal citations to them the following day:
Within days Jeff and Kevin Hubert retained the distinguished Maryland civil rights attorney Cary Hansel of Hansel Law; joined by MSI (for itself and its members) as co-plaintiffs, a civil rights lawsuit was filed only nine days later in Federal District Court in Baltimore for the violation of their First Amendment and Fourth Amendment rights.
Jeff Hulbert, depicted below in the Hansel Law conference room, displays a set of the three criminal citations issued to both him and his brother Kevin by the MCP following their arrest:
The arresting officer, MCP Sgt. Brian Pope, and the MCP Chief of Police Col. Michael Wilson, were named as defendants in our lawsuit; they are both represented by counsel from the Maryland State Attorney General's Office.
In an opening gambit, the defendants first moved to dismiss the complaint for failure to state a claim, but that effort failed when the District Court didn't buy it. Then a lengthy legal discovery process ensued, which was further delayed by the COVID pandemic.
That discovery showed that the arrest of the Hulbert brothers that night could be traced to a call from the Governor's mansion requesting MCP to move the group because the "mansion" did not want to be bothered with questions or attempts at conversation by the Patriot Picket demonstrators.
Everyone, including the two MCP defendants (as well as other officers from the Maryland Capitol Police and the Maryland State Police), admitted in their court-ordered depositions during discovery that these orders came from the "mansion," but, amazingly, no one at the "mansion" could identify who gave the orders. We did discover that such orders happen as often as twice a month, or whenever someone at the "mansion" decides that the "mansion" does not want to deal with completely peaceful protestors lawfully exercising their First Amendment rights. We can only speculate as to the identity of this "mansion" person.
When discovery was finally completed, defendants once again sought dismissal, this time through a motion for summary judgment. That effort likewise failed on Friday, April 23, 2021, when the Court issued an opinion denying the State's motions for summary judgment on our First Amendment and Fourth Amendment Constitutional claims.
The District Court held that there were "disputed issues" of fact that precluded summary judgment on our First Amendment claim (unlawful interference with the First Amendment right to demonstrate on the public sidewalk) and the Fourth Amendment claim (the arrests were made without probable cause of any crime) by the MCP arresting officer, Sgt. Pope.
In so holding, the District Court also held that there was a "clearly established" First Amendment right for Kevin Hulbert to record video and audio of the police in a public setting, and that disputed issues of fact precluded summary judgment for the defendants as to whether Sgt. Pope's arrest of Kevin Hulbert interfered with that right.
Finally, the Court rejected the State's argument that MSI should be dismissed from the lawsuit on standing grounds. The District Court did dismiss (wrongly in our view) the counts against the MCP Chief of Police, Col. Michael Wilson.
With this and other cases, MSI has moved to the forefront in advocating for and protecting our First Amendment and Second Amendment rights against infringement at the county, state, and national levels in fundamentally important ways.
Whether advocating for our rights on public sidewalks, lobbying at the State Capitol, testifying in legislative hearing rooms, or filing legal challenges in State and Federal courts, MSI members and our organizational leadership know from personal experience that the First Amendment protects the Second Amendment, and the Fourth Amendment protects against unreasonable searches and seizures, including unlawful arrests, as is alleged to have occurred in this case.
Audit the Audit recently referenced the case in a video about filming police.
Stay tuned. Click the links below to read the relevant documents in the docket for this case. The most recent filings appear at the bottom of this list:
Case Documents and History
On Remand to US District Court for the District of Maryland
9/7/21 - Plaintiffs' Opposition to Defendant's Motion for Reconsideration
On appeal to the US Court of Appeals for the Fourth Circuit Case# 21-1608
11/12/21 - Briefing Schedule - Joint appendix and opening brief due 1/24/22. Response due 2/23/22.
6/14/23 - PUBLISHED AUTHORED OPINION filed.