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HEADNOTE: Michael T. McCloud v. Department of State Police, Handgun Permit Review Board, No. 101, September Term, 2011 PUBLIC SAFETY -- STATUTORY INTERPRETATION: Sections 5-101(g)(3) and 5133(b)(1) of the Public Safety Article, which define a disqualifying crime, apply to out-ofstate convictions. When determining whether such a conviction is a disqualifying crime, an agency must look to the maximum penalty for an equivalent offense in Maryland.

Circuit Court for Baltimore County Case No. 03-C-09-3201

IN THE COURT OF APPEALS OF MARYLAND No. 101 September Term, 2011

MICHAEL T. MCCLOUD v. DEPARTMENT OF STATE POLICE, HANDGUN PERMIT REVIEW BOARD

Bell, C.J., Harrell Battaglia Greene Adkins Barbera Wilner, Alan M. (Retired, Specially Assigned), JJ.

Opinion by Adkins, J.

Filed: May 21, 2012

In this case, we consider how a conviction in another jurisdiction affects an applicant's ability to obtain a handgun permit under Maryland law. Petitioner Michael T. McCloud applied for a handgun permit but was denied because in 2006 he had been convicted in the District of Columbia of attempting to carry a pistol without a license. In denying Petitioner's application, the Maryland State Police relied on the Maryland Attorney General's Opinion in 91 Op. Att'y Gen. 68 (2006) ("Attorney General's Opinion" or "Opinion"). The Opinion advises that an out-of-state conviction can disqualify an applicant from obtaining a handgun permit. It adds that, when determining if such a conviction disqualifies an applicant, an agency should look to whether the penalty for the equivalent crime in Maryland meets the statutory threshold for barring possession of a handgun under Sections 5-101(g)(3) and 5-133(b)(1) of the Public Safety Article. The permit denial was reversed by the Maryland State Police's Handgun Permit Review Board, which held that the Opinion did not apply to Petitioner's situation. The denial was reinstated by the Circuit Court for Baltimore County. From there, Petitioner proceeded to the Court of Special Appeals, which, also relying on the Attorney General's Opinion, affirmed the Circuit Court and the denial. Petitioner presents the following issue to us: Whether the Court of Special Appeals erred in following the Attorney General's Opinion in [91 Op. Att'y Gen. 68] as to what constitutes a disqualifying crime. We shall hold that the Court of Special Appeals did not err in adopting the views expressed in the Attorney General's Opinion to determine what constitutes a disqualifying

crime. Accordingly, Sections 5-101(g)(3) and 5-133(b)(1) of the Public Safety Article, which define a disqualifying crime, include out-of-state convictions. When determining whether such a conviction is a disqualifying crime, an agency must look to the maximum penalty for the equivalent offense in Maryland. Facts and Legal Proceedings Petitioner's journey through the handgun permitting process began on July 5, 2008, when he submitted an application to the Maryland State Police ("MSP," also "Respondent") to renew his permit to carry a concealed weapon. The MSP denied Petitioner's renewal application after discovering he had been convicted in the District of Columbia in 2006 of attempting to carry a pistol without a license. The MSP, relying on the Attorney General's Opinion, determined that this conviction disqualified him under Maryland law from possessing a concealed weapon. Petitioner appealed this denial to the MSP's Handgun Permit Review Board ("the Board"), which reversed the denial and directed the MSP to issue the permit. The MSP sought judicial review of the Board's decision in the Circuit Court for Baltimore County, and the order to issue Petitioner a permit was stayed pending resolution of the appeal. The Circuit Court reversed the Board's decision, concluding that Petitioner was prohibited from obtaining the permit. Petitioner timely appealed to the Court of Special Appeals, which affirmed the Circuit Court in a reported opinion adopting the Attorney General's Opinion. See McCloud v. Dep't

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of State Police, 200 Md. App. 725, 28 A.3d 214 (2011). The Court of Special Appeals first held that "a `disqualifying crime' can be an offense committed out-of-state that, when looking to a comparable violation in Maryland, is a misdemeanor and has a penalty of greater than two years imprisonment." Id. at 731, 28 A.3d at 217. To determine whether the out-of-state offense was a disqualifying crime, the court instructed, "we must look to the penalty for the equivalent Maryland offense in effect at the time the person convicted seeks to possess a regulated firearm." Id.; see also Brown v. Handgun Permit Review Bd., 188 Md. App. 455, 480, 982 A.2d 830, 845 (2009). The intermediate appellate court said that if the current penalty for the Maryland offense is different from the penalty in effect at the time of the offense, the current penalty determines whether the offense is a disqualifying crime. See McCloud, 200 Md. App. at 731, 28 A.3d at 217. The court also rejected several of Petitioner's secondary arguments. Petitioner sought review from this Court, and we granted certiorari on December 16, 2011. See McCloud v. Dep't of State Police, 424 Md. 54, 33 A.3d 981 (2011). Discussion Maryland law prohibits a person from wearing, carrying, or transporting a handgun without a permit. See Md. Code (2003, 2011 Repl. Vol.),

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