Category Archives: Law

My Washington Post letter on Maryland’s red flag law

My letter to the editor at the Washington Post last month on red flag gun laws:

August 13, 2019

Red flag’ laws can have deadly consequences

The Aug. 9 front-page article “Results of ‘red flag’ gun laws uneven across 17 states, D.C.” quoted critics of Maryland’s “red flag” gun-confiscation law who find the law lacking on due process grounds. It might also have mentioned another kind of collateral damage done by the law this past November in its second month of operation, namely the death of 61-year-old Gary J. Willis of Glen Burnie, shot dead by Anne Arundel County police who had come to his door at 5 a.m. to present an order to confiscate his guns. Willis answered the door with a gun in his hand. He set it down but then became angry, picked up the gun, and, in an ensuing scuffle with an officer over the weapon, it went off without striking anyone. A second officer then shot Willis dead.

In the aftermath, because of confidentiality rules, neither press nor public could view the red-flag order that had set police on the fatal encounter. Defending the shooting afterward, the county’s police chief described any possible threat from Willis to others in the vaguest of terms, telling the Capital Gazette, “We don’t know what we prevented or could’ve prevented.” Family member Michele Willis, speaking to the Baltimore Sun, took a different view: “I’m just dumbfounded right now,” she said. “My uncle wouldn’t hurt anybody. … They didn’t need to do what they did.”

Walter Olson, New Market

It is true that in principle “red flag” laws can draw on the same respectable historic taproots of judicial power as, e.g., domestic violence restraining orders. [David French, National Review] One problem with that is that it’s not clear the current use of domestic restraining orders inspires confidence, due-process-wise. In two posts last month (firstsecond) Jacob Sullum, who also cites the work of Dave Kopel, critically examines the shortcomings of the red flag gun laws enacted so far, while California lawyer Donald Kilmer looks at his state’s existing law. [cross-posted from Overlawyered]

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Maryland’s gun permit system is challenged — and it’s probably unconstitutional

Maryland law still does not acknowledge any individual right of gun ownership, notwithstanding the Supreme Court’s decisions in D.C. v. Heller and McDonald v. City of Chicago, which recognized that the Second Amendment protects an individual right to own guns and determined that it applies to states and not solely the federal government. It’s time for that to change — and if the legislature won’t act, the courts will have to.

Allen Etzler reports at the FNP:

Maryland is one of 10 states considered a “may issue” state, which means it requires a permit to carry a concealed gun, and granting that permit is at the discretion of local authorities. It’s a restrictive law that prevents most average citizens from being able to obtain a permit, said Sen. Michael Hough (R-Frederick and Carroll).

“It’s an undue burden on people,” Hough said. “The vast majority of people that get this permit are armed security or private [investigators]. It’s very difficult for the average citizen to get one.”

Now Maryland Shall Issue, a gun rights organization, is challenging the state’s permit regime as inconsistent with the Supreme Court’s rulings in Heller and McDonald. My colleagues at the Cato Institute filed briefs in support of Second Amendment rights in both of those earlier cases.

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Did Maryland’s lawyer mislead the high court in the gerrymander case?

Prof. Michael McDonald says that’s what happened at oral argument when the state’s lawyer characterized McDonald, an expert for the Republican plaintiffs, as having found the Sixth District “competitive.” [Medium, McDonald on Twitter]

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Baltimore tries to seize the Preakness

Now unpaywalled: my WSJ opinion piece on the city of Baltimore’s outrageous move to use powers of eminent domain to seize the venerable Preakness thoroughbred horse race as well as its associated Pimlico racetrack. Earlier here and more generally here. [cross-posted from Overlawyered]

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Grace’s Law 2.0: Maryland doubles down on criminalizing online speech

“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.

Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):

said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.

Under the new law, “a single significant act can land you in trouble,” he told reporters.

Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:

Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”

Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.

“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.

I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea.

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“Bail reform falling short of goals”

A Capital News Service series published at Maryland Matters confirms that in Maryland, at least, bail reform has had trouble meeting its intended goals. In particular, while the number held for inability to meet bail has dropped sharply since the adoption of reforms in February 2017, Baltimore in particular has seen an offsetting jump in the rate at which judges hold defendants without making bail available. Statewide, “the number of people held with bail decreased from 29.8 percent to 18.4 percent over the past 18 months, while the number of people held without bail has increased from 13.6 percent to 22.6 percent.” [Alicia Cherem and Carly Taylor with sidebar by Kaitlyn Hopkins and James Crabtree-Hannigan] I reported on the same trend in 2017 and again last year.

A second entry in the series examines the adoption of pretrial risk assessment algorithms which can make up for some of the lost functions of cash bail, a county-by-county process still under way across the state [Angela Roberts and Nora Eckert] A third looks at the “trial penalty”: numbers show that “defendants who reject plea bargains and are convicted when they choose to go to trial for many types of crimes face longer sentences – sometimes substantially longer – than defendants who make a deal.” [Shruti Bhatt, Angela Roberts and Nora Eckert]

It’s worth remembering that state ventures in bail reform can lead to quite different outcomes depending on the strategy tried. New Jersey, which has won praise for its careful development of pretrial services, “is approaching two years operating a bail system where people don’t have to pay money to be free from jail. The crime wave some warned about hasn’t happened.” [Scott Shackford, ReasonMarc Levin, Real Clear Policy] [cross-posted from Overlawyered]

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Brian Frosh, Title IX, and the presumption of innocence

Attorneys general from 18 states, including Maryland’s Brian Frosh, have signed a letter arguing against a presumption of innocence for students accused under Title IX, saying it “improperly tilts the process” in favor of the accused. There’s a good argument that the feds should not be dictating colleges’ disciplinary standards at all, but that’s not what’s at issue here; the signers favor strong federal intervention, but on behalf of standards more favorable to accusers.

Conor Friedersdorf has more at The Atlantic.

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Cyberbullying and the Constitution

The Maryland Senate has unanimously approved a new bill (“Grace’s Law 2.0”) expanding the state’s “cyberbullying” law. The bill would increase maximum penalties for violation to three years in prison while removing “requirements in current law that a harassing message must be sent directly to a victim and language that required a continuing course of conduct. The new law would allow prosecution for a single, significant act that has the effect of intimidating, tormenting or harassing a minor and which causes physical injury or serious emotional distress to a minor to be prosecuted if the actions were malicious and had the intended effect.”

In response to ongoing concern that the measure infringes the First Amendment, chief bill sponsor and Judiciary Committee Chair Sen. Bobby Zirkin (D-Baltimore County) said, “… If we’ve overstepped our bounds in any part of this, then we’ll find out when the Court of Appeals says so.” Put differently, we’re passing a bill parts of which may be unconstitutional, but we’re going to leave that to the courts to spot and fix.

One problem with this “it’s not our department” view is that it’s not just the judges on the Court of Appeals who take an oath to support the Constitution, it’s also the members of the Maryland General Assembly (related, federal). I was critical of the original “Grace’s Law” at the time; see also here.

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Citing First Amendment, court strikes down 2018 Maryland law regulating ad platforms

Last year following the Russian Facebook scandal the Maryland legislature passed a bill regulating newspapers (!) and other online ad platforms. Gov. Larry Hogan refused to sign it, citing First Amendment concerns. Now a federal court has agreed and blocked the law’s enforcement as an unconstitutional infringement on the freedom of the press.

I write about the case at Cato. “Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.” (reprinted from Overlawyered).

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Sixth District panel begins work; Supreme Court will hear Benisek appeal

Major news Friday on two fronts in Maryland redistricting:

1) The Supreme Court will take up the Maryland gerrymandering case once again — its third trip to the Court — to review the three judge panel’s November decision finding the Sixth District unconstitutional.

2) The emergency commission to draw a new Sixth District compliant with the court’s opinion, on which I serve, met for the first time in Annapolis. One action we took was to schedule the three public hearings we will hold before adopting a recommended map. The dates and places (all 7 p.m., later venues TBD) are:

Frederick — Jan. 14, Frederick Community College, Jack B. Kussmaul (JBK) Theater, 7932 Opossumtown Pike, Frederick
Montgomery County — Jan. 31
Cumberland or Frostburg — Feb. 6

Coverage: Samantha Hogan/Frederick News-Post, Jennifer Barrios/Washington Post, Rachel Baye/WYPR, David Collins/WBAL, Luke Broadwater and Pamela Wood/Baltimore Sun.

Frederick hearing coverage: Steve Bohnel, Frederick News-Post; Katie Misuraca, WDVM; Catalina Righter, Carroll County Times.

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