Opposition Brief — Love v. Pepersack

ROBERT G. PEPERSACK, SR., ef al.,

‘ Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

eadlcis o-viawn a

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

*Counsel of Record

i

COUNTERSTATEMENT OF

QUESTIONS PRESENTED FOR REVIEW

a Whether a decision by state officials,

overturned on appeal by a state court, to disapprove an

application for a firearm license in violation of state

law states a substantive due process claim?

2. Whether the Second Amendment applies

to the states and protects a personal, rather than a

collective right; and if it does, is it violated by a

decision of state officials, overturned on appeal by a

state court, to disapprove an application for a firearm

license in violation of state law?

TABLE OF CONTENTS

Tt WEE: See Pe wil ae wks 9

I. THE COURT OF APPEALS HOLDING

THAT SUBSTANTIVE DUE PROCESS

WAS NOT VIOLATED DOES NOT

PRESENT A SUBSTANTIAL QUESTION

AND Is CONSISTENT WITH THE

DECISIONS OF THIS COURT

AND OTHER CIRCUIT COURTS ....

Il. THE COURT OF APPEALS APPLIED

WELL SETTLED LAW ON THE

SECOND AMENDMENT AND

THIS PETITION DOES NOT PRESENT

ANY BASIS For THIS COURT

TO REEXAMINE THAT LAW ......

CUINCEARBAMN 6. 60 cs uke cake cole

ili

TABLE OF AUTHORITIES

CASES:

Anderson v. Creighton,

ae Ce ee Pet ers eS

Bowers v. Hardwick,

478 U.S. 186 (1986) Ess Pee ipa ieee

Burgess v. Ryan,

996 F.2d 180 (7th Cir. 1993),

cert. denied, 114 S. Ct. 923 (1994) .....

Chesterfield Development Corp. v

City of Chesterfield,

963 F.2d 1102 (8th Cir. 1992) ........

Cody v. United States,

460 F.2d 34 (8th Cir.),

cert. denied, 409 U.S. 1010 (1972) .....

Cooks v. Spalding,

660 F.2d 738 (9th Cir. 1981),

cert. denied, 455 U.S. 1026 (1982) .....

Coyne v. City of Somerville,

972 F.2d 440 (Ist Cir. 1992) .........

Daniels v. Williams,

re Se eT CEPOO) foc ke ce ccc

Davidson v. Cannon,

RI ee ae ae ne a ee

Davis v. Scherer,

WO Wid. BOS CINOO) bo eee bo ek ek

iv

DeShaney v. Winnebago County DSS,

CP Tie BD hw 8 i ee 18 Os 6

Dred Scott v. Sandford, |

60 U.S. (19 How.) 393 (1857) ........ 9

Eckert v. City of Philadelphia,

477 F.2d 610 (3d Cir.),

cert. denied, 414 U.S. 839 (1973) ..... 10

Foucha v. Louisiana, |

Rie Be 20: ree Creer ees 6 |

Fresno Rifle and Pistol Club v.

Van de :

965 F.2d 723 (9th Cir. 1992) ......... 9

Fresno Rifle and Pistol Club v.

Van de Kamp,

746 F.Supp 1415 (E.C. Cal. 1990) ..... 9

Harlow v. Fitzgerald,

Si GBs Peele) Sk ee awe 11

Harrill v. Blount County, Tennessee, |

535 F.3d 1123 (Gite Car. 1995)... 502 ee y

Jones v. Alfred H. Mayer Co.,

Jae Wi IEE: 6 bs5 6 Se a we oS 11

Jones v. Phyfer,

761 F.2d 642 (11th Cir. 1985) ........ 7

Lewis v. United States,

GAD UE SOO hy bs BRE BS 8, 10

Lowrance v. Achtyl,

30 F.3d 529 (2nd Cir. 1994) ......... 7

}

eo

Masters v. State,

685 S.W.2d 645 (Tex. Cr. App.),

cert. denied sub nom. Masters v. Texas,

BIA, BORIPM) 6 cee c ted ae’s 9

Midnight Sessions, Ltd. v.

City of Philadelphia,

945 F.2d 667 (3rd Cir. 1991),

cert. denied, 503 U.S. 984 (1992) ...... 7

Nebraska Press Assoc. v. Stuart,

Ma? Ui Ger Eee iia ek EU 10

New York v. Uplinger,

ee er err rere 12

Parratt v. Taylor,

EE EPEAT GAUMEED 6 a ko oe Cece en es 6

Paul v. Davis,

foe AE Bi. 2.” ERS eerar a ene ere ee 6

Phillips v. Calhoun,

956 F.2d 949 (10th Cir. 1992) ........ 7

Planned Parenthood v. Casey,

R52 BOR, Be ee tS eee 9

Presser v. Illinois,

BAG UES. Foe CLO) ik fe: Si ole a 3, 4, 8

Quilici v. Village of Morton Grove,

695 F.2d 261 (7th Cir. 1982),

cert. denied, 464 U.S. 863 (1983) ...... 9

Rice v. Sioux City Memorial Park Cemetery,

$0 U.S. RUSS exes cx es 5, 10, 11

Rucker v. Harford County, :

946 F.2d 278 (4th Cir. 1991) |

cert. denied, 502 U.S. 1097 (1992) ..... 4 |

Sandin v. Conner,

115 S. Cy. 20s Gee Aes es CS 6

Smith } Picayune,

05 bon eo Ee ae. | ee 7

State v. Cartwright,

418 P.2d 822 (Or. 1966),

cert. denied sub nom. Cartwright v. Oregon,

SOG Li Fe ee 8.6 FSS SO 9

The Monrosa v. Carbon Black Export, Inc.,

SaP Us SPREE ie ee od Nw oe 8 12

United States v. Cruikshank, |

92 U.S. S45 GBB) oc cc cee 2, 3, 4, 8 |

United States v. Hale,

978 F.2d 1016 (8th Cir. 1992),

cert. denied, 113 S. Ct. 1614 (1993) .... 9

United States v. Johnson,

497 F.2d 548 (4th Cir. 1974) ....... 4,8

United States v. Miller,

SUL U.S. 174 GS). kc wee 4, 8, 10

United States v. Oakes,

564 F.2d 384 (10th Cir. 1977),

cert. denied, 435 U.S. 926 (1978) ...... 4

United States v. Three Winchester 30-30

Caliber Lever Action Carbines,

504 F.2d 1288 (7th Cir. 1974) ........ 8

Mseaneihliatliacaaiiaiiaiiaciaaaa

Vii

United States v. Verdugo-Urquidez,

Ae UD ne se ecw vce ee 9

United States v. Warin,

530 F.2d 103 (6th Cir.),

cert. denied, 426 U.S. 948 (1976) ..... 10

STATUTES AND RULES:

ie SE Go 0k ed Sine Sc wwe A

iy Si I ak wow aes cb ees 11

Fed. Rule Civ. Proc. Rule 7(a)........... 11

Md. Ann. Code art. 27, § 442 ............ 1

No, 94-1947

In the

Supreme Court of the United States

October Term, 1995

+

APRIL LOVE,

Petitioner,

v.

ROBERT G. PEPERSACK, SR., ef al.,

ri Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

a eee ee

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

4

COUNTERSTATEMENT OF THE CASE

) Proceedings below.

Petitioner April Love asks this Court to review the

decision of the court of appeals affirming the district

court’s dismissal of her claim for money damages on the

basis that neither substantive due process principles nor the

Second Amendment is violated by a decision of state

officials, overturned on appeal by a state court, to

disapprove an application for a firearm license in violation

of state law.

‘Pursuant to subsection (g) of MD. ANN. CODE art.

27 § 442 (Supp. 1994) (App. 3a-8a), which sets out the

procedures to be followed before a dealer may sell a

investigation of

supplied by Ms. Love (App. Sa-6a), and to complete the

investigation and give written notice of any disapproval to

her “within seven days from the date the executed

application to purchase or transfer was forwarded by

certified mail [to the MSP by the prospective seller].

(App. 6a) The investigation of Ms. Love’s application

consisted of a review of computer printouts from data bases

maintained by MSP and the Federal Bureau of

Investigation, and revealed that Ms. Love had been arresied

for three offenses that had there been a conviction, would

have disqualified her from purchasing a firearm under state

and federal law. (App. 37a, 38a, 42a-43a.) Based on a

review of the file, respondent Pepersack disapproved Ms.

Love’s application. (App. 27a.) After she was notified of

the disapproval, petitioner exhausted her administrative

remedies (App. Ja), tnd Gal teu te ti Clout

Court for Prince George’s County, Maryland, which

reversed the decision of the MSP. (App. 45a.)

_A year and a half later Ms. Love filed a complaint

in the United States District Court for the District of

Maryland for money damages alleging that the decision of

the Maryland State Police that was overturned on 2>peal by

the state court violated her rights under substantive due

process principles and the Second Amendment.

Respondents filed a motion to dismiss, arguing that the

misapplication of state law that had been corrected by a

state court did not rise to the level of a substantive due

process violation and, citing United States v. Cruikshank,

' "The date upon which the executed application to

purchase or transfer was forwarded by certified mail by the

prospective seller or transferor shall be considered the first

3

92 U.S. 542, 553 (1876), argued that the Second

Amendment does not apply to the states.”

2. Decisions below.

The district court, after noting that it was a

“proposition [that] has not ever been accepted by courts in

this country,” (App. 14a), relied on Presser v. Illinois,

116 U.S. 252 (1886), and United States v. Cruikshank, to

reject petitioner’s argument that the Second Amendment

applies to the states. (App. 14a) The district court also

held that petitioner had not stated a claim for violation violation of

substantive due process because petitioner had not

demonstrated any entitlement to have her application

approved since the MSP had some discretion concerning

whether to disapprove the application. (App. 19a.)

Furthermore, the district court held that even if there was

a protected interest, the actions of the respondents were not

“arbitrary and capricious in the sense that 42 U.S.C. [§]

1983 defines them." (App. 19a-20a.)

Assuming without deciding that Love had a claim of

entitlement in the approval of her application for a firearm,

the court of appeals held that there had not been a violation

of substantive due process because the facts alleged did not

show that the actions of the state officials were "so

arbitrary or irrational, so unjustified by any circumstance

or governmental interest, as to be literally incapable of

avoidance by any pre-deprivation procedural protections or

? In addition, the respondents argued that suit against

the State of Maryland was barred by the Eleventh

Amendment and that the complaint did not state a claim

upon which relief could be granted for any interference

with Ms. Love’s freedom to contract or a violation of the

Maryland Declaration of Rights. The district court ruled

in respondents’ favor on these issues. Ms. Love did not

appeal the dismissal of the State and has now abandoned

any claim based on the contract clause or the Maryland

Declaration of Rights.

of adequate rectification by any post-deprivation state

remedies." (App ye BF ops Harford County,

946 F.2d 278, 281 (4th Cir. 1991), cert. denied, 502 U.S.

1097 (1992).’ "Indeed, the deprivation here was fully

rectified.” (App. 30a.)

Applying this Court’s holdings in Presser v. Illinois,

United States v. Cruikshank, and United States v. Miller,

307 U.S. 174 (1939), the court of appeals held that

petitioner had not stated a claim for a violation of the

Second Amendment, because the Second Amendment does

not apply to the states, and in any event it protects a

"collective, rather than individual, right." (App. 30a-31a.)

also relying on United States v. Johnson, 497 F.2d 548

(4th Cir. 1974). The court of appeals affirmed and denied

petitioner’s request for rehearing and suggestion of

rehearing en banc.

REASONS FOR DENYING THE WRIT

Further review of this case is unwarranted because

the questions that the petition presents are settled and

petitioner has not pointed to any conflict with any decision

of this Court or any other court. First, the court of appeals !

decided no novel or unresolved questions of federal law in |

concluding that a violation of substantive due process did |

not occur simply because state officials enforced a policy |

that was contrary to state law until it was successfully

challenged in state court.

3 The court of appeals’ conclusion that the MSP was

"strapped for time” flows from the facts in the complaint.

Ms. Love filled out her application on September 13th, it

was received by the MSP on September 18th, and she had |

to be given written notification by September 21st. (App. :

36a-37a.) Thus, petitioner is wrong in asserting that the

court of appeals “stated as fact something that is not

apparent from the record.” Pet. at 24.

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ART SS OIC SEO Se NENS “R

5

Second, review is unwarranted because the court

below followed well established precedent of this Court in

finding that “the Second Amendment does not apply to the

states" and that it in any event “preserves a collective,

rather than an individual right." (App. 30a-3la.)

Petitioner does not cite any conflicting decisions of this

Cousk Or taip-athde cei Oi tis lesb: Moreover, even if

the Second Amendment applies to the states and preserves

an individual right, it is not an absolute right -- the states

would still have the right to regulate and misapplication of

a state law regulating the sale of firearms would not

amount to a denial of any Second Amendment right,

especially when the erroneous denial is corrected on appeal

by a state court. In any event, qualified immunity would

bar any recovery to the petitioner because not only does

she not seek declaratory or injunctive relief, she does not

allege any facts - such as that the MSP continued to

misapply Maryland law after the state court’s decision

finding the policy in violation of state law — that would

support a claim for declaratory or injunctive relief. In

sum, this case is not an appropriate vehicle to reconsider

the well settled law on the Second Amendment, because the

factual situation here does not go “beyond the academic or

the episodic,” Rice v. Sioux City Memorial Park Cemetery,

349 U.S. 70, 74 (1955).

The petition should be denied, therefore, because

this case presents no issue warranting this Court’s review.

I. THE COURT OF APPEALS HOLDING THAT

SUBSTANTIVE DUE PROCESS WAS NOT

VIOLATED DOES NOT PRESENT A

SUBSTANTIAL QUESTION AND IS

CONSISTENT WITH THE DECISIONS OF

THIS COURT AND OTHER CIRCUIT

COURTS.

Without citing to any cases that hold that different

standards apply to intentional and unintentional violations

6

application did not violate substantive due process. Pet. at

23-24. However, an examination of the court of appeals

decision reveals that the court did not disregard or

misapply any precedents of this Court in deciding that even

assuming that petitioner has a “property interest in the

sooeaal of het aan (App. 29a), the governmental

action here did not rise to the level required to amount to

a violation of substantive due process.

-As the court of appeals recognized, the respondents’ )

violation of state law arose out of an exercise of “extreme

caution by denying applications where a computer check |

showed arrests with unknown dispositions” (App. 29a-30a),

for offenses which, had there been a conviction, would |

have disqualified the applicant from purchasing the firearm |

under state or federal law. (App. 42a-43a.) The court of

appeals’ conclusion that it would "trivalize the Due Process

Clause” to conclude that substantive due process is violated

when it could not say that the action taken by the state

officials "was “unjustified by circumstance or governmental

interest’ or that its effect was ‘literally incapable of .

adequate rectification by any, post-deprivation state

remedies’" (App. 30a), is consistent with this Court’s

t that “the Due Process Clause of the Fourteenth

Amendment was intended to prevent government ‘from

abusing fits} power, or employing it as an instrument of

oppression.” Davidson v. Cannon, 474 U.S. 344, 348

(1986), quoted in DeShaney v. Winnebago County DSS,

489 U.S. 189, 196 (1989). See also Bowers v. Hardwick, |

478 U.S. 186, 195 (1986); Paul v. Davis, 424 U.S. 693,

700 (1976). "The Due Process Clause does not protect

against all wrongful governmental action. See, ¢.g.,

Foucha v. Louisiana, 504 U.S. 71, 72 (1992) ("the Due

Process Clause contains a substantive component that bars

certain arbitrary, wrongful government action...."

(emphasis added)). The facts alleged in the complaint

simply do not rise to an instance where there was an

“affirmative abuse of power,” Parratt v. Taylor, 451 U.S.

527, 549 (1981) (Powell, J., concurring in result), or

where “governmental power [was] being ‘used for

of oppression.’" Daniels v. Williams, 474 U.S. 327, 331

TN

7

(1986) (internal citations omitted). See also Sandin v.

Conner, 115 S. Ct. 2293 (1995) (state prison regulation

does not create a liberty interest protected by the due

In addition to not showing any conflict or

inconsistency with any holding of this Court, petitioner

does not point to any conflict between the decision below

and any other court of appeals. To contrary, the

analysis of the Court of Appeals for the Fourth Circuit is

consistent with the law in other circuits. , €.g., Harrill

v. Blount County, Tennessee, 55 F.3d 1123, iis 6th Cir.

1995) ("The violation of a right created and recognized

only under state law is not actionable under §1983.");

7

government action that is arbitrary, conscience-shocking,

Or oppressive in a constitutional sense, but not against

process"); Chesterfield Development Corp. v. City

Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992) ("A bad-

faith violation of state law remains only a violation of state

law."); Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir.

1992) (“noncompliance with local law does not constitute

a violation of federal due process rights” (citations

omitted)); Midnight Sessions, Lid. v. City Of Philadelphia,

945 F.2d 667, 684 (3rd Cir. 1991)("a violation of state law

does not constitute a denial of substantive due process"),

cert. denied, 503 U.S. 984 (1992); Smith v. City of

Picayune, 795 F.2d 482, 488 (Sth Cir. 1986) (violation of

state law not per se violation of due process, must also

prove irrational and arbitrary conduct); Jones v. Phyfer,

without due process of law.”); Cooks v. Spalding, 660 F.2d

738, 739 (9th Cir. 1981)("Violations of state law, withou

more, do not deprive defendant of due process."), cert.

denied 455 U.S. 1026 (1982).

Il. THE COURT OF APPEALS APPLIED WELL

SETTLED LAW ON THE SECOND

AMENDMENT AND THIS PETITION DOES

NOT PRESENT ANY BASIS FOR THIS

COURT TO REEXAMINE THAT LAW.

The court of appeals holding that “the Second

Amendment does not apply to the states” and that it

"preserves a collective, rather than an individual right"

(App. 30a-31a), follows this Court’s holdings in Presser v.

Illinois, 116 U.S. 252; United States v. Cruikshank, 92

U.S. 542; and United States v. Miller, 37 U.S. at 178.‘

In fact, as the district court held, the contrary proposition

put forward by petitioner “has not ever been accepted by

courts in this country.” (App. 14a.) Thus petitioner does

not cite any holdings of this Court or any other court in

support of his proposition that the Second Amendment

applies to the states. Instead, she relies exclusively on

"law review articles." (App. 30a.) Similarly, petitioner

4 See also Lewis v. United States, 445 U.S. 55, 65 n.

8 (1980), where this Court noted that “legislative

restrictions on the use of firearms [were] neither based

upon constitutionally suspect criteria, nor . . . trench upon

any constitutionally protected liberties." (Citing United

States v. Miller, United States v. Three Winchester 30-30

Caliber Lever Action Carbines, 504 F.2d 1288, 1290 n. 5

(7th Cir. 1974); United States v. Johnson, 497 F.2d 548

(4th Cir. 1974); Cody v. United States, 460 F.2d 34 (8th

Cir.), cert. denied, 409 U.S. 1010 (1972)).

~ oreo 5’

e.g., Quilici v. Village of Mo

Cir. 1982), cert. denied, 464 U.S. 863 (1983); Masters v.

State, 685 S.W.2d 654 (Tex. Cr. App), cert. denied sub

nom. Masters v. Texas, 474 U.S. 853 (1985); State v.

Cartwright, 418 P.2d 822 (Or. 1966), cert. denied sub

nom. Cartwright v. Oregon, 386 U.S. 937 (1967).

Likewise, this Court has repeatedly denied petitions for

certiorari asking this Court to revisit the issue of whether

the Second Amendment confers an individual rather than a

collective right. See, e.g., United States v. Hale, 978 F.2d

1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614 (1993);

Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.

1982), cert. denied, 464 U.S. 863 (1983); United States v.

10

Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435

U.S. 926 (1978); United States v. Warin, 530 F.2d 103

(6th Cir.), cert. denied, 426 U.S. 948 (1976); Eckert v.

City of Philadelphia, 477 F.2d 610 (3d Cir. 1973), cert.

denied, 414 U.S. 839 (1973).

At most, the question presented by petitioner

concerning the Second Amendment is "intellectually

interesting,” Rice v. Sioux City Memorial Park Cemetery,

Inc., 349 U.S. at 74, because, even if the Second

Amendment applies to the states and confers an individual

right, the right is not absolute. See, e.g., Lewis v. United

States, 445 U.S. 55 (1980) (upholding the regulation of the

possession of firearms by felons); United States v. Miller,

307 U.S. 174 (upholding regulations restricting possession

of particular firearms); cf. Nebraska Press Assoc. v. Stuart,

427 U.S. 539 (1976) (“This Court has frequently denied

that First Amendment rights are absolute...."). The states

have some ability to regulate the right and it would not be

violated merely because state officials violate state law,

especially when that violation is corrected on appeal, by a

State court.

Finally, even if the Court accepts petitioner’s

arguments, petitioner will eventually lose this case, as

respondents are state officials who are immune from claims

for money damages unless "in the light of pre-existing law,

the unlawfulness [is] apparent." Anderson v. Creighton,

483 U.S. 635, 640 (1987) (citations omitted). At the time

the state officials disapproved the petitioner’s application,

it was certainly not “apparent” that the Second Amendment

applies to the states and protects a personal, rather than a

oe oat These state officials were not required “to

ticipate subsequent legal ge arn [or] . to

rr that the law forbade conduct not previously

identified as unlawful.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). The fact that they violated state law is

not determinative if "the constitutional right . . . alleged to

have [been] violated," was not clearly established. Davis

11

v. Scherer, 468 U.S. 183, 194 (1984 )- Thus on remand

they would assert qualified immunity.

even allege facts that would support injunctive relief, any

reconsideration of the well settled law on the Second

Amendment through this case will answer an "academic"

question, Rice v. Sioux City Memorial Park Cemetery, 349

U.S. at 74, since there is no allegation that the MSP

i

e

E

8:

petitioner

merits." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 417

n. 21 (1968). There are no "special or important reasons,"

S. Ct. Rule 10.1, for granting certiorari in this case.

‘dimensions, for them there comes into play

regard for the Court’s duty to avoid decision

of constitutional issues unless avoidance

becomes evasion.

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. at

74. Avoidance in this instance is simply refusing to revisit

a settled constitutional question to “pass judgment on

[Maryland] for unconstitutional action, were such to be

* The issue of qualified immunity was not raised in the

motion to dismiss. son's diols wpe: Which sat con be

their answer. See Harlow v. Fitzgerald, 457 U.S. 800, 815

(1982) (qualified immunity must be plead); Fed. Rule Civ.

pin ee ee

12

found, when it has already rectified any possible error.”

Id. at 77. In sum, this case is an “inappropriate vehicle for

{reexamining]" the Second Amendment. New York v.

Uplinger, 467 U.S. 246, 249, (1984). | pe arn

"can await a day when the issue is posed abstractly.

The Monrosa v. Cantos Mack aoe te Inc. , 359 U.S. 130,

184 (1959).

CONCLUSION

For the reasons stated, the petition should be

denied.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attommey General of Maryiand

EVELYN O. CANNON*

Assistant Attorney General

200 St. Paul Place :

Baltimore, Maryland 21202

(410) 576-6330

*Counsel of Record

Attorneys for Respondents

Pepersack, Messick, Pletcher

and Tippett.