What constitutes having a history of violent behavior against the person or another according to Maryland firearms law?

Question

According to Maryland statutes, Title 5, Subtitle 2, § 5-205 (b) (6) (my emphasis), someone who

suffers from a mental disorder as defined in § 10-101(i)(2) of the Health - General Article and has a history of violent behavior against the person or another;

is disqualified from possessing a "rifle or shotgun".

How is having a "history" of violent behavior defined? More specifically, is this based on clinical factors specifically related to violence as a symptom of the person's mental disorder (meaning that whether any person is disqualified can be determined by reviewing medical records), or is it a practical definition, evaluating the behavior of the person independent of any specific legal or medical findings of violence or risks of violence? One might argue that having a "history of violent behavior" means having a conviction for such behavior, but the statute in question already provides for several ways of disqualifying a person as a result of past criminal convictions, implying that this is intended to be interpreted separately - i.e. that a person might have a "history" of violent behavior despite never having been formally convicted of any of it.

I already checked 10-101(i)(2) and it does define "mental disorder", but not a "history of violent behavior" associated with such a disorder.

Most of the other disqualifying criteria in the statute are more specifically defined - for example, one of the other factors is being (my emphasis) "a habitual drunkard as defined in § 5-101 of this title" rather than "a habitual drunkard". That definition itself is conviction-based - that is, just drinking a lot, or even "problem" drinking is not enough to trigger firearms disqualification - one must fulfill the very specific criteria for quantity and recency of alcohol-related convictions.

Title 5, Subtitle 2, § 5-205 (e) provides a means of seeking relief for a disqualification under (b) (6), but I'm asking about the criteria that triggers the disqualification itself. That is, it appears that there are two categories of people with mental disorders here:

• Persons with history of violence (but no disqualifying convictions for such violence), who must petition for relief under § 5-205 (e).
• Persons without a history of violence, who need not seek relief under § 5-205 (e) because they were never banned from possession in the first place.

The question, then, is what distinguishes these two populations. Is it bare facts of the past? Is it based on formal adjudications of violence not rising to the level of a criminal conviction (e.g. lawsuits, school discipline, etc.)? A formal clinical determination by the diagnosing clinician? A determination made by a special state behavioral specialist?

The process for petitioning for relief also requires (Title 5, Subtitle 1, § 5-133.3 (d) (1)) that one disclose "a complete and accurate statement explaining the reason why the applicant is prohibited....", meaning that this procedure would appear to be useless for determining whether a person is currently disqualified. That is, someone who doesn't know whether they have a disqualifying "history of violent behavior" can't at the same time disclose this history.

Answer 1

Mental disorder is defined in the referenced section as follows:

(i)(1) “Mental disorder” means a behavioral or emotional illness that results from a psychiatric disorder.

(2) “Mental disorder” includes a mental illness that so substantially impairs the mental or emotional functioning of an individual as to make care or treatment necessary or advisable for the welfare of the individual or for the safety of the person or property of another.

(3) “Mental disorder” does not include an intellectual disability.

There are about two dozen cases in Maryland interpreting the statute, but none of them that I could locate in a cursory search addressed the subsection in question. Maryland does, in a case involve a question of capacity to consent in a rape case, distinguish between the definition of "mental disorder" used in the firearms statute which calls for expert testimony to establish (not necessarily in advance of the determination), and the question of incapacity to consent for purposes of sexual assault crimes, which does not. Fuentes v. State, 164 A.3d 265, 275 (Md. 2017).

I believe that you have accurately identified the two categories of people with mental disorders who are not subject to other subsections of the law (e.g. those with a prior involuntary commitment or a prior insanity plea).

it appears that there are two categories of people with mental disorders here:

Persons with history of violence (but no disqualifying convictions for such violence), who must petition for relief under § 5-205 (e).

Persons without a history of violence, who need not seek relief under § 5-205 (e) because they were never banned from possession in the first place.

This brings us to your question.

The question, then, is what distinguishes these two populations. Is it bare facts of the past? Is it based on formal adjudications of violence not rising to the level of a criminal conviction (e.g. lawsuits, school discipline, etc.)? A formal clinical determination by the diagnosing clinician? A determination made by a special state behavioral specialist?

A fair reading of the statute and case law suggests that a clinical determination by someone must be made that the individual has a "mental disorder", and that if the person does have a "mental disorder", then the bare facts of a prior act of harming himself or herself, or harming another, violently, without regard to any formal adjudication, is disqualifying.

Usually, when a statute contains a relatively unspecific term, called a "standard" as opposed to a very specific definition, called a "rule", a higher court reviewing a decision will defer to the finder of fact (i.e. whoever heard or reviewed the evidence and made a determination based upon it). It will affirm that decision if there was any evidence presented which would support the conclusion reached, or which would support a reasonable inference from the evidence that would support the conclusion reached. This is a highly deferential standard of review and assumes that the common sense of a neutral person presented with the evidence is the most accurate way to resolve what a term means in context when the reality of life and the evidence that could be relevant is too messy and varied to codify in detail.

In the same vein, most accidental injury cases hinge on the question of whether someone was "negligent" which is given only a very vague definition that does not resolve on a case by case basis whether particular actions were or were not negligent, and leaves open the possibility that exactly the same conduct could be treated differently by different finders of fact, when a case is a close call.

The process for petitioning for relief also requires (Title 5, Subtitle 1, § 5-133.3 (d) (1)) that one disclose "a complete and accurate statement explaining the reason why the applicant is prohibited....", meaning that this procedure would appear to be useless for determining whether a person is currently disqualified. That is, someone who doesn't know whether they have a disqualifying "history of violent behavior" can't at the same time disclose this history.

I do not believe that a court would find that this is too vague to be enforceable. A "history of violent behavior" has a reasonable understandable plain English meaning, which is what applies in the absence of other considerations. Any past violent or suicidal actions would have to be disclosed.

With due respect to Erik Roskes, M.D., he may not be very familiar with the case law of what does and does not constitute a law too vague to be enforceable.

The closest precedent is probably Johnson v. United States (U.S. 2015) in which the Supreme Court ruled that the residual clause in the Armed Career Criminal Act was unconstitutionally vague and a violation of due process where the language applied to crimes that "otherwise involves conduct that presents a serious potential risk of physical injury to another." The court determined that the residual clause was unconstitutionally vague because of the combination of two factors: (1) it focused on the ordinary case of a felony, rather than statutory elements or the nature of the convicted's actions, leaving significant uncertainty about how to assess the risk posed by a crime and (2) the clause does not give an indication of how much risk is necessary to qualify as a violent felony.

But, in Johnson the question was whether there was a "serious potential risk of physical injury to another" in an ordinary case involving an offense, which involves two layers of probabilistic analysis, while Maryland Firearms Law § 5-205(b)(6) involves only a determination of whether past conduct of a person with a "mental disorder" was violent towards him or herself, or another person, which is much less abstract. The ordinary meaning of "a history of violent behavior" in this context is merely, "have you engaged in violent behavior in the past", subject to the possible qualifier that it must be at a time when you were suffering from the "mental disorder", many of which that are pertinent to these cases (such as schizophrenia and bipolar disorder) usually manifest only in adolescence or later.

The fact that a certain level of subjectivity is involved in making a determination does not render it unconstitutionally void for vagueness.