See Love v. Pepersack .01 Exposed
James Mayer
http://www.2ndlawlib.org/court/fed/47f3d120.html
[Cite as Love v. Pepersack, 47 F.3d 120 (4th Cir. 1995), cert. denied,
116 S. Ct. 64 (1995).]
April LOVE v. Robert G. PEPERSACK, Sr.; Merrill A. Messick, Jr.; Ernest
Eldon Pletcher; Elmer Hunt Tippett, Jr.; State of Maryland.
No. 94-1582.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 7, 1994.
Decided Feb. 3, 1995.(p.121)
Howard J. Fezell, Frederick, MD, for Appellant. Mark Holdsworth Bowen,
Asst. Atty. Gen., Pikesville, MD, for appellees. ON BRIEF: J. Joseph
Curran, Jr., Atty. (p.122)Gen. of Maryland, Pikesville, MD, for
appellees.
Before HALL and LUTTIG, Circuit Judges, and CURRIE, United States
District Judge, District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge HALL wrote the opinion of the
Court, in which Judge CURRIE joined. Judge LUTTIG wrote a separate
concurring opinion.
K.K. HALL, Circuit Judge:
April Love appeals the dismissal of her 42 U.S.C. ง 1983 civil rights
suit against various Maryland state troopers. We affirm.
I.
According to her complaint, in September, 1990, April Love tried to
purchase a handgun at a shop in Prince George's County, Maryland. She
filled out an application required by state law. All of her answers to
the questions posed were true and correct.
The licensing division of the Maryland state police received the
application on September 18, 1990. It was strapped for time--Maryland
law gives the police only seven days to deny the application; if it does
not act, the dealer may legally sell the firearm. 27 Md.Code Ann. ง
442(b) (1992). On September 21, Corporal Ernest Pletcher reviewed the
application and a computer printout from Maryland police and Federal
Bureau of Investigation files. He discovered that Ms. Love had been
arrested on four occasions. In 1976, while working as a stripper, Ms.
Love had been arrested twice for participating in an obscene show and
once for indecent exposure. In 1978, she had been arrested and charged
with two counts of battery and one of resisting arrest. She was
convicted of only one of these crimes--a misdemeanor[1]--though
disposition of the charges was not apparent on the computer printout.
Without further investigation, Pletcher recommended that the application
be denied. Sergeant Robert Pepersack reviewed the file and made the
final decision to deny the application. A letter to Ms. Love reporting
the denial was signed by Lieutenant Merrill Messick. In separate
correspondence, Messick instructed the dealer not to sell Ms. Love the
handgun.
The reason for the denial was the prior arrest record itself, and both
Pletcher and Pepersack later testified that it was standard practice to
deny applications on that basis. The Maryland Code lists several grounds
for denying an application, but a prior arrest is not such a ground.
( They denied her on the grounds of her prior arrest record but to make
such a denial on those grounds is not within the Maryland Code but the
officers of the law did it anyway because it was "standard practice" to
do so. These officers decided that the could rewrite the law to suit their
own standards and not that which their legislature passed. It was illegal
for them to deny on the grounds they did. )
Love exhausted state administrative remedies without success, and then
sued in state court. She won. The court ordered the state police to
approve her application. Love then filed this ง 1983 suit--alleging
violations of substantive due process, a "right to contract," and the
Second Amendment--against Pletcher, Pepersack, Messick, and the state
police commander, Colonel Elmer Tippett. The defendants moved to
dismiss, and the district court granted the motion.
Love appeals.
II.
We divide due process into "substantive" and "procedural" prongs, though
the latter term is redundant and the first is, strictly speaking, a
conflict in terms. Love asserts only a substantive due process claim.
Substantive due process is a far narrower concept than procedural; it is
an absolute check on certain governmental actions notwithstanding "the
fairness of the procedures used to implement them." Weller v. Dep't of
Social Services, 901 F.2d 387, 391 (4th Cir. 1990) (quoting Daniels v.
Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)).
To win her case, Love must first have a property right in the approval
of her application to purchase a handgun. Property rights can be created
and defined by state laws, Board of Regents v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), but laws calling for
issuance of a license or permit cannot create property rights unless
"the [state actor] lacks all discretion (p.123)to deny issuance of the
permit or to withhold its approval. Any significant discretion conferred
upon the local agency defeats the claim of a property interest." Gardner
v. Baltimore Mayor & City Council, 969 F.2d 63, 68 (4th Cir. 1992).
Whether Love has a property interest under Gardner is a close call, as
is whether Gardner ought to even apply outside the context of land use.
[2] The state permitting statute, 27 Md.Code Ann. ง 442, requires the
applicant to deny all potentially disqualifying circumstances in the
application itself. The police have the power to deny the application
only if it is incomplete or any information on it is false. It is a
stretch to deem that power "discretionary." Nonetheless, because we
decide below that Love's claim fails the second prong of the substantive
due process test, we will assume without deciding that Gardner does
govern here and that Love has a property interest in approval of her
application.[3]
A violation of "substantive" due process occurs only where the
government's actions in depriving a person of life, liberty, or property
are so unjust that no amount of fair procedure can rectify them.
[T]he residual protections of "substantive due process" in this (or any)
context run only to state action 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 of adequate rectification by any post-deprivation state
remedies. Irrationality and arbitrariness imply a most stringent
standard against which state action is to be measured in assessing a
substantive due process claim.
Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991), cert.
denied, 502 U.S. 1097, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992).
Here we agree with the district court that Love's claim fails. Though
their acts apparently violated state law, these police officers were
forced by the extreme time constraints to streamline investigations.
They erred on the side of caution by denying applications where a
computer check showed arrests with unknown dispositions. We cannot say
that this corner-cutting was "unjustified by circumstance or
governmental interest" or that its effect was "literally incapable of
... adequate rectification by any post-deprivation state remedies."
Indeed, the deprivation here was fully rectified. State courts exist in
order to, among other things, protect citizens against misapplications
of state law. We would trivialize the Due Process Clause to invoke it
every time the citizen defeats the state in state court. The Clause is
violated only where the state courts can do nothing to rectify the
injury that the state has already arbitrarily inflicted.[4]
III.
Citing law review articles, Love argues that she has an individual
federal constitutional right to "keep and bear" a handgun, and Maryland
may not infringe upon this right. She is wrong on both counts. The
Second Amendment does not apply to the states.
( Yes it does. The incorporation doctrine flies directly in the face
of the 14th. Amendment.)
Presser v. Illinois, 116
U.S. 252, 6 S.Ct. 580, 29 L. Ed. 615 (1886); United States v. Cruikshank
, 92 U.S. 542, 23 L.Ed. 588 (p.124) (1876).[5] Moreover, even as against
federal regulation, the amendment does not confer an absolute individual
right to bear any type of firearm. In 1939, the Supreme Court held that
the federal statute prohibiting possession of a sawed-off shotgun was
constitutional, because the defendant had not shown that his possession
of such a gun bore a "reasonable relationship to the preservation or
efficiency of a well regulated militia." United States v. Miller, 307
U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939).
( The Miller Court said no such thing This is just selective editing
of a small part of a paragraph out of context so that they could assert that
they could deny this person her right to the handgun.)
It doesn't say what those judges above are attempting to make it say.
The SCoTUS in Miller said:
> In the absence of any evidence tending to show that possession or use of a
> 'shotgun having a barrel of less than eighteen inches in length'
We have before us no evidence about the shotgun of this type or
length...
> at this time
... here and now
> has some reasonable relationship to the preservation or efficiency of a
> well regulated militia,
...that the weapon in question could be used as a militia weapon
with any effectiveness.
> we cannot say that the Second Amendment guarantees
> the right to keep and bear such an instrument.
...they can't say one way or the other whether it is protected or
not.
> Certainly it is not within
> judicial notice that this weapon is any part of the ordinary military
> State of Tennessee, 2 Humph., Tenn., 154, 158.
>
No body produced any evidence one way or the other whether the
shotgun in question was of militia utility and they don't know or couldn't
determine from the evidence presented whether it was or not and sent it
back down to the lower court for further evidence gathering.
In fact just such a model of shotgun was used in WWI by U.S.
Soldiers but, since the Layton was dead and Miller was of unknown
location,...
> No appearance for appellees.
the only presentation was by the government and the court rejected most
of their argument.
Since then, the
lower federal courts have uniformly held that the Second Amendment
preserves a collective, rather than individual, right.
( Collectives don't have rights only delegated powers .)
This court's
precedent is United States v. Johnson, 497 F.2d 548 (4th Cir. 1974). In
Johnson, the defendant challenged the constitutionality of the federal
statute prohibiting possession of firearms by convicted felons. We were
not impressed (id. at 550):
( Felons without rights restored don't have the right to keep and bear
arms unless restored by the governor, the President, congress or other
body delegated to the restoration rights.)
Johnson's argument that [18 U.S.C. ง] 922(g) is an unconstitutional
violation of his Second Amendment right to keep and bear arms is not
new. See, e.g., United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83
L.Ed. 1206 (1939). The courts have consistently held that the Second
Amendment only confers a collective right of keeping and bearing arms
which must bear a "reasonable relationship to the preservation or
efficiency of a well-regulated militia." 307 U.S. at 178, 59 S.Ct. at
818.
( Collectives don't have rights only delegated powers and more
selective editing and quoting of the Miller decision that, upon close
examination of the actual case, isn't what these judges assert it to
say. See above.)
Johnson presents no evidence that section 922(g) in any way affects
the maintenance of a well regulated militia.
Love has likewise not identified how her possession of a handgun will
preserve or insure the effectiveness of the militia.
( But it is a "right of the people" and not a power of the state. What
about the rest of those that have been issued a license or perimt? Are
they now going to revoke all of them because none of the holders of
those documents will preserve or insure the effectiveness of the militia?
It seems to me that this court has refused to rectify the injury done by
the officers in their illegal denial of the license. )
The judgment is affirmed.
AFFIRMED.
LUTTIG, Circuit Judge, concurring in the judgment:
I concur only in the judgment reached by the majority, and I do so only
because Gardner v. Baltimore Mayor and City Council, 969 F.2d 63 (4th
Cir. 1992), is the law of the circuit.
------------------------------------------------------------------------
[1] She paid a fine upon conviction in Florida of participating in an
obscene show.
[2] Ownership and free use of land is "property" in perhaps the most
ancient sense known to Anglo-American law. Throughout our opinion in
Gardner, we emphasized the land-use context of our "lack of all
discretion" standard, see, e.g., id. at 68-69, and we are unwilling to
extend it where, as here, such an extension is unnecessary to our
decision.
[3] On the other hand, she had full procedural protections for this
supposed property interest, including an administrative hearing and a
right of access to the state courts under the state's administrative
procedures act. She used these procedures and vindicated her property
right, which fully explains why she has not pled a claim for denial of
procedural due process.
[4] Love also argues that the disapproval of her application violated
her "right to contract" with the gun dealer. There is no positive
federal "right to contract" at all times on all subjects, though
individuals are generally free to contract in a manner and with
objectives that do not violate local law, and this liberty may give rise
to an interest protected by the Fourteenth Amendment's Due Process
Clause. See generally, Roth, 408 U.S. at 572, 92 S.Ct. at 2706-07. This
"claim" is therefore just a component of the substantive due process
claim.
[5] Love makes an odd argument that the Maryland Constitution
incorporates the Second Amendment, and that therefore the Second
Amendment "applies" to Maryland. It may well "apply" to Maryland in this
manner, but, if it does, it is only as a matter of state law, and
violations of state law are not cognizable under ง 1983. Clark v. Link,
855 F.2d 156, 161 (4th Cir. 1988).
ActualGeek
To all the people who think gun registration is a reasonable thing: Not
this case before.
The police (or whatever busybody) who do the registration will deny
registratiosn basedo n POLITICAL MOTIVES. Note here that ther poltical
agenda caused them to violate explicit state law.
The idea that registration would ever be fair is absurd-- history is
rife with police violating the rights of citizens to exercise their
second ammendment rihgts.
This is why "gun nuts" are so fanatical about this-- it is a RIGHT, not
a PRIVILEDGE. Driving, on the other hand, is a priveledge (At least
according to the constitution.)
In article <ap60d3$8qd$1...@slb4.atl.mindspring.net>,