Proof HQL Needed for Handguns Purchased Prior to 10/1 but Transferred After 10/1?

[Dreago]

If they file this lawsuit come 10/1 + however many days, the HQL won't be needed until it's settled....right?

 

[Brooklyn]

In the legislative/regulatory world, intent does not matter. What matters is what is written in the statute/regulations. I've had this discussion many a time with lawyers with whom I work.

True.but failing to speak to an issue is not the same as asserting the issue

.

Msp has broad discretion here. Since the law is effectively silent that silence can only tell us that the msp can decide to not require the HCl for pending purchases.

The law does not require that they do or do not. Evidence of legisative intent would be used to defend that discretion.

It is thin, but it gives us a chance..
The Mga could have been explicit one way or the other and that failure implies that they intended to leave that detail to the msp.

Factor in a backlog and even more workload, and the msp may well decide to take the path of least work.

Or not.

But I do not think the failure to pass the ammendment tells us much esp if the debate centered on " let msp decide" or its already covered by the purchase order language..

 

[Brooklyn]

If they file this lawsuit come 10/1 + however many days, the HQL won't be needed until it's settled....right?

Assuming the law is injoined... As I understand it.

 

[Brooklyn]

Just for reference, here's the clause that we have been chewing on:

A DEALER OR ANY OTHER PERSON MAY NOT SELL, RENT, OR TRANSFER A HANDGUN TO A PURCHASER, LESSEE, OR TRANSFEREE UNLESS THE PURCHASER, LESSEE, OR TRANSFEREE PRESENTS TO THE DEALER OR OTHER PERSON A VALID HANDGUN QUALIFICATION LICENSE ISSUED TO THE PURCHASER, LESSEE, OR TRANSFEREE BY THE SECRETARY UNDER THIS SECTION.

The "transfer" word is what stands out as a separate action.

Yup. The po lang may or may not apply here as it does to banded long guns

Msp can require such a Lic. But the law may not mandate that they do. Here there may be a distinction between po and transfer paperwork pending.

I would think msp has more than enough discretion to allow pending transfers to complete. Po for gun not yet manufactured ma be another matter.

Given the fact that they really do not want this to go to discovery ( which is why they settled - BTW they took the full alotted time to respond. This was about delay. They knew they would lose they used the delay but did not risk getting to discovery even though that would mean more delay. This suggests to me they really do not want discovery...). I think they will use their discretion to avoid creating causes of action that may get that far.

 

[flyingblind]

ShallNotInfringe

The folks in the situation you outlined appear to be screwed. It could literally be over a year before they ever have possession of their handgun.

Lawsuit...

 

[Brooklyn]

Yep, the only time legislative intent comes into play is when the legislation that is passed is ambiguous.

The State v. Chow case regarding "transfer" has the methodology for statutory interpretation in it.

Chow v. State, 393 Md. 431, 903 A.2d 388 (Md. App., 2006)

"If statutory language is unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as it is written. Collins, 383 Md. at 688-89, 861 A.2d at 730. If there is no ambiguity in that language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends; we do not need to resort to the various, and sometimes inconsistent, external rules of construction, for `the Legislature is presumed to have meant what it said and said what it meant.' Arundel Corp. v. Marie, 383 Md. 489, 502, 860 A.2d 886, 894 (2004) (quoting Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002))."

Kushell, 385 Md. at 576-77, 870 A.2d at 193-94. Furthermore, as we stated in Price v. State, 378 Md. 378, 835 A.2d 1221 (2003):

"In some cases, the statutory text reveals ambiguity, and then the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal. However, before judges may look to other sources for interpretation, first there must exist an ambiguity within the statute, i.e., two or more reasonable alternative interpretations of the statute. Where the statutory language is free from such ambiguity, courts will neither look beyond the words of the statute itself to determine legislative intent nor add to or delete words from the statute. Only when faced with ambiguity will courts consider both the literal or usual meaning of the words as well as their meaning in light of the objectives and purposes of the enactment. As our predecessors noted, `We cannot assume authority to read into the Act what the Legislature apparently deliberately left out. Judicial construction should only be resorted to when an ambiguity exists.' Therefore, the strongly preferred norm of statutory interpretation is to effectuate the plain language of the statutory text."

To me, it seems pretty clear that a handgun cannot be transferred to a customer after September 30, 2013, unless the customer has a HQL. The law goes into effect on October 1, 2013 and there is no exception for handguns paid for prior to October 1, 2013 or paperwork submitted to MSP prior to October 1, 2013. This is the premise I have been operating under until the MSP or the AG states otherwise in writing.

Somebody correct me if I am wrong and the language is not crystal clear.

In the case of a pending transfer ( paperwork in play). That transfer is effectively complete under present law on day 8 unless denied.
As recently conceeded by the msp.

Only transfers that are still within the 8 day window on 1 Oct will still be pending. All other transfers will be complete under the law. Even if no exception is made under the law for pending transfers only those still pending would be affected.

Also I do not think the law is that clear. I do agree that msp could assert that all pending transfers would need an HCl to complete. I amnot sure how they could add the requirement for completed transfers.

The timely ness of msp processing no longer prevents the completion of a transfer. I also think that transfer may complete even if posession is still pending.

I could be all wet. But I don't think this is so simple.

 

[fabsroman]

True.but failing to speak to an issue is not the same as asserting the issue

.

Msp has broad discretion here. Since the law is effectively silent that silence can only tell us that the msp can decide to not require the HCl for pending purchases.

The law does not require that they do or do not. Evidence of legisative intent would be used to defend that discretion.

It is thin, but it gives us a chance..
The Mga could have been explicit one way or the other and that failure implies that they intended to leave that detail to the msp.

Factor in a backlog and even more workload, and the msp may well decide to take the path of least work.

Or not.

But I do not think the failure to pass the ammendment tells us much esp if the debate centered on " let msp decide" or its already covered by the purchase order language..

The law is NOT silent as to whether a dealer can transfer the firearm without a HQL being presented.

A DEALER OR ANY OTHER PERSON MAY NOT SELL, RENT, OR TRANSFER A HANDGUN TO A PURCHASER, LESSEE, OR TRANSFEREE UNLESS THE PURCHASER, LESSEE, OR TRANSFEREE PRESENTS TO THE DEALER OR OTHER PERSON A VALID HANDGUN QUALIFICATION LICENSE ISSUED TO THE PURCHASER, LESSEE, OR TRANSFEREE BY THE SECRETARY UNDER THIS SECTION.

Again, this seems pretty clear to me. A dealer will NOT be able to perform the transfer unless the purchaser has a HQL after September 30, 2013. Is the MSP going to issue a COMAR that says the State's Attorney will not prosecute a dealer for violating the law?

What is the fixation about the HQL being necessary for the Form 77r? Even if MSP says the HQL is NOT required to have the Form 77r completed, what authority does MSP have to make the actual law NOT applicable to dealers?

 

[fabsroman]

In the case of a pending transfer ( paperwork in play). That transfer is effectively complete under present law on day 8 unless denied.
As recently conceeded by the msp.

Only transfers that are still within the 8 day window on 1 Oct will still be pending. All other transfers will be complete under the law. Even if no exception is made under the law for pending transfers only those still pending would be affected.

Also I do not think the law is that clear. I do agree that msp could assert that all pending transfers would need an HCl to complete. I amnot sure how they could add the requirement for completed transfers.

The timely ness of msp processing no longer prevents the completion of a transfer. I also think that transfer may complete even if posession is still pending.

I could be all wet. But I don't think this is so simple.

Yeah, read State v. Chow as to when the transfer occurs. The sale might occur prior to October 1, 2013, but the transfer certainly does not unless the gun is actually physically released to the purchaser prior to October 1, 2013. Now, show me how a dealer can legally transfer the sold handgun to a purchaser after September 30, 2013 without the purchaser/transferee presenting a HQL to the dealer?

Let me clarify here.

Sale is when a dearler sells a firearm to a customer. Transfer is when an FFL transfers a firearm from one person to another, but where the sale is not being made by the FFL.

In regards to a sale, the sale is actually concluded once the firearm is delivered. There is no way a contract can be completed when one party pays for an item, but the item has not been received. So, the sale is completed upon the release of the firearm to the purchaser.

With a transfer, the transfer is completed upon the actual transfer of the firearm to the transferee.

Just because the MSP says that a dealer can complete the sale or transfer on or after the 8th day does NOT mean the sale or transfer is de facto complete on the 8th day even if the handgun has NOT been given to the purchaser or transferee.

 

[ShallNotInfringe]

IIRC , the law requires that after October 1, the purchaser of a handgun needs to show a HQL when:

1. the sale occurs
And
2. the transfer occurs

There is no exemption for the 2 events splitting across the effective date of the law.

 

[esqappellate]

If they file this lawsuit come 10/1 + however many days, the HQL won't be needed until it's settled....right?

Incorrect. Unless or until a preliminary injunction is issued, the mere pendency of a lawsuit does not operate to suspend any provision of the statute.

 

[Brooklyn]

Yeah, read State v. Chow as to when the transfer occurs. The sale might occur prior to October 1, 2013, but the transfer certainly does not unless the gun is actually physically released to the purchaser prior to October 1, 2013. Now, show me how a dealer can legally transfer the sold handgun to a purchaser after September 30, 2013 without the purchaser/transferee presenting a HQL to the dealer?

Let me clarify here.

Sale is when a dearler sells a firearm to a customer. Transfer is when an FFL transfers a firearm from one person to another, but where the sale is not being made by the FFL.

In regards to a sale, the sale is actually concluded once the firearm is delivered. There is no way a contract can be completed when one party pays for an item, but the item has not been received. So, the sale is completed upon the release of the firearm to the purchaser.

With a transfer, the transfer is completed upon the actual transfer of the firearm to the transferee.

Just because the MSP says that a dealer can complete the sale or transfer on or after the 8th day does NOT mean the sale or transfer is de facto complete on the 8th day even if t
he handgun has NOT been given to the purchaser or transferee.

Hum the contract of sale from all my ffls specifies that the sale is complete and final. Ownership interest has transfered but not posession. In the event of a denied the terms specify the costs I will incur to reverse the sale,, or optionally transfer to a non prohibited person.

Now I don't know how blanked up this can get. But I can see a test case or two

BTW if an ffl was not wiling to release physical posession of the firearm but was willing to allow sign off on the paperwork , would that make the transfer complete? This looks like a shit storm of litigation that msp would be wise to avoid ..
Esp if they have no effective process to issue HQLS at all let alone in a timely manner.

Oh well here s to litigation.

 

[Brooklyn]

The law is NOT silent as to whether a dealer can transfer the firearm without a HQL being presented.

A DEALER OR ANY OTHER PERSON MAY NOT SELL, RENT, OR TRANSFER A HANDGUN TO A PURCHASER, LESSEE, OR TRANSFEREE UNLESS THE PURCHASER, LESSEE, OR TRANSFEREE PRESENTS TO THE DEALER OR OTHER PERSON A VALID HANDGUN QUALIFICATION LICENSE ISSUED TO THE PURCHASER, LESSEE, OR TRANSFEREE BY THE SECRETARY UNDER THIS SECTION.

Again, this seems pretty clear to me. A dealer will NOT be able to perform the transfer unless the purchaser has a HQL after September 30, 2013. Is the MSP going to issue a COMAR that says the State's Attorney will not prosecute a dealer for violating the law?

What is the fixation about the HQL being necessary for the Form 77r? Even if MSP says the HQL is NOT required to have the Form 77r completed, what authority does MSP have to make the actual law NOT applicable to dealers?

If you are right about the meaning of transfer then it will not work.

Transfer and possession do not seen the same to me.

But I defer to you. I have no dog in this fight. Yet.I do have a gun inbound as a free door prize, but I don't expect to even see it till sept or October.. And since its free I can wait.

Hell I may cost me more to get the hql than the gun is worth.

 

[ShallNotInfringe]

If you are right about the meaning of transfer then it will not work.

Transfer and possession do not seen the same to me.

But I defer to you. I have no dog in this fight. Yet.I do have a gun inbound as a free door prize, but I don't expect to even see it till sept or October.. And since its free I can wait.

Hell I may cost me more to get the hql than the gun is worth.

Now you ready to start talking about the banned gun language?

Seems like now that there's a clear distinguishment between transfer and possession terms...

Everyone believes a purchase order is a golden ticket for the banned guns. Except me and a few others.

4–303. (a)
Except as provided in subsection (b) of this section, a person may not:
(1) transport an assault [pistol] WEAPON into the State; or
(2) possess, sell, offer to sell, transfer, purchase, or receive an assault WEAPON.

(b)...
(3) A PERSON WHO LAWFULLY POSSESSED, HAS A PURCHASE ORDER FOR, OR COMPLETED AN APPLICATION TO PURCHASE AN ASSAULT LONG GUN OR A COPYCAT WEAPON BEFORE OCTOBER 1, 2013, MAY:
(I) CONTINUE TO POSSESS AND TRANSPORT THE ASSAULT LONG GUN OR COPYCAT WEAPON; OR..

In (a) they call out a list, in (b) (3) they exempt only one of them.., possess. Not transfer or receive.

 

[Brooklyn]

Now you ready to start talking about the banned gun language?

Seems like now that there's a clear distinguishment between transfer and possession terms...

Everyone believes a purchase order is a golden ticket for the banned guns. Except me and a few others.

What makes you think I can help. The real lawyers shot down all my

Wacky notions. . I say if the law were any other profession they would never get away with all this. ..

Po may work but only litigation can define verifiable.

I am sure that they may try some mischief .

But Iam not sure what..

A binding contract is a binding contract. One issue is that they may claim that the delivery date must be specified and that it must be before 1 Oct .

This may not be upheld. But since actual delivery and promised delivery need not be the same I am not sure that helps anyway.

 

[fabsroman]

Now you ready to start talking about the banned gun language?

Seems like now that there's a clear distinguishment between transfer and possession terms...

Everyone believes a purchase order is a golden ticket for the banned guns. Except me and a few others.

I think a purchase order dated before October 1, 2013 means you are getting your assault weapon some time down the road when MSP catches up to it or 8 days after you assault weapon gets to your FFL if your FFL is releasing after 8 days. I think that is pretty clear. What language do you see that botches it up?

Is it that a dealer may not transfer an assault weapon after October 1, 2013? I'm guessing that is what it is.

Wow, there is no exception for an FFL to receive an assault weapon that a customer has a purchase order in place prior to October 1, 2013. Holy smokes, this is about as screwed up as possible. No doubt that the legislature intended for people to be able to have their assault weapon transactions wrapped up after September 30, 2013, but there is no way for a dealer/FFL to take possession of the assault weapon after September 30, 2013 to complete the sale.

Wow.

Again, no doubt they intended to allow people to continue to order assault weapons up to September 30, 2013, but there is just no way for the dealer/FFL to possess them after September 30, 2013 unless the dealer/FFL possessed them before that.

4-303

A LICENSED FIREARMS DEALER MAY CONTINUE TO POSSESS, SELL, OFFER FOR SALE, OR TRANSFER AN ASSAULT LONG GUN OR A COPYCAT WEAPON THAT THE LICENSED FIREARMS DEALER LAWFULLY POSSESSED ON OR BEFORE OCTOBER 1, 2013.

 

[ShallNotInfringe]

What makes you think I can help. The real lawyers shot down all my

Wacky notions. . I say if the law were any other profession they would never get away with all this. ..

Po may work but only litigation can define verifiable.

I am sure that they may try some mischief .

But Iam not sure what..

A binding contract is a binding contract. One issue is that they may claim that the delivery date must be specified and that it must be before 1 Oct .

This may not be upheld. But since actual delivery and promised delivery need not be the same I am not sure that helps anyway.

Yeah, but you're always up for an interesting conversation and I figure Fabsroman will jump in this discussion...

The discussion on the floor pertaining to the FFL side of being able to continue selling, etc. was to allow them to sell out of state to rid themselves of inventory.

 

[ShallNotInfringe]

I think a purchase order dated before October 1, 2013 means you are getting your assault weapon some time down the road when MSP catches up to it or 8 days after you assault weapon gets to your FFL if your FFL is releasing after 8 days. I think that is pretty clear. What language do you see that botches it up?

How do you receive it?

 

[fabsroman]

What makes you think I can help. The real lawyers shot down all my

Wacky notions. . I say if the law were any other profession they would never get away with all this. ..

Po may work but only litigation can define verifiable.

I am sure that they may try some mischief .

But Iam not sure what..

A binding contract is a binding contract. One issue is that they may claim that the delivery date must be specified and that it must be before 1 Oct .

This may not be upheld. But since actual delivery and promised delivery need not be the same I am not sure that helps anyway.

Regarding assault weapons, the law states that a person may continue to possess an assault weapon if the purchase order is dated prior to October 1, 2013. However, an FFL cannot transfer an assault weapon that it does not possess prior to October 1, 2013. So, if you have a purchase order with JP Rifles for a lower and it is dated September 30, 2013, the FFL cannot receive that lower after September 30, 2013. Time to order that lower/upper this weekend and tell the people I know to get on the stick about the assault weapons.

 

[ShallNotInfringe]

Regarding assault weapons, the law states that a person may continue to possess an assault weapon if the purchase order is dated prior to October 1, 2013. However, an FFL cannot transfer an assault weapon that it does not possess prior to October 1, 2013. So, if you have a purchase order with JP Rifles for a lower and it is dated September 30, 2013, the FFL cannot receive that lower after September 30, 2013. Time to order that lower/upper this weekend and tell the people I know to get on the stick about the assault weapons.

It's worse than that.... Not only does the FFL have to have it. A person can't receive it after 10/1. They can possess it. And transport it.

Thought it was established that a transfer/receive is a separate act from possessing. The law calls them out as separate items.

(b) (3) does not exempt "receive" under the Purchase Order language... But it does specifically prohibit "receive" under (a) (2) as a separate item:

(2) possess, sell, offer to sell, transfer, purchase, or receive an assault WEAPON.

Sorry for all the editing, am flapping back and forth between the forum and the law document.

And I didn't mean to cause you guys to run to the gun store

 

[Brooklyn]

Regarding assault weapons, the law states that a person may continue to possess an assault weapon if the purchase order is dated prior to October 1, 2013. However, an FFL cannot transfer an assault weapon that it does not possess prior to October 1, 2013. So, if you have a purchase order with JP Rifles for a lower and it is dated September 30, 2013, the FFL cannot receive that lower after September 30, 2013. Time to order that lower/upper this weekend and tell the people I know to get on the stick about the assault weapons.

Is a lower an banned weapon? Its not on the banned list ( no lowers are) and hbars are c&C. Will it be legal to buy a lower out of state as a type other? If not where is the legal authority to restrict it?

I should be able to by any hbar right. Ar-10's right?

Notice I will most likely skip maryland as a source of hbars.... there are easier to find out of state somehow...



Now the language that says they can sell their existing inventory does that mean they can only sell existing inventory. Can a dealer stock inventory for sale out of state? Does MD have jurisdiction over interstate (and exclusively interstate) commerce between FFL. ? How could a dealer deliver product to police or military users ( exempted as I recall ) if they can not recieve any banned weapons ?

I am not sure that this law can be interpreted in a consistent way at all...