By Stuart Berman
The number of firearms available in the United States has nearly tripled over the past two decades, to the point where firearms outnumber people. Yet the Second Amendment is not limitless. The federal criminal code makes it unlawful for “prohibited persons” to possess a firearm: convicted felons (specifically, persons convicted of a crime punishable by imprisonment for a term exceeding one year); fugitives; drug addicts; persons adjudicated as mental defectives or committed to mental institutions; unlawful aliens; persons dishonorably discharged from the military; persons who renounced U.S. citizenship; persons subject to certain restraining orders; and persons convicted of misdemeanor domestic violence. A person who “knowingly violates” these prohibitions faces up to 10 years in prison in most cases, and up to life under certain circumstances.
Does “knowingly” mean the government must prove only that the defendant fell into an enumerated category and knowingly possessed a firearm? Or must the government also prove that the defendant knew he was a prohibited person? Read More…
Pirates and Piracy: The Supreme Court Will Examine Whether States are Immune from Copyright Infringement Claims in a Dispute Over Blackbeard’s Shipwreck
By John Grimm
The Supreme Court has agreed to hear a case that will determine whether Congress can abrogate states’ sovereign immunity with respect to copyright infringement claims. Allen v. Cooper, No. 18-877. The case arises out of an underwater research expedition to document and salvage the wreck of Blackbeard’s ship off the coast of North Carolina. The salvage team alleges that, without permission, North Carolina published some of the team’s footage on the internet, violating its copyright in the footage.
Food trucks vs. brick-and-mortar restaurants, vestiges of Lochner v. New York, and the parameters of Maryland’s rational basis test – Pizza di Joey, LLC v. Mayor of Baltimore
Economic rivalries between classes of competitors have long existed. In the late eighteenth century, for example, disputes between shepherds and cattlemen were legendary, and clashes between farmers and ranchers supplied the grist for movies depicting life in the American west. In the urban America of the early twenty-first century, a rivalry has developed between food truck vendors and the operators of brick-and-mortar restaurants. The past ten years have seen a rapid increase in the number of food trucks in scores of American cities, leading to restaurateurs’ cries of unfair competition. Different cities have responded in different ways, with some localities welcoming food trucks and carts, while others have acted to protect restaurants by restricting the areas where food trucks may operate. See America’s food-truck industry is growing rapidly despite roadblocks, The Economist, May 2, 2017. Baltimore falls within the latter camp. In an opinion authored by Judge Douglas Nazarian – for a panel that included Judge Daniel Friedman and Senior Judge of the Court of Appeals (specially assigned) Lynne Battaglia – the Court of Special Appeals discussed Baltimore’s regulation of food trucks, considered a legal argument that flowed from the Supreme Court’s decision in Lochner v. New York, 198 U.S. 45 (1905) and explained the parameters of Maryland’s rational basis test. Pizza di Joey, LLC v. Mayor of Balt., No. 2411, Sept. Term, 2017 (May 30, 2019). Ultimately, the Court upheld Baltimore’s regulation.
Court of Appeals Confirms Taxpayer Standing to Challenge Unlawful Government Spending but Clouds the Concept of Standing Under Maryland Law
An October 2018 post on this Blog covered the Court of Appeals’ decision to review two cases on the burgeoning and ever complex subject of taxpayer standing. On April 1, 2019, the Court decided Floyd v. Baltimore, and George v. Baltimore Co., adding those decisions to its lengthy and growing commentary on taxpayer standing. The Court’s decisions are clear that taxpayers do have standing to challenge government economic waste resulting from violations of law. In so doing, however, the Court muddled the analytical construct it has been struggling to define for testing when taxpayer standing will be recognized in actions challenging unlawful government action.
The Maryland Court of Appeals has been granting fewer certiorari petitions this term. Now we have some numbers to help analyze that decline.
For two years now, I’ve tracked the Court of Appeals’ petition docket. The judiciary’s annual statistical reports give the overall grant rate for civil and criminal certiorari petitions. Because the majority of petitions each year are filed pro se, the overall statistics are not terribly helpful for lawyers in advising their clients regarding the odds of certiorari.
Refining my approach from last year, I have compiled the statistics for the 2018 Term (petitions filed 3/1/2018 to 2/28/2019), alongside revised statistics for the 2017 Term (petitions filed 3/1/2017 to 2/28/2018). Read More…
It’s not really new—corporations cannot participate in court proceedings without an attorney. The same concept applies to the otherwise informal process before an administrative agency. So what should a corporation do when its counsel withdraws from an administrative proceeding? The Court of Special Appeals recently answered the question in an unreported decision—retain counsel or say something to preserve the issue for further review.
Lamone v. Benisek: Round Three in the Supreme Court for Partisan Gerrymandering Challenges to Maryland’s Sixth Congressional District
The Supreme Court will hear oral argument on March 26, 2019 for the third time in the ongoing legal challenge to the 2011 changes in Maryland’s Sixth Congressional District. Lamone v. Benisek, No. 18-726 (“Benisek”). Boundary changes to the Sixth District were made after the 2010 census, and Appellees in Benisek successfully challenged before a three-judge panel of the federal district court below the changes as retaliation for their voting as Republicans in the Sixth District during past general elections. Benisek will be argued in conjunction with Rucho v. Common Cause, No. 18-422 (“Rucho”), in which, in addition to the First Amendment grounds asserted in Benisek, Appellees successfully challenged before another three-judge court, on Equal Protection grounds, South Carolina’s Congressional redistricting after the 2010 census. Read More…
McLaughlin Opinion Provides Valuable Guidance After Final Judgment Rule Sinks Another Maryland Appeal
A recent foreclosure action in the Court of Special Appeals presented Judge Arthur with the opportunity to cleanly explain one of the more maddening—and anxiety-producing—rules of appellate practice, the Final Judgment Rule. See McLaughlin v. Ward, No. 1827, September Term 2017 (Jan. 30, 2019). The rule begins with a simple premise: one cannot appeal a trial court’s ruling until the court has entered a final judgment that resolves every claim in the case. See Md. Code Ann., Cts. & Jud. Proc. § 12-301. Yet, the rule has exceptions. And it is those exceptions that bedevil practitioners (and courts) as they grapple with proper application of the rule and try to avoid noting an appeal too early or—even worse—too late.
Court of Special Appeals Rules for Adverse Possessor in Dispute About a Property on the Ocean City Boardwalk
On December 21, 2018, in Nathans Associates v. The Mayor and City Council of Ocean City, the Court of Special Appeals handed the descendants of Nathan Rapoport a big victory, preventing Ocean City from kicking Nathans Associates out of a property the Rapoport family has continuously occupied and controlled since 1912 (the “Nathans Property”). In so doing, the Court reversed a trial verdict for Ocean City issued by retired Maryland Court of Appeals Judge Dale R. Cathell. This case is a cautionary tale for anyone who has the burden of proof to show that a modern-day building is located at a particular point on an old plat in a town’s records. The case is also interesting because of a motion to recuse that Nathans Associates made during the trial, after Ocean City introduced a letter that Judge Cathell wrote to Mr. Rapoport in 1972 when Judge Cathell was the City Solicitor of Ocean City. The Court of Special Appeals found no abuse of discretion in Judge Cathell’s denial of Nathans Associates’ recusal motion.
One of the Court of Appeals’ more notable decisions from 2018 is Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607 (2018), which analyzed the scope of a Maryland tort defendant’s duty of care. The Partlow court was asked whether medical researchers at Kennedy Krieger[i] owed a duty of care not only to participants in its medical research study on lead-paint abatement but also to a participant’s sibling, who was not part of the study. With compelling arguments from both sides, the court split 4-3, holding that the researchers owed a duty to the non-participating sibling.