New Handgun Permit Board Meets, Sets Rules for Going Forward

Four of five members of the Handgun Permit Review Board are new, but that’s not all that’s changing for the embattled panel.

The board, which hears appeals to state police decisions on handgun permits, met Monday night in Crownsville for the first time since Gov. Lawrence J. Hogan Jr. (R) appointed the four new members in May. Hogan was forced to name the members after the Maryland Senate voted down three of his appointees during the General Assembly session.

Lawmakers also passed a bill that would have repealed the board altogether, but Hogan vetoed that measure. An override vote is likely when the Legislature reconvenes in January.

But in a small hearing room on Monday, the board’s new chairman, retired federal Judge Frederic Smalkin, sought to reassure a crowd of 30 or so people that the board will move forward with a backlog of appeals requests and will do so with a new, shared understanding of applicable law.

“I have had firearms all my life and I know how to use them. And I know the firearm itself is not usually the problem, it’s the people. And we’re here to take a look at that and fairly and reasonably review particular actions taken by the Maryland State Police,” Smalkin said during brief comments at the organizational meeting. He declined to answer additional questions after the board adjourned.

Smalkin was joined by other new members of the board: James Ballard, former director of law enforcement for the Pentagon, and Daniel Crowley, a former member of the U.S. Army military police who once worked as counsel to the Montgomery County Senate delegation.

The fourth new appointee – Nicholas Paros, a former major with the Maryland State Police and deputy superintendent of the Maryland Natural Resources Police – was absent from the meeting. Jacques Cowan, a Montgomery County Police detective who specializes in firearm crimes, is the only returning member to the board.

Ballard said in federal service, he put aside political and personal views to decide whether contract security officers should be issued firearm permits. He promised to do the same in his new role.

“As a member of this board I promise to fair and impartial, to look at each case for the individual substance,” he said. “I have no predetermined allegiance to any special interest group, to the Maryland State Police or any political party.”

Going forward, the board will decide cases based on preponderance of the evidence and will limit hearings to 10 minutes per side, under most circumstances.

The board will also limit new information being brought forward during hearings, allowing only under some circumstances evidence that was not presented in initial applicants or appeals filings.

“Under no circumstances will the Board consider irrelevant evidence,” the new rules state.

The board will meet more frequently – weekly, on Monday, except for holidays. Appeals will be handled like dockets in court, with a minimum of 15 days’ notice before a hearing. Smalkin said he is also working to get the board’s hearings moved to Baltimore on a regular basis, with the ability for the board to meet in alternate locations as well.

The panel will decide cases based on a new white paper on the burden of proof for hearings, which was authored by Smalkin. He said the panel previously improperly placed an undue burden of proof on Maryland State Police to uphold its decisions.

“In prior cases, it had been the custom of the Board to place the burden of proof on the Maryland State Police (“the MSP”) rather than upon the applicant, but that custom was based on a misinterpretation of governing law. …Those statutes do not in fact require the MSP to bear the burden of proof at the Board’s first-level hearings,” Smalkin wrote.

The new rules could move to diminish a backlog of cases pending before the board.

As of Monday, there were 551 outstanding appeals waiting to be heard by the board. That figure includes 96 new appeals filed while the board was dormant after the end of the legislative session, according to the Department of Public Safety and Correctional Services.

Elizabeth Banach, executive director of Marylanders to Prevent Gun Violence, was among the small crowd at the board’s meeting. The organization supported the bill repealing the board and members observe the board’s meetings.

Banach said the new board members seem qualified for their positions, but it was too soon to tell how they might decide cases. Nevertheless, she still supports a repeal of the board in favor of sending hearings to administrative law judges.

“I feel strongly that this shouldn’t be political,” she said of the governor-appointed board. “…What people seem to forget is that the partisan aspect could go either way.”

Since Hogan’s election, Democrats have been skeptical of the board’s decision-making. Sensing a more favorable board, applicants for handgun permits have increasingly filed for reconsiderations in the last five years.

The prior board came under scrutiny for frequently overturning the decisions of Maryland State Police on handgun permits. Last year, the board reversed or modified the decisions of the Maryland State Police 222 times and sustained the agency’s decision just 37 times, according to an annual report. Most of the changes to state police decisions were modifications to permits that were approved with restrictions; about 40 percent of the cases where the board upheld state police decisions came after applicants failed to appear at hearings.

In vetoing the bill to eliminate the board, Hogan said shifting the appeals process from the board to administrative law judges wouldn’t improve public safety, but would impose “costly barriers for law-abiding individuals who wish to exercise their due process appeal rights.”

Banach and lawmakers have said they will continue to push for the panel’s repeal via a veto override when the General Assembly reconvenes in January.

“The Speaker is talking to her leadership team and [Senate] President [Thomas V. Mike] Miller about the veto overrides and will be making a decision in the next few months, prior to the start of session,” Alexandra M. Hughes, chief of staff for newly elected House Speaker Adrienne A. Jones (D-Baltimore County) said Monday.

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