By: Caroline Byrd

The Supreme Court of Maryland held that disqualifying convictions in firearm applications must be evaluated based on Maryland statutes in effect at the time of application. Matter of McCloy, 488 Md. 326, 352-53, 321 A.3d 748, 764 (2024).  The court additionally held that an applicant’s federal misdemeanor conviction was not a disqualifying crime requiring denial of his firearm application. Id. at 353, 321 A.3d at 765.  When determining whether prior out-of-state convictions equate to disqualifying crimes under Maryland’s statutes, the court created an expanded “categorical approach.” Id. at 346, 321 A.3d at 760-61.

In February of 2021, Mark McCloy (“McCloy”) applied to purchase a firearm in Maryland.  State law requires applicants to obtain a handgun qualification license (“HQL”) to buy a firearm in Maryland.  The application is contingent on review and approval by Maryland State Police (“MSP”).  The MSP has the right to reject HQL applications if the applicant has been convicted of a disqualifying crime or falsely certified that they have not been convicted of a disqualifying crime on the application.  During the MSP’s review of McCloy’s application, they discovered McCloy’s federal witness tampering conviction from 1999.  Due to this conviction, the MSP denied McCloy’s application.  Pursuant to Maryland state law, out-of-state convictions are disqualifying if the MSP can show that there is a comparable and equivalent disqualifying crime in Maryland.  McCloy entered a timely appeal of the MSP’s decision.

Once an aggrieved applicant appeals a decision from the MSP, the Office of Administrative Hearings (OAH) conducts a hearing, and an administrative law judge (ALJ) reviews the case.  In this hearing, the MSP must meet a preponderance of the evidence burden “that the disapproval was proper.”  Ultimately, the ALJ affirmed the MSP’s rejection of the HQL but on different grounds, agreeing with McCloy that the equivalent Maryland statute proposed by the MSP and the federal witness tampering conviction were incomparable.  However, the ALJ cited a different disqualifying crime under Maryland law, deeming it equivalent and concluding that McCloy had “falsely represented” his conviction history.

McCloy sought judicial review in the Circuit Court for Queen Anne’s County.  The circuit court affirmed the ALJ opinion, but again on different grounds. The court agreed with the MSP about the original disqualifying crime and found that the ALJ exceeded its statutory authority by proposing a different analogous statute, violating McCloy’s procedural due process.

After another appeal, this time to the Appellate Court of Maryland, the court yet again affirmed the MSP’s decision, rejecting both of McCloy’s arguments that the federal crime was not analogous and that the Maryland statute could not be comparable because it was enacted after McCloy’s conviction.  The appellate court, in its decision, fashioned a two-step approach to determining whether the federal offense and the Maryland offense were analogous, ultimately deciding that the offenses were comparable.  Finally, McCloy appealed to the Supreme Court of Maryland, who granted cert.

The Supreme Court of Maryland framed the issue on review as whether the ALJ properly determined that Mr. McCloy’s 1999 conviction constituted a disqualifying crime warranting denial of his firearm application. Matter of McCloy, 488 Md. at 339, 321 A.3d at 756.  First, the Supreme Court of Maryland reaffirmed that the MSP should assess disqualifying convictions based on the law at the time of application. Id. at 343, 321 A.3d at 759.  The court cited Maryland State Police v. McClean, which established that the MSP must apply the law as it stands at the time of review, not at the time of conviction when assessing whether a prior offense disqualifies an applicant for a carry permit. Id. at 341-42, 321 A.3d at 758 (citing Maryland State Police v. McClean, 197 Md. App. 430, 14 A.3d 658 (2011)).  The court also emphasized that firearm regulations govern present firearm possession and that applying current Maryland law ensures consistency and fairness in evaluating past criminal conduct. Matter of McCloy, 488 Md. At 341-42, 321 A.3d at 758.  

Next, the court analyzed the criteria for determining whether two statutes constitute equivalent offenses. Matter of McCloy, 488 Md. at 344, 321 A.3d at 759.  McCloy advocated for a “categorical approach,” arguing that the federal offense must align precisely with the elements of the Maryland offense and cannot cover a broader range of conduct. Id. at 344, 321 A.3d at 759.  Under this method, he asserted that the federal statute criminalized more behaviors than its Maryland counterpart, making them non-equivalent. Id.  The MSP, on the other hand, supported the “two-step analysis” introduced by the appellate court, which first compares the elements of both statutes and then determines whether a reasonable person would conclude that they prohibit similar conduct—an argument MSP maintained applied to both the federal and Maryland offenses. Id.

Applying the categorical test to McCloy’s federal conviction and the proposed Maryland offense, the court agreed with McCloy that the elements of the federal offense sweep more broadly than the Maryland offense. Matter of McCloy, 488 Md. at 347-48, 321 A.3d at 761-62.  While the court maintained that analysis should end if the compared offense is narrower than its Maryland counterpart, it expanded the categorical approach by introducing an additional step when the offense’s elements are broader. Id. at 346, 321 A.3d at 760-61.  The court’s second step requires the MSP to determine whether an applicant’s prior conviction satisfies all the elements of a disqualifying Maryland crime. Id.

After determining that McCloy’s offense was broader than the Maryland crime, the court moved on to the second step in its augmented categorical approach. Matter of McCloy, 488 Md. at 349, 321 A.3d at 762.  Looking at the facts of the prior conviction, the court determined that McCloy would not have been convicted in Maryland because the Maryland offense applies only to judicial proceedings, whereas McCloy’s conviction was for witness tampering in an EEOC proceeding. Id. at 349, 321 A.3d at 762-63.  Therefore, the court concluded that the facts of the federal conviction do not support a conviction under the Maryland offense. Id.

The court briefly explained why it rejected MSP’s two-step approach to comparing offenses. Matter of McCloy, 488 Md. at 350-52, 321 A.3d at 763-64.  While the first step involved comparing statutory elements, the court found the second step to determine whether the offenses “prohibit similar conduct” problematic due to the lack of clear guidance on just how similar the offenses must be. Id. at 350-51, 321 A.3d at 763-64.  Additionally, it argued that the test would require the MSP to investigate the underlying facts of a conviction. Id. at 352, 321 A.3d at 764.  In such cases, the MSP would have to act as a factfinder to determine the degree of similarity between the statutes, a role beyond its intended function. Id.        The Matter of McCloy decision impacts how Maryland evaluates firearm applications, reinforcing that disqualifying convictions must be assessed under the law in effect at the time of application. Matter of McCloy, 488 Md. at 352-53, 321 A.3d at 764.  This ruling enhances procedural consistency and protects applicants from subjective or overly expansive interpretations of out-of-state convictions.  Moving forward, the decision will likely lead to greater scrutiny of disqualifying crime determinations and could prompt legislative action to clarify the scope of firearm disqualifications in Maryland.

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Caroline Byrd is a third-year student at the University of Baltimore School of Law and serves as the Comments Editor for Law Forum. She earned her bachelor’s degree in Political Science with a minor in Political Communications from James Madison University. Caroline is currently a Teaching Assistant for Introduction to Lawyering Skills and the Communications Director for Students Supporting the Women’s Bar Association. She is passionate about advancing women in the legal profession and promoting access to justice. In the spring semester, she will serve as a Property Law Scholar.