Good & Substancial Reason

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The phrase "a reasonable precaution against apprehended danger" is a part of the "good and substantial reason" requirement imposed MD Code, Public Safety, § 5-306 for the issuance of a Maryland Wear and Carry Permit. Specifically, Section 5-306(a)(6)(ii) provides that that the MSP shall issue a permit if the applicant "has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger." So the question becomes, in part at least, what does "a reasonable precaution against apprehended danger" mean?

The phrase "a reasonable precaution against apprehended danger" is currently used in MD Code, Criminal Law, § 4-101. Section 4-101(c)(1) provides that "A person may not wear or carry a dangerous weapon of any kind concealed on or about the person. (2) A person may not wear or carry a dangerous weapon, chemical mace, pepper mace, or a tear gas device openly with the intent or purpose of injuring an individual in an unlawful manner."

However, 4-101 also provides that "(b) This section does not prohibit the following individuals from carrying a weapon: (1) an officer of the State, or of any county or municipal corporation of the State, who is entitled or required to carry the weapon as part of the officer's official equipment, or by any conservator of the peace, who is entitled or required to carry the weapon as part of the conservator's official equipment, or by any officer or conservator of the peace of another state who is temporarily in this State; (2) a special agent of a railroad; (3) a holder of a permit to carry a handgun issued under Title 5, Subtitle 3 of the Public Safety Article; or (4) an individual who carries the weapon as a reasonable precaution against apprehended danger, subject to the right of the court in an action arising under this section to judge the reasonableness of the carrying of the weapon, and the proper occasion for carrying it, under the evidence in the case.'

This proviso makes clear that a person carrying a dangerous weapon (other than a handgun) does not violate the prohibitions on the carriage of a weapon specified in 4-101 "if an individual who carries the weapon as a reasonable precaution against apprehended danger, subject to the right of the court in an action arising under this section to judge the reasonableness of the carrying." So such an individual has a defense to the 4-101 charge under this provision. Indeed, Anderson v. State, 328 Md. 426, 438, 614 A.2d 963 (1992) held that trial court improperly convicted defendant on determination that the utility knife he was carrying was dangerous and deadly weapon per se, without considering defendant's intent in fact. i.e., that "[t]he person carrying the object must have at least the general intent to carry the instrument for its use as a weapon, either of offense or defense. It is a question of fact, to be decided based on all of the circumstances." (The listed weapons in 4-101, e.g., Bowie Knives and Switchblades are considered under Anderson's reading of 4-101 to be per se dangerous weapons and need no such proof of intent). It is a *very* iffy defense, but it is at least a defense that counsel can raise and take to the jury in a given prosecution under 4-101. See Gunther v. State, 228 Md. 404, 409, 179 A.2d 880 (Md. 1962) (holding that the court "should have advised the jury that if it believed that the defendant was not seeking a fight with his brother-in-law, but on the contrary was apprehensive that he might be attacked by him, then the defendant, under such circumstances, would have a right to arm himself in anticipation of the assault", citing predecessor to 4-401 for the proposition that under 4-401, "where the carrying and wearing of a concealed weapon by any person "as a reasonable precaution against apprehended danger" is expressly excepted from the provisions of the statute regulating concealed weapons.").

Handguns used to be in 4-101 (the predecessor that is) and thus that exception applied to handguns too. Thus, pre-1972, a person carrying a handgun (without a permit) could defeat a criminal charge under 4-101 by making the showing that he was carrying a handgun in a "reasonable precaution against apprehended danger." That would be an ad hoc determination made by the trier of fact on the particular facts present at the time of the arrest under 4-101. But, in 1972, the General Assembly moved handguns prohibitions out of 4-101 into what is now MD Code, Criminal Law, § 4-203, which generally bans the possession and carrying of handguns in MD, subject to specified exceptions there listed, including having a permit under 5-306. As outlined above, the phrase "a reasonable precaution against apprehended danger" is now incorporated into the Good and Substantial Reason requirement for that permit, viz., "has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger." Thus, after the 1972 changes a person simply cannot carry a handgun like that anymore. You have to have a permit. The only role for inquiring into "a reasonable precaution against apprehended danger" is in the permit application where the MSP is the judge of the justification. Section 5-306 makes that an objective inquiry, done after an investigation. That means that reasonable precaution against apprehended danger no longer an ad hoc determination or a defense to a criminal charge.

As thus incorporated, it seems facially reasonable that the "apprehended danger" finding be objective, as that finding is "based on an investigation" and the requirement is that it is "a reasonable precaution," as determined by the MSP. This legislative history makes clear that the 1972 changes were designed to make it far more difficult to legally carry a handgun, since it now requires (unlike pre 1972) that the "reasonable precaution" showing be made ahead of time, not on an ad hoc basis limited to a particular time and place, and only then as a finding sufficient for the issuance of a permit, which is only issued by the MSP after an investigation. See Colby v. State, 362 Md. 702, 766 A.2d 639 (2001) (discussing the 1972 legislation and what is now MD Code, Criminal Law, § 4-101 and 5-306). See also State v. Crawford, 308 Md. 683, 521 A.2d 1193 (1987) (also discussing the 1972 legislation). This places that "reasonable precaution" determination squarely in the lap of the MSP, not the individual. That differs radically from the pre 1972 treatment of handguns, and for that matter, the current treatment accorded "weapons" in 4-101.

It is very hard to argue from this statutory scheme that the case-by-case inquiry of personal apprehension of danger that existed prior to 1972 for handguns and currently exists for other types of weapons under 4-101 should be imported into the post 1972 treatment of handgun permits. In fact, the 1972 changes all cut the opposite direction. In essence, with respect to handguns, the General Assembly sharply limited the circumstances in which the "reasonable precaution against apprehended danger" inquiry was relevant and changed entirely who makes that determination (from a judge and jury on an ad hoc basis under 4-101, to the MSP on a predictive basis for a permit under 5-306). Again, the person's subjective justification and state of mind in an ad hoc situation is no longer relevant post 1972. Given the underlying legislative intent to make it much harder to legally carry and given the necessarily predictive nature of a permit(a permit is good for 2 years initially and 3 years on renewal), it hardly is surprising that the MSP has been restrictive in its construction of the phrase "reasonable precaution against apprehended danger."