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Appeals court upholds Md. ban on gun possession by nonviolent convicts

Maryland’s ban on gun possession by someone sentenced to more than two years in prison for a nonviolent crime does not violate the constitutional right to keep and bear arms, the state’s second-highest court ruled Wednesday.

In its reported decision, the Court of Special Appeals upheld the conviction of a man found in possession of a firearm after having been sentenced years earlier to four years in prison for having violated a court order to pay child support.

The appellate court said the Second Amendment right – as interpreted by the U.S. Supreme Court as recently as last week – applies to “law-abiding” citizens seeking to carry a handgun for personal protection. A person convicted of a crime “serious” enough to warrant more than two years in prison under Maryland law cannot be deemed law-abiding, the Court of Special Appeals said in its 3-0 decision.

“The statute is not ambiguous,” Judge Douglas R.M. Nazarian wrote for the appellate court, referring to the gun possession ban in Maryland’s Public Safety Article.

“The legislature didn’t provide that any common law conviction disqualified an individual from possessing firearms,” Nazarian added. “It enumerated specifically that the individual had to receive a sentence of more than two years to be disqualified. It is the sentence imposed, not the classification of the common law crime, that determines the seriousness of the offense.”

The appellate court rejected arguments from Robert Fooks’ attorney that a person who violates a court order to pay child support does not present a threat to public safety that would justify the state’s denial of that individual’s right to possess a gun.

“’Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities,’” wrote Nazarian, quoting a Wisconsin Supreme Court decision last year in a similar Second Amendment challenge. “’By all accounts, this is a serious offense.’”

Nazarian added that Fooks’ offense went beyond failure to pay child support to include criminal contempt and a resulting four-year sentence for violating a court order that he make the payments – conduct that “fell outside the scope protected by the Second Amendment.”

Fooks’ appellate attorney, Peter F. Rose, stated via email Thursday that “we are obviously disappointed in the result and will be considering whether to seek further review in the coming weeks.”

Rose is an assistant Maryland public defender.

The Maryland Attorney General’s Office declined to comment on the Court of Special Appeals decision.

Fooks pleaded guilty last year in Wicomico County Circuit Court to two counts of illegal possession of a firearm by a disqualified individual. But he reserved the right to challenge the constitutionality of his disqualification, which was based on the criminal contempt conviction and four-year sentence he received in 2016.

Nazarian’s opinion upholding the conviction was joined by Judges Dan Friedman and Lynne A. Battaglia, a retired jurist sitting by special assignment.

The Court of Special Appeals rendered its decision in Robert L. Fooks v. State of Maryland, No. 269, September Term 2021.