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Justices asked to consider Md.’s gun possession by prohibited person law

A man who was unaware that a nearly 20-year-old simple-assault conviction in Pennsylvania barred him from possessing a gun in Maryland will appeal to the U.S. Supreme Court his felony conviction for gun possession by a prohibited person.

Maryland’s top court unanimously upheld Mashour Howling’s conviction in April. The Court of Appeals ruled that a defendant’s knowledge of being a prohibited person is not an element of the state’s illegal gun possession law.

In papers filed this month, Howling told Chief Justice John Roberts through counsel that he will urge the Supreme Court to hear his appeal and rule that knowledge of wrongdoing is an essential element of felonious crimes.

This need to know is rooted in the common law and due regard — or “comity” — for another state’s finding, in this case Pennsylvania’s, that an offense such as simple assault is not serious enough to disqualify someone from possessing a gun there, stated attorney Michael A. Wein.

Howling is now a convicted felon “for possessing a gun as a disqualified person under Maryland law, by Maryland’s ‘re-interpretation,’ lacking comity concerns, of his 20-year-old Pennsylvania non-disqualifying ‘simple assault’ misdemeanor he received probation for and served no jail time,” wrote Wein, a Greenbelt solo practitioner.

“Nevertheless, the state of Maryland judicially determined, as affirmed on appeal, no circumstances can exist to allow Mr. Howling to argue his mens rea (lack of knowledge) was reasonable, to a jury, (and) he did not have a guilty mind of his ‘status’ of having a previous ‘crime of violence’ that disqualified him from possessing a firearm – a felony conviction in Maryland,” Wein added. “Yet Maryland instead applied a mechanistic meaning to the statute, regardless of state comity concerns and the common law applicable to all the original states, potentially permanently labeling Mr. Howling as a ‘felon.’”

Wein announced his intention to appeal and outlined his argument in asking Roberts to give him more time to file the formal petition for Supreme Court review of the Court of Appeals decision. Roberts, the justice assigned to oversee appeals from Maryland’s high court, granted Wein’s requested 30-day extension until Oct. 13, which was based on what Wein called Howling’s recent ability to afford private counsel and the complexity of the appellate issues.

The Maryland Attorney General’s Office declined to comment on the forthcoming appeal.

Wein’s filing is docketed at the Supreme Court as Mashour Howling v. Maryland, No. 22A208

In its decision, the Court of Appeals rejected Howling’s argument that Maryland’s law was analogous to a federal statute that the Supreme Court has held requires proof that the defendants knew not only that they were in possession of the firearm but that they were barred from possessing it due to their criminal history.

The Court of Appeals said the Supreme Court’s 2019 Rehaif v. United States decision interpreting the federal law – found in U.S. Code Chapter 18 — is irrelevant to Howling’s case because knowledge of being a prohibited person is not an element of the Maryland crime as defined in the state’s Public Safety Article.

“Similarity between a Maryland and a federal statute is not sufficient justification for this court to apply a federal court’s interpretation of a federal statute to a Maryland statute,” Judge Michele D. Hotten wrote for the Court of Appeals.

“While the plain text of 18 U.S.C. § 924(a) requires knowledge of prohibited status, the plain text of Pub. Safety § 5-133(b) only requires knowledge of the defendant’s possession of a firearm,” Hotten added. “Even if Pub. Safety § 5-133 was at one point directly inherited from 18 U.S.C. § 922(g), the material differences in the plain language of the statutes necessitate different interpretations.”

Howling was found guilty in Montgomery County Circuit Court in 2019 of gun possession by a prohibited person. The intermediate Court of Special Appeals upheld the conviction last year, prompting Howling to seek review by the Court of Appeals.

The Court of Appeals rendered its decision in Mashour Howling v. State of Maryland, No. 35, September Term 2021.