Under Maryland's firearms law, does a common law assault or battery conviction count as a 'crime of violence' that bars someone from possessing a regulated firearm, and does that same 'crime of violence' definition sweep in every crime punishable by more than a year in prison?

Plain-English summary

Baltimore City State's Attorney Patricia C. Jessamy asked the Attorney General to interpret two categories in Maryland's statutory definition of "crime of violence" under the firearms law, a definition that matters because a person convicted of a crime of violence cannot legally possess a regulated firearm and faces a mandatory minimum five-year sentence for doing so. Her questions, prompted by the newly passed Responsible Gun Safety Act of 2000: did a conviction for common law assault or battery fall within the statute's "assault in the first or second degree" category, and did the statute's final catch-all category (assault with intent to commit certain offenses, or "any offense punishable by imprisonment for more than 1 year") sweep in every crime carrying over a year of potential prison time, regardless of whether it involved an assault?

The opinion answered yes to the first question and no to the second. On common law assault and battery, it traced a 1996 statutory revision that introduced "first degree assault" and "second degree assault" and defined "assault" to retain its judicially developed common law meaning, concluding that a conviction for either common law assault or battery is legally a "second degree assault" conviction and therefore a crime of violence. On the catch-all category, the opinion concluded, based on the statute's structural pattern, grammar, and six decades of legislative history dating to 1941, that the phrase only covers an assault committed with intent to commit a serious offense, not literally any offense carrying more than a year of potential imprisonment; reading it that broadly would have made the other sixteen listed categories pointless and would have swept in offenses like unlicensed insurance sales or counterfeit lottery ticket sales that nobody would ordinarily call violent.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or definition mentioned here. The opinion's own editor's note states that Article 27, §441(e) has since been recodified as §5-101(c) of the Public Safety Article.

Common questions

Could a misdemeanor assault conviction bar someone from possessing a regulated firearm under this law? Yes. The opinion says second degree assault is a misdemeanor, but a conviction for common law assault or battery falls within the firearms law's "crime of violence" category for second degree assault. That category bars possession of a regulated firearm; it does not turn the misdemeanor into a felony.

Did every crime that could carry more than a year in prison count as a "crime of violence" for firearms purposes? No. The opinion rejected that broad reading of the statute's final catch-all category, concluding it only covers assault committed with intent to commit a serious offense (either one of the other listed crimes or any offense punishable by more than a year), not any standalone offense punishable by more than a year regardless of whether it involved an assault at all.

Why did the opinion think the broader reading of the statute couldn't be right? It gave several reasons: the statute's structure lists distinct numbered categories of offenses, and the broad reading would improperly cram two different concepts into one category; the more natural grammatical reading links "assault with intent to commit" to both following phrases; the historical 1941 version of the law used clearly parallel assault-based language; and reading the catch-all broadly would have made the other sixteen categories legally pointless, sweeping in things like unlicensed insurance sales and counterfeit lottery ticket sales that the Legislature never signaled it meant to treat as violent crimes.

Background and statutory framework

Under the Maryland firearms law, a person convicted or adjudicated delinquent of a "crime of violence" may not possess a regulated firearm (Article 27, §445(d)(1)), with violations carrying a mandatory minimum five-year sentence and up to a $10,000 fine (Article 27, §449(e)-(f), as amended by the Responsible Gun Safety Act of 2000, Chapter 2, Laws of Maryland 2000). A crime-of-violence indictment or conviction also affects a person's ability to hold a regulated firearms dealer license under Article 27, §443(h)-(i). The statute's 17-category definition of "crime of violence," Article 27, §441(e), lists specific offenses from abduction and arson to murder and robbery, ending with "assault with intent to commit any of the aforesaid offenses or any offense punishable by imprisonment for more than 1 year."

The opinion traced the "crime of violence" definition back to its original 1941 enactment (Chapter 622, Laws of Maryland 1941), which already used similar assault-based language, through a 1996 reorganization (Chapters 561, 562, Laws of Maryland 1996) that added "any of the aforesaid offenses or" to the final category, and a separate 1996 revision (Chapter 632, Laws of Maryland 1996) that added "assault in the first or second degree" as its own category and redefined "assault" to retain its judicially determined common law meaning, corrected the following year by Chapter 14, Laws of Maryland 1997 after a codification error.

Citations and references

Statutes:

• Article 27, §441(d), (n), and (r), defining "regulated firearm" to include handguns and listed assault weapons
• Article 27, §441(e) and its numbered subsections, including §441(e)(3) ("assault in the first or second degree") and §441(e)(17) (the final catch-all category), defining "crime of violence"
• Article 27, §443(h)-(i), governing suspension and revocation of a regulated firearms dealer license upon indictment or conviction for a crime of violence
• Article 27, §445(d)(1), prohibiting possession of a regulated firearm by a person convicted of a crime of violence
• Article 27, §449(e)-(f), the mandatory minimum sentence and fine for illegal possession, as amended by Chapter 2, Laws of Maryland 2000
• Article 27, §12(b), §12A, and §12A-1, the 1996-revised assault statute defining "assault" to retain its common law meaning and establishing "first" and "second" degree assault
• Article 27, §48A, cited as an example of a non-violent offense that would improperly become a "crime of violence" under the rejected broad reading
• Article 27, §531A(4) (1941), the original 1941 definition of "crime of violence"
• Business Regulation Article, §14-228; Insurance Article, §27-405 and §27-408; and State Government Article, §9-124, cited as examples of non-violent offenses that would sweep into the definition under the rejected broad reading
• Public Safety Article, §5-101(c), the current recodification of the "crime of violence" definition
• Chapter 622, Laws of Maryland 1941, the original enactment of the "crime of violence" definition
• Chapters 561, 562, Laws of Maryland 1996, reorganizing the firearms law and adding language to the final catch-all category
• Chapter 632, Laws of Maryland 1996, revising the assault statutes and adding "assault in the first or second degree" as a crime-of-violence category
• Chapter 14, Laws of Maryland 1997, the corrective bill fixing a codification error from the 1996 revisions
• Chapter 2, Laws of Maryland 2000 (Responsible Gun Safety Act of 2000), enhancing penalties for illegal possession by a person previously convicted of a crime of violence

Cases:

• Johnson v. State, 67 Md. App. 347, 507 A.2d 1134 (1986), describing the firearms law's purpose of preventing those who have demonstrated a propensity for violence from possessing handguns
• Sangster v. State, 70 Md. App. 456, 521 A.2d 811 (1987), aff'd 312 Md. 560, 541 A.2d 637 (1988), noting that for many years simple assault and battery were not included in the "crime of violence" definition

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2000/85oag259.pdf

Original opinion text

Gen. 259]
259

CRIMINAL LAWS

F IREARMS ) D EFINITION OF "C RIME OF V IOLENCE" U NDER F IREARMS L AW

September 28, 2000

Ms. Patricia C. Jessamy
State's Attorney for Baltimore City

You have requested our opinion on two questions related to the part of the State firearms law that makes it a crime for a person who has previously been convicted of a "crime of violence" to possess a firearm. You note that the term "crime of violence" is defined in Article 27, §441(e) and ask for our interpretation of two of the categories of offenses listed in that definition:

(1) Does a conviction for assault or battery under common law fall within the category of "assault in the first or second degree" set forth in §441(e)(3)?

(2) What offenses are included in the final category of that definition, §441(e)(17), which refers to "assault with intent to commit any of the aforesaid offenses or any offense punishable by imprisonment for more than 1 year"? In particular, should the second clause of that category be construed to include as a crime of violence any offense for which a defendant could receive more than one year imprisonment, regardless of whether it involved an assault?

For the reasons set forth below, we conclude that:

(1) A conviction for common law assault or common law battery is included in §441(e)(3).

(2) The final category of the definition of "crime of violence" includes assault with intent to commit any offense punishable by imprisonment for more than 1 year. However, it does not encompass all offenses that carry a potential penalty in excess of one year imprisonment.

I

Crime of Violence

A. Maryland Firearms Law

Under the Maryland firearms law, a person who has been convicted (or adjudicated delinquent) of a "crime of violence" may not possess a regulated firearm.[1] Annotated Code of Maryland, Article 27, §445(d)(1). A person who possesses a regulated firearm in violation of that statute is subject to a mandatory minimum sentence of five years imprisonment and a fine of up to $10,000. Article 27, §449(e)-(f) (as amended by Chapter 2, Laws of Maryland 2000).[2] The statute is "intended to prevent those who have already demonstrated a propensity for violence, as evidenced by a conviction of a crime of violence, from possessing handguns." Johnson v. State, 67 Md. App. 347, 378, 507 A.2d 1134, cert. denied, 307 Md. 260, 513 A.2d 314, cert. denied, 479 U.S. 993 (1986).

Indictment for, or conviction of, a "crime of violence" also restricts the ability of a person to hold a license as a regulated firearms dealer under the firearms law. In particular, indictment for such an offense results in the suspension of a license. Article 27, §443(h). Conviction is grounds for revocation of the license. Article 27, §443(i).

The law defines "crime of violence" to mean:

(1) Abduction;
(2) Arson in the first degree;
(3) Assault in the first or second degree;
(4) Burglary in the first, second, or third degree;
(5) Carjacking and armed carjacking;
(6) Escape in the first degree;
(7) Kidnapping;
(8) Voluntary manslaughter;
(9) Maiming;
(10) Mayhem as previously proscribed under former §384 of this article;
(11) Murder in the first or second degree;
(12) Rape in the first or second degree;
(13) Robbery;
(14) Robbery with a dangerous or deadly weapon;
(15) Sexual offense in the first, second, or third degree;
(16) An attempt to commit any of the aforesaid offenses; or
(17) Assault with intent to commit any of the aforesaid offenses or any offense punishable by imprisonment for more than 1 year.

Article 27, §441(e). Your inquiry is focused on categories (3) and (17).

B. Common Law Assault

You ask whether a conviction for assault or battery under common law falls within the definition of "crime of violence" as a result of the inclusion of "assault in the first or second degree" among the list of those crimes. Article 27, §441(e)(3).

For many years, simple assault and battery were not included in the definition of "crime of violence." See Sangster v. State, 70 Md. App. 456, 477, 521 A.2d 811 (1987), aff'd, 312 Md. 560, 541 A.2d 637 (1988). In 1996, the General Assembly added the category of "assault in the first or second degree" to the list of crimes of violence. Chapter 632, Laws of Maryland 1996.[3] This amendment was part of a bill that generally revised the criminal assault statutes and introduced the terms "assault in the first degree" and "assault in the second degree" into the law. Under this nomenclature, a person who commits an assault is guilty of the misdemeanor of second degree assault. Article 27, §12A.[4] The revised statute generally defines the term "assault" to mean "the offenses of assault, battery, and assault and battery, which terms retain their judicially determined meanings." Article 27, §12(b). The committee that drafted the revision explained that it believed that those meanings had been "extensively developed at common law and case law." See Chapter 632, Laws of Maryland 1996 at p. 3619 (Committee Note).

Thus, by definition, the term "second degree assault" includes common law assault and common law battery. A conviction for either offense would be considered a crime of violence for purposes of the firearms statute.

C. Assault with Intent to Commit Certain Offenses

The final category of offenses in the definition of "crime of violence" is "assault with intent to commit any of the aforesaid offenses or any offense punishable by imprisonment for more than 1 year." Article 27, §441(e)(17). You ask what crimes are included by the second clause of this provision. We understand your question to be whether this clause should be read to include only "assault with intent to commit any offense punishable by imprisonment for more than 1 year," or, more broadly, to include any offense punishable by more than one year in prison.

For several reasons, we believe that the narrower reading of this provision is the correct one. Logic, grammar, and the history of the statute all dictate this conclusion. First, §441(e) defines "crime of violence" by listing various categories of offenses in separate numbered categories. The broader reading of §441(e)(17) would violate this pattern by including two disparate offense categories - i.e., (1) "assault with intent to commit any of the aforesaid offenses" and (2) "any offense punishable by imprisonment for more than 1 year - in a single category. If the Legislature had meant to define "crime of violence" in this way, it would have simply created an 18th category for all offenses punishable by more than one year in prison.

Second, in our view, a more grammatically felicitous reading of the conjunction "or" in §441(e)(17) would link the two phrases that begin with the word "any." In other words, the conjunction provides alternative objects for the introductory verbal clause. Thus, the phrase "assault with intent to commit" would be read to precede "any offense punishable by imprisonment for more than 1 year."

Third, the historical development of this section confirms this reading. The definition of "crime of violence" first appeared in the firearms section of the criminal code in 1941. Chapter 622, Laws of Maryland 1941. At that time it read as follows:

The term "crime of violence" means murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year.

Article 27, §531A(4) (1941) (emphasis added). In later years, the list of offenses that constituted "crimes of violence" was refined on several occasions. However, throughout those revisions, "assault with intent to commit any offense punishable by imprisonment for more than one year" remained the final category of offense in the definition.

In 1996, as part of a reorganization and revision of the firearms law, the list of offenses was modified in certain respects and the phrase "any of the aforesaid offenses or" was inserted after the word "commit" in the final category. Chapters 561, 562, Laws of Maryland 1996. This amendment of the final category, which has always designated certain types of assaults, thus simply appears to expand the types of intent with which an applicable assault offense could be committed. This modification may simply be a recognition that, prior to the revision of the assault statute in 1996 to label assault offenses by "degrees," the criminal code proscribed aggravated assault by describing the intent that accompanied the assault.

Finally, we note that, if §441(e)(17) were read to include any offense punishable by more than one year in prison, it would dramatically expand the scope of the definition of "crime of violence," encompassing many crimes not ordinarily considered to involve violence.[5] Indeed, the prior 16 categories in the definition would become superfluous as they all would be subsumed by this final clause. There is no evidence in the legislative history of the statute that the Legislature contemplated such a dramatic expansion of this term.

II

Conclusion

In our opinion, a conviction for common law assault or common law battery is included in the definition of "crime of violence" in §441(e)(3). The final category of the definition of "crime of violence" should be construed to include an assault with intent to commit any of the offenses enumerated in Article 27, §441(e) and assault with intent to commit any offense punishable by imprisonment for more than 1 year. It does not include all offenses punishable by more than one year in prison.

J. Joseph Curran, Jr.
Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

Editor's Note:

Article 27, §441(e) has been recodified as §5-101(c) of the Public Safety Article.

[1] The statute defines "regulated firearm" to include "any handgun"

• i.e., "any firearm with a barrel less than 16 inches in length including
  signal, starter, and blank pistols" - or "any assault weapon" as listed in the Firearms Law, Article 27, §441(d), (n), (r).

[2] In your letter requesting this opinion, you indicate that your inquiry is prompted by the passage of the Responsible Gun Safety Act of 2000, Chapter 2, Laws of Maryland 2000. Among other things, that law enhanced the penalty for individuals convicted of possessing a regulated firearm after having been convicted of a "crime of violence." We note that this legislation did not amend the definition of "crime of violence" in
§441(e) and therefore does not affect the answers to your questions.

[3] This addition to the law was not immediately reflected in the code, apparently because §441 was also substantially revised that same session in the Maryland Gun Violence Act of 1996. See Chapters 561, 562, Laws of Maryland 1996. The error was remedied the following year in the annual corrective bill. Chapter 14, Laws of Maryland 1997.

[4] The statute defines "first degree assault" as an aggravated form of assault - i.e., the offender intentionally causes or attempts to cause serious physical injury or uses a firearm. See Article 27, §12A-1.

[5] For example, under this reading, the following crimes, among many others, would be "crimes of violence": willful sale of an unregistered franchise (Annotated Code of Maryland, Business Regulation Article, §14-228), knowingly acting as an insurance agent without a license (Insurance Article, §§27-405, 27-408), sale of counterfeit lottery tickets (State Government Article, §9-124), and trademark counterfeiting (Article 27, §48A).