Maryland’s highest court has agreed to weigh the constitutionality of state laws that bar gun possession by a person sentenced to more than two years in prison for a nonviolent crime — in this case, a man whose failure to make child-support payments set off several legal events that left him ineligible to carry a firearm.
Strictly speaking, it wasn’t just Robert L. Fooks’s adjudicated financial neglect as a parent that made it illegal for him to have a gun. The problem was, according to court records, his child-support delinquency so angered a judge on Maryland’s Eastern Shore in 2016 that Fooks, now 53, was sentenced to four years behind bars for “constructive criminal contempt of court.”
A Maryland law specifies that “a person may not possess a regulated firearm if the person … has been convicted of a violation classified as a common law crime and received a term of imprisonment of more than 2 years.” Another statute makes it clear that the rule applies to all types of firearms — handguns, shotguns and rifles.
It could not be determined from online court records how much of that four-year sentence Fooks actually served. But he was free by the fall of 2018, according to judicial filings. Between November that year and July 2020, authorities said, he stole more than a dozen firearms from a relative and sold them at a pawnshop, which led to his arrest on charges of theft and 13 counts of illegal gun possession, given his earlier prison sentence of more than two years.
Then, in April 2021, in Wicomico County Circuit Court on the Eastern Shore, he pleaded guilty to two of the firearms-possession charges and received two five-year suspended sentences in a deal with prosecutors in which he retained his right to appeal. Through his attorney, Fooks argues that Maryland’s law barring gun possession by someone who got more than 2 years in prison for a nonviolent crime — a child-support scofflaw, in this instance — violates the U.S. Supreme Court’s most recent interpretation of the Second Amendment.
Maryland’s Court of Appeals this month agreed to hear the case after Fooks’s lawyer, Peter F. Rose, cited a June 23 ruling by the Supreme Court that makes it harder to restrict the carrying of pistols outside the home. Writing for the court’s 6-to-3 conservative majority in New York State Rifle & Pistol Assoc. v. Bruen, Justice Clarence Thomas said that to ban concealed handguns in a particular place, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”
Rose, who declined to be interviewed about Fooks’s case but issued a brief statement via email, argued in his appellate petition that there is no historical precedent in Maryland for prohibiting people with Fooks’s nonviolent criminal history from possessing a gun.
“The Supreme Court has repeatedly said that the Second Amendment protects a fundamental right and, this past summer, once again struck down a State law infringing on that right,” Rose, a Maryland public defender, said in the email. “The way that Maryland criminalizes gun possession tramples all over our fundamental Second Amendment right. Mr. Fooks’ appeal is a first step to ensuring that this fundamental right is as respected for my client as it should be for everyone.”
The Maryland Attorney General’s Office, which is opposing the appeal, did not respond to an email seeking comment on the case, and Fooks could not be located for comment.
Fooks first challenged the constitutionality of the Maryland laws shortly after his arrest — long before the Supreme Court ruling in the New York case — but a Circuit Court judge in Wicomico Court rejected his argument. Fooks’s “failure to pay child support is every bit as serious as” other crimes, the judge concluded. “Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. … By all accounts, this is a serious offense.”
This past summer, Maryland’s intermediate appellate court, the Court of Special Appeals, also upheld the gun-possession charges against Fooks.
“By its plain language, the [Maryland] legislature intended for individuals convicted of violent crimes to be disqualified from possessing a firearm,” the Court of Special Appeals said in its ruling. But the court noted “the legislature also prohibits a ‘fugitive from justice’ from possessing a firearm” even though there is no “indication that fugitives from justice are dangerous or violent.”
“The same rationale applies to individuals convicted of common law offenses who receive a term of imprisonment of more than two years,” the intermediate court added. “Mr. Fooks is not, for these purposes, a law-abiding citizen. It’s not just that he failed to pay child support, but his failure rose to the level of criminal contempt.”
Yet now Fooks has the weight of the Supreme Court’s Bruen ruling potentially on his side.
“The state has failed to show that those who have been convicted of a violation classified as a common law crime and received a term of imprisonment of more than two years — which broadly captures misdemeanors and nonviolent offenders/offenses — were historically within the reach of such [gun-possession] prohibitions,” Rose wrote to the Court of Appeals. The state cannot “fulfill its obligation under Bruen of showing that there is a historical tradition of barring firearms possession by individuals in Mr. Fooks’ position.”
The Supreme Court ruling in June already has impacted Maryland gun laws in other ways.
In July, Gov. Larry Hogan (R) ordered his administration to ease the state’s licensing rules for carrying a concealed handgun, saying the Bruen decision makes it unconstitutional to require applicants to show “a good and substantial reason” for seeking such a permit.
Responding to the high court’s ruling two weeks before, Hogan ordered Maryland State Police to immediately suspend the “substantial reason” provision in the rules for obtaining a concealed-carry permit in Maryland. Absent that rule, applicants would be able to obtain concealed-carry licenses without citing personal circumstances that create a heightened need for armed self-defense.