As we noted in this post ("CA4 (Over Dissent): No Taking When Maryland Outlawed 'Rapid Fire Trigger Activators'"), it was likely that a cert petition would follow after the U.S. Court of Appeals for the Fourth Circuit held (over a strong dissent) that it was not a taking when Maryland outlawed previously lawful personal property, but did not require the owners to physically turn over the banned property -- here, devices that allow semi-automatic rifles to fire rapidly -- to the government.
Well, here it is. In this cert petition, the owner argues that "[t]he Fourth Circuit’s decision also creates a direct conflict with the Federal Circuit which has long applied
Lucas to personal property and held that personal property is protected without regard to whether the government or a third party takes possession." Pet. at 8.
Here are the Questions Presented:
This case is about whether the Takings Clause of the Fifth Amendment and the Takings Clause and Due Process Clause of the Maryland Constitution protect lawfully acquired and lawfully owned personal property that the State legislature subsequently decided to ban totally. In Horne v. Dep’t of Agric., 135 S.Ct. 2419, 2427-28 (2015), this Court held that “direct appropriations of real and personal property” are treated “alike.” Yet, in a published ruling broadly applicable to all types of personal property, the Fourth Circuit has ruled that this holding in Horne applies to personal property only if the regulation in question requires the owner to “turn over” the property to the government or a third party. The Fourth Circuit also construed the Maryland Constitution in such a way as to effectively eliminate any protection for lawfully purchased personal property. The court ignored petitioners’ request to certify basic questions of Maryland property law to Maryland’s highest court. The questions presented are:1. Whether the Fourth Circuit erred in ruling that this Court’s holding in Horne that appropriations of personal property and real property must be treated “alike” under the Takings Clause applies only where the statute requires that the owner “turn over” the personal property to the government or a third party.2. Whether the Fourth Circuit erred, under Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), Lehman Brothers v. Schein, 416 U.S. 386 (1974), Elkins v. Moreno, 435 U.S. 647 (1978), and McKesson v. Doe, --- S.Ct. ---, 2020 WL 6385692 (Nov. 2, 2020), in failing to consider whether to certify petitioners’ Maryland constitutional claims to Maryland’s highest court pursuant to a Maryland statute allowing such certifications.
Pet (i).
The petition argues that the pending Cedar Point case is similar: "If, as Horne holds, appropriations of personal and real property are to be treated “alike,” Horne, 135 S.Ct. at 2427-28, then it follows a fortiori that a judgment for petitioners in Cedar Point would likewise compel judgment for petitioners here, as Maryland has ousted petitioners of all possession, not just exclusive possession." Pet. at 9. The petition asserts, "[t]he Court should either grant review and summarily revise, or hold this petition pending a decision in Cedar Point." Pet. at 10.
Stay tuned.
Petition for Writ of Certiorari, Maryland Shall Issue, Inc. v. Hogan, No. ____ (U.S. Dec. 21, 2020)
