Hershon Legal, LLC

04/25/2025

Motion for Preliminary Injunction on Maryland SB1
(Gun Safety Act of 2023)

In the case of Kipke v. Moore, the U.S. District Court for the District of Maryland issued a memorandum opinion on September 29, 2023, addressing the plaintiffs' motion for a preliminary injunction against certain provisions of Maryland's Gun Safety Act of 2023 (formerly Senate Bill 1).

Background: The plaintiffs, including Susannah Warner Kipke and the Maryland State Rifle and Pistol Association, challenged several restrictions imposed by the Act, arguing that they infringed upon Second Amendment rights. The court consolidated this case with a related one, Novotny v. Moore, due to overlapping legal issues involved with both matters.

The Court's Analysis and Ruling: Applying the standard for granting a preliminary injunction, the court evaluated whether the plaintiffs demonstrated:

1. A likelihood of success on the merits,
2. A likelihood of suffering irreparable harm without the injunction,
3. That the balance of equities tips in their favor, and
4. That the injunction is in the public interest.
The court granted the preliminary injunction in part, enjoining the enforcement of the following provisions:

• Prohibition on carrying fi****ms in locations selling alcohol for on-site consumption (Md. Code Ann., Crim. Law § 4-111(a)(2)(8)(i)),
• Prohibition on carrying fi****ms on private property without the owner's consent (Md. Code Ann., Crim. Law § 6-411(d)), and
• Prohibition on carrying fi****ms within 1,000 feet of a public demonstration (Md. Code Ann., Crim. Law § 4-208).

The court found that these provisions likely violated the Second Amendment, especially in light of the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen, which emphasized the need for firearm regulations to be consistent with the nation's historical tradition of firearm regulation.

However, the court denied the preliminary injunction concerning other challenged provisions, including restrictions on carrying fi****ms in:

• State parks,
• Mass transit facilities,
• Schools and school grounds,
• Museums,
• Stadiums,
• Healthcare facilities,
• Government buildings,
• Amusement parks,
• Racetracks, and
• Casinos.

The court concluded that these locations could be considered "sensitive places" where firearm restrictions are presumptively lawful under Bruen.

Conclusion: The court's decision reflects granted relief where the plaintiffs demonstrated a strong likelihood of success on the merits and denying it where it felt that the state still had interests in regulating fi****ms in sensitive places were deemed consistent with Bruen.

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04/20/2025

The ATF Pistol Brace Rule, Is It Truly Dead? –
Edward Hershon, Esq.

Recent federal court decisions have significantly impacted the Bureau of Alcohol, To***co, Fi****ms and Explosives (ATF)'s rule that reclassifies pistols equipped with stabilizing braces as
short-barreled rifles (SBRs), subjecting them to stricter regulations under the National Fi****ms Act (NFA).

Eighth Circuit Ruling (August 2024):

In Fi****ms Regulatory Accountability Coalition, Inc. v. Garland, the Eighth Circuit Court of Appeals determined that the ATF's rule was "arbitrary and capricious." The court criticized the ATF's multi-factor test—which considered design, marketing, and community use—for lacking clear standards, making it difficult for individuals to ascertain compliance. The decision reversed a lower court's denial of a preliminary injunction and remanded the case for further proceedings.

Fifth Circuit Ruling (August 2023):

In Mock v. Garland, the Fifth Circuit Court of Appeals found that the ATF's final rule likely
violated the Administrative Procedure Act (APA) by not providing the public with a meaningful opportunity to comment. The court noted that the rule introduced a new six-factor test, differing from the initially proposed criteria, without adequate notice. The case was remanded to the district court, which subsequently issued a preliminary injunction against the rule.

Second Amendment Considerations:

While the primary legal challenges have focused on administrative law, some courts have addressed Second Amendment implications. For instance, Judge Don Willett of the Fifth Circuit suggested that the rule might infringe upon the right to make common, safety-improving
modifications to fi****ms. However, this perspective has not been uniformly adopted across all jurisdictions.

These rulings have led to a patchwork of enforcement, with certain injunctions applying to specific plaintiffs or groups, such as members of the Fi****ms Policy Coalition. The ATF has appealed some decisions, and the legal landscape continues to evolve.

The Taranto Case: A Test of Enforcement Post-Vacating

Despite the vacating of the Final Rule, the ATF continues to enforce the underlying statutes of the NFA. In United States v. Taranto, Taylor Taranto was charged with illegal possession of an unregistered SBR after authorities found a CZ Scorpion EVO 3 S1 pistol equipped with an SB Tactical stabilizing brace in his possession. The ATF's Fi****ms & Ammunition Technology
Division conducted a technical examination of the firearm, using criteria from the now-vacated rule—such as weight, surface area for shouldering, length of pull, and sight configuration—to determine it was an SBR .

Taranto's defense argued that the ATF's reliance on the vacated rule's criteria was inappropriate. In response, the government contended that while the Final Rule was vacated, the ATF retains the authority to enforce the NFA's provisions and can make case-by-case determinations about
whether a braced firearm qualifies as an SBR. They asserted that the criteria from the vacated rule reflect the agency's best understanding of the statute and can inform their evaluations.

Implications for the Pistol Brace Rule

The Taranto case underscores the ATF's position that, even without the Final Rule, it can enforce the NFA's provisions regarding SBRs by assessing braced fi****ms individually. This approach has raised concerns among firearm owners and legal experts about the clarity and consistency of
such determinations.

Legal analysts suggest that the ATF's continued use of the vacated rule's criteria, even informally, could lead to further legal challenges. They argue that this practice may blur the lines between enforcing the statute and reintroducing the vacated rule's provisions without proper rulemaking procedures.

Conclusion

While the ATF's Final Rule on pistol braces has been vacated, the Taranto case illustrates that the agency continues to scrutinize braced fi****ms under the NFA's existing framework. This situation highlights the ongoing legal complexities surrounding firearm classifications and the importance for firearm owners to stay informed about current regulations and enforcement practices.

For the most current information, it's advisable to consult legal counsel or official court documents. Hershon Legal is available to assist its clients with counsel on this subject.

Contact Hershon Legal at (443) 926-1702.

01/17/2023

80,000 wear & carry permits issued by MSP from the date of the Bruen decision through December 31, 2022.

Typically 14,000 permits per year.

01/16/2023

I will be on WBAL radio today at 3:05 pm to discuss the pending gun legislation in the Maryland General Assembly.

I hope you listen in for the segment! You can listen online too!

06/23/2022

Today the Supreme Court ruled on the New York case that discusses the right to carry a firearm in public for self defense.

I will be joining Torrey Snow on WBAL radio at 2:30 pm today to discuss this decision more in depth.

Suffice it to say, Maryland’s requirement to have a good and substantial reason for a person to carry a firearm for self defense will now change.

02/27/2022

People ask me why I assist others with Second Amendment issues in Maryland.

The reason is simple, we as Americans enjoy certain inalienable rights; and the right to self-defense is one of them.

What is happening in Ukraine this week is a prime example of why Americans should be able to retain that right of self-defense.

11/04/2021

I will be on WBAL 1090 AM today on the Yuripzy Morgan show at 11:15 to discuss the recent Supreme Court case, New York State Rifle and Pistol Association vs. Bruen.

Listen in!

07/07/2021

What is the Maryland Red Flag Law?

Maryland’s Red Flag Law is officially known as an Extreme Risk Protective Order and is a court issued civil order temporarily requiring a person to:

a: surrender any fi****ms or ammunition to law enforcement; and
b: not purchase or possess fi****ms or ammunition.

The Extreme Risk Protective Order law went into effect on October 1, 2018. Since then, there have been more than 1,835 ERPOs filed in the State of Maryland.

Purpose

The purpose of the Red Flag law is to allow individuals to file a petition with the court (or commissioner) against a person who poses an immediate and present danger of causing personal injury to themselves or others by having fi****ms.

Factors Determining Risk

Alarming behavior and statements.
Unlawful firearm possession.
Reckless or negligent firearm use.
Violence or threats of violence to self or others.
Drug or alcohol abuse; and/or
Information contained in health records.

Who Can File for an ERPO?

A spouse.
Cohabitant.
Relative by blood, marriage or adoption.
A person with children in common.
Current dating or intimate partner.
Current or former legal guardian.
A law enforcement officer.
Medical professional who has examined the respondent.

How does an Extreme Risk Protective Order Work?

Once a petition is filed with the court or a court commissioner, the court can issue either an interim or temporary ERPO – this is done on an Ex Parte basis (meaning that the person who is subject of the ERPO is not present in court).

The interim or temporary protective order will give the date, time, and location of where the final protective order hearing will be held.

The interim or temporary order gives the local law enforcement agency the authority to have fi****ms surrendered to it or for the agency to retrieve those fi****ms.

Nuances in the Law

The ERPO is very specific as to who’s fi****ms and ammunition that is to be surrendered; it is the Respondent’s (the subject of the ERPO) fi****ms and ammunition and no one else.

It is not an uncommon practice for law enforcement to seize all fi****ms and ammunition (including magazines) that are in the Respondent’s home even if those fi****ms are registered to another person who resides in the home.

The ERPO does NOT give law enforcement the right to enter a home and search that home for fi****ms and/or ammunition without a search warrant.

Maryland Code Annotated, Public Safety Article, §5-607 provides that law enforcement can apply for a search warrant if they believe that a respondent has failed to comply with the surrender of their fi****ms and/or ammunition.

If law enforcement attempts to seize fi****ms and/or ammunition that does NOT belong to the Respondent, you can politely ask the agents to point out where in the ERPO it gives them the right to seize fi****ms belonging to others who may reside in the home.
If the law enforcement agents persist in seizing those fi****ms, request a supervisor to respond to the premises and discuss this matter with the supervisor.

Do not become angry or belligerent with the law enforcement agents as you do not want to be arrested. Be sure to call an attorney at this point so that your rights are protected.

The Final Protective Order Hearing

Typically, the Final Protective Order hearing will take place 7 days after the temporary ERPO is issued.

You do have the right to have legal counsel present and it is strongly encouraged that you do.

Since this is not a criminal proceeding, there is no right to court appointed counsel.

Do not wait until the day before the hearing to hire an attorney; your attorney will need some time to research and review the circumstances of the case and be able to present a cogent argument to the judge to deny the Final Extreme Risk Protective Order.

Right to Repossess Your Fi****ms

Upon the Expiration or termination of an Extreme Risk Protective Order, the Respondent may request the return of their fi****ms pursuant to Maryland Annotated Code, Public Safety Article §5-608(b).

The law enforcement agency that has the confiscated fi****ms will conduct a background check to determine that the person whom the weapons are being returned to is not a prohibited person.

Once a request has been made to the law enforcement agency, that agency has 14 days after the expiration of an interim or temporary ERPO and 48 hours after the expiration of a final ERPO to return the fi****ms.

For more information contact Ed Hershon at Hershon Legal, LLC; [email protected] or (443) 926-1702

06/16/2021

Documentation of your Firearm Acquisitions

I have had several clients who had their fi****ms confiscated by the Bureau of Alcohol, To***co, Fi****ms and Explosives (“BATF”) or by the Maryland State Police. In my efforts to have these seized fi****ms returned to my clients, I am often asked by the BATF or the MSP to provide evidence that my client is the lawful owner of these fi****ms.

Unfortunately, not everyone keeps records of their purchases and acquisitions of their fi****ms. This can present a problem in the event that you need to establish ownership of your fi****ms. Thus, it is important to keep the receipts of your purchases or document in some manner how you came into possession of your fi****ms.

I recommend that all of your receipts be scanned into your computer with a backup of those files someplace safe. Furthermore, you might want to create a spreadsheet to include the manufacturer, model, caliber, serial number, date of acquisition (and how it was acquired, i.e., new, family heirloom, etc.).

In addition to keeping this list for purposes of ownership, it can be used for insurance purposes in the event that you have a boating accident with your guns.

If you have any questions, contact Ed Hershon at Hershon Legal, LLC (443) 926-1702 or [email protected]. www.HershonLegal.com

05/16/2021

This is a great analogy of the fight for gun rights!

The Three Little Pigs and the Wolf on the RoadISBN: 978-0-578-82653-0In this story the pigs learn why internet activism doesn't work and the best way to prot...

05/07/2021

Do you think that Maryland’s requirement of “good and substantial” to obtain a handgun permit is unconstitutional?