In the Matter of Mark McCloy, Case No. 673, September Term 2022. Opinion filed on 

May 1, 2023, by Berger, J.

DISQUALIFYING CRIME – STATUTORY INTERPRETATION – QUESTION OF 

LAW – DE NOVO STANDARD OF REVIEW

Under Maryland’s firearms regulations, the determination of whether an out-of-state 

conviction constitutes a “disqualifying crime” under Section 5-101(g) of Maryland’s 

Public Safety Article is a matter of statutory interpretation, and, therefore, it is a question 

of law reviewed de novo.

DISQUALIFYING CRIME – OUT-OF-STATE CONVICTION – EQUIVALENCE TO 

MARYLAND STATUTE

Under Maryland’s firearms regulations, an out-of-state conviction is a “disqualifying 

crime” that prohibits an applicant from obtaining a handgun qualification license if the 

Maryland State Police determine that the foreign statute providing the basis for the out-ofstate conviction is equivalent to a Maryland misdemeanor statute with a penalty in excess 

of two years’ imprisonment. 

DISQUALIFYING CRIME – OUT-OF-STATE CONVICTION – TIMING OF 

COMPARISON

When assessing whether an out-of-state conviction is a “disqualifying crime,” the foreign 

statute providing the basis for the out-of-state conviction must be compared to the 

purportedly equivalent Maryland statute as it existed at the time of the application, not as 

it existed at the time of the out-of-state conviction. If the Maryland statute did not exist at 

the time of the out-of-state conviction, that does not preclude a finding of equivalency. 

What controls is whether the Maryland statute, at the time of the application, is a 

misdemeanor with a maximum penalty of more than two years’ imprisonment. 

DISQUALIFYING CRIME – EQUIVALENCY DETERMINATION

To affirm the Maryland State Police’s determination that an out-of-state-conviction is 

equivalent to a Maryland misdemeanor statute with a penalty in excess of two years’ 

imprisonment such that the out-of-state conviction is a “disqualifying crime” prohibiting 

an applicant from obtaining a handgun qualification permit, a reviewing court must 

conclude that a reasonable mind could find (1) that the statutes prohibit similar conduct, 

based on the comparison of the elements of each statute, and (2) that the conduct producing 

the out-of-state conviction would be prohibited by the purportedly comparable Maryland 

statute. 
REVIEW OF ADMINISTRATIVE AGENCY DECISION – MODIFIYING AND 

AFFIRMING AGENCY DECISION

When reviewing an administrative law judge’s (“ALJ”) findings, if a circuit court reaches 

the same conclusion as the ALJ, but does so on different grounds than the ALJ, then the 

circuit court may modify the ALJ’s decision while affirming the ALJ’s conclusion.

ESTOPPEL – ENFORCEMENT OF REGULATORY MEASURES

The prior approval of a handgun qualification license (“HQL”) does not estop the Maryland 

State Police (“MSP”) from denying a subsequent HQL application from the same applicant, 

despite no substantive changes to the applicant’s criminal record between the submission 

of each application. The MSP’s failure to properly assess an applicant’s prior criminal 

conviction as a disqualifying crime does not preclude the agency from making such a 

determination upon a subsequent HQL application. 

EX POST FACTO – EQUIVALENCY DETERMINATION – REGULATORY 

PROVISIONS

The determination that an out-of-state conviction is equivalent to a comparable Maryland 

criminal statute, not in existence at the time of the out-of-state conviction, such that the 

out-of-state conviction is a “disqualifying crime” under Maryland’s firearms regulations, 

does not violate the ex post facto prohibitions of the United States and Maryland 

constitutions. The firearms regulations are civil in character and prohibit current 

possession of firearms; therefore, they are distinct from retroactive criminal prohibitions 

of prior conduct. 

DUE PROCESS – COLLATERAL CONSEQUENCES OF PRIOR CONVICTION

A defendant failing to receive notice that, as a consequence of his entering of a guilty plea 

in a foreign jurisdiction, he may be precluded from exercising his constitutional right to 

bear arms, does not preclude the Maryland State Police from denying the defendant’s 

application for a handgun qualification license.
Circuit Court for Queen Anne’s County

Case No. C-17-CV-21-000138

REPORTED

IN THE APPELLATE COURT

OF MARYLAND*

No. 673

September Term, 2022

______________________________________

IN THE MATTER OF MARK McCLOY

______________________________________

Wells, C.J.,

Berger,

Albright,

 

JJ.

______________________________________

Opinion by Berger, J.

______________________________________

Filed: May 1, 2023

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional 

amendment changing the name of the Court of Special Appeals of Maryland to the 

Appellate Court of Maryland. The name change took effect on December 14, 2022.
This appeal arises from Appellee’s, the Maryland State Police (“the MSP”), denial 

of Appellant Mark McCloy’s (“McCloy”) application to purchase a handgun. The MSP 

determined that McCloy’s 1999 conviction under a federal witness tampering statute 

qualified as a “disqualifying crime” that prohibited him from possessing a regulated

firearm under Maryland law. The Office of Administrative Hearings (“the OAH”) 

reviewed the decision, and an administrative law judge (“ALJ”) affirmed the denial of the 

application. McCloy sought judicial review in the Circuit Court for Queen Anne’s County. 

The circuit court affirmed the ALJ’s decision, but on different grounds. This appeal 

followed. 

McCloy presents four questions for our review, which we rephrase into two 

questions, as follows:

1

1 McCloy presents the following questions, verbatim, for our review:

1. Whether the Circuit Court committed errors of law, 

abused its discretion, or violated the constitutional 

rights of the Appellant when it found that the version of 

18 U.S.C. § 1512(c)(1) in effect in 1999 is equivalent to 

[Section 9-305 of Maryland’s Criminal Law Article], 

when it failed to conduct any comparative analysis of 

the elements of the two offenses?

2. Whether it is violative of the [United States] and 

Maryland Constitutions to deny Appellant the purchase 

of a regulated firearm on the basis of the current penalty 

for an offense he was not convicted of, and for which 

the agency has previously and repeatedly determined is 

not equivalent to the convicted offense?

3. Whether the Office of Administrative Hearings’ 

Decision and Order are arbitrary and capricious and 
2

I. Whether the circuit court erred in affirming the MSP’s 

denial of McCloy’s application to purchase a regulated 

firearm.

II. Whether the circuit court erred in determining that 

McCloy was not entitled to equitable relief from the 

denial of his application to purchase a regulated firearm.

For the reasons explained herein, we answer both of these questions in the negative. 

We, therefore, affirm the circuit court’s ruling that the MSP correctly denied McCloy’s 

application.

FACTS AND PROCEDURAL HISTORY

Maryland’s Handgun Regulation and Application Process

A “handgun qualification license” (“HQL”) is “a license issued by [the MSP] that 

authorizes a person to purchase, rent, or receive a handgun.” Md. Code (2003, 2022 Repl.) 

§ 5-101(o) of the Public Safety Article (“PS”). A person must submit, and have approved, 

an application for an HQL before purchasing, renting, or transferring a regulated firearm. 

Id. § 5-117. The application shall contain a statement from the applicant, made under 

penalty of perjury, that the applicant has never been convicted of a “disqualifying crime,” 

or of a common law crime resulting in imprisonment for more than two years. Id. § 5-

118(b)(3). Upon the receipt of the application, the Secretary of the MSP must promptly 

lack the support of competent, material, and substantial 

evidence?

4. Whether the Office of Administrative Hearings violated 

the principles of lenity, estoppel, and Ex Post Facto?
3

investigate “the truth or falsity of the information supplied” and determine whether the 

applicant may purchase a regulated firearm. Id. § 5-121(a); Md. Code Regs. (“COMAR”)

29.03.01.18(A). 

“[A] person may not possess a regulated firearm if the person has been convicted of 

a disqualifying crime.” PS § 5-133(b)(1). “[A] ‘[d]isqualifying crime’ means: (1) a crime 

of violence; (2) a violation classified as a felony in the State; or (3) a violation classified 

as a misdemeanor in the State that carries a statutory penalty of more than [two] years.” 

Id. § 5-101(g). The MSP, as the agency tasked with reviewing HQL applications, “may 

properly deny a handgun permit to anyone who has [been determined to have committed]

a disqualifying crime under PS § 5–101(g) and is [thereby] prohibited from possessing a 

handgun under PS § 5-133(b)(1).” Brown v. Handgun Permit Rev. Bd., 188 Md. App. 455, 

471 (2009).

McCloy’s 1999 Federal Conviction 

While working as a government employee in 1999, McCloy and a fellow employee 

engaged in sex at McCloy’s home in Chester, Maryland. McCloy gave the fellow 

employee $200. Shortly thereafter, the woman filed a complaint against McCloy with the 

Equal Employment Opportunity Commission (“EEOC”) alleging sexual harassment. The 

fellow employee later called McCloy and offered to dismiss her complaint in exchange for 

McCloy paying her $5,000. McCloy advised the fellow employee that McCloy could not 

afford that amount, but he counteroffered $1,000 for the employee to dismiss the 
4

complaint, to which she agreed.2

Unbeknownst to McCloy, Federal Bureau of Investigation (“F.B.I.”) agents taped 

the call. Additionally, another employee who worked in close physical proximity to 

McCloy overheard the call. Thereafter, McCloy asked that employee not to disclose or 

discuss what he had heard. McCloy was ultimately arrested. He pleaded guilty in the 

United States District Court for the District of Columbia to witness tampering, in violation 

of 18 U.S.C. § 1512(c)(1).3 McCloy was sentenced to six months of home detention 

followed by a five-year period of probation.

McCloy’s Gun Permit Applications

In 2015, McCloy submitted an HQL application to the MSP. The MSP initially 

denied the application. McCloy promptly appealed that denial. Before the hearing for the 

appeal, the MSP sent McCloy a letter, dated April 8, 2015, reversing its prior decision and 

2 No EEOC proceeding ultimately occurred. 

3 As explained by McCloy’s attorney in an affidavit, “[t]he tampering with a witness 

was the agreeing to pay [the complainant] $1,000.00 in return for her dismissing the EEOC 

complaint against him and the asking of another person to please not tell anyone what he 

had overheard.” The statute under which he was charged is titled “Tampering with a 

witness, victim, or an informant,” and it is codified amongst other “Obstruction of Justice” 

crimes in Chapter 73 of the United States Code’s Crime and Criminal Procedure Title. See 

18 U.S.C. § 1512. 
5

approving his application.4 McCloy used this license to purchase several firearms.5

On February 8, 2021, McCloy filed another application with the MSP to purchase a 

handgun.6 The required criminal background check conducted by the MSP detected 

McCloy’s 1999 federal conviction and sentence. On March 4, 2021, the MSP sent McCloy 

a letter informing him of the denial of his permit and of his right to appeal the decision. 

4 The MSP asserts that no records exist documenting the reasons for the initial denial 

and the subsequent reversal of McCloy’s 2015 HQL application. At the hearing appealing 

the 2021 denial of McCloy’s HQL application, Senior Trooper David Simmons, the officer 

tasked with scrutinizing McCloy’s background and 2021 application, could not precisely 

speak to why the 2015 HQL application was approved after the initial denial. Nonetheless, 

he speculated that it may have been the result of the F.B.I. criminal background report 

provided in 2015, and the subsequent MSP investigation, not producing sufficient clarity 

and proof of the precise crime of which McCloy was convicted. Because the MSP bears 

the burden of proving that a conviction is disqualifying -- and because the MSP has a finite 

time period with which to make its determination -- Simmons explained that without a 

record showing the nature of McCloy’s conviction, “we would overturn the disapproval 

because we don’t have hard proof to show what he was convicted of and approve if this is 

a disqualifying crime.” Simmons noted, however, that regardless of the prior approval, the 

MSP can still disqualify an application if “in a subsequent background check we did catch 

the mistake,” as Simmons asserted happened in the current dispute regarding the 2021 

application.

5 During the OAH hearing appealing the denial of his 2021 HQL application, 

McCloy testified that he used the 2015 HQL to purchase “a 22-caliber pistol . . . two 

handguns, single action . . . two other single[-]action pistols, and a rifle . . . All of those 

were approved.”

6 Because McCloy’s original HQL was issued in 2015, he had to renew his permit 

to purchase additional regulated firearms in 2021. See PS § 5-309(a) (barring exception, 

“a permit expires on the last day of the holder’s birth month following [two] years after the 

date the permit is issued”).

It appears from the record that McCloy filed his application on February 8, 2021, 

but the dealer attempting to sell McCloy the firearm completed the application on 

February 26, 2021.
6

McCloy sent an email to the MSP the following day requesting a formal hearing to appeal.7 

That same day, Senior Trooper David Simmons, the MSP officer assigned to review 

McCloy’s application, responded, informing McCloy that, while his federal conviction did

not federally prohibit his possession of a firearm, the MSP determined 18 U.S.C. § 

1512(c)(1) was comparable to Section 9-302 of Maryland’s Criminal Law Article (“CR”), 

and because this statute carried a penalty of up to ten years’ imprisonment, it constituted a 

“disqualifying crime” under Maryland law.8 Two days before the scheduled OAH hearing 

for the appeal, the MSP changed its position and advised McCloy that the equivalent statute 

to his federal conviction was Section 9-305(a), not Section 9-302, of the Criminal Law 

Article.9

7

“A person who is denied a permit or renewal of a permit or whose permit is 

revoked” may file a request for an appeal, in writing, with the MSP and the OAH within 

10 days of receiving notice of the MSP’s decision. PS § 5-312(a)(1). Within 60 days, the 

OAH shall schedule and conduct such “a de novo hearing on the matter, at which witness 

testimony and other evidence may be provided,” after which the OAH shall issue findings 

of fact and a decision. Id. § 5-312(b)(1). Any hearing or subsequent proceeding of review 

“shall be conducted in accordance with Title 10, Subtitle 2 of the State Government 

Article.” Id. § 5-312(c)(1).

8 Though we typically abbreviate the Articles of the Maryland Code using the first 

initials of the titles of the relevant articles, we use the naming convention “CR,” rather than 

“CL,” for the Criminal Law Article as to avoid potential confusion with the Commercial 

Law Article of the Maryland Code.

9 The parties dispute how long before the hearing the MSP alerted McCloy of this 

change. McCloy claims it occurred immediately prior to the hearing. The MSP claims it 

advised McCloy’s counsel two days before the hearing to the change in its position on the 

comparable statute. Because the circuit court relied on the two-day time frame, we will 

rely upon that finding, as well.
7

McCloy’s Appeal of the Denial of His 2021 HQL Application 

On July 21, 2021, the OAH conducted a hearing before an ALJ to review the denial 

of McCloy’s application. Separate counsel represented both the MSP and McCloy.

McCloy’s attorney did not note an objection to the late notice of the MSP’s change in 

position regarding the equivalent “disqualifying crime.” Both parties proceeded with full 

examinations of Trooper Simmons and McCloy, the only witnesses who provided 

testimony, and further presented their respective arguments at the hearing.

On August 6, 2021, the ALJ issued a decision affirming the disapproval of 

McCloy’s application. In so doing, the ALJ made findings of fact and conclusions of law 

distinct from the arguments presented by both the MSP and McCloy. The ALJ sua sponte 

determined that 18 U.S.C. § 1512(c)(1) was analogous to Section 9-306 of the Maryland 

Criminal Law Article, not Section 9-305(a). The ALJ concluded that because CR § 9-306 

has a maximum penalty of five years’ imprisonment (and because the federal law providing 

the basis for McCloy’s conviction is analogous to this statute), McCloy’s “misdemeanor 

conviction [in United States District Court for the District of Columbia] for tampering with 

a witness meets the definition of a disqualifying crime. . . .” The ALJ further determined 

that the MSP “correctly disapproved [McCloy’s] application to purchase a regulated 

firearm based on this prior conviction.”

Additionally, McCloy asserts that at the beginning of the OAH hearing his attorney 

requested to submit additional briefing related to the MSP changing its equivalency 

determination from CR § 9-302 to § 9-305. Our review of the record reflects that this 

request appears to be more of a general request to supplement any arguments, as necessary,

following the hearing, and not specifically about notice of the substantive issue of 

comparing the Maryland statutes to his conviction.
8

The ALJ also found that McCloy “provided false information in his application in 

the attempt to hide the [D.C.] federal conviction because it might negatively impact his 

application.” On his application, McCloy affirmed, under penalty of perjury, that he had 

not been convicted in Maryland or elsewhere of a misdemeanor which, under Maryland 

law, carries a maximum sentence of two years or more. The ALJ concluded that the MSP 

could deny McCloy’s application based on this false statement alone. See PS § 5-

122(a)(1)–(2).

On August 30, 2021, McCloy filed in the Circuit Court for Queen Anne’s County a 

petition for judicial review of the ALJ’s decision.10 That court held a hearing on the 

petition on March 8, 2022. On May 19, 2022, the circuit court issued a memorandum 

opinion and order affirming the denial of McCloy’s application. See Jud. Rev. of the 

Decision of the Off. of Admin. Hearings Case of Mark A. McCloy OAH No. MSP-LD-20-

21-06628, Case No. C-17-CV-21-000138, at 1, 13 (Md. Cir. Ct. Queen Anne’s Cnty. May 

19, 2022) [hereinafter McCloy Cir. Ct. Rev.]. 

Notably, the circuit court disagreed with several of the ALJ’s conclusions. Id. at 7–

8, 11. The circuit court found that the OAH proceeding violated McCloy’s due process 

rights because the ALJ pursued a rationale for disqualification not advanced by the MSP, 

and, in so doing, deprived McCloy of the opportunity to respond to the argument that his 

federal conviction was akin to a Maryland conviction under CR § 9-306. Id. at 7. 

Additionally, the court found that the record did not support the finding that McCloy 

10 “A party that is aggrieved by the decision of the [OAH] may appeal the decision 

to the circuit court.” PS § 5-312(b)(3).
9

provided a false statement on his application when he checked the “no” box in response to

the question asking whether he had been convicted of a crime in Maryland or elsewhere 

with a maximum penalty of more than two years’ imprisonment. Id. at 7–8.

Nonetheless, the circuit court affirmed the denial of McCloy’s application by the 

MSP. In reviewing whether the ALJ erred in rejecting the MSP’s assertion that CR § 9-

305(a) and 18 U.S.C. § 1512(c)(1) were equivalent, the circuit court independently 

compared the statutes. Id. at 8–11. The circuit court determined that the statutes were 

equivalent based on the common element of intent to interfere with or impede an official 

proceeding. Id. at 10–11. Accordingly, McCloy’s federal conviction was a “disqualifying 

crime” that prohibited him from obtaining a license to possess a firearm. Id. As a result, 

the circuit court affirmed the MSP’s denial of McCloy’s application. Id. at 1. McCloy 

timely appealed the circuit court’s ruling to this Court. 

DISCUSSION

Standard of Review

“When reviewing a decision by an administrative agency, this Court ‘looks through’

the decision of the circuit court, applying the same standards of review to determine 

whether the agency itself erred.” In re Homick, 256 Md. App. 297, 307 (2022) (quoting 

Brandywine Senior Living at Potomac LLC v. Paul, 237 Md. App. 195, 210 (2018)). The 

scope of judicial review of an agency decision is limited. Mayor & City Council of Balt. v. 

Proven Mgmt., Inc., 472 Md. 642, 667 (2021); see also Dep't of Hum. Res., Balt. City Dep't 

of Soc. Servs. v. Hayward, 426 Md. 638, 650 (2012) (“We also are mindful that this Court's 

review of an agency's decision is narrow.”). We review the agency’s conclusions of fact 
10

under the “substantial evidence test,” which requires us to affirm the agency’s findings

when there exists “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Proven Mgmt., Inc., supra, 472 Md. at 667 (quoting Bullock v. 

Pelham Wood Apartments, 283 Md. 505, 512 (1978)). “We review questions of law de 

novo, although we give weight to an agency’s interpretation of a statute it is charged with 

enforcing where the interpretation is longstanding and falls within the agency's area of 

expertise.” Brown, supra, 188 Md. App. at 467; see also Md. St. Police v. McLean, 197 

Md. App. 430, 438 (2011).

“On the other hand, ‘a reviewing court is under no constraints in reversing an 

administrative decision which is premised solely upon an erroneous conclusion of law.’” 

Proven Mgmt., Inc., supra, 472 Md. at 667 (quoting People’s Couns. v. Md. Marine Mfg. 

Co., 316 Md. 491, 497 (1989)). “When an error of law is alleged, a reviewing court is at 

liberty to substitute its judgment for that of the agency.” Regan v. Bd. of Chiropractic 

Exam’rs, 120 Md. App. 494, 511 (1998) (emphasis added), aff’d, 355 Md. 397 (1999). 

Because the issue in dispute in this case is the interpretation of a statute, specifically the 

interpretation of PS § 5-101(g), the matter before us is such a question of law that we 

review de novo. McLean, supra, 197 Md. App. at 438. Further, while the determination 

of “disqualifying crimes” “falls within the agency’s area of expertise,” in the case before 

us, the MSP’s interpretation of law is not “longstanding” when considering the 2015 

approval of McCloy’s HQL application and the 2021 denial of his subsequent HQL 

application; therefore, we are not beholden to give particular “weight” to the MSP’s 

interpretation of PS § 5-101(g). Id.
11

I. The Circuit Court Did Not Err by Affirming the Denial of McCloy’s HQL 

Application.

We affirm the circuit court’s legal conclusion that McCloy’s federal conviction 

constitutes a “disqualifying crime” because the conviction is equivalent to a misdemeanor 

conviction in Maryland carrying a maximum penalty of more than two years’

imprisonment. We further hold that the circuit court did not err in its statutorily prescribed 

role when it reviewed and modified the ALJ’s decision. Though we review the ALJ’s 

decision without deference to the circuit court’s determination, we affirm the ALJ’s ruling. 

See In re Homick, supra, 256 Md. App. at 307. Further, McCloy’s equitable arguments 

are unavailing. As such, we affirm the circuit court’s affirmance of the MSP’s denial of 

McCloy’s 2021 HQL application.

A. Although McCloy’s conviction occurred in 1999, the MSP correctly 

compared the federal statute under which he was convicted to an

equivalent Maryland statute at the time McCloy submitted his permit 

application. In so doing, the circuit court correctly concluded that his 

conviction constituted a “disqualifying crime.”

1. McCloy argues that his 1999 conviction cannot be considered a 

disqualifying crime which bars his ability to possess a handgun.

The denial of McCloy’s HQL application is contingent upon whether his 1999 

federal conviction was correctly classified as a “disqualifying crime.” McCloy argues that 

because his conviction occurred in 1999, it can only be compared to other Maryland 

statutes that existed in 1999. McCloy asserts that, since CR § 9-305 became effective on 

October 1, 2002, he could not have been charged or convicted under this purportedly 

equivalent Maryland statute in 1999. He, therefore, contends that he cannot be held to 
12

account under that statute now.11 Regardless, even if the statutes could be compared, 

McCloy argues that the federal law upon which he was convicted, 18 U.S.C. § 1512(c)(1), 

does not sufficiently align with the Maryland statute (CR § 9-305) to be considered 

equivalent. Further, he maintains that because the underlying facts of his conviction would 

not support a conviction under the Maryland statute, the laws are not equivalent, and his 

conviction is therefore not a “disqualifying crime.” Lastly, McCloy asserts that even if his 

federal conviction constitutes a disqualifying crime, the circuit court erred by affirming the

denial of his application on grounds distinct from those reached by the ALJ. For the 

reasons that follow, we are not persuaded.

2. When determining whether an “out-of-state” conviction is a 

“disqualifying crime,” we compare the “out-of-state” statute to an 

“equivalent” Maryland statute, utilizing Maryland laws and their 

requisite penalties as they existed at the time of the filing of the HQL 

application. 

In 2006, the Attorney General of Maryland issued an opinion advising the 

Superintendent of the MSP how convictions from other jurisdictions outside Maryland 

interact with Maryland’s firearms regulatory scheme when establishing “disqualifying 

crimes.” See generally 91 Op. Att’y Gen. 68, 68–80 (Md. 2006). Notably, as issues 

relating to the permitting process have worked their way through Maryland appellate 

courts, the core tenets of that Attorney General’s Opinion embedded in our case law on 

this issue. See McCloud v. Dep’t of St. Police, Handgun Permit Rev. Bd., 426 Md. 473, 

11 The enabling legislation for the Maryland statute considered equivalent to the 

federal law under which McCloy was convicted passed the General Assembly and was 

signed into law in 2002. See 2002 Md. Laws Ch. 26 (H.B. 11).
13

476 (2012) (“We shall hold that the [Appellate Court of Maryland] did not err in adopting 

the views expressed in the Attorney General’s Opinion to determine what constitutes a 

disqualifying crime.”).

A “disqualifying crime” includes both offenses committed in Maryland, as well as 

those offenses committed out-of-state that would be classified as misdemeanors with a 

potential penalty of more than two years’ imprisonment under Maryland law.

12

 Id. at 476; 

Brown, supra, 188 Md. App. at 480 (“The conviction for the violation can be from any 

state,” so long as the violation would classify as a misdemeanor with a penalty of more 

than two years’ imprisonment under Maryland law). 

The actual penalty in the jurisdiction where the conviction occurred is not 

controlling; instead, the MSP “must look to the maximum penalty for the equivalent 

offense in Maryland.” McCloud, supra, 426 Md. at 476; see also McLean, supra, 197 Md. 

App. at 448 (“[T]he General Assembly intended for PS § 5-101(g)(3) to be interpreted such 

that the conviction’s potential punishment is measured by reference to the penalty under 

12 The opinion of the Attorney General of Maryland (authored by then Chief 

Counsel Opinions and Advice Robert N. McDonald), makes clear that:

The phrase “disqualifying crime” includes out-of-State 

offenses, as well as those committed in Maryland. An offense 

in another state that would be classified as a misdemeanor in 

Maryland with a potential penalty under Maryland law in 

excess of two years[’] imprisonment falls within that 

definition. Thus, an individual who has been convicted of such 

an offense may not possess a regulated firearm in Maryland.

91 Opp. Att’y at 68.
14

the law of Maryland for a comparable violation.”). Although the conviction at issue in 

McCloud was a violation of the District of Columbia’s criminal code -- and thus akin to a 

conviction in another state -- we see no reason why McCloud’s holding would not apply to 

federal convictions later deemed “disqualifying crimes” as well.13 See McCloud, supra, 

426 Md. at 476.

Further, in evaluating whether an out-of-state conviction constitutes a 

“disqualifying crime,” we look to the Maryland law, and its respective maximum statutory 

penalty, “at the time of the application for a permit or renewal application to carry or 

otherwise possess a regulated firearm.” McLean, supra, 197 Md. App. at 433; see also 91 

Op. Att’y at 68 (reasoning that because the gun permit statutes regulate the current

possession of firearms, “the determination as to whether a particular misdemeanor ‘carries’ 

a penalty in excess of two years should be made with reference to the penalty at the time 

of possession, if it is different from the potential penalty at the time of conviction”

(emphasis added)).

13 In McCloud, the Supreme Court of Maryland (at the time named the Court of 

Appeals of Maryland) observed that:

If the Legislature had not intended out-of-state misdemeanors 

to be included, then it would have simply excluded the words 

“a violation classified as,” and said, “a misdemeanor in the 

State that carries a statutory penalty of more than [two] years.” 

The words “violation classified as a misdemeanor in the State” 

add out-of-state crimes to the statute’s purview if they are 

equivalent to a Maryland misdemeanor carrying such penalty.

426 Md. at 480.
15

Looking to Maryland criminal statutes and their requisite penalties at the time an 

applicant requests a gun permit “promotes consistency and equality in the treatment of all 

persons convicted of the same criminal conduct[,] regardless of where or when the criminal 

conduct occurred.” McLean, supra, 197 Md. App. at 449. Even if an out-of-state 

conviction would not disqualify lawful gun ownership in the jurisdiction where it occurred, 

the conviction could nonetheless constitute a “disqualifying crime,” preventing the 

applicant from obtaining a firearm permit in Maryland. See Brown, supra, 188 Md. App. 

at 484 (“We hold that federal law does not preempt Maryland from adopting and applying 

its own law to determine the effect of out-of-state convictions under this State’s criminal 

disarmament laws.”).

Accordingly, McCloy’s out-of-state conviction disqualifies him from obtaining a 

gun permit in Maryland, even if the conviction neither carried a penalty of more than two 

years’ imprisonment, nor precluded the ability to obtain a firearm permit in the jurisdiction 

where the conviction was rendered. McCloud, supra, 426 Md. at 476; Brown, supra, 188 

Md. App. at 484. Further, McCloy’s argument that his 1999 conviction cannot be 

compared to CR § 9-305(a), or to § 9-306, because those statutes were not in existence in 

1999 is equally unavailing.

14 In short, it is irrelevant what the laws of Maryland were at 

the time of his conviction; what matters is that the statute deemed comparable to the out14 The General Assembly enacted PS § 9-305 as part of House Bill 11 during the 

2002 Legislative Session, amending it in 2005 and again in 2018. See 2002 Md. Laws Ch. 

26 (H.B. 11); 2005 Md. Laws Ch. 461 (S.B. 122); 2018 Md. Laws Ch. 145 (S.B. 1137) 

(amending the maximum penalty under the statute from 20 years’ imprisonment to 10). 

The General Assembly enacted PS § 9-306 through House Bill 11 during the 2002 

Legislative Session, as well. See 2002 Md. Laws Ch. 26 (H.B. 11).
16

of-state conviction was in place at the time he submitted his HQL application. McLean, 

supra, 197 Md. App. at 433.

No entity tasked with assessing whether McCloy’s conviction was a “disqualifying 

crime” -- not the MSP, the ALJ, nor the circuit court -- erred by considering a potentially 

comparable Maryland law that was in effect at the time McCloy sought his HQL in 2021

rather than an equivalent Maryland statute in effect at the time of his 1999 conviction. 

Critically, CR § 9-305 is classified as a misdemeanor with a potential maximum penalty of 

ten years’ imprisonment. Therefore, our review of whether the MSP erred in denying 

McCloy’s permit depends upon whether the statute under which McCloy was convicted

(18 U.S.C. § 1512(c)(1)) can be characterized as equivalent to CR § 9-305(a), thereby 

qualifying the conviction as a “disqualifying crime.” 

3. If the elements of both the statute underlying the out-of-state 

conviction and the comparable Maryland statute sufficiently align, 

and if a reasonable mind could agree that the statutes are equivalent

and that the applicant’s conduct that constituted the out-of-state 

conviction could be understood to be criminalized under the 

equivalent Maryland statute, then the out-of-state conviction is a 

disqualifying crime that bars the possession of a regulated firearm.

When determining whether a foreign conviction is a “disqualifying crime” under 

Maryland’s gun permitting laws, neither this Court nor the Supreme Court of Maryland 

have articulated a clear standard of review for assessing the determination of equivalency 

of another jurisdiction’s statute compared to a corresponding Maryland misdemeanor 

statute with a penalty in excess of two years’ imprisonment.

McCloy advocates that we use the same standard Maryland courts use to assess the

equivalency of convictions when determining “crimes of violence” for the purpose of 
17

mandatory sentencing under CR § 14-101. See Hall v. State, 69 Md. App. 37, 61–62 (1986) 

(describing the two-step process, in which the court initially determines if the Maryland 

counterpart to the foreign crime would be classified as a “crime of violence” in Maryland, 

and, if so, whether the elements of the crime in the foreign jurisdiction “are sufficiently 

limited to those elements by which the crime is established in [Maryland]”). McCloy 

claims this method is consistent with the “categorical approach” used by federal courts 

when applying the Armed Career Criminal Act. See Taylor v. United States, 495 U.S. 575, 

600–02 (1990). In addressing this element-by-element comparison, McCloy points to 

inconsistencies between the statutes that he alleges undermine the MSP’s conclusion that 

they are equivalent.

The MSP appears to adopt this element-by-element comparison of the statutes as 

well, but it focuses on the common purpose of statutes -- that both prevent the intentional 

interference with or impeding of another person’s participation in a court proceeding -- as 

controlling. The circuit court compared the elements of the respective statutes and 

ultimately determined that sufficient commonalities existed, specifically the common 

element of intent to disrupt a judicial proceeding. The MSP maintains that this Court 

should affirm the determination of equivalency.

The paucity of applicable case law provides us with no explicit standards on how to 

review this equivalency determination. We start our analysis by looking at this Court’s 

decision in Brown for guidance. In Brown, we reviewed whether the MSP’s conclusion 

that Brown’s District of Columbia (“D.C.”) conviction for possession of a prohibited 

weapon (a pipe) under D.C. Code § 22-3214 (1981) was equivalent to Maryland’s CR § 4-
18

101(c)(2) (2003), “which forbids wearing or carrying a dangerous weapon with intent to 

injure.” 188 Md. App. at 464–65. Thereafter, we held that “we need not decide whether 

the evidence before [the MSP] would have been sufficient to support a conviction for a 

criminal offense that was predicated upon a prior conviction for a disqualifying crime.” Id.

at 487. 

Instead, we observed that we must determine “whether there is substantial evidence 

to support the [MSP’s] determination that the act Brown was convicted of committing in 

D.C. would constitute the Maryland offense of wearing or carrying a dangerous weapon.” 

Id. at 486–87. We concluded that Brown’s conviction in D.C. would constitute an offense 

under the comparable Maryland statute. Id. at 487. We recognized that there were 

distinctions between the Maryland and D.C. statutes, including the former requiring intent 

to injure, whereas the latter had no such intent requirement. Id. at 487–88. 

Notwithstanding these distinctions, because Brown admitted in his plea in the Superior 

Court of D.C. that he possessed a deadly weapon, the pipe, and that he “[g]ot into an 

altercation with another male,” we held that “substantial evidence” existed for the Board

to determine that Brown had been convicted of an equivalent crime.

15

 Since the “D.C. 

conviction for possession of a dangerous weapon would be equivalent to the Maryland 

15 Because the Maryland statute required an intent to injure, but the D.C. statute did 

not, this Court reasoned that since Brown admitted to both having a weapon and to getting 

into an altercation, circumstantial evidence existed to show, or at least to infer, that Brown 

intended to use the pipe to injure the other male with whom he had an altercation. See 

Brown, supra, 188 Md. App. at 488.
19

conviction for wearing or carrying a dangerous weapon,” Brown’s out-of-state conviction 

constituted a disqualifying crime that prohibited him from obtaining an HQL. Id. at 488.

Accordingly, though this Court in Brown acknowledged that the determination of 

whether the D.C. conviction constituted a “disqualifying crime” was a question of law, this

Court, in making its legal determination, relied upon the facts from Brown’s conviction to 

assess whether the relevant Maryland statute was equivalent. See id. at 446–48. While the 

underlying question of law was reviewed de novo, this Court in Brown held that the

utilization of additional facts lent itself to the “substantial evidence” test.16 Id. at 446–47

(“When we review an agency decision that is a mixed question of law and fact, we apply 

the substantial evidence test,” as we would for a purely factual determination.).

We, therefore, hold that the analysis provided by Brown applies in the following 

manner when assessing the determinations made by the MSP of the equivalency of out-ofstate convictions against comparable misdemeanors in Maryland. Initially, we compare

the statutory elements of the applicant’s out-of-state conviction with the elements of the 

comparable Maryland misdemeanor with a penalty in excess of two years’ imprisonment, 

16 Applying the “substantial evidence” test in this fashion also aligns with the less 

stringent “preponderance of evidence” standard used in hearings conducted by the OAH 

regarding such appeals of HQL application denials, rather than the far more onerous 

“reasonable doubt” standard of a criminal proceeding. See Md. Code, (1984, 2021 Repl.) 

§ 10-217 of the State Government Article (“SG”); Md. Code Regs. (“COMAR”) 

29.03.01.22(D), (H). It also aligns with the “preponderance of evidence” standard utilized 

in civil matters. See Santosky v. Kramer, 455 U.S. 745, 755 (1982) (discussing the different 

stakes involved in civil, compared to criminal, disputes resulting in the former using the 

“‘preponderance of the evidence’ standard” compared to the latter using the “‘reasonable 

doubt’ standard”). Though McCloy’s conviction was a criminal matter, the application of 

that conviction within the firearms regulatory scheme is “civil in character.” State v. 

Raines, 383 Md. 1, 31–32 (2004).
20

noting that we look to both the applicable Maryland law and the maximum penalties 

corresponding with that respective law at the time of the application, not at the time of the 

applicant’s out-of-state conviction. See McCloud, supra, 426 Md. at 476, McLean, supra, 

197 Md. App. at 433, Brown, supra, 188 Md. App. at 447–48. 

If we conclude that the statutes are comparable, we then assess whether a reasonable 

mind could conclude that the out-of-state and Maryland statutes prohibit similar conduct,

based upon a comparison of the elements of the respective statutes. See Brown, supra, 188 

Md. App. at 467; see also Proven Mgmt., Inc., supra, 472 Md. at 667 (noting that under 

the “substantial evidence test” we affirm the agency’s decision if we find “such relevant 

evidence as a reasonable mind might accept as adequate to support [the agency’s] 

conclusion.” (citation omitted)). In that context, we determine if a reasonable mind, in the 

position of the authority determining whether the out-of-state conviction is a disqualifying 

crime, could conclude that the conduct producing the applicant’s out-of-state conviction 

could be considered prohibited by the purportedly “equivalent” Maryland statute. See 

Brown, supra, 188 Md. App. at 467; see also Proven Mgmt., Inc., supra, 472 Md. at 667. 

If we answer both these inquiries in the affirmative, then the determination that the out-ofstate conviction is a “disqualifying crime” should be affirmed.17

 We turn now to applying

17 Although this standard we extract from Brown may not be as exacting as the 

element-by-element approach McCloy demands, it aligns with the “categorical approach” 

he asserts the MSP should adopt. The “categorical approach,” used by federal courts when 

applying the Armed Career Criminal Act, looks to compare statutes with “certain common 

characteristics . . . regardless of how they were labeled by state law,” thus it has the 

potential to “permit the [reviewing court] to go beyond the mere fact[s] of [the] 

conviction.” Taylor, supra, 495 U.S. at 589, 602; see also United States v. Proctor, 28 
21

this analytical framework to this dispute.

18

 

We begin by noting that CR § 9-305 satisfies the statutory requirements of a 

“disqualifying crime,” because it is a misdemeanor in Maryland that carries a penalty in 

excess of two years’ imprisonment in effect at the time McCloy filed his 2021 HQL 

application. McCloud, supra, 426 Md. at 487. Additionally, because McCloy’s conviction 

F.4th 538, 544–45 (4th Cir. 2002). This approach looks to the “minimum conduct” needed 

to commit the equivalent offense, as established by relevant state court decisions. Proctor, 

supra, 28 F.4th at 545. So long as there exists a “‘realistic probability, not [just] a 

theoretical possibility,’ that a state would actually punish that conduct,” a court can proceed 

to evaluate that minimum conduct committed by the defendant under the comparable 

Maryland law. Id. (quoting United States v. Doctor, 842 F.3d 306, 308–09 (4th Cir. 2016)).

Similarly, the standard we set forth also aligns with the two-step analysis for “crimes 

of violence” articulated in Hall v. State -- and advocated by McCloy -- in which a court 

reviews whether the elements of the out-of-state crime providing the basis of the 

defendant’s conviction “are sufficiently limited to those elements by which the crime is 

established in [Maryland].” 69 Md. App. at 61–62.

18 Notably, the issue of determining whether an out-of-state conviction is a 

disqualifying crime under PS § 5-101(g)(3) is a matter of statutory interpretation, and thus 

a question of law we review de novo. See McLean, supra, 197 Md. App. at 438. As such, 

we analyze whether CR § 9-305(a) is equivalent to 18 U.S.C. 1512(c)(1), as this was the 

determination made by the MSP and reviewed by the ALJ.

Additionally, the ALJ’s analysis of CR § 9-306(a) (“A person may not, by threat, 

force, or corrupt means, obstruct, impede, or try to obstruct or impede the administration 

of justice in a court of the State.”), which she determined was the more appropriate match

to McCloy’s federal conviction than CR § 9-305(a), was not argued before her but 

addressed by the ALJ sua sponte. This raises significant due process concerns discussed 

infra. Thus, because our de novo review puts us effectively in the shoes of the ALJ, we 

will limit our review to the arguments made by the parties before the ALJ. See Brown, 

supra, 188 Md. App. at 466–67 (stating we review the agency decision de novo); Regan, 

supra, 120 Md. App. at 511 (stating a reviewing court may substitute its judgment for that 

of the agency when that court finds error while reviewing a matter of law). As such, we 

need not address the potential equivalency of CR § 9-306 with McCloy’s conviction.
22

occurred in 1999, our equivalency evaluation will utilize the version of the federal statute 

from that year. 

Broken into its component parts, 18 U.S.C. § 1512(c)(1), as read in 1999 when 

McCloy was convicted, prohibits (i) the intentional (ii) harassment (iii) of another person, 

(iv) which results in hindering, delaying, preventing, or dissuading that person (v) from 

attending or testifying (vi) in an official proceeding.19 The definition of an “official 

proceeding,” most pertinent to both this comparison and to the facts of McCloy’s 

conviction, is “a proceeding before a judge or court of the United States, a United States 

magistrate judge . . . or . . . before a Federal Government agency which is authorized by 

law.” 18 U.S.C. § 1515(a)(1)(A), (D). Section 9-305(a) of the Maryland Criminal Law 

Article prohibits a person from (i) threatening, forcing, or using “corrupt means” (ii) to 

attempt to influence, intimidate or impede (iii) a juror, a witness, or an officer of a court of 

Maryland or the United States, (iv) in the performance of that individual’s official duties.20

In our view, there are several comparable components between these statutes. Most 

notably, both statutes prevent intentionally attempting to thwart another person’s 

participation in a judicial or a quasi-judicial proceeding. While 18 U.S.C. § 1512(c)(1) 

requires the defendant to “intentionally” attempt to hinder or prevent a person from 

19 The statute specifically addresses one who “intentionally harasses another person 

and thereby hinders, delays, prevents, or dissuades any person from attending or testifying 

in an official proceeding.” 18 U.S.C. § 1521(c)(1) (1999).

20 “A person may not, by threat, force, or corrupt means, try to influence, intimidate, 

or impede a juror, a witness, or an officer of the court of the State or of the United States 

in the performance of the person’s official duties.” CR § 9-305(a). The elements of the 

statute have not changed since McCloy submitted his application in 2021. 
23

testifying, CR § 9-305(a) prohibits a defendant from attempting to impede a witness from 

performing her duties -- which, when applied to McCloy’s conviction, can only logically 

mean the witness’ duty to testify -- by using “corrupt means.” Such “corrupt means 

involves acting with corrupt intent,” including what may seem otherwise benevolent or 

lawful actions but done with the intent “to preclude another person from testifying.” 

State v. Wilson, 471 Md. 136, 168 (2020) (holding that the defendant used “corrupt means” 

under CR § 9-305(a) by lawfully marrying a witness with the intent to preclude that witness 

from testifying in a criminal proceeding due to marital privilege). 

We next proceed to our second analytical step, in which we view whether a 

reasonable mind could conclude that the conduct resulting in McCloy’s conviction under 

18 U.S.C. § 1512(c)(1) would also be prohibited by CR § 9-305(a). McCloy’s attempt to 

reach a monetary resolution with his co-worker, the complainant in the EEOC case, for the 

purpose of dissuading her from participating in the adjudication of that proceeding satisfies

this definition of “corrupt means” articulated in Wilson. Indeed, McCloy attempted to 

settle the sexual harassment dispute with his co-worker by offering her $1,000 for her to 

dismiss the EEOC complaint. Monetary settlements are common, lawful methods of 

resolving disputes. Nevertheless, while McCloy’s actions may appear to be legal in 

isolation, they would be illegal if done with the “corrupt intent” of preventing the witness 

from testifying in an official proceeding. Id.

The same characterization applies to McCloy’s efforts to have his co-worker not 

disclose the phone call the co-worker overheard. Id. Notably, the “official proceeding” 

element of § 1512(c)(1) encompasses proceedings by federal agencies, like one resulting 
24

from an investigation of a complaint by the EEOC. 18 U.S.C. § 1515(a)(1)(A), (D). Such 

a proceeding would occur in a “court of the United States” -- whether it be an Article I 

federal agency court or an Article III federal district court -- where the witness would 

perform her “official duties” of testifying, as required under CR § 9-305(a). 

Therefore, a reasonable mind could reach the determination made by the MSP that 

18 U.S.C. § 1512(c)(1) and CR § 9-305(a) are equivalent such that substantial evidence 

exists to support the conclusion that McCloy had been convicted of a “disqualifying crime” 

that precluded him from obtaining a handgun permit. See Brown, supra, 188 Md. App. at 

488. We, therefore, agree with the ultimate determination of the ALJ that the MSP did not 

err in denying McCloy’s application to purchase a regulated firearm.

4. The circuit court did not err in modifying the ALJ’s ruling while affirming 

the denial of McCloy’s HQL application.

We affirm the circuit court’s determination that the MSP correctly denied McCloy’s 

HQL application. Nonetheless, the circuit court acknowledged that the ALJ exceeded her

authority by considering, and then concluding, that McCloy’s federal conviction was 

equivalent to CR § 9-306 rather than CR § 9-305(a), as argued by the MSP. McCloy Cir. 

Ct. Rev., supra, at 7. The circuit court further agreed with McCloy that the ALJ erred in

finding that McCloy provided a false statement on his HQL application regarding his 

federal conviction constituting a disqualifying crime.

21 Id. 

21 The ALJ concluded, on grounds other than those argued before it, that the MSP 

properly denied McCloy’s permit application. We disagree with the reasoning of the ALJ.

Our equivalency analysis supra demonstrates that it was not reasonable for McCloy to 

know that he was making such a false statement, as his federal conviction did not carry 
25

The circuit court was not bound by the ALJ’s legal conclusions because -- while 

mindful of the deference owed to an agency’s “longstanding” interpretation premised upon 

the agency’s “area of expertise” -- the determination of statutory equivalence is a question 

of law reviewed de novo. McLean, 197 Md. App. at 438. Because the MSP, and not the 

ALJ, is the agency tasked with reviewing HQL applications and interpreting “disqualifying 

crime[s]” under PS § 5-101(g), such deference may be owed to the MSP, but not to the 

ALJ, in the circuit court’s de novo review. Id.; see Brown, supra, 188 Md. App. at 471 

(stating the MSP is charged with interpreting relevant law in approving or denying HQL 

applications); see also PS § 5-121(a) (authorizing the MSP to review HQL applications). 

Thus, the circuit court was free to independently review the MSP’s assertion that 18 U.S.C. 

§ 1521(c)(1) was equivalent to CR § 9-305(a), and, in so doing, determine that McCloy’s 

conviction was a disqualifying crime.

Further, when reviewing a decision by an administrative agency, the circuit court 

may remand for further proceedings, affirm or reverse the final decision of the agency, or 

“modify the decision if any substantial right of the petitioner may have been prejudiced.” 

Md. Code, (1984, 2021 Repl.) § 10-222(h) of the State Government Article (“SG”). Here, 

such a two-year penalty, and, as we have shown, the equivalency analysis was not 

straightforward, as even the ALJ misconstrued it. See PS § 5-139(a) (prohibiting a person 

from knowingly making a false statement on a firearm application). The MSP issuing 

McCloy his 2015 HQL, despite knowing of his 1999 conviction, underscores this 

confusion. McCloy cannot be charged with knowledge that his 1999 conviction was a 

“disqualifying crime” when he submitted his 2021 HQL application because even the MSP 

did not make such a determination until after this request. Moreover, the ALJ reached this 

conclusion sua sponte, without it being asserted by the MSP, and without providing 

McCloy reasonable grounds to present a defense to such a claim at a hearing, thus raising 

due process concerns. 
26

the circuit court determined that the ALJ violated McCloy’s rights by considering 

arguments not presented at the hearing. See McCloy Cir. Ct. Rev., supra, at 7. The circuit 

court further determined that the ALJ unreasonably concluded that McCloy should have 

known his 1999 federal conviction was disqualifying despite the prior issuance of his 2015 

HQL. Id. As such, the circuit court correctly modified the ALJ’s decision. Critically, this 

did not alter the circuit court’s, nor the ALJ’s, ultimate conclusion that the MSP properly 

denied the permit. Because we agree with this conclusion as well, we affirm the circuit 

court’s order affirming the denial of McCloy’s HQL application.

B. McCloy is not entitled to equitable relief from the denial of his HQL 

application.

McCloy asserts that even if the MSP correctly applied the law explained supra and 

determined that his 1999 conviction prohibits the approval of his 2021 HQL application, 

numerous equitable principles bar the MSP from denying him his right to gun ownership. 

These principles do not warrant the outcome advanced by McCloy, particularly in this 

context.

1. The MSP’s prior approval of McCloy’s 2015 HQL license does not 

estop the agency from denying his 2021 HQL application.

McCloy argues that the MSP’s previous issuance of his 2015 HQL, despite the 

existence of his 1999 conviction, estops the agency, and by extension the ALJ and this 

Court, from denying his 2021 HQL application. Further, because McCloy used this license 

to then purchase regulated firearms, he claims the denial of his 2021 license is akin to 

entrapment. We find little reason to wade into this argument because the issuance or denial 

of an HQL is not a criminal matter warranting the affirmative defense of entrapment-by-
27

estoppel.22 McLean, supra, 197 Md. App. at 447 n.24 (refusing to address McLean’s 

entrapment by estoppel arguments because “there has been no effort on the part of MSP to 

prosecute for violation of firearms laws,” and “the statute in question is not a penal 

statute”).

More directly, though, his estoppel argument has no merit, because the MSP cannot 

be estopped from enforcing its statutory scheme in regulating firearms. “[T]he doctrine of 

estoppel will not be applied against the State in the performance of its governmental, public 

or sovereign capacity or in the enforcement of police measures.” Salisbury Beauty Schs. 

v. St. Bd. of Cosmetologists, 268 Md. 32, 63–64 (1973). To estop the State from enforcing 

otherwise valid laws or regulations because prior conduct of public employees led the 

claimant to believe the law was otherwise would deprive the public of the protections

provided by the statute only because of the mistaken action of those employees. In re 

Cash-N-Go, Inc., 256 Md. App. 182, 206 (2022). The fact that the MSP approved prior 

firearms purchases does not preclude the agency from correctly applying the statute now 

and determining McCloy’s 1999 conviction is a disqualifying crime that bars the issuance 

of his handgun permit. See McLean, supra, 197 Md. App. at 446–47, 449.

22 Any potential criminal consequences from the denial of McCloy’s HQL 

application are not before us. See McLean, supra, 197 Md. App. at 447 (“[T]here is no 

reason to believe that [McLean] would not be given reasonable consideration for the 

transfer of any regulated firearms in his possession before being subject to any criminal 

liability.”).
28

2. The Ex Post Facto Clause does not bar the MSP from determining that

McCloy’s 1999 federal conviction was a “disqualifying crime.”

McCloy asserts that applying the penalties of a Maryland criminal statute that did 

not exist at the time the conduct resulting in his 1999 federal conviction occurred violates 

both the United States and Maryland constitutional provisions against retrospective 

punishment, commonly referred to as “ex post facto laws.” See U.S. Const. art. 1 § 10, cl. 

1; Md. Const. art. 17; Watkins v. Sec’y, Dep’t of Pub. Safety & Corr. Servs., 377 Md. 34, 

48 (2003) (“Maryland’s ex post facto clause has been viewed generally to have the ‘same 

meaning’ as its federal counterpart.”). We disagree. Indeed, the prohibition of ex post facto

laws concerns the punishing of acts presently deemed criminal when they were not viewed 

as such at the time of their occurrence. Watkins, supra, 377 Md. at 48. 

Most obviously, the statutes regulating firearms apply to their current possession 

and transfer, not to past behaviors. See 91 Opp. Att’y at 79; see also Corcoran v. Sessions, 

261 F. Supp. 3d 579, 601–02 (D. Md. 2017) (“The Maryland Firearms Prohibitions under 

challenge here are not retrospective. . . . For the same reason that firearms prohibitions do 

not run afoul of the Ex Post Facto Clause when used to prosecute a new offense, they do 

not offend the Clause when as-applied to prohibit a person from possessing a firearm in 

the first place.”). The determination that McCloy’s 1999 conviction under 18 U.S.C. § 

1512(c)(1) is equivalent to CR § 9-305(a) -- a statute that did not exist at the time of his 

conviction -- does not further criminalize or punish McCloy, nor does it modify his 

conviction in any way. See State v. Raines, 383 Md. 1, 30 (2004) (holding Maryland statute 

permitting the DNA collection of persons whose commission of a qualifying crime 
29

occurred prior to the effective date of the statute did not violate the ex post facto clause); 

91 Opp. Att’y at 79 (“While a disqualification under the regulated firearms law can be a 

collateral consequence of a criminal conviction, it is not part of the sentence.”). 

Further, the gun licensing provisions enforced against McCloy are a “regulatory 

scheme and [are] thus civil in character.” Raines, supra, 383 Md. at 31–32. “Any deterrent 

effect is secondary to the regulatory nature of the statute.” Id. at 30. The logical extension 

of McCloy’s position would prevent the government from modifying any regulatory 

scheme for fear its new application would be deemed unconstitutionally retrospective. 

3. McCloy’s due process claims are more appropriate for consideration 

via post-conviction relief rather than as a challenge to the denial of 

his 2021 HQL application.

McCloy asserts two theories of how the denial of his HQL application violated his 

due process rights. First, he argues that denying him the ability to purchase a firearm 

violates his due process rights because he was not informed in 1999 that a collateral 

consequence of his guilty plea would mean the subsequent stripping of his constitutional 

right to keep and bear arms. Initially, we note the logical impossibility at the root of 

McCloy’s assertion. He essentially argues that prior to the acceptance of his 1999 guilty 

plea, he should have been informed that his conviction might be considered equivalent to 

a statute not yet in existence, and that 20 years after his conviction, this equivalency 

determination would prohibit him from obtaining a gun permit. Regardless, “[e]ven if it 

was constitutionally required for [McCloy] to be informed of this collateral consequence, 

the proper remedy for such a violation of his due process rights would be to attack his 

guilty plea in [United States District Court for the District of Columbia] as involuntary,” 
30

or to pursue a claim of ineffective assistance of counsel, or other postconviction relief, in 

the court that accepted his plea and conviction. McCloud v. Dep’t of St. Police, 200 Md. 

App. 725, 734 (2011), aff’d sub nom. McCloud v. Dep’t of St. Police, Handgun Permit Rev. 

Bd., 426 Md. 473 (2012).

McCloy also maintains that a due process violation occurred following his OAH 

hearing because the ALJ made the sua sponte determination that 18 U.S.C. § 1512(c)(1) 

was not equivalent to CR § 9-305(a) but rather to CR § 9-306. He alleges that this deprived 

him of the ability to participate in a full and fair hearing in which he could prepare to rebut 

the arguments against him.23 Though we are troubled by the ALJ’s decision to pursue 

reasoning for the denial of the permit beyond the arguments presented by the MSP, we 

review the ALJ’s legal conclusion de novo. As a result, we return McCloy to the same 

position he was in before the ALJ because we considered only arguments regarding 

whether CR § 9-305(a) -- not CR §§ 9-306 or 9-302 -- was the appropriate Maryland law 

to compare to McCloy’s federal conviction. Accordingly, we affirm the MSP’s denial of 

McCloy’s application, supra, on other grounds as explained within this opinion.

23 Related to this due process argument is McCloy’s frustration with the MSP, 

which originally informed him that the agency determined his 1999 conviction was 

equivalent to a conviction under CR § 9-302, only to change that determination shortly 

before the OAH hearing and instead say that the equivalent Maryland statute was CR § 9-

305(a). Notably, at the OAH hearing, McCloy’s counsel failed to object to this notice. 

Further, though not dispositive, at the hearing McCloy’s counsel argued that (1) McCloy 

could not now be held to account under a statute that did not exist at the time of his 

conviction, and that (2) the facts underlying McCloy’s federal conviction would not result 

in a conviction under Maryland law. 
31

At oral argument, the parties addressed the legality of McCloy’s possession of 

firearms lawfully purchased with his 2015 HQL. Initially, we note that the ensuing 

repercussions of our affirmance in this case, and the potential consequence this may have 

on his possession of those firearms, is not before us. See Diallo v. State, 413 Md. 678, 

692–93 (2010) (“[A]rguments not presented in a brief or not presented with particularity 

will not be considered on appeal.” (citation omitted)). Additionally, as this court has 

addressed such a concern in prior cases interpreting “disqualifying crime” determinations: 

We recognize that interpreting PS § 5-101(g)(3) as we do may 

seem harsh in this particular situation—as it results in the nonrenewal of [McLean’s] permit to carry a handgun, where there 

is no indication that he has abused the right provided to him by 

that permit, or for that matter, any firearms permit, in any 

way. . . . But, in light of the overall statutory scheme, that does 

not necessarily render the interpretation illogical, unreasonable 

or inconsistent with common sense, as urged by [McLean].

. . . 

Nothing in the record reflects an effort by MSP to void any 

existing permits and, even if that were the case, there is no 

reason to believe that [McLean] would not be given reasonable 

consideration for the transfer of any regulated firearms in his 

possession before being subject to any criminal liability.

McLean, supra, 197 Md. App. at 445–47. 

CONCLUSION

Returning to the issue at the heart of this appeal, we synthesize the prior holdings of 

this Court and the Supreme Court of Maryland into the following standard for reviewing 

courts to utilize when analyzing the MSP’s determination that an out-of-state conviction is 

a “disqualifying crime” under Maryland’s firearms regulatory framework. First, the 

reviewing court must compare the elements of the foreign statute providing the basis for 
32

the applicant’s out-of-state conviction with the elements of the purportedly equivalent 

Maryland misdemeanor statute with a penalty of more than two years’ imprisonment to 

determine if a reasonable mind could accept the conclusion that the foreign and Maryland 

statutes aim to prohibit the same conduct. In so doing, the reviewing court must use the 

Maryland statute (and its maximum penalty) as it existed at the time the applicant requested 

an HQL, not at the time of the applicant’s out-of-state conviction. 

Thereafter, the reviewing court must determine whether a reasonable mind could 

conclude that the conduct producing the applicant’s out-of-state conviction would be 

prohibited by the purportedly equivalent Maryland statute. If the reviewing court answers 

both these inquiries affirmatively, then the MSP’s equivalency determination must be 

affirmed, as well.

We, therefore, agree with the MSP’s conclusion that McCloy’s 1999 federal 

conviction under 18 U.S.C. § 1512(c)(1) was equivalent to CR § 9-305(a), a misdemeanor 

in Maryland with a maximum penalty in excess of two years’ imprisonment. As such, his 

conviction is a “disqualifying crime” that prohibits him from possessing a regulated firearm 

and requires the MSP to deny his HQL application. We, therefore, agree with the ultimate 

determination of the ALJ, and because the circuit court rightfully modified the ALJ’s

conclusions while affirming the ALJ’s judgment, we affirm the judgment of the circuit 

court.

JUDGMENT OF THE CIRCUIT COURT 

FOR QUEEN ANNE’S COUNTY 

AFFIRMED. COSTS TO BE PAID BY 

APPELLANT.