A Second Amendment-ish Victory for People Who Had Been Temporarily Committed to Mental Institutions with No Adversary Proceedings

In today’s United States v. Rehlander (1st Cir. Jan. 13, 2012), the First Circuit revisited and narrowed its precedents related to 18 U.S.C. § 922(g)(4) — the statute that bars gun possession by people who had at some point been “committed to a mental institution” — in light of the Second Amendment:

Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine’s “emergency procedure,” Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been “committed to a mental institution.” 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a “commitment” under section 922(g)(4), United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998), but appellants say that District of Columbia v. Heller has altered the equation….

Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures — that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed.

For full scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others. This procedure is described in the statute as a “commitment,” not “emergency hospitalization,” and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms….

[Appellants claim] that, given Heller‘s pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms — permanent given the lack of any meaningful way ever to recapture that right.

We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a “commitment” for federal purposes….

Chamberlain, at the time it was rendered, was a reasonable albeit not compulsory reading of section 922(g)(4). Although section 3863 did not use the word “commitment” and its procedures were effectively ex parte, it was clear from section 922’s legislative history cited in the decision that Congress intended an expansive interpretation. Other circuits reached differing conclusions regarding emergency hospitalization procedures similar to section 3863, but none indicated that there was a constitutional dimension to the problem.

Heller now adds a constitutional component. Although the right established in Heller is a qualified right, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required. It is evidently doubtful that a section 3863 commitment provides the necessary process for a permanent deprivation.

Section 3863 permits three-day involuntary hospitalizations (earlier it was five days) without any adversary proceeding and with no finding by an independent judicial or even administrative officer that the subject is either mentally disturbed or dangerous. True, there must be an application to a judge and a certification by a “medical practitioner”; but the judge merely determines that the procedural steps have been taken and makes no substantive findings. And the subject is never heard by the judge, through counsel or otherwise.

This is all that is practical for an emergency hospitalization, and for this purpose, we agree with the Maine courts that it is the only process that is due. An observer has provided facts, a medical professional has assessed mental illness and a threat to the immediate safety of the subject or others, and hospitalization is limited to a few days unless voluntarily extended by the subject or extended by a court under protective procedures.

By contrast, involuntary commitment under section 3864 is allowed only after a court holds an adversary hearing providing counsel for the patient and an opportunity to testify and to call and cross-examine witnesses. The committing court must then itself determine whether there is clear and convincing evidence that the patient is mentally ill and poses a likelihood of serious harm, and whether better alternative arrangements exist. .

The Supreme Court made clear in Heller that its decision did not undercut traditional restrictions on the possession of arms by those who were mentally ill. But nothing suggests that the Court was there addressing a permanent ex parte deprivation of its newly recognized constitutional right. And, given ordinary due process requirements that the Court has adopted in the past, it is highly doubtful that it would deem section 922(g)(4) adequate if it were read to embrace the Maine emergency hospitalization — at least absent further protective procedures or remedies.

This would be a different case if section 922 addressed ex parte hospitalizations and provided for a temporary suspension of the right to bear arms pending further proceedings. It could also be different if section 922 permitted one temporarily hospitalized on an emergency basis to recover, on reasonable terms, a suspended right to possess arms on a showing that he now no longer posed a risk of danger. In all events, right now there is no recovery procedure in Maine that would avoid the ban of section 922.

The Attorney General can grant relief from firearms disability, 18 U.S.C. § 925(c), but Congress has prohibited action on such petitions since 1992. Congress has also allowed states to develop a “relief from disabilities program,” but Maine’s program has not been approved by the Attorney General….

The constitutional doubts raised by such a regime are sufficient that we now conclude that section 922 should not be read to encompass a temporary hospitalization attended only by the ex parte procedures of section 3863. The ordinary rule is that statutes are to be read to avoid serious constitutional doubts, if that course is possible, and it is readily possible here. Indeed, some circuit courts had read procedures like section 3863 not to create disability even without constitutional doubts awakened by Heller….

[T]he government points to evidence that Small and Rehlander were mentally ill and dangerous both at the time of their emergency admissions and when they possessed firearms. But in section 922, Congress did not prohibit gun possession by those who were or are mentally ill and dangerous, and such a free floating prohibition would be very hard to administer, although perhaps not impossible. This is why, as with the ban on prior felons, Congress sought to piggyback on determinations made in prior judicial proceedings to establish status.

Thus, section 922(g)(4) does not bar firearms possession for those who are or were mentally ill and dangerous, but (pertinently) only for any person “who has been adjudicated as a mental defective” or “has been committed to a mental institution.” As we read section 922 in light of the concerns already discussed, a temporary hospitalization under section 3863 does not constitute a “commitment” under section 922 — just as it clearly does not constitute a commitment under Maine law itself….

This strikes me as quite right: The Court did state that the Second Amendment right did not extend to certain people, including the mentally ill. But this doesn’t mean that Second Amendment rights can be permanently lost based simply on a government official’s determination of mental illness, made without any adversarial proceeding at which the defendant can make his case. Just as so-called “First Amendment Due Process” rules (including ones against speech-restrictive injunctions imposed based on an ex parte, nonadversarial hearing) protect free speech rights, so courts must recognize Second Amendment Due Process principles to protect the right to keep and bear arms.

Note also that the statement in Heller about the constitutionality of bans on gun possession by “the mentally ill” doesn’t on its face dispose of bans on people who were once mentally ill, perhaps many years ago. But that is a separate question.

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