Decision United States v. Rehlander

benjamin small , nathan rehlander each involuntarily admitted psychiatric hospitals under maine s emergency procedure, me.rev.stat. tit. 34-b, § 3863 (2011), , each later convicted possessing firearms after having been committed mental institution. 18 u.s.c. § 922(g)(4) (2006). court has held section 3863 hospitalization qualifies commitment under section 922(g)(4),[1] appellants district of columbia v. heller, 554 u.s.570, 128 s.ct. 2783, 171 l.ed.2d 637 (2008), has altered equation.

the background events undisputed , recounted. maine has 2 procedures involuntary psychiatric hospitalization. section 3863 provides temporary hospitalization following ex parte procedures — say, without adversary proceeding. procedures include application health or law enforcement officer, certifying medical examination medical practitioner, , endorsement judge or justice of peace confirming these procedures have been followed. me.rev.stat. tit. 34-b, § 3863(1)-(3).

for full-scale commitments (as opposed temporary hospitalization), maine requires traditional adversary proceeding, me.rev.stat. tit. 34-b, § 3864, culminating in judicial determination whether subject both mentally ill , poses danger himself or others, id. § 3864(6). procedure described in statute commitment, not emergency hospitalization, , 1 consequence 47*47 under maine law, section 3864 commitment causes loss of right possess firearms. me.rev.stat. tit. 15, § 393(1)(e).

in may 1998, small twice hospitalized under section 3863 — @ request of mother , emergency mental health worker, respectively — based on suicidal tendencies , other signs of mental illness. in march 2009, police found small in possession of astra .357 revolver. in april 2009, small again hospitalized under section 3863 , committed on longer-term basis under section 3864. small indicted in november 2009 violation of section 922(g)(4), based solely on may 1998 section 3863 hospitalizations , march 2009 possession.

in march 2007, rehlander involuntarily hospitalized under section 3863 @ request of crisis clinician, based on suicidal impulses. after submitting voluntary hospitalization few days, rehlander changed mind, , in april 2007 again involuntarily hospitalized under section 3863 @ request of hospital personnel. section 3863 hospitalizations subject strict time limits, hospital applied longer-term involuntary commitment under section 3864. full-scale section 3864 proceeding followed @ end of maine state court ordered rehlander discharged, concluding @ point rehlanderneeded treatment did not pose risk of serious harm. in december 2008, police responding assault complaint found rehlander 9 mm. caliber pistol.rehlander indicted in september 2009 violation of section 922(g)(4), based on march , april 2007 section 3863 hospitalizations , december 2008 possession. both small , rehlander moved dismiss indictments on constitutional grounds, arguing application of section 922(g)(4) them violated second amendment right bear arms under heller decision , fifth amendment due process rights. after district court denied motions, each pled guilty violating section 922(g)(4) reserved — , have exercised — right appeal denial of motions dismiss.

the issues before legal , our review therefore de novo. united states v. volungus, 595 f.3d 1, 4 (1st cir.2010). appellants press constitutional claims in various permutations; potent that, given heller s pronouncement of individual constitutional right possess arms, ex parte procedures employed under section 3863 may justify temporary hospitalization not permanent deprivation of right bear arms — permanent given lack of meaningful way ever recapture right. conclude claim sufficiently powerful doctrine of constitutional avoidance requires revisit our prior interpretation of section 922(g)(4); and, in doing so, conclude section 3863 proceedings not qualify commitment federal purposes. ordinarily, panel decisions chamberlain binding on subsequent panels not intervening supreme court precedent requires reconsideration. united states v. rodríguez, 527 f.3d 221, 224-25 (1st cir.2008). chamberlain, @ time rendered, reasonable albeit not compulsory reading of section 922(g)(4). although section 3863 did not use word commitment , procedures ex parte, clear section 922 s legislative history cited in decision 48*48 congress intended expansive interpretation. other circuits reached differing conclusions regarding emergency hospitalization procedures similar section 3863, see note 1, above, none indicated there constitutional dimension problem.

heller adds constitutional component. although right established in helleris qualified right, see note 3, below, right possess arms (among not disqualified) no longer can withdrawn government on permanent , irrevocable basis without due process. ordinarily, work permanent or prolonged loss of constitutional liberty or property interest, adjudicatory hearing, including right offer , test evidence if facts in dispute, required.[2] evidently doubtful section 3863 commitment provides necessary process permanent deprivation. section 3863 permits three-day involuntary hospitalizations (earlier 5 days) without adversary proceeding , no finding independent judicial or administrative officer subject either mentally disturbed or dangerous. true, there must application judge , certification medical practitioner ; judge merely determines procedural steps have been taken , makes no substantive findings. , subject never heard judge, through counsel or otherwise. practical emergency hospitalization, , purpose, agree maine courts process due. doe v. graham,977 a.2d 391, 399-400 (me. 2009). observer has provided facts, medical professional has assessed mental illness , threat immediate safety of subject or others, , hospitalization limited few days unless voluntarily extended subject or extended court under protective procedures. contrast, involuntary commitment under section 3864 allowed after court holds adversary hearing — providing counsel patient , opportunity testify , call , cross-examine witnesses. me.rev.stat. tit. 34-b, § 3864(5). committing court must determine whether there clear , convincing evidence patient mentally ill , poses likelihood of serious harm, , whether better alternative arrangements exist. id. § 3864(6); cf. addington v. texas, 441 u.s. 418, 99 s.ct. 1804, 60 l.ed.2d 323 (1979).

the supreme court made clear in heller decision did not undercut traditional restrictions on possession of arms mentally ill.[3] nothing suggests court there addressing permanent ex parte deprivation of newly recognized constitutional right. and, given ordinary due process requirements court has adopted in past, highly doubtful deem section 922(g)(4) adequate if 49*49 read embrace maine emergency hospitalization — @ least absent further protective procedures or remedies.

this different case if section 922 addressed ex parte hospitalizations , provided temporary suspension of right bear arms pending further proceedings. different if section 922 permitted 1 temporarily hospitalized on emergency basis recover, on reasonable terms, suspended right possess arms on showing no longer posed risk of danger. cf.note 4, below. in events, right there no recovery procedure in maine avoid ban of section 922. attorney general can grant relief firearms disability, 18 u.s.c. § 925(c), congress has prohibited action on such petitions since 1992. see logan v. united states, 552 u.s. 23, 28 n. 1, 128 s.ct. 475, 169 l.ed.2d 432 (2007); united states v. booker, 570 f.supp.2d 161, 164 n. 2 (d.me.2008). congress has allowed states develop relief disabilities program, nics improvement amendments act of 2007, pub.l. no. 110-180, 122 stat. 2559 (2008) (codified @ 18 u.s.c. § 922 note), maine s program has not been approved attorney general.[4]

accordingly, federal , maine law stood , still stand, small , rehlanderwere permanently deprived of right bear arms based solely on procedures suitable temporary hospitalization under emergency conditions. understandably, nothing in procedures provided advance adversary proceeding test whether subject mentally ill or dangerous, there no effective post-hospitalization means recover right bear arms if subject had in fact never been mentally ill or dangerous. constitutional doubts raised such regime sufficient conclude section 922 should not read encompass temporary hospitalization attended ex parte procedures of section 3863. ordinary rule statutes read avoid serious constitutional doubts, if course possible, jones v. united states, 529 u.s. 848, 857, 120 s.ct. 1904, 146 l.ed.2d 902 (2000), , readily possible here. indeed, circuit courts had read procedures section 3863 not create disability without constitutional doubts awakened heller. see note 1, above. , textually permissible read section 922 not triggered section 3863 hospitalization.

it @ least suggestive section 922 used word commitment, , — while state nomenclature not controlling — section 3863 refers admissions on emergency basis, me.rev.stat. tit. 34-b, § 3863, contrast commitment under section 3864. further, maine law prohibits firearm possession committed under section 3864 not admitted under section 3863. me.rev. stat. tit. 15, § 393(1)(e). thus, maine treats temporary hospitalization procedures insufficient nullify right possess guns. given discrepant wording , sparse procedures of section 3863, congress broad purpose in section 922 — keep guns out of hands of mentally ill — trumped these considerations in chamberlain, 159 f.3d @ 660, 50*50 662-64. true, purpose still served after heller reading section 922 cover maine s ex parte hospitalization; yet due process countervailing concern, supported considerable supreme court precedent. and, in enacting section 922, nothing suggests congress had in mind temporary hospitalizations supported ex parte procedures. along legislative purpose, government points our speculation inchamberlain subsequent proceedings before state tribunals may vitiate emergency hospitalization. chamberlain, 159 f.3d @ 665. close further look, focused heller, persuades there no ready way, @ least in ordinary case, use section 3864 procedures or other obvious device, nullify asserted arms-barring effect of mistaken section 3863 admission. nor section 922 invite review of factual mistake made in such admission.

the government argues small , rehlander s voluntary extension of section 3863 hospitalizations — rehlander s failure contest emergency hospitalization in section 3864 proceedings — confirms mental illness , waives due process challenge. such voluntary hospitalizations not qualify commitments. 27 c.f.r. § 478.11 (2011). and, rehlander sexperience demonstrates, section 3864 proceeding focuses on current condition , not prior temporary admission.[5] finally, government points evidence small , rehlander mentally ill , dangerous both @ time of emergency admissions , when possessed firearms. in section 922, congress did not prohibit gun possession or mentally ill , dangerous, , such free floating prohibition hard administer, although perhaps not impossible. why, ban on prior felons, congress sought piggyback on determinations made in prior judicial proceedings establish status.

thus, section 922(g)(4) not bar firearms possession or mentally ill , dangerous, (pertinently) person has been adjudicated mental defective or has been committed mental institution. read section 922 in light of concerns discussed, temporary hospitalization under section 3863 not constitute commitment under section 922 — not constitute commitment under maine law itself.

if rehlander mentally ill , dangerous, commitment may sought under section 3864 which, if successful, create presumptively valid section 922 ban; small subject such ban future gun possession. see note 5 above. broader problem of hospitalized under section 3863 alone, congress might able impose temporary ban on firearms possession or perhaps permanent 1 if procedures existed later restoring gun rights. since might depend on terms, unwise more such matters absent concrete case , adequate briefing.

it follows convictions of small , rehlander must set aside. district court cannot faulted following chamberlain, panel constrained 51*51 abandon decision heller, implicates supreme court s earlier due process precedents. complications may result, in relation prior convictions of others based on chamberlain, occurs new supreme court doctrine , problems resolved if , presented. judgments of conviction of small , rehlander reversed.

this strikes me quite right: court did state second amendment right did not extend people, including mentally ill. doesn’t mean second amendment rights can permanently lost based on government official’s determination of mental illness, made without adversarial proceeding @ defendant can make case. so-called “first amendment due process” rules (including ones against speech-restrictive injunctions imposed based on ex parte, nonadversarial hearing) protect free speech rights, courts must recognize second amendment due process principles protect right keep , bear arms.

note statement in heller constitutionality of bans on gun possession “the mentally ill” doesn’t on face dispose of bans on people once mentally ill, perhaps many years ago. separate question.

[1] united states v. chamberlain, 159 f.3d 656, 665 (1st cir.1998); united states v. holt, 464 f.3d 101, 105-06 (1st cir.2006), cert. denied, 549 u.s. 1344, 127 s.ct. 2031, 167 l.ed.2d 773 (2007). not circuits shared view. compare united states v. giardina, 861 f.2d 1334, 1337 (5th cir.1988),united states v. hansel, 474 f.2d 1120, 1122-23 (8th cir. 1973), united states v. waters, 23 f.3d 29, 31-36 (2d cir.), cert. denied, 513 u.s. 867, 115 s.ct. 185, 130 l.ed.2d 119 (1994).

[2] e.g., willner v. comm. on character & fitness, 373 u.s. 96, 102-03, 83 s.ct. 1175, 10 l.ed.2d 224 (1963); united states v. fla. e. coast ry. co., 410 u.s. 224, 244-45, 93 s.ct. 810, 35 l.ed.2d 223 (1973); friendly, kind of hearing, 123 u. pa. l.rev. 1267 (1975); nowak & rotunda,constitutional law §§ 13.7 & 13.8, @ 547-557 (5th ed. 1995).

[3] among other reservations, court stated nothing in [heller] should taken cast doubt on longstanding prohibitions on possession of firearms felons , mentally ill. heller, 554u.s. @ 626-27, 128 s.ct. 2783; accord mcdonald v. city of chicago, ___ u.s. ___, 130 s.ct. 3020, 3047, 177 l.ed.2d 894 (2010).

[4] if state scheme approved, in case rehlander ineligible relief due five-year waiting period running date of discharge section 3863 hospitalization. small s later commitment under section 3864 disqualifies him relief entirely, see me.rev.stat. tit. 15, § 393(4-a), not problem (as noted above) not basis conviction in case.

[5] earlier noted, rehlander prevailed in section 3864 case; and, earlier noted, small committed under section , violated state , federal law if thereafter possessed gun, government in case relied on small s firearms possession following 3863 hospitalizations prior section 3864 commitment.