The Volokh Conspiracy

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Second Amendment Rights of People Briefly Hospitalized for Mental Health Reasons Long Ago?


From Judge Dale Drozd's opinion in Clifton v. U.S. DOJ (E.D. Cal.), filed Friday:

In 2001, plaintiff was in eighth grade at Mt. Vernon Middle School in Los Angeles, California. He was thirteen years old at the time. Because plaintiff's mother had passed away and he never knew his father, plaintiff then lived with his grandmother. His grandmother's husband—plaintiff's step-grandfather—was physically and mentally abusive toward both plaintiff and his grandmother. One day in June of 2001, while at an after-school program, plaintiff made comments about "what he would like to do toward his step-grandfather in order to protect himself and his grandmother."

Plaintiff never directly threatened anyone nor took any action to harm his step-grandfather. Nevertheless, the school called a Psychiatric Emergency Team ("PET"), which consisted of licensed mental health clinicians approved by the County of Los Angeles Department of Mental Health to provide Welfare and Institutions Code §§ 5150 and 5585 evaluations. Upon evaluation by the PET, plaintiff was hospitalized for mental health treatment at Gateways Hospital and Mental Health Center in Los Angeles, California for 15 days—from June 12 through June 27, 2001. Although plaintiff was initially hospitalized for only 72 hours pursuant to § 5150, his hospitalization was extended by 14 days for intensive treatment pursuant to § 5250.

Upon his release from the hospital, plaintiff was not prescribed any continuing medication, nor was he required to receive any further psychiatric treatment, including therapy or counselling. Plaintiff alleges that he was never notified of his right to seek judicial review of an involuntary hold and that he was never informed of any long-term repercussions as a result of his psychiatric hold. Nevertheless, plaintiff lost his private capacity to own a firearm as a result of 18 U.S.C. § 922(g), which prohibits an individual who has been involuntarily committed to a mental institution from owning, possessing, using, or purchasing a firearm or ammunition. Notably, 18 U.S.C. § 925(a)(1) provides an exception to this firearms ban under federal law for state actors acting in their official capacity.

Plaintiff went on to graduate from high school and enlist in the United States Marine Corps in 2005. Under § 925(a)(1), plaintiff was permitted to handle a firearm during his time with the marines. Plaintiff completed three combat deployments before leaving active duty in 2013 and received an Honorable Discharge as a Sergeant. Subsequently, plaintiff was hired by the Federal Bureau of Prisons as a corrections officer in 2015. He remained in that position until April 2019, when he resigned in good standing. Plaintiff is informed and believes that both his service in the marines and his employment as a federal correctional officer required a complete background investigation that would have revealed his past hospitalization.

On April 8, 2019, the Fresno County Sheriff's Office hired plaintiff as a correctional officer at the Fresno County Jail. Prior to being hired in this role, plaintiff underwent and passed a full psychological evaluation that confirmed he is mentally fit to possess and use a firearm. Then, in 2020, plaintiff applied for a "Deputy Sheriff I" position in the Fresno County Sheriff's Office. This time, when Fresno County ran a background check, the California Department of Justice statewide telecommunications system reported plaintiff's prior hospitalization implicating his lifetime firearms ban under federal law.

As a result of plaintiff's federal firearms restriction, the Fresno County Sheriff's Office declined to sponsor plaintiff's entry into the "Basic Academy under the California Commission on Peace Officer Standards and Training" (i.e., "POST Academy") and represented that it will not consider plaintiff for a sworn deputy sheriff position. Thus, although 18 U.S.C. § 925(a) provides an exception to the firearms ban under 18 U.S.C. § 922(g)(4) for state or federal actors operating in their official capacity, Fresno County has declined to seek to apply that exception to plaintiff. Under state and federal law, there is no other proceeding that plaintiff can bring to expunge or extinguish his lifetime firearms restrictions under federal law.

Clifton challenged § 922(g)(4), in part based on the Second Amendment. The court began by observing that, in effect, § 922(g)(4) permanently bans gun possession by Californians who had ever been committed for mental health reasons, even long ago:

Federal law prohibits a person "who has been adjudicated as a mental defective or who has been committed to a mental institution" from possessing a firearm or ammunition. Federal law has provided two potential avenues for relief from this lifetime ban, but both have been foreclosed to all California residents.

First, prior to 1992, a person in plaintiff's position could have applied to the United States Attorney General for relief under 18 U.S.C. § 925(c), which provided "for relief from the disabilities imposed by Federal laws with respect to the … possession of firearms." Under 18 U.S.C. § 925(c), the Attorney General may, but is not required to, grant relief "if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." However, since 1992, Congress "has prohibited the use of funds to act on such applications, disabling the program." "Congress defunded the program because, among other reasons, determining eligibility had proved to be 'a very difficult and subjective task which could have devastating consequences for innocent citizens if the wrong decision is made.'"

Second, the states may establish programs under 34 U.S.C. § 40915 to provide opportunities for relief from the prohibition imposed by § 922(g)(4). To qualify to do so, the state's program must "permit[] a person who, pursuant to State law, … has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by" 18 U.S.C. § 922(g)(4) and other laws. The program also must provide:

That a State court, board, commission, or other lawful authority shall grant relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities …, and the person's record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

… "Thirty-one states and two tribal governments have established such programs, but California has not." Specifically, California law does not require a determination "that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest."

But the court concluded that Clifton's hospitalization may not have counted as a commitment under § 922(g)(4), because it didn't involve a judicial evaluation of his mental health:

The court … concludes plaintiff has adequately alleged that his 2001 hospitalization does not constitute an involuntary commitment involving robust judicial involvement under § 922(g)(4). At the time of plaintiff's hospitalization, California Welfare and Institutions Code § 5150 required the officer, staff person, or other professional who caused the person to be taken into custody to state the circumstances giving rise to probable cause that, because of a mental disorder, the person was a danger to others, himself, or gravely disabled, in a written application to the facility or hospital. However, "Section 5150 provided no hearing." California Welfare and Institutions Code § 5250 then authorized hospital staff to certify a person for an additional 14 days of treatment, which is what plaintiff alleges occurred with respect to his hospitalization here….

Other federal circuit and district courts have concluded that similar procedures do not qualify as commitments under § 922(g)(4). For example, in Rehlander, the First Circuit concluded that temporary hospitalizations carried out by way of an ex parte procedure—not unlike the procedure alleged here pursuant to California Welfare & Institutions Code § 5250—did not constitute a commitment under the provisions of § 922(g)(4)…. Moreover, the two Ninth Circuit cases to address commitment procedures in the context of § 922(g)(4) both involved judicial determinations that the plaintiffs required institutionalization and in both cases the plaintiffs had been represented by counsel at those court proceedings…. Thus, the court concludes that plaintiff has adequately alleged that there was no "commitment" within the meaning of that word as used in § 922(g)(4)…. Of course, on summary judgment for instance, the evidence may establish that plaintiff's 2001 certification did indeed include the level of judicial involvement necessary for § 922(g)(4) to apply to him….

And the court briefly discussed, but didn't resolve, the question whether § 922(g)(4) may be unconstitutional:

In D.C. v. Heller, the Supreme Court emphasized that nothing in its opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." Defendants note that the Supreme Court "identified such prohibitions as 'presumptively lawful,' because they affect classes of individuals who, historically, have not had the right to keep and bear arms." … [And Mai v. U.S. (9th Cir. 2020) held that, even as to] a plaintiff committed for mental health treatment as a minor[,] … § 922(g)(4)'s continued application did not violate the Second Amendment….

In [Mai,] the Ninth Circuit held that § 922(g)(4) was constitutional because "the Second Amendment allows categorical bans on groups of persons who presently pose an increased risk of violence." The court reached this conclusion by applying intermediate scrutiny to § 922(g)(4)…. However, the Ninth Circuit's Second Amendment jurisprudence has now at least arguably been somewhat cast into doubt due to the Supreme Court's recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen. The majority opinion in that case suggests that the … intermediate scrutiny approach to certain Second Amendment challenges may no longer govern….

Nevertheless, the undersigned notes that in Justice Kavanaugh's concurring opinion in Bruen, in which Chief Justice Roberts joined, it was stated that "[n]othing in [the Court's] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill …." Moreover, the Supreme Court has previously recognized that in enacting § 922(g)(4), Congress sought "to keep firearms out of the hands of presumptively risky people."

Based on the presumptive constitutionality of § 922(g)(4) due to the historical evidence supporting laws barring the mentally ill from owning firearms, the undersigned strongly believes that § 922(g)(4) would be upheld by the Supreme Court, regardless of any new, as of yet undefined and unapplied, interpretation methods developed in light of the decision in Bruen. That is not a question that this court must answer today. In fact, it would likely be irresponsible to do so in light of the many cases that will undoubtedly address both the holding in Bruen and how it is to be applied in this Circuit. Moreover, of course, neither party has briefed those issues in this case. Instead, because the court will deny defendants' motion to dismiss as to plaintiff's Second Amendment claim on the basis that plaintiff has adequately alleged that he was never "committed" for mental health treatment as that term is used in § 922(g)(4), the court need not address the constitutionality of § 922(g)(4) in this order. If—after further briefing and conducting of discovery—the court is again faced with that question, it will address it at that time….

My tentative view: The Court in D.C. v. Heller did approve of "prohibitions on the possession of firearms by … the mentally ill," but "the mentally ill" doesn't mean "anyone who has ever been found to have mental problems." Like the physically ill, "the mentally ill" generally refers to present illness, not long-past illness. (Nor do I know of any longstanding history of permanent disqualification of anyone who had ever been mentally ill.) And while past illness is often evidence of present illness, it seems to me that, to be constitutional, a prohibition has to provide for some sort of reevaluation and potentially recovery of gun rights, especially after many years have past—something that § 925(c) initially provided, but that it no longer does.

UPDATE: D'oh! I initially wrote "But the court concluded that Clifton's hospitalization may have counted as a commitment under § 922(g)(4), because it didn't involve a judicial evaluation of his mental health," omitting the "not." As my parents would say in such situations "with 180 degree precision" …. Sorry for the error, and thanks to Jordan Brown for pointing it out.