Filed: Jan. 13, 2012
Latest Update: Feb. 22, 2020
Summary: and, as also earlier noted, Small was committed under that, section and violated state and federal law if he thereafter, possessed a gun, but the government in this case relied only on, Small's firearms possession following his 3863 hospitalizations but, prior to his section 3864 commitment.
United States Court of Appeals
For the First Circuit
No. 10-1812
UNITED STATES OF AMERICA,
Appellee,
v.
NATHAN REHLANDER,
Defendant, Appellant.
No. 10-1831
UNITED STATES OF AMERICA,
Appellee,
v.
BENJAMIN J. SMALL,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
Virginia G. Villa, Assistant Federal Defender, Federal
Defender Office, for appellants.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.
January 13, 2012
BOUDIN, Circuit Judge. 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),1 but appellants say that District of Columbia v. Heller,
554 U.S. 570 (2008), has altered the equation.
The background events are undisputed and quickly
recounted. 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. Me. Rev. Stat. tit. 34-B, § 3863(1)-(3).
For full-scale commitments (as opposed to temporary
hospitalization), Maine requires a traditional adversary
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 (2007). Not all circuits shared this
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), with United States v. Waters,
23 F.3d 29, 31-36 (2d
Cir.), cert. denied,
513 U.S. 867 (1994).
-3-
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, id. § 3864(6). 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. Me. Rev. Stat. tit. 15, § 393(1)(E).
In May 1998, Small was twice hospitalized under section
3863--at the request of his mother and an emergency mental health
worker, respectively--based on suicidal tendencies and other signs
of mental illness. In March 2009, the police found Small in
possession of an Astra .357 revolver. In April 2009, Small was
again hospitalized under section 3863 and then committed on a
longer-term basis under section 3864. Small was indicted in
November 2009 for violation of section 922(g)(4), based solely on
his May 1998 section 3863 hospitalizations and March 2009
possession.
In March 2007, Rehlander was involuntarily hospitalized
under section 3863 at the request of a crisis clinician, also based
primarily on suicidal impulses. After then submitting to voluntary
hospitalization for a few days, Rehlander changed his mind, and in
early April 2007 he was again involuntarily hospitalized under
section 3863 at the request of hospital personnel. Section 3863
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hospitalizations are subject to strict time limits, so the hospital
applied for longer-term involuntary commitment under section 3864.
A full-scale section 3864 proceeding followed at the end
of which the Maine state court ordered Rehlander discharged,
concluding that at this point Rehlander needed treatment but did
not pose a risk of serious harm. In December 2008, police
responding to an assault complaint found Rehlander with a 9 mm.
caliber pistol. Rehlander was indicted in September 2009 for
violation of section 922(g)(4), based on his March and April 2007
section 3863 hospitalizations and December 2008 possession.
Both Small and Rehlander moved to dismiss their
indictments on constitutional grounds, arguing that application of
section 922(g)(4) to them violated their Second Amendment right to
bear arms under the Heller decision and their Fifth Amendment due
process rights. After the district court denied their motions,
each pled guilty to violating section 922(g)(4) but reserved--and
have now exercised--their right to appeal from the denial of their
motions to dismiss.
The issues before us are legal and our review is
therefore de novo. United States v. Volungus, 595 F.3d 1, 4 (1st
Cir. 2010). The appellants press their constitutional claims in
various permutations; the most potent is that, given Heller's
pronouncement of an individual constitutional right to possess
arms, the ex parte procedures employed under section 3863 may
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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. Ordinarily, panel decisions
like Chamberlain are binding on subsequent panels but not where
intervening Supreme Court precedent requires reconsideration.
United States v. Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008).
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, see note 1, above, 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, see note 3,
below, the right to possess arms (among those not properly
disqualified) is no longer something that can be withdrawn by
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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.2 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. Doe v. Graham, 977
A.2d 391, 399-400 (Me. 2009). An observer has provided facts, a
medical professional has assessed mental illness and a threat to
2
E.g., Willner v. Comm. on Character & Fitness, 373 U.S. 96,
102-03 (1963); United States v. Fla. E. Coast Ry. Co.,
410 U.S.
224, 244-45 (1973); Friendly, Some Kind of Hearing, 123 U. Pa. L.
Rev. 1267 (1975); Nowak & Rotunda, Constitutional Law §§ 13.7 &
13.8, at 547-557 (5th ed. 1995).
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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. Me. Rev. Stat. tit. 34-B, § 3864(5).
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. Id. § 3864(6); cf. Addington v. Texas,
441
U.S. 418 (1979).
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.3 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.
3
Among other reservations, the Court stated that "nothing in
[Heller] should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill."
Heller, 554 U.S. at 626-27; accord McDonald v. City of Chicago,
130
S. Ct. 3020, 3047 (2010).
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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. Cf. note 4, below. 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. See Logan v. United States, 552 U.S.
23, 28 n.1 (2007); United States v. Booker,
570 F. Supp. 2d 161,
164 n.2 (D. Me. 2008). Congress has also allowed states to develop
a "relief from disabilities program," NICS Improvement Amendments
Act of 2007, Pub. L. No. 110-180, 122 Stat. 2559 (2008) (codified
at 18 U.S.C. § 922 note), but Maine's program has not been approved
by the Attorney General.4
Accordingly, as federal and Maine law stood and still
stand, Small and Rehlander were permanently deprived of a right to
4
Even if the state scheme were approved, in this case
Rehlander is ineligible for relief due to a five-year waiting
period running from the date of discharge from a section 3863
hospitalization. Small's later commitment under section 3864
disqualifies him from relief entirely, see Me. Rev. Stat. tit. 15,
§ 393(4-A), which is not necessarily a problem but was also (as
noted above) not the basis for his conviction in this case.
-9-
bear arms based solely on procedures suitable for temporary
hospitalization under emergency conditions. Understandably,
nothing in those procedures provided an advance adversary
proceeding to test whether the subject was mentally ill or
dangerous, but there is also no effective post-hospitalization
means to recover the right to bear arms if the subject had in fact
never been mentally ill or dangerous.
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, Jones v. United States, 529 U.S. 848, 857
(2000), 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.
See note 1, above. And it is textually permissible to read section
922 not to be triggered by a section 3863 hospitalization.
It is at least suggestive that section 922 used the word
"commitment," and--while state nomenclature is not
controlling--section 3863 refers only to admissions on an emergency
basis, Me. Rev. Stat. tit. 34-B, § 3863, by contrast to
"commitment" under section 3864. Further, Maine law prohibits
firearm possession by those committed under section 3864 but not
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those admitted under section 3863. Me. Rev. Stat. tit. 15,
§ 393(1)(E). Thus, Maine treats its temporary hospitalization
procedures as insufficient to nullify the right to possess guns.
Given the discrepant wording and the sparse procedures of
section 3863, only Congress' broad purpose in section 922--to keep
guns out of the hands of those who were mentally ill--trumped these
considerations in Chamberlain. 159 F.3d at 660, 662-64. True,
that purpose would be still be served after Heller by reading
section 922 to cover Maine's ex parte hospitalization; yet due
process is now a countervailing concern, supported by considerable
Supreme Court precedent. And, in enacting section 922, nothing
suggests that Congress had in mind temporary hospitalizations
supported only by ex parte procedures.
Along with legislative purpose, the government points to
our speculation in Chamberlain that some "subsequent proceedings
before state tribunals may vitiate" an emergency hospitalization.
Chamberlain, 159 F.3d at 665. But a close further look, focused by
Heller, persuades us that there is no ready way, at least in the
ordinary case, to use section 3864 procedures or any other obvious
device, to nullify the asserted arms-barring effect of a mistaken
section 3863 admission. Nor does section 922 invite a review of a
factual mistake made in such an admission.
The government argues that Small and Rehlander's
voluntary extension of their section 3863 hospitalizations--as well
-11-
as Rehlander's failure to contest his emergency hospitalization in
section 3864 proceedings--confirms their mental illness and waives
any due process challenge. Such voluntary hospitalizations do not
qualify as "commitments." 27 C.F.R. § 478.11 (2011). And, as
Rehlander's experience demonstrates, a section 3864 proceeding
focuses on current condition and not a prior temporary admission.5
Finally, the 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,
5
As earlier noted, Rehlander prevailed in his section 3864
case; and, as also earlier noted, Small was committed under that
section and violated state and federal law if he thereafter
possessed a gun, but the government in this case relied only on
Small's firearms possession following his 3863 hospitalizations but
prior to his section 3864 commitment.
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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.
If Rehlander is now mentally ill and dangerous, his
commitment may be sought under section 3864 which, if successful,
will create a presumptively valid section 922 ban; Small is already
subject to such a ban as to future gun possession. See note 5
above. As for the broader problem of those hospitalized under
section 3863 alone, Congress might well be able to impose a
temporary ban on firearms possession or perhaps even a permanent
one if procedures existed for later restoring gun rights. Since
much might depend on the terms, it is unwise to say more about such
matters absent a concrete case and adequate briefing.
It follows that the convictions of Small and Rehlander
must be set aside. The district court cannot be faulted for
following Chamberlain, but the panel is constrained to abandon that
decision by Heller, which implicates the Supreme Court's earlier
due process precedents. Complications may result, in relation to
prior convictions of others based on Chamberlain, but this often
occurs with new Supreme Court doctrine and the problems will be
resolved if and as they are presented.
The judgments of conviction of Small and Rehlander are
reversed.
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