Doe v. Governor of Pa.

• Decision Date: 14 October 2020
• Docket Number: No. 19-1927,19-1927
• Parties: John DOE I; John Doe II, Appellants v. GOVERNOR OF PENNSYLVANIA; Attorney General Pennsylvania; Commissioner Pennsylvania State Police; Pennsylvania State Police
• Court: U.S. Court of Appeals — Third Circuit

977 F.3d 270

John DOE I; John Doe II, Appellants

v.GOVERNOR OF PENNSYLVANIA; Attorney General Pennsylvania; Commissioner Pennsylvania State Police; Pennsylvania State Police

No. 19-1927

United States Court of Appeals, Third Circuit.

Argued on December 9, 2019

Opinion filed: October 14, 2020

OPINION

ROTH, Circuit Judge

John Doe I and John Doe II were evaluated on an emergency basis pursuant to Pennsylvania Mental Health Procedures Act (MHPA) Section 302 and were found in need of inpatient treatment. Section 6105(c)(4) of the Pennsylvania Uniform Firearms Act (PUFA) prohibits "[any] person who has been ... committed to a mental institution for inpatient care and treatment under [MHPA] [S]ection 302" from possessing firearms. The Does challenge PUFA § 6105(c)(4)’s constitutionality on its face. They argue that it deprives those, who are certified committable under MHPA § 302, of their Second Amendment rights without procedural due process. For the reasons below, we hold that the Does have failed to raise a proper challenge to Pennsylvania's statutory scheme. We will therefore affirm the judgment of the District Court.

I.

A very brief sketch of the facts is necessary to provide context for the Does’ claim. Doe I was certified committable in 2011 after he became depressed and his mother took him to an emergency room for an emergency evaluation. Doe II was certified committable in 1996 after police brought him to a hospital upon learning that he had threatened to harm himself. Both Does’ commitment certification records were reported to and recorded in the Pennsylvania Instant Check System and the National Instant Criminal Background Check System databases. As a result, they were prohibited from purchasing firearms when they later attempted to do so.

The Does filed this action in the District Court for the Eastern District of Pennsylvania, alleging that PUFA § 6105(c)(4) is facially unconstitutional because it deprives all those, who are committed under MHPA § 302, of their Second Amendment rights without procedural due process. The District Court denied the Does’ Motion for Summary Judgment and granted summary judgment to the Pennsylvania defendants. It held that although those committed under MHPA § 302 have a protected liberty interest in the right to bear arms, PUFA § 6105(c)(4) provides sufficient procedural protections before depriving them of their Second Amendment rights. The Does appealed.¹

II.

Because the Does mount a facial, rather than an as-applied challenge, we begin with the relevant statutes.

MHPA § 301(a) defines those who may be required to undergo involuntary emergency examination and mental health treatment. It provides that "[w]henever a person is severely mentally disabled and in need of immediate treatment," he "may be made subject to involuntary emergency examination and treatment."² This section further provides that a "person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself."³

"Clear and present danger" is determined in accordance with MHPA § 301(b). Under that provision, a clear and present danger to others exists if, within the past thirty days, the person being evaluated has "inflicted or attempted to inflict serious bodily harm on another" and is reasonably likely to do so again.⁴ Clear and present danger can also be established if a person is a danger to himself. Such a danger exists if any of three situations has arisen within the past thirty days: (1) the person has been unable to care for himself such that, absent adequate treatment, "death, serious bodily injury or serious physical debilitation would ensue within 30 days"; (2) the person "has attempted suicide" and, absent adequate treatment, is reasonably likely to commit suicide; or (3) the person has engaged in substantial actual or attempted self-mutilation and, absent adequate treatment, actual self-mutilation is reasonably probable.⁵

MHPA § 302 authorizes emergency examinations "at a treatment facility upon the certification of a physician stating the need for such examination," upon a warrant issued by the county mental health administrator, or "upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination."⁶ A person taken to a facility for this purpose "must be examined by a physician within two hours of arrival" to determine whether he "is severely mentally disabled ... and in need of immediate treatment."⁷ Only individuals who are found by an examining physician to be "severely mentally disabled" and to pose a "clear and present danger of harm" to themselves or others can be involuntarily committed pursuant to MHPA § 302.⁸

Once a person is certified committable under MHPA § 302, section 6105(c)(4) of PUFA automatically prohibits him from owning or possessing firearms. This restriction under Pennsylvania law also applies to deprive individuals of their gun rights under federal law.⁹ Pennsylvania does, however, provide three post-deprivation remedies to those who seek recovery of their firearm rights: (1) a determination by a court that an applicant is not a risk to himself or others,¹⁰ (2) a challenge to the accuracy of the mental health record,¹¹ and (3) an expungement of the commitment record because of insufficient evidence.¹²

III.

The Does argue that they and all others, who have been prohibited from possessing firearms under PUFA § 6105(c)(4) and MHPA § 302, have been stripped of a protected liberty interest under the Fourteenth Amendment: their Second Amendment right to bear arms. The Second Amendment states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."¹³ In District of Columbia v. Heller , the Supreme Court determined that at the "core" of the Second Amendment is the right of "law-abiding, responsible citizens to use arms in defense of hearth and home."¹⁴ The Court in Heller emphasized, however, that there are "presumptively lawful regulatory measures" that can restrict that right, and that the Court was decidedly not "cast[ing] doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill."¹⁵

We have consistently hewed to the exceptions that Heller preserved.¹⁶ As we stated in Beers v. Att'y Gen. United States,¹⁷ to determine whether a category of people is excluded from the Second Amendment under Heller , "we look at the historic, traditional justifications for barring a class of individuals from possessing guns." In Beers , we held that the plaintiff lacked a right to bear arms because he was part of "the historically-barred class of mentally ill individuals who were excluded from Second Amendment protection."¹⁸ In configuring the "historically-barred class," we concluded that it consists of "individuals who were considered dangerous to the public or to themselves."¹⁹

As to who is vested with authority to determine that one is a danger to oneself or the public, and on what grounds that person may do so, we now make explicit what was implicit in Beers , that we defer to the relevant statute's reasonable standards and designations. The relevant statute in Beers was 18 U.S.C. § 922(g)(4), which prohibits firearm possession in instances where one has been determined "a danger to himself or others" "as a result of ... mental illness."²⁰ In Beers we deferred to § 922(g)(4) and to MHPA §§ 302–04, under which the plaintiff had been involuntarily committed, in concluding that he was a danger to himself or others as a result of mental illness.²¹

In the case at bar, PUFA § 6105(c)(4) and MHPA § 302 are the relevant statutes for determining that an individual is a danger to himself or others as a result of mental illness; it is to these statutes that we defer. We find no reason to second-guess the adequacy of Pennsylvania's requirement under MHPA § 302 that a physician determine that one is a danger to himself or others as a result of mental illness and is "severely mentally disabled ... and in need of immediate treatment." Thus, once a person has been involuntarily committed under MHPA § 302, that person has joined the class of those historically without Second Amendment rights.

Left without a Second Amendment right, the Does can make only two challenges. They can challenge MHPA § 302 on procedural due process grounds—that is, that MHPA § 302 provides inadequate procedure before involuntarily temporarily committing someone. Or they can challenge PUFA § 6105(c)(4) on substantive Second Amendment grounds—that is, that involuntary temporary commitment does not fall under Heller ’s mental illness exception and therefore PUFA § 6105(c)(4) is substantively unconstitutional. The Does have made it expressly clear that they are bringing neither challenge.²² In presenting an appeal, parties must formulate the correct challenge on their own and brief us accordingly. "[W]e will not manufacture arguments [for them]."²³

IV.

For the above reasons, we will affirm the order of the District Court, granting defendants’ Motion for Summary Judgment.

FISHER, Circuit Judge, concurring in the judgment.

The majority affirms the District Court's opinion on the basis that the Does have failed to raise a proper challenge to Pennsylvania's statutory scheme. To come to that conclusion, my colleagues hold that "once a person has been involuntarily committed under MHPA § 302, that person has joined the class of those historically without Second Amendment rights." Maj. Op. III. However, I believe that the issue of whether Section 302 committees retain their Second Amendment right to possess firearms is a close question. Because we do not need to reach this issue in order to decide the case before us,...