Mai v. United States, 091020 FED9, 18-36071

Docket Nº:18-36071
Party Name:Duy T. Mai, Plaintiff-Appellant, v. United States of America; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms, and Explosives; Federal Bureau of Investigation; William P. Barr, Attorney General; Christopher A. Wray, as Director of the Federal Bureau of Investigation; Regina Lombardo, as Acting Director of the Bureau of...
Attorney:Vitaliy Kertchen (argued), Tacoma, Washington, for Plaintiff-Appellant. Abby C. Wright (argued) and Michael S. Raab, Appellate Staff; Brian T. Moran, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defe...
Judge Panel:Before: Susan P. Graber and Ronald M. Gould, Circuit Judges, and David A. Ezra, District Judge. COLLINS, Circuit Judge, dissenting from the denial of rehearing en banc: BUMATAY, Circuit Judge, with whom VANDYKE, Circuit Judge, joins, with whom IKUTA, BADE, and HUNSAKER, Circuit Judges, join as to...
Case Date:September 10, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Duy T. Mai, Plaintiff-Appellant,

v.

United States of America; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms, and Explosives; Federal Bureau of Investigation; William P. Barr, Attorney General; Christopher A. Wray, as Director of the Federal Bureau of Investigation; Regina Lombardo, as Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Defendants-Appellees.

No. 18-36071

United States Court of Appeals, Ninth Circuit

September 10, 2020

D.C. No. 2:17-cv-00561-RAJ

Vitaliy Kertchen (argued), Tacoma, Washington, for Plaintiff-Appellant.

Abby C. Wright (argued) and Michael S. Raab, Appellate Staff; Brian T. Moran, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Before: Susan P. Graber and Ronald M. Gould, Circuit Judges, and David A. Ezra, [*] District Judge.

SUMMARY [**]

Second Amendment

The panel denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc. In the underlying appeal, the panel affirmed the district court's dismissal of a 42 U.S.C. § 1983 complaint containing an as-applied Second Amendment challenge to 18 U.S.C. § 922(g)(4), which prohibits plaintiff from possessing firearms due to his involuntary commitment in 1999 to a mental institution for more than nine months after a Washington state court found plaintiff to be both mentally ill and dangerous. The panel concluded that Section 922(g)(4)'s continued application to plaintiff did not violate the Second Amendment.

Dissenting from the denial of rehearing en banc, Judge Collins stated that the panel's application of intermediate scrutiny here was seriously flawed and created a direct split with the Sixth Circuit. That alone was enough to warrant en banc review, and Judge Collins therefore joined Part IV.B of Judge Bumatay's dissent from the denial of rehearing en banc. Moreover, Judge Collins stated that he had substantial doubt that the framework of rules that the court uses to analyze Second Amendment claims properly construes the controlling principles set forth in District of Columbia v. Heller, 554 U.S. 570 (2008).

Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges VanDyke, and with whom judges Ikuta, Bade, and Hunsaker join as to Part IV, and with whom Judges Bennett, Collins, and Bress join as to Part IV.B, stated that the panel's opinion justified the disturbing deprivation of a fundamental right by ignoring the history and tradition of the Second Amendment and applying ill-suited, foreign statistical studies that had no bearing on plaintiff's circumstances. The proper inquiry would have recognized that the lifetime ban imposed by § 922(g)(4) on plaintiff is unequivocally a complete deprivation of his core right to home gun ownership, and therefore that the law was unconstitutional. Judge Bumatay stated that the panel incorrectly identified intermediate scrutiny as the proper standard of review and then flubbed its application. By failing to correct these errors, the Court undermined its Second Amendment jurisprudence and gave an unworthy judicial imprimatur to the false premise that once mentally ill, always mentally ill.

Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judge Bumatay, stated that he agreed with Judge Bumatay's dissent from the denial of rehearing en banc and wrote separately because he believes that the panel should have reconsidered the panel's circular logic about who lies at the core of the Second Amendment. Judge VanDyke stated that the panel's bootstrapping, class-based approach to defining those at the "core" of the Second Amendment was unjust and antithetical to controlling case law. Judge VanDyke also stated that the court's intermediate scrutiny jurisprudence is broken, at least as to Second Amendment claims.

ORDER

The panel judges have voted to deny Appellant's petition for rehearing. Judges Graber and Gould voted to deny the petition for rehearing en banc, and Judge Ezra recommended denying the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Appellant's petition for rehearing and petition for rehearing en banc, filed Docket No. 37, are DENIED.

COLLINS, Circuit Judge, dissenting from the denial of rehearing en banc:

As Judge Bumatay ably explains in Part IV(B) of his dissent, the panel's application of intermediate scrutiny here is seriously flawed and creates a direct split with the Sixth Circuit. That alone is enough to warrant en banc review, and I therefore join that section of Judge Bumatay's dissent. Moreover, I have substantial doubt that the framework of rules that this court uses to analyze Second Amendment claims properly construes the controlling principles set forth in District of Columbia v. Heller, 554 U.S. 570 (2008), and granting en banc review in this case would have given us a welcome opportunity to reexamine that framework. I respectfully dissent from our failure to rehear this case en banc.

BUMATAY, Circuit Judge, with whom VANDYKE, Circuit Judge, joins, with whom IKUTA, BADE, and HUNSAKER, Circuit Judges, join as to Part IV, and with whom BENNETT, COLLINS, and BRESS, Circuit Judges, join as to Part IV.B, dissenting from the denial of rehearing en banc:

Today, our court advances an extraordinarily sweeping view of government power. Against the text, history, and tradition of the Second Amendment, we hold that the government may forever deprive a person of the individual right to bear arms-if that person spends even one day committed involuntarily, even as a juvenile, and no matter the person's current mental health soundness. Of course, we only adopt this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment.

When the Second Amendment was ratified, times were different. Firearms were ubiquitous and their regulation was sparse. Firearms were considered essential for defense of the home and hearth. District of Columbia v. Heller, 554 U.S. 570, 635 (2008). While times have changed, the Constitution has not. The Second Amendment is not "a second-class right," McDonald v. City of Chicago, Ill., 561 U.S. 742, 780 (2010), so we must continue to uphold the right it confers against government encroachment. But by aggrandizing the government's power here, we improperly relegate the Second Amendment to "disfavored right" status yet again. Silvester v. Becerra, 138 S.Ct. 945 (2018) (Thomas, J., dissenting from denial of certiorari).

In doing so, we seemingly treat some people as second-class citizens-concluding that they don't deserve the full complement of fundamental rights. We don't make that decision based on any present-day impairments or past criminal convictions, but, in the case of Duy Mai, for an involuntary commitment to a mental-health facility more than 20 years ago when he was just 17 years old. Because of that brief commitment as a teen, our court lets the federal government ban Mai-for life-from possessing a firearm. This, despite a state court finding that Mai is no longer mentally ill or dangerous. We justify this disturbing deprivation of a fundamental right by ignoring the history and tradition of the Second Amendment and applying ill-suited, foreign statistical studies that have no bearing on Mai's circumstances. By failing to correct our errors here, we undermine our Second Amendment jurisprudence and give an unworthy judicial imprimatur to the false premise that "once mentally ill, always mentally ill."

I respectfully dissent from the denial of rehearing en banc.

I.

By all accounts, Duy Mai is an American success story. Mai was born in a Thai refugee camp to a Vietnamese family and moved to the United States at the age of two. As so many immigrants have, Mai has flourished in this country.

Overcoming an early language barrier, Mai carved out a stellar academic and professional career. After starting at a community college, Mai graduated from the University of Washington with a 3.7 GPA and a degree in microbiology. While at the University of Washington, Mai's studies were inspired by a desire to help people living with HIV and, in his spare time, Mai volunteered for environmental and humanitarian causes. Post-graduation, Mai enrolled at the University of Southern California, where he focused on cancer research and received a master's in microbiology. After returning to Washington state, Mai started a job at the Benaroya Research Institute, concentrating on virology. As part of his job, he passed an FBI background check allowing him access to an irradiator. Today, Mai works as an immune monitoring specialist at the Seattle-based Fred Hutchinson Cancer Research Center.

Mai is similarly enriched in his home life. While at USC, Mai met a woman and they now raise eight-year-old twins. He remains close to his sister and parents and often meets them for weekend family dinners. He also enjoys wilderness activities and volunteer work.

Mai has been a productive member of society for nearly 20 years. But like most people, Mai has faced his share of challenges. At the age of 17, he suffered from depression, for which he was involuntarily committed to a mental health hospital for a little over two months total after a Washington state court determined that he might be a harm to others. But since Mai's commitment order expired in August 2000, he has not been re-committed and his...

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