Mai v. United States

• Decision Date: 10 September 2020
• Docket Number: No. 18-36071,18-36071
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

974 F.3d 1082 (Mem)

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.

Filed September 10, 2020

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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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, 130 S.Ct. 3020, 177 L.Ed.2d 894 (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 , ––– U.S. ––––, 138 S. Ct. 945, 200 L.Ed.2d 293 (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 medical record shows no reoccurrence of serious mental illness. He has no criminal history or substance abuse issues.

Under state and federal law, Mai was barred from possessing a firearm due to his involuntary commitment. In 2014, Mai successfully petitioned the State of Washington to remove the state-law barrier. See Wash. Rev. Code § 9.41.047(3)(c)(iii). Mai submitted his medical history showing that he's been free of depression since at least 2010 and that, based on the opinions of multiple psychologists, he is not considered a significant risk of suicide or harm to others. Based on this evidence and declarations from his friends and family, the Washington court agreed that Mai doesn't present a substantial danger to himself or to the public and that the symptoms that led to his commitment are not reasonably likely to reoccur. Thus, today, under state law, Mai's right to possess a firearm has been fully restored.

Mai's final hurdle is federal law. It prohibits an individual who has been "committed to a mental institution" from possessing a firearm. 18 U.S.C. § 922(g)(4). Mai brought an as-applied challenge to § 922(g)(4) and sought declaratory and injunctive relief declaring him eligible to possess a firearm under federal law and the Constitution. The district court granted the government's motion to dismiss. Mai v. United States , No. C17-0561 RAJ, 2018 WL 784582, at *6 (W.D. Wash. Feb. 8, 2018). Applying intermediate scrutiny, the district court rejected Mai's claim based on various studies linking mental illness to a heightened risk of gun violence. Id .

On appeal, this court affirmed. Without bothering itself with the text, history, or tradition of the Second Amendment, the court decided that, due to Mai's brief commitment, he was not a "law-abiding, responsible" citizen and, therefore, not protected by the Second Amendment's "core." See Mai v. United States , 952 F.3d 1106, 1115 (9th Cir. 2020). In so ruling, the court compared Mai's past commitment to a conviction for domestic violence. Id. The court also concluded that Washington's adjudication of his mental soundness and subsequent restoration of his gun rights—and Mai's present-day mental health status—were irrelevant to the constitutional analysis. Id. at 1115, 1120. Finally, with the help of studies from Sweden, Australia, Italy, and other countries, the court ruled that the permanent deprivation of Mai's fundamental right cleared intermediate scrutiny. Id. at 1118–20. We should've corrected the layers of errors in this decision through en banc review.

II.

The Second Amendment guarantees that, "[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." U.S. Const. amend. II. "[O]n the basis of both text and history," the Second Amendment confers "an individual right to keep and bear arms." Heller , 554 U.S. at 595, 128 S.Ct. 2783. This guarantee was considered "among those fundamental rights necessary to our system of ordered liberty." McDonald , 561 U.S. at 778, 130 S.Ct. 3020.

Of course, this right is not without its limits. It does not guarantee a right to keep and carry "any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller , 554 U.S. at 626, 128 S.Ct. 2783. The Court noted, for example, that nothing in Heller should "be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." Id . But it recognized that there would be time to "expound upon...