Mai v. United States

• Decision Date: 11 March 2020
• Docket Number: No. 18-36071,18-36071
• Citation: 952 F.3d 1106
• 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

952 F.3d 1106

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.

Argued and Submitted December 11, 2019 Seattle, Washington

Filed March 11, 2020

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.

GRABER, Circuit Judge:

Plaintiff Duy Mai recently sought to buy a firearm, but federal law barred him from doing so. A number of years ago, Plaintiff was committed involuntarily, for more than nine months, to a mental institution after a Washington state court found him to be both mentally ill and dangerous. Title 18 U.S.C. § 922(g)(4) prohibits the possession of firearms by those, like Plaintiff, whom a state court committed involuntarily to a mental institution. Plaintiff concedes that the statutory prohibition on his possession of firearms during the period of his commitment was constitutional under the Second Amendment. But Plaintiff here brings an as-applied challenge to § 922(g)(4), arguing that its continued application to him despite his alleged return to mental health and peaceableness violates the Second Amendment. We hold that, assuming (without deciding) that § 922(g)(4) ’s prohibition burdens Second Amendment rights, intermediate scrutiny applies. We also hold that the prohibition on the possession of firearms by persons, like Plaintiff, whom a state court has found to be both mentally ill and dangerous is a reasonable fit with the government’s indisputably important interest in preventing gun violence. Scientific evidence supports the congressional judgment that those who have been committed involuntarily to a mental institution still pose an increased risk of violence even years after their release from commitment. Section 922(g)(4) ’s continued application to Plaintiff does not violate the Second Amendment. We therefore affirm the district court’s dismissal of this action.

BACKGROUND¹

In October 1999, a Washington state court committed Plaintiff involuntarily for mental health treatment after he threatened himself and others. The state court determined that Plaintiff was both mentally ill and dangerous. Plaintiff’s commitment lasted more than nine months,² ending in August 2000. Plaintiff was seventeen years old at the time of commitment, and his commitment spanned his eighteenth birthday.

Since his release from commitment in 2000, Plaintiff has earned a GED, a bachelor’s degree, and a master’s degree. He is gainfully employed and a father to two children. According to the complaint, he no longer suffers from mental illness, and he lives "a socially-responsible, well-balanced, and accomplished life."

As a result of Plaintiff’s involuntary commitment, Washington law prohibited him from possessing a firearm. Wash. Rev. Code § 9.41.040(2)(a)(iv). Washington law, though, allows persons to petition for relief from that prohibition if they meet certain conditions. Id. § 9.41.047(3)(a). In 2014, Plaintiff successfully petitioned a Washington state court for relief. The court found, pursuant to the requirements of Washington law, that "(1) [Plaintiff] is no longer required to participate in court-ordered inpatient or outpatient treatment; (2) [Plaintiff] has successfully managed the condition related to his commitment; (3) [Plaintiff] no longer presents a substantial danger to himself, or the public; and (4) [t]he symptoms related to the commitment are not reasonably likely to recur." See id. § 9.41.047(3)(c) (requiring those findings). Accordingly, the relevant state law no longer prohibits Plaintiff from possessing a firearm.

But, as a result of his involuntary commitment, federal law prohibits Plaintiff from possessing a firearm. Title 18 U.S.C. § 922(g)(4) bars individuals who have been "committed to a mental institution" from possessing firearms.³ Federal regulations make clear that the prohibition does not apply to "a person in a mental institution for observation or a voluntary admission to a mental institution." 27 C.F.R. § 478.11. Involuntary commitments comport with due process only when the individual is found to be both mentally ill and dangerous. Foucha v. Louisiana , 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Additionally, commitments under state-law procedures that lack robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4). United States v. Rehlander , 666 F.3d 45, 47–49 (1st Cir. 2012). We agree with the parties that Plaintiff’s involuntary commitment by the Washington state court—which found Plaintiff to be both mentally ill and dangerous—qualifies as a "commitment" for purposes of § 922(g)(4). Section 922(g)(4), then, bars Plaintiff from possessing a firearm.

Federal law provides two potential avenues for relief from the § 922(g)(4) bar but, as explained below, neither avenue is currently available to Plaintiff.

First, under 18 U.S.C. § 925(c), Plaintiff may apply to the United States Attorney General "for relief from the disabilities imposed by Federal laws with respect to the ... possession of firearms."⁴ Beginning in 1986, that provision extended to persons who had been involuntarily committed to a mental institution. Firearms Owners’ Protection Act, Pub. L. 99-308, § 105, 100 Stat. 449 (1986). 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." Id. ; see United States v. Bean , 537 U.S. 71, 77, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002) (noting the discretionary nature of the decision and observing that relief may be denied "even when the statutory prerequisites are satisfied").

That statutory option, however, is currently foreclosed to Plaintiff and all others. Since 1992, Congress has prohibited the use of funds "to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. [§] 925(c)." Bean , 537 U.S. at 74–75, 123 S.Ct. 584 (alteration in original) (quoting Treasury, Postal Service, and General Government Appropriations Act, 1993, Pub. L. No. 102-393, 106 Stat. 1729, 1732 (1992)); see also id. at 75 n.3, 123 S.Ct. 584 (citing later appropriations acts with the same prohibition); Hatfield v. Barr , 925 F.3d 950, 952 (7th Cir. 2019) ("[S]ince 1992 Congress has withheld funds to implement § 925(c)."). 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." S. Rep. No. 102-353, at 19 (1992). Accordingly, unless Congress chooses in the future to fund the federal program, any application by Plaintiff for relief pursuant to § 925(c) would be futile. See Bean , 537 U.S. at 76, 123 S.Ct. 584 (holding that, while funding is withheld, judicial review is also unavailable).

Plaintiff’s second potential avenue for relief is through a state program that qualifies under 34 U.S.C. § 40915. To qualify, 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. Id. § 40915(a)(1). The program also must provide

that a State court, board, commission, or other lawful authority shall grant the 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.

Id. § 40915(a)(2). Finally, the program must allow a person to petition the state court "for a de novo judicial review of [a] denial." Id. § 40915(a)(3). For a person granted relief under a qualifying state program, § 922(g)(4) ’s prohibition on the possession of firearms does not apply. Id. § 40915(b).

According to the government, "approximately thirty States" have created qualifying programs. See also Bureau of Justice Statistics, State Profiles: NICS Act Record Improvement Program (NARIP) Awards FY 2009–2018 , https://www.bjs.gov/index.cfm?ty=tp & tid=491 (providing state-by-state information suggesting that thirty states and one tribe have qualifying programs). As noted above, Washington law provides a mechanism for persons to petition for relief from the state-law prohibition on the possession of firearms. But that mechanism does not qualify under § 40915 because, among other reasons, the factual findings required by Washington law differ from the factual findings required by § 40915. Washington law requires a finding that the person "no longer presents a substantial danger to himself or herself, or the public." Wash. Rev. Code § 9.41.047(3)(c)(iii) (emphasis added). By contrast, the federal standard requires a determination that "the person will not be likely to act in a manner dangerous to public safety." 34 U.S.C. § 40915(a)(2) (emphasis added). Additionally, § 40915(a)(2)...