United States v. Harvey

609 F.Supp.3d 759

UNITED STATES of America, Plaintiff,

v.John HARVEY, Defendant.

4:20-CR-3095

United States District Court, D. Nebraska.

Signed July 1, 2022

Daniel D. Packard, Assistant U.S. Attorney, U.S. Attorney's Office, Lincoln, NE, for Plaintiff.

MEMORANDUM AND ORDER

John M. Gerrard, United States District Judge

This matter is before the Court on the defendant's objection (filing 71) to the Magistrate Judge's findings and recommendation (filing 64) recommending denial of the defendant's motion to dismiss (filing 53). After careful consideration and de novo review, see 28 U.S.C. § 636(b), the Court will grant the defendant's motion to dismiss.

The Court's decision is not about who should, or should not, be permitted to have a firearm under the Second Amendment. While that was one issue raised by the defendant, the Court does not decide it. Rather, the questions that dispose of this case for the Court involve interpreting a federal statute: Who does the law already prohibit from having a firearm? How clearly does it notify those people that they're no longer allowed to have the firearms they already own? And most importantly, who should be sent to jail for having a firearm that the government now says they weren't allowed to have?

The underlying facts here are set out in the Magistrate Judge's findings and recommendation and are not meaningfully disputed. See filing 64 at 1-3. Rather, the parties disagree about the legal consequences of those facts and whether they describe the offense with which the defendant is charged, a violation of 18 U.S.C. § 922(g)(4) : "It shall be unlawful for any person ... who has been adjudicated as a mental defective or who has been committed to a mental institution ... to possess in or affecting commerce, any firearm or ammunition ...." Specifically, the defendant contends that:

1. Given the undisputed facts, the defendant had neither been "adjudicated as a mental defective" nor "committed to a mental institution" within the meaning of § 922(g)(4) ;

2. The defendant could not have known that he fell within either of those categories, meaning that he could not have had the mens rea necessary to commit the offense; and

3. Section 922(g)(4) violates the Second Amendment as applied to the defendant.

See filing 71 at 6-25.¹ The Court agrees with the defendant that he has neither been "adjudicated as a mental defective" nor been "committed to a mental institution" within the meaning of § 922(g)(4).

But as a threshold matter, the parties disagree about whether that question is properly raised by a pretrial motion to dismiss. The government argues that the question on a motion to dismiss is simply whether the allegations of the indictment are sufficient. Filing 77 at 3. And of course, they are, as they track the statutory language. See filing 1. The defendant argues, on the other hand, that the sufficiency of undisputed facts may be tested on a motion to dismiss. Filing 71 at 17.

The Court agrees with the defendant. Fed. R. Crim. P. 12(b)(1) permits the defendant to "raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." And a motion is capable of pretrial determination if trial of the facts surrounding commission of the alleged offense would be of no assistance in determining the validity of the motion. United States v. Turner , 842 F.3d 602, 604 (8th Cir. 2016).

That appears to be the situation here: whether the uncontested facts establish the status required by § 922(g)(4) is a question of law. See United States v. Whiton , 48 F.3d 356, 358 (8th Cir. 1995) ; see also United States v. Dorsch , 363 F.3d 784, 785 (8th Cir. 2004) ; United States v. Bartley , 9 F.4th 1128, 1131 (9th Cir. 2021) ; United States v. McLinn , 896 F.3d 1152, 1156 (10th Cir. 2018) (collecting cases). Accordingly, in the absence of a factual controversy, it is appropriate to dispose of the issue at this point. See United States v. Covington , 395 U.S. 57, 60-61, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969).

(a) Adjudicated as a Mental Defective

To begin with, the Court agrees with the defendant that the undisputed facts do not establish adjudication as a "mental defective" within the meaning of § 922(g)(4). The Eighth Circuit has explained that the (inartful) term "mental defective" as used in § 922(g)(4) "does not include mental illness." United States v. Hansel , 474 F.2d 1120, 1123 (8th Cir. 1973). The Eighth Circuit explained, as a matter of statutory construction, that a "mental defective" is "a person who has never possessed a normal degree of intellectual capacity, whereas in an insane person faculties which were originally normal have been impaired by mental disease." Id. at 1124. And the defendant falls outside that definition.²

The government's argument to the contrary, rather, rests on a definition promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives which provides that to be "adjudicated as a mental defective" requires only

A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs.

27 C.F.R. § 478.11(a). That comes closer to describing the defendant's situation. But the Court is not convinced that Hansel is so easily set aside. It may be true, as the government suggests, that the ATF regulation is a more modern, "better" definition. See filing 77 at 4. But the Eighth Circuit's decision in Hansel was quite plainly an exercise in statutory interpretation, and its holding—premised on the statutory text—is both clear and on point.

Of course, a regulation cannot contradict statutory text. See Brown v. Gardner , 513 U.S. 115, 122, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). And here, the Eighth Circuit has told us what this statutory text means. See Hansel , 474 F.2d at 1123-25. Perhaps the Court of Appeals should reconsider Hansel .³ But this Court cannot. See United States v. B.H. , 466 F. Supp. 2d 1139, 1146-47 (N.D. Iowa 2006).

(b) Committed to a Mental Institution

The defendant also argues that he wasn't "committed to a mental institution" within the meaning of § 922(g)(4). Again, the Court agrees.

Section 922 does not define the phrase "committed to a mental institution." Regulations promulgated under § 922 define "committed to a mental institution" as "[a] formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority." 27 C.F.R. § 478.11. The regulations further specify that involuntary commitments are included within the definition, but persons in a mental institution for observation or on a voluntary basis are not within the purview of the statute.

Dorsch , 363 F.3d at 785. And although the meaning of § 922(g)(4) is a question of federal law, the Court is guided by Nebraska law as to the meaning of "committed." Id. ; Whiton , 48 F.3d at 358.

The defendant doesn't seem to dispute that for these purposes, Lutheran Family Services was a "mental institution." See filing 71 at 21-24. Rather, the argument hinges on the word "committed." While the defendant was adjudicated by the mental health board pursuant to a petition filed by the county attorney, what the mental health board ordered was involuntary outpatient treatment. See filing 54-4. The Court acknowledges that the language of the mental health board's order described this as "Board ordered outpatient commitment to Lutheran Family Services for medication management and individual therapy." Filing 54-4 at 1. But whether he was actually "committed" for these purposes requires a more careful—indeed, comprehensive—examination of the Nebraska Mental Health Commitment Act, Neb. Rev. Stat. § 71-901 et seq.

"The purpose of the Nebraska Mental Health Commitment Act is to provide for the treatment of persons who are mentally ill and dangerous." § 71-902. A "mentally ill and dangerous person" presents:

(1) A substantial risk of serious harm to another person or persons within the near future as manifested by evidence of recent violent acts or threats of violence or by placing others in reasonable fear of such harm; or

(2) A substantial risk of serious harm to himself or herself within the near future as manifested by evidence of recent attempts at, or threats of, suicide or serious bodily harm or evidence of inability to provide for his or her basic human needs, including food, clothing, shelter, essential medical care, or personal safety.

§ 71-908. The Act encourages voluntary treatment for mentally ill and dangerous people, but if that's not obtained then such persons shall be subject to involuntary custody or treatment after mental health board proceedings. Id. To that end, the Act creates mental health boards for each state district court judicial district. See § 71-915.

There are several ways for a person to end up in a medical facility and subject to proceedings under the Act. To begin with, a person may voluntarily apply for admission to a hospital or other treatment facility, but must be discharged within 48 hours of delivering a written request to a facility official unless action is taken under the Act to keep the person in custody. § 71-918. A law enforcement officer who believes that someone is mentally ill and dangerous may cause that person to be taken into emergency protective custody and admitted to a medical facility, where they must be evaluated by a mental health professional within 36 hours. See § 71-919. And if that mental health professional finds that the person is mentally ill and dangerous, they certify that to the county attorney. § 71-920. Alternatively, any person who believes that someone else is mentally ill and dangerous may advise the county attorney, and the county attorney—if they concur that the person is mentally ill and dangerous and board-ordered treatment is necessary—is...