Stokes v. U.S. Department of Justice

[5] 6 UNITED STATES DISTRICT COURT [7] NORTHERN DISTRICT OF CALIFORNIA [9] 10 EASTON STOKES, 11 Plaintiff, No. C 19-04613 WHA 12 v. 13 UNITED STATES DEPARTMENT ORDER RE CROSS-MOTIONS OF JUSTICE, THE ATTORNEY FOR SUMMARY JUDGMENT 14 GENERAL OF CALIFORNIA, et al., 15 Defendants. [16] 17 INTRODUCTION 18 A federal statute imposes a lifetime ban on possession of a firearm for anyone “who has 19 been committed to a mental institution,” a statutory term requiring “robust judicial 20 involvement,” according to our court of appeals. In the instant case, a teenager got high and, 21 after a 72-hour treatment, medical personnel “certified” him for a further fourteen-day 22 residential treatment. No judge was ever involved. Decades later, he now wishes to inherit 23 two firearms from his grandfather. This order holds that the “certification” did not (and does 24 not) bar him from possessing the firearms because it did not constitute a “commitment” within 25 the meaning of the federal statute. Therefore, summary judgment for plaintiff must be 26 GRANTED. Federal defendants’ cross-motion for summary judgment must be DENIED. The 27 California Attorney General’s motion for summary judgment under the Eleventh Amendment 1 STATEMENT 2 In March 2002, when he was an eighteen-year-old high school senior, plaintiff Easton 3 Stokes ingested psychedelic, psilocybin mushrooms, drank alcohol, and smoked marijuana 4 over a period of several days. He needed medical help. His friends and foster family took him 5 to Kaiser Permanente Santa Rosa Hospital. According to handwritten notes from a doctor on a 6 form titled “PHYSCHIATRY: DIAGNOSTIC INTAKE EVALUATION (MEDICATION),” 7 plaintiff told the evaluating doctor that (Dkt. No. 79 at 1): 8 after binging on psychedelic mushrooms [approximately a week prior,] he ha[d] been having difficulty sleeping, ha[d] been 9 skipping school . . . “not [himself,]” culminating in a night of . . . heavy [marijuana] use last Friday night in which he ‘freaked out,’ 10 hit a close friend, and other impulsive acts . . . . 11 Under the section of the form for “Assessment (Brief narrative case summary),” the 12 evaluating doctor wrote (id. at 5): 13 Pt in the aftermath of hallucinogenic drug binge, who has not fully recovered. Pt may have been suffering from depression prior to 14 events of past week, but unclear . . . . Although vague and somewhat disorganized he denied violent or self-destructive urges 15 now. Agrees to [stop] drug [and alcohol] use . . . . 16 Plaintiff reported not feeling suicidal or homicidal (id. at 7). Next to “Involuntary Hold 17 (5150),” the staff checked “No” (id. at 4). 18 Later the same day, or the next day, however, the Kaiser personnel transferred him to 19 Oakcrest Psychiatric Hospital, a facility operated by Sutter Health for Sonoma County. He 20 went transported in a seated position in an ambulance (Stokes Dep. 107:2–14, 110:21–25). He 21 testified he went voluntarily (id. 105:20–106:16). En route, he heard that he had been 22 designated as a “Section 5150” case (id. 133:20–134:1). And, although plaintiff testified he 23 wanted the treatment and went voluntarily to Oakcrest, he was certified there for a fourteen24 day hold under Section 5250 of the California Welfare and Institutions Code. Oakcrest so 25 notified the California Department of Justice. He remained at Oakcrest until March 25, when 26 he was discharged (Dkt. No. 79 at 12). 27 The Oakcrest facility closed years ago and its records are lost to history, so abbreviated 1 those notes reference a “probable 14-day hold” at Oakcrest, they do not explain the basis for 2 the fourteen-day hold. The Kaiser notes go on to reflect outpatient treatment for a few 3 subsequent months, patient improvement, and then a discontinuation by doctors of further 4 treatment during the summer of 2002. 5 No judge ever reviewed plaintiff’s case or committed him. 6 Despite the hospitalization, plaintiff graduated high school on time and, in the nearly two 7 decades since, has lived a responsible, law-abiding life, the only exception being a 8 misdemeanor conviction for unlawfully carrying a concealed, unloaded pistol in his vehicle in 9 2006 (Dkt. No. 72 at 17). Plaintiff earned his Associate of Arts degree from Santa Rosa Junior 10 College in 2005, and his Bachelor of Arts degree in environmental studies from California 11 State University Sonoma in 2010. 12 In 2010, at 27 years old, plaintiff was diagnosed with a rare form of stage three colon 13 cancer. Plaintiff’s entire large intestine was removed, and he went through twelve rounds of 14 chemotherapy, which caused arthritis, in turn requiring shoulder surgery. During his cancer 15 treatment, plaintiff grew and sold marijuana to dispensaries to support himself financially since 16 he physically could not work in construction, his usual occupation. Plaintiff also used 17 marijuana during that period as an anesthetic. He had licenses for his personal use and 18 commercial growing (Stokes Dep. 26:17–27:3). 19 Plaintiff is now 38 years old, has a girlfriend, and has no children. He has never been 20 charged with or convicted of a felony; he has no history of domestic violence; no connection 21 with any gangs or felons; and, other than the 2002 episode when he was eighteen, he has never 22 been treated for mental or emotional problems. 23 Plaintiff wants to inherit two family heirlooms from his grandfather. Plaintiff’s 24 grandfather served in the United States Air Force in the Second World War as a P-38 fighter 25 pilot. From November 1944–April 1945, plaintiff’s grandfather flew 31 missions, totaling 167 26 combat hours, over Europe. Plaintiff’s grandfather retired from the Air Force as a lieutenant 27 colonel in 1964. Plaintiff wants to inherit his grandfather’s service sidearm, an Ithaca 1911, 1 hunting rifle, manufactured in 1906, used by his great grandfather in his occupation as a 2 government hunter in Grants Pass, Oregon. Neither weapon is an assault rifle. Neither has an 3 oversize magazine. 4 In 2016, in anticipation of inheriting the firearms, plaintiff submitted a personal firearms 5 eligibility check (PFEC) to the California Department of Justice, Bureau of Firearms. That 6 agency replied that he was ineligible to possess or purchase firearms but gave no explanation 7 (Dkt. No. 1-1 at 3). In response to plaintiff’s inquiry concerning the restriction, the National 8 Instant Criminal Background Check System (NICS) section of the FBI informed plaintiff only 9 that (Dkt. No. 1-1 at 5): 10 California does not utilize the NICS system to conduct PFEC. Therefore, the Appeal Services Team of the FBI Criminal Justice 11 Information Services (CJIS) Division’s NICS Section is not required to consider appeals of denials by state or local agencies 12 that do not utilize the NICS system. 13 Although the letters from the California DOJ and NICS did not state a reason for denying 14 plaintiff’s personal firearms eligibility check, a certification of firearms prohibition from the 15 California DOJ stated that the effective date of plaintiff’s prohibition was March 12, 2002, 16 with the basis simply being: “PROHIBITION/5250 — 5250 WIC — DTSO OR GRAVELY 17 DISABLED” (Dkt. No. 89 at 42). This was shorthand for Section 5250 of the California 18 Welfare and Institutions Code and for danger to self or others or gravely disabled. 19 Federal law prohibits a person “who has been adjudicated as a mental defective or who 20 has been committed to a mental institution” from possessing a firearm or ammunition. [21] 18 U.S.C. § 922 (g)(4). Federal law has provided two potential avenues for relief from this 22 lifetime ban, but both have long been foreclosed to all California residents. First, before 1992, 23 a person in plaintiff’s position could have applied to the United States Attorney General for 24 relief under 18 U.S.C. § 925 (c), which provided that the Attorney General could grant relief if 25 the Attorney General was satisfied “that the applicant will not be likely to act in a manner 26 dangerous to public safety and that the granting of the relief would not be contrary to the 27 public interest.” Since 1992, however, Congress has prohibited the use of funds to act on such 1 the states may establish programs under 34 U.S.C. § 40915 to provide opportunity for relief 2 from the ban of Section 922(g)(4). Thirty-one states and two tribal governments have 3 established such programs, but California has not. BUREAU OF JUSTICE STATS., NICS Act 4 Record Improvement Program (NARIP) Awards FY 2009–2020 (June 12, 2021, 9:00 PM), 5 https://bjs.ojp.gov/programs/nics-improvement-amendments-act/state-profiles#gqumc. Thus, 6 as the law now stands, plaintiff Stokes (and all other Californians certified for Section 5250 7 fourteen-day treatments) are banned for life from possessing a firearm with no opportunity for 8 relief, according to defendants. 9 Plaintiff filed this lawsuit in August 2019 against various federal, state, and local 10 agencies and officials, including the Attorney General of the United States and the Attorney 11 General of California. Plaintiff asserts that his constitutional right to possess firearms, to due 12 process, and to equal protection have been violated by reason that he is prohibited for life from 13 owning a firearm merely because of his 2002 psychiatric treatment. 14 Defendants moved to dismiss the complaint. An order denied the motion, finding 15 appropriate further factual development regarding the circumstances of plaintiff’s 2002 16 psychiatric treatment, his criminal history, his mental health history (including familial), and 17 his education and employment. 18 Plaintiff has provided records from Kaiser Permanente Santa Rosa Hospital relating to 19 his initial evaluation and treatment and to his follow-up appointments after being released. 20 We do not have, as is already apparent, records relating to plaintiff’s fourteen-day treatment at 21 Oakcrest Psychiatric Hospital. That county hospital ceased operating in or about 2007. No 22 one can find its records. So, we have no Oakcrest files explaining the fourteen-day treatment, 23 the specific facts supporting that decision, or the procedures used to arrive at that certification. 24 Upon the suggestion herein by the California Attorney General that an ad hoc state court 25 proceeding might be available to relieve plaintiff of the federal prohibition, an order asked 26 plaintiff to test that possibility. Specifically, on October 22, 2020, an order asked plaintiff to 27 file a petition in the California Superior Court for any and all such relief, including (Dkt. No. 1 • the extent to which the original commitments were involuntary; 2 • the extent to which plaintiff willingly consented to the 3 commitment; 4 • whether relief from any disability should now be granted to 5 plaintiff based on his adult life so that he may possess the 6 firearms in question; and 7 • any other relief or findings. 8 Accordingly, on November 4, 2020, plaintiff filed a “request for a hearing and declaratory 9 relief” in Sonoma County Superior Court seeking “relief from the certification of Plaintiff for 10 intensive treatment pursuant to Welfare and Institutions Code section 5250 and/or 11 accompanying lifetime firearms prohibition pursuant to 18 U.S.C. Section 922 (g)” (Dkt. No. 12 73 at 41). That proceeding has gone nowhere and seems doomed to failure.1 13 No one in this action contends that California has established a program for relief from 14 disabilities within the meaning of 34 U.S.C. § 40915 . While Section 8103 of California’s 15 Welfare and Institutions Code provides opportunity for relief from the state firearms disability, 16 the state prohibition lasts only five years, so the relief provided by Section 8103 is no longer 17 available to plaintiff because more than five years have passed since his 2002 certification. 18 Moreover, the state program would not satisfy the federal requirements for such a state 19 program under 34 U.S.C. Section 40915 . For example, Section 40915 requires that the state 20 program grant relief if the circumstances regarding the prior commitment “and the person’s 21 record and reputation, are such that the person will not be likely to act in a manner dangerous 22 to public safety and that the granting of the relief would not be contrary to the public interest . . 23 . .” Under Section 8103, by contrast, the superior court may grant relief if it finds simply that [24] 25 1 Plaintiff represents that Superior Court Judge Jennifer Dollard informed plaintiff’s counsel that she was “unfamiliar with the petition” but suggested it should be filed with the clerk of the criminal department. The clerk of 26 the criminal department told plaintiff’s counsel the criminal department did not accept such petition and the petition should be filed with the civil department. The clerk of the civil department told plaintiff’s counsel that the clerk was 27 “unfamiliar with the proper protocol” but suggested that the petition should be handled by the probate department where, plaintiff’s counsel represents, it is now pending as of July 16, 2021, with no hearing date set (Dkt. No. 107). 1 “the person would be likely to use firearms in a safe and lawful manner . . . .” California’s 2 program does not qualify under Section 40915 because it does not require a finding that 3 granting relief would not be contrary to the public interest. 4 Federal defendants moved for summary judgment, relying on Mai v. United States, [5] 952 F.3d 1106 (9th Cir. 2020). The California Attorney General moved for judgment on the 6 pleadings on the ground that the Eleventh Amendment barred plaintiff’s action against him. 7 An order denied those motions without prejudice and requested the parties to submit 8 fresh, cross-motions for summary judgment based on the supplemented record and asked 9 counsel to include two issues (Dkt. No. 87): [10] (i) “Additionally, commitments under state-law procedures 11 that lack robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4).” Mai v. United States, [12] 952 F.3d 1106, 1110 (9th Cir. 2020). In light of this sentence, does the 2002 proceeding against plaintiff Stokes qualify as a 13 “commitment”? 14 (ii) The arguable denial of the equal protection of the laws by reason that plaintiff is denied an opportunity to show his current 15 fitness to possess firearms under 34 U.S.C. § 40915 simply because California has not established such a program and federal 16 law does not require it. [17] This order follows two hearings and several rounds of briefing. Because this order rules [18] for plaintiff on the first statutory question, it does not need to reach the constitutional issue [19] raised in the second question. [20] ANALYSIS [21] Federal law prohibits a person “who has been adjudicated as a mental defective or [22] who has been committed to a mental institution” from possessing a firearm or ammunition. [23] 18 U.S.C. § 922 (g)(4). In enacting Section 922(g), Congress sought “to keep firearms out of [24] the hands of presumptively risky people.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103 , [25] 112, n.6 (1983). “Congress determined that, like felons and domestic-violence assailants, [26] those who have been involuntarily committed to a mental institution also pose an increased risk [27] of violence.” Mai v. United States, 952 F.3d 1106, 1117 (9th Cir. 2020). 1 Here, all agree that plaintiff has never been “adjudicated to be a mental defective.” At all 2 material times, the implementing ATF regulation defined “committed to a mental institution” 3 as follows: 4 Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or 5 other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment 6 for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term 7 does not include a person in a mental institution for observation or a voluntary admission to a mental institution. [8] 27 C.F.R. § 478.11 . [9] In Mai, our court of appeals upheld Section 922(g)(4) against an as-applied Second [10] Amendment challenge. There, a Washington state court had committed Duy Mai [11] “involuntarily for mental health treatment after he threatened himself and others. The state [12] court determined that Plaintiff was both mentally ill and dangerous.” Id. at 1110 (emphasis in [13] original). There, Mai argued Section 922(g)(4)’s categorical, lifetime ban violated his Second [14] Amendment right to own a firearm because his involuntary commitment some twenty years [15] prior did not establish his current dangerousness or mental unfitness to own a firearm. [16] Since his involuntary commitment at seventeen years old, he had “earned a GED, a bachelor’s [17] degree, and a master’s degree. He [was] gainfully employed and a father to two children. [18] According to the complaint, he no longer suffer[ed] from mental illness, and he live[d] [19] ‘a socially-responsible, well-balanced, and accomplished life.’” Ibid. Indeed, Mai had [20] successfully petitioned a Washington state court to reinstate his right to own a firearm under [21] state law by showing, in part, that he had “successfully managed the condition related to his [22] commitment; [he] no longer present[ed] a substantial danger to himself, or the public; and the [23] symptoms related to the commitment [were] not reasonably likely to recur.” Ibid. (citation [24] omitted). [25] Nevertheless, our court of appeals held that Section 922(g)(4)’s lifetime firearm ban did [26] not violate the plaintiff’s Second Amendment rights. Our court of appeals held Section [27] 922(g)(4) survived intermediate constitutional scrutiny. Id. at 1109 . 1 Significantly, however, our court of appeals stated: “Involuntary commitments comport 2 with due process only when the individual is found to be both mentally ill and dangerous.” Id. 3 at 1110 (emphasis in original). Mai further stated: “Additionally, commitments under state4 law procedures that lack robust judicial involvement do not qualify as commitments for 5 purposes of § 922(g)(4).” Ibid. (citing United States v. Rehlander, 666 F.3d 45 , 47–49 (1st Cir. 6 2012)). This will become important, for here it is undisputed that no judge ever became 7 involved in our plaintiff’s case, and he was never specifically found to be mentally ill and 8 dangerous (as opposed to gravely disabled). 9 1. CALIFORNIA’S CERTIFICATION SCHEME. 10 Defendants insist that any and all certifications under Section 5250 are necessarily 11 involuntary and necessarily satisfy the Mai test. The following review of the California 12 certification scheme shows that this is not quite so. 13 California’s Lanterman-Petris-Short Act, Cal. Welf. & Inst. Code §§ 5000 et seq., 14 remains “a comprehensive scheme designed to address a variety of circumstances in which a 15 member of the general population may need to be evaluated or treated for different lengths of 16 time.” Cooley v. Superior Ct., 29 Cal. 4th 228, 253 (2002).2 17 At all material times, the statute authorized two broad steps in treatment. The first, under 18 Section 5150, provided that a peace officer, attending staff of a mental health evaluation 19 facility, or other professional person designated by the county, could cause a person to be taken 20 into custody for 72-hour treatment and evaluation at a facility designated by the state for such 21 purpose, upon probable cause that, because of a mental disorder, the person was a danger to 22 others, himself, or gravely disabled. Section 5150 required the officer, staff person, or other 23 professional who caused the person to be taken into custody at the facility to state the 24 circumstances giving probable cause in a written application to the facility, including if 25 probable cause was based on the statement of another person, for example, a friend or family [27] 2 Some of the relevant code provisions have been amended since 2002. References are to the versions of the Welfare and Institutions Code provisions in effect when plaintiff had his psychiatric episode, available under the 1 member of the person being detained. Section 5150 provided no hearing. Defendants do not 2 contend this procedure constituted a “commitment.” 3 The second, under Section 5250, authorized a further “certification” by hospital staff for 4 fourteen days. At all material times, a Section 5250 commitment was subject to judicial 5 review only by way of habeas corpus relief with the burden placed on the patient to seek such 6 review. Defendants do contend all such Section 5250 certifications necessarily constituted 7 “commitments” under Section 922(g)(4). Defendants further insist that we must presume the 8 California statutes were followed and that plaintiff’s certification was involuntary and in 9 compliance with Mai. As the following details show, however, this was not necessarily so. 10 At all material times, Section 5250 provided: 11 If a person is detained for 72 hours [under Section 5150] and has received an evaluation, he or she may be certified for not more 12 than 14 days of intensive treatment related to the mental disorder or impairment by chronic alcoholism, under the following 13 conditions: 14 (a) The professional staff of the agency or facility providing evaluation services has analyzed the person’s condition and 15 has found the person is, as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to 16 himself or herself, or gravely disabled. 17 (b) The facility providing intensive treatment is designated by the county to provide intensive treatment, and agrees to 18 admit the person. No facility shall be designated to provide intensive treatment unless it complies with the certification 19 review hearing required by this article. The procedures shall be described in the county Short-Doyle plan as 20 required by Section 5651.3. 21 (c) The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary 22 basis. [23] Note well that Section 5250 provided that the hospital staff could certify the person if he [24] or she was “gravely disabled” (but not necessarily a danger to anyone). In turn, Section 5008 [25] provided that “gravely disabled” meant, as relevant: “A condition in which a person, as a [26] result of a mental disorder, is unable to provide for his or her basic personal needs for food, [27] 1 clothing, or shelter.” Note, too, that chronic alcoholism rather than mental disorder would be 2 enough. 3 After certifying the person under Section 5250, the facility “immediately” was required 4 by Section 8103(g) to submit a report to California DOJ to register the person in the agency’s 5 mental health firearms prohibition system as a person prohibited from possessing a firearm by 6 reason of the Section 5250 certification. The California Attorney General has submitted a 7 declaration from Gilbert Mac, a staff services manager who maintains the California DOJ’s 8 mental health reporting system (Mac Decl. ¶ 3). According to his declaration, the California 9 DOJ would not have evaluated the reports submitted by the facilities for errors (id. ¶ 14). 10 Again, the Section 5250 fourteen-day “certification” constituted, according to defendants, the 11 “commitment” under 18 U.S.C. § 922 (g)(4). Under the California scheme, that “commitment” 12 would occur without any judicial involvement. 13 Under the California statute, the facility then informed the patient of the certification. 14 Section 5252 provided a form of notice of certification to be filled out by the certifying 15 physician or staff. The form recited that: “The above-named person has been informed of this 16 evaluation, and has been advised of the need for, but has not been able or willing to accept 17 treatment on a voluntary basis . . . .” Note that Section 5250 did not require an express refusal 18 by the patient for treatment. If the patient was merely “not able to accept” treatment on a 19 voluntary basis, then he could be certified. 20 In the signature block (for signatures of the certifying staff), the statutory form further 21 prescribed: 22 I hereby state that I delivered a copy of this notice this day to the above-named person and that I informed him or her that unless 23 judicial review is requested a certification review hearing will be held within four days of the date on which the person is certified 24 for a period of intensive treatment and that an attorney or advocate will visit him or her to provide assistance in preparing for the 25 hearing or to answer questions regarding his or her commitment or to provide other assistance. The court has been notified of this 26 certification on this day. 27 This was the first time the statutory scheme referenced the possibility of “judicial 1 Section 5254 referenced two competing types of reviews, an internal hospital review 2 versus judicial review: 3 The person delivering the copy of the notice of certification to the person certified shall, at the time of delivery, inform the person 4 certified that he or she is entitled to a certification review hearing, to be held within four days of the date on which the person is 5 certified for a period of intensive treatment in accordance with Section 5256 unless judicial review is requested, to determine 6 whether or not probable cause exists to detain the person for intensive treatment related to the mental disorder or impairment by 7 chronic alcoholism. The person certified shall be informed of his or her rights with respect to the hearing, including the right to the 8 assistance of another person to prepare for the hearing or to answer other questions and concerns regarding his or her involuntary 9 detention or both. 10 Under this provision, any patient who sought judicial review would not receive any internal 11 hospital review.3 12 Section 5254.1 specifically required notice to “the person certified” of his or her legal 13 right to a judicial review by habeas corpus: 14 The person delivering the copy of the notice of certification to the person certified shall, at the time of delivery, inform the person 15 certified of his or her legal right to a judicial review by habeas corpus, and shall explain that term to the person certified, and 16 inform the person of his or her right to counsel, including courtappointed counsel pursuant to Section 5276. [17] If the certified person did not initiate judicial review by requesting release (our plaintiff [18] did not), Section 5256 required an internal certification review hearing within four days of the [19] certification. Section 5256.1 provided that “either a court-appointed commissioner or a [20] referee, or a certification review hearing officer” conducted the certification review hearing. [21] No judge was involved in any such internal certification review hearing. Section 5256.2 [22] provided that a person designated by the director of the facility presented the evidence in [23] support of the certification. Sections 5256.3 and 5256.4 provided the rights of the certified [24] person at the certification review hearing, including: to be present at the hearing; to assistance [27] 3 Consistent with Section 5254, the patient handbook available on the internet advises today that “If you request a writ of habeas corpus . . . you will give up your right to have a certification review hearing.” CAL. DEP’T OF 1 by an attorney; to present evidence; to examine witnesses; and to make reasonable requests for 2 the attendance of facility employees who participated in the certification. 3 Section 5256.6 provided: 4 If at the conclusion of the certification review hearing the person conducting the hearing finds that there is not probable cause to 5 believe that the person certified is, as a result of a mental disorder or impairment by chronic alcoholism, a danger to others, or to 6 himself or herself, or gravely disabled, then the person certified may no longer be involuntarily detained. Nothing herein shall 7 prohibit the person from remaining at the facility on a voluntary basis or the facility from providing the person with appropriate 8 referral information concerning mental health services. 9 Note that this section specifically contemplated that if probable cause was lacking, the 10 person certified could no longer be “involuntarily detained” but that the person could remain 11 “at the facility on a voluntary basis.” Note again that “gravely disabled” alone, as opposed to 12 dangerousness, would be sufficient to authorize involuntary detention under Section 5256.6. 13 And, chronic alcoholism, rather than mental disorder, would be sufficient as the underlying 14 cause. 15 If the person certified was held for treatment, Section 5256.7 required written notification 16 to the patient of the decision and notice again of his right to request release and to have a 17 hearing thereon before the superior court. “A copy of the decision and the certification made 18 pursuant to Section 5250 or 5270.15 shall be submitted to the superior court.” No review or 19 action by the court was required, however, unless the patient initiated a petition for a writ of 20 habeas corpus. 21 Section 5275 provided the following right to a hearing by way of habeas corpus: 22 Every person detained by certification for intensive treatment shall have a right to a hearing by writ of habeas corpus for his or her 23 release after he or she or any person acting on his or her behalf has made a request for release to either (a) the person delivering the 24 copy of the notice of certification to the person certified at the time of the delivery, or (b) to any member of the treatment staff of the 25 facility providing intensive treatment, at any time during the period of intensive treatment pursuant to Section 5250 . . . . [27] 1 Section 5275 further provided that the person delivering a copy of the certification notice or 2 any member of the treatment staff to whom the patient made a request for release was required 3 to provide a form for the patient to sign requesting his or her release. 4 The last paragraph of the next provision, Section 5276, provided: 5 The court shall either release the person or order an evidentiary hearing to be held within two judicial days after the petition is 6 filed. If the court finds, (a) that the person requesting release is not, as a result of mental disorder or impairment by chronic 7 alcoholism, a danger to others, or to himself or herself, or gravely disabled, (b) that he or she had not been advised of, or had 8 accepted, voluntary treatment, or (c) that the facility providing intensive treatment is not equipped and staffed to provide 9 treatment, or is not designated by the county to provide intensive treatment he or she shall be released immediately. [10] Immediate release was required if the patient had accepted “voluntary treatment,” meaning that [11] even though the patient had been “certified,” he could not be further detained if he had [12] accepted voluntary treatment. Note again that “gravely disabled” was sufficient to require [13] detention (as opposed to dangerousness) and, once again, that chronic alcoholism, rather than [14] mental disorder, was sufficient as the underlying cause. [15] Upon discharge or before, the facility was required by Section 8103(g)(3) to inform the [16] patient that under California law he or she was prohibited for five years from owning or [17] possessing a firearm, subject to a court hearing to restore his or her right to a firearm. No [18] information about the lifelong federal ban was required. In fact, at no time in the entire [19] process did the California scheme require notice of the lifelong federal ban. [20] This order has detailed the California statutory scheme because defendants have insisted [21] that we cannot go behind the certification in the California DOJ records and we must [22] necessarily find, based on the statute alone, that plaintiff was involuntarily committed in full [23] compliance with Mai. The details of the statutory scheme, however, do not compel this [24] assertion, even under the defense presumption of full statutory compliance. [25] Instead, these points emerge from the California procedure. First, no judge would ever [26] be involved in the Section 5250 certification, which is what defendants contend was the [27] “commitment.” Second, a Section 5250 certification could be merely based on being “gravely 1 disabled” rather than any danger to self or others and could be based on chronic alcoholism 2 rather than mental disorder (as the underlying cause). Third, a Section 5250 certification could 3 be based on the patient being unable to accept treatment voluntarily rather than unwilling to 4 accept treatment voluntarily. Fourth, once a patient became certified, the burden was on the 5 patient to seek release via habeas corpus. Fifth, seeking habeas corpus would cancel any 6 internal certification review by the hospital. Sixth, the statutory notice to be given the patient 7 failed to warn that a failure to seek judicial review would result in a lifelong forfeiture of the 8 constitutional right to possess a firearm. Seventh, the statutes allowed a superior court to order 9 release of a patient (upon a proper showing) but did not provide that the certification itself 10 would be vacated. 11 2. APPLICATION OF MAI STANDARD. 12 No records have survived to show what happened, if anything, with respect to plaintiff’s 13 “certification” for a fourteen-day treatment. Plaintiff testified he acquiesced in treatment 14 voluntarily. The facility was supposed to report all Section 5250 certifications to the 15 California DOJ on a “Mental Health Facilities Report of Firearm Prohibition Form 4009A,” 16 according to a California DOJ Information Bulletin dated May 22, 2007. CAL. DEP’T OF 17 JUSTICE, DIV. OF LAW ENFORCEMENT, INFORMATION BULLETIN, MENTAL HEALTH REPORTING 18 REQUIREMENTS (2007), https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/infobuls/2007BF19 04.pdf. No such form has survived for plaintiff’s case. All that remains is a computer entry in 20 the California DOJ bureau of firearms system stating “PROHIBITION/5250 — 5250 WIC — 21 DTSO OR GRAVELY DISABLED.” 22 Nevertheless, three points are clear. 23 First, there was no judicial involvement, much less “robust judicial involvement,” so 24 under Mai, there was no “commitment” within the meaning of Section 922(g)(4). To be sure, 25 under the ATF regulation, a “commitment” could include a “formal commitment of a person to 26 a mental institution by a court, board, commission, or other lawful authority.” 27 C.F.R. 27 § 478.11 (emphasis added). The statute itself, however, used only the term “who has been 1 referencing a board, commission, or other lawful authority). Taking note of the intervening 2 importance of the Second Amendment right to bear arms established in District of Columbia v. 3 Heller, 554 U.S. 570 (2008), the First Circuit limited the statutory phrase to judicial 4 commitments and stated the following reason: 5 But in Section 922, Congress did not prohibit gun possession by those who were or are mentally ill and dangerous, and such a free 6 floating prohibition would be very hard to administer, although perhaps not impossible. This is why, as with the ban on prior 7 felons, Congress sought to piggyback on determinations made in prior judicial proceedings to establish status. [8] United States v. Rehlander, 666 F.3d 45, 50 (1st Cir. 2012) (emphasis in original). Our own [9] court of appeals followed (and cited) the First Circuit’s lead in this respect and restricted the [10] statutory term to those commitments with “robust judicial involvement.” The term “applies [11] only to those who were found, through procedures satisfying due process, actually dangerous [12] in the past.” Mai, 952 F.3d at 1121 (emphasis in original). [13] Second, the certification does not establish that our plaintiff was found to be both [14] mentally ill and dangerous, as required by Mai. Instead, he was found to be “DTSO [15] [Dangerous to Self or Others] OR GRAVELY DISABLED.” But which was it? Gravely [16] disabled? Or DTSO? It matters. Mai held: “Involuntary commitments comport with due [17] process only when the individual is found to be both mentally ill and dangerous.” 952 F.3d at 18 1110 (emphasis in original). Mai added that Section 922(g)(4) “applies only to those found, [19] through procedures satisfying due process, actually dangerous in the past.” Id. at 1121 [20] (emphasis in original). Grave disablement is not enough under Mai. Therefore, the ambiguous [21] finding of dangerous or disabled was not specific or clear enough. This, too, means there was [22] no “commitment” under Mai. [23] Third, contrary to defendants’ assertions, Section 5250 certifications could be based on [24] being unable to accept treatment voluntarily, rather than, as defendants presume, being [25] unwilling to accept treatment voluntarily. [26] Therefore, defendants were wrong to deny Stokes a firearm permit on account of the [27] Section 5250 certification. [1] 3. THE GOVERNMENT’S WAIVER ARGUMENT. [2] With respect to the first of the three grounds stated above pertaining to “robust judicial [3] involvement,” the government argued at a hearing on June 17, 2021, that plaintiff had [4] “waived” his right to judicial involvement by not applying for habeas corpus relief. [5] Specifically, counsel stated (Tr. 4:24–6:7, 7:15–17): [6] California’s procedures certainly do have robust judicial 7 proceedings. Mr. Stokes chose not to avail himself of them . . . . 8 In addition, the not — neither the Ninth Circuit nor the First Circuit ever stated that the judicial proceedings were non-waivable 9 under any circumstances. 10 And if you look at Phelps v. Bosco [711 Fed. App’x 63 (2nd Cir. 2018)], the Second Circuit case, they specifically upheld a 11 922(g)(4) ban, even though, as here, the plaintiff was offered and declined to have the judicial proceedings that were available to 12 him. 13 So in this case, the state law does have the judicial proceeding. Plaintiff declined to opt to avail himself of them. There is nothing 14 stating that persons in — who are committed are not allowed to waive these conditions. [15] So I think that that is clear, that here it does count as a 16 disqualifying commitment; otherwise, anyone who was committed could simply waive their judicial hearing and then state: “Well, 17 since I didn’t have a court hearing, I can’t have a ban under 922(g)(4).” [18] * * * [19] I think the statute clarifies how the procedure works. In this case, 20 the plaintiff testified in his deposition that he was told of this ability to go to court and he declined it. [21] 22 No decision has ever blessed this waiver argument but neither has any precisely rejected 23 it, so this order will give it plenary consideration. A variation of the government’s waiver 24 argument was made in the First Circuit case and rejected by the court of appeals. United States 25 v. Rehlander, 666 F.3d 45 (1st Cir. 2012). Rehlander is as close as any appellate court has 26 come to addressing a waiver argument under Section 922(g)(4), but is not really on point. 27 Government counsel’s citation to the Second Circuit decision in Phelps v. Bosco, 711 1 certain issues because Phelps had not raised them in his opening brief and had thus waived 2 them. Also, Phelps had not raised any constitutional issue on appeal, so the Second Circuit 3 declined to consider them and specifically declined to consider “whether concern for these 4 constitutional rights might change our interpretation of the word ‘commitment’ under New 5 York’s scheme.” Id. at 65 . There was no waiver issue in Phelps remotely akin to the waiver 6 argument advanced by government counsel. 7 Mai did not set out a waiver exception. Its most relevant points were: 8 Involuntary commitments comport with due process only when the individual is found to be both mentally ill and dangerous. 9 Foucha v. Louisiana, 504 U.S. 71, 80 (1992). [10] 952 F.3d at 1110 (emphasis in original). 11 In the next sentence, citing to the First Circuit decision, Mai added: 12 Additionally, commitments under state-law procedures that lack robust judicial involvement do not qualify as commitments for 13 purposes of § 922(g)(4). United States v. Rehlander, 666 F.3d 45 , 47–49 (1st Cir. 2012). [14] Ibid. [15] Near the end of its opinion, Mai stated: [16] Finally, § 922(g)(4)’s prohibition as to those who were committed 17 involuntarily applies not to persons who theoretically might be dangerous at some point in their lives. Instead, it applies only to 18 those who were found, through procedures satisfying due process, actually dangerous in the past. [19] Id. at 1121 (emphasis in original). [20] The government’s argument reduces to a waiver based on (i) notice to the patient of a [21] right to seek a writ of habeas corpus plus (ii) the failure to do so. [22] A waiver must be knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238 , 242 [23] (1969). To be knowing, the patient must be of sound enough mind to understand his or her [24] right. See Godinez v. Moran, 509 U.S. 389, 396 (1993). It must also be informed, meaning he [25] or she must be informed of his or her rights and the consequences. To be voluntary, the waiver [26] must be free of compulsion or pressure. Moran v. Burbine, 475 U.S. 412, 421 (1986). [27] 1 The burden of establishing a waiver is on the party asserting waiver. See Prieto v. Paul 2 Revere Life Ins. Co., 354 F.3d 1005, 1012 (9th Cir. 2004). Here, the record does not establish 3 a valid waiver. 4 Despite the absence of records, the government contends that here the Section 5250 5 “certification” necessarily constituted an involuntary commitment. Recall as well that Mai 6 insists that commitments under Section 922(g)(4) must be based on “mental illness.” 7 The government’s argument, therefore, reduces to the manifest contradiction that someone 8 who is so mentally ill that he or she must be involuntarily confined nevertheless has sufficient 9 soundness of mind to knowingly and intelligently waive his or her right to seek judicial review. 10 This counterfeit logic is self-cancelling. 11 Moreover, was any waiver here informed? The answer is no. Although the California 12 statute required notice of his right to seek habeas corpus review, the statutory notice did not 13 advise that acquiescing in the fourteen-day detention would result in a lifetime ban on owning 14 or possessing a firearm or ammunition. Such a notice should have been given if any state or 15 federal government wanted to later say that the fourteen-day treatment would forfeit his 16 Second Amendment rights for the rest of his life. See United States v. Bonilla, 637 F.3d 980 17 (9th Cir. 2011); see also United States v. Gonzales, 884 F.3d 457 (2d Cir. 2018). 18 To return to where we began, plaintiff’s certification was never vetted by any judge. 19 There was no judicial involvement whatsoever, much less any “robust judicial involvement.” 20 Unlike in Mai involving the Washington regime, the California procedure did not 21 automatically require judicial involvement up front. The government has not carried its burden 22 to show that plaintiff knowingly and voluntarily made an informed waiver. 23 In summary, under Mai, plaintiff’s Section 5250 “certification” was not a “commitment” 24 within the meaning of Section 922(g)(4) and defendants may not withhold his firearm permit 25 on that ground. 26 4. THE GOVERNMENT’S CLARIFICATION. 27 In response to an inquiry why the federal defendants never filed an answer (and thus how 1 stating (Dkt. No. 49): “For the above-stated reasons, defendant’s motion to dismiss is Denied. 2 Discovery should proceed for approximately ninety days until April 22, 2020, after which the 3 parties may move for summary judgment . . . .” But that order never deleted the requirement 4 for an answer (and in fact all other defendants did file an answer). 5 The federal defendants used the recent inquiry as an occasion to further repackage their 6 waiver argument as follows (Dkt. No. 106): 7 Federal Defendants confirm that they were addressing the issue of whether availability of robust judicial proceedings satisfied 8 the legal requirements of section 922(g)(4), and not asserting an affirmative equitable defense of waiver. Federal Defendants 9 continue to maintain that the statutory structure of California law (Lanterman-Petris-Short Act, Cal. Welf. & Inst. Code §§ 5000 10 et seq.), pursuant to which Plaintiff was involuntarily committed, meets the requirements of section 922(g)(4). Plaintiff was entitled 11 to a judicial hearing at any time during his commitment and aware of that fact; Federal Defendants did not and are not arguing that 12 they have an affirmative equitable defense of waiver based on Plaintiff’s failure to use the procedures available to him. Rather, 13 Federal Defendants argued and continue to maintain that Plaintiff’s failure to use the procedures available under California law does 14 not create a constitutional problem such that Plaintiff is now entitled to the relief he seeks from this Court. [15] Respectfully, this still amounts to a waiver argument, namely that the California scheme [16] allowed plaintiff, after being certified, to go to superior court to obtain his freedom but it was [17] his own choice to spurn that opportunity. But Mai held that Section 922(g)(4)’s prohibition [18] applied only to those “who were found, through procedures satisfying due process, [to have [19] been] actually dangerous in the past.” 952 F.3d 1106, 1121 (emphasis in original). Given the [20] ambiguous disjunctive “or” used in the certification at issue, we cannot say now that even a [21] doctor, much less a judge, found he was anything other than “gravely disabled” (as opposed to [22] actually dangerous). [23] To repeat the First Circuit’s reasoning, generally approved in Mai, “as with the ban on [24] prior felons, Congress sought to piggyback on determinations made in prior judicial [25] proceedings to establish status.” Rehlander, 666 F.3d at 50 . Here, there was no prior judicial [26] proceeding on which to piggyback. California’s scheme relegated judicial review to an after27 the-fact optional hearing with the burden placed on the certified person to seek it rather than, as 1 in the Washington and Maine schemes, a judicial hearing up front with an adversarial process 2 and a judicial record serving as the foundation for the lifelong ban. That difference is critical. 3 5. PLAINTIFF’S CLAIM THAT HIS COMMITMENT WAS VOLUNTARY. 4 Plaintiff testified herein that he voluntarily accepted all treatments in question. (And thus, 5 under the ATF regulation, his voluntary admission was not a “commitment” under Section 6 922(g)(4).) 7 Defendants’ persistent reply has been to argue that Section 5250 authorized only 8 involuntary certifications (an argument rejected above). An amendment to the California 9 scheme in 2018, however, illuminates the probable truth of plaintiff’s testimony. Assembly 10 Bill No. 2983 (approved September 27, 2018) had as its purpose to address the problem of 11 hospitals requiring voluntary patients to be placed on a Section 5150 hold as a condition of 12 treatment: 13 PURPOSE OF THIS BILL. According to the author, patients with mental health needs often seek care in the ED [emergency 14 department] on a voluntary basis. After a medical screening exam by an emergency physician, some patients need additional 15 psychiatric services not available at that hospital, requiring transfer by ambulance to a psychiatric hospital to receive a higher level of 16 mental health care. The author states that a survey of emergency physicians in California revealed that, almost universally, 17 hospitals require voluntary patients to be placed on a 5150 hold or they will not accept transfer of that patient from the ED, however, 18 there is no such mandate in law. The author notes that the LPS Act [Lanterman-Petris-Short Act], which provides the statutory 19 framework for community mental health services and the provisions for handling involuntary civil commitments of persons 20 with mental health disorders was developed with the intent “to end the inappropriate, indefinite, and involuntary commitment of 21 persons with mental health disorders,” and a 5150 hold is the mechanism that exists to force treatment on a person when they are 22 a danger to themselves, others, or are gravely disabled. However, if those criteria are not met and a person is voluntarily seeking 23 treatment, a 5150 is not warranted. The author asserts that the requirement of an involuntary hold by receiving hospitals creates 24 an unnecessary barrier to care for patients, is a violation of the persons civil liberties, does not exist for any other health care 25 condition, and unreasonably stigmatizes patients with mental illness who are voluntarily seeking treatment. The author 26 concludes that this bill defends civil liberties by clarifying that hospitals may not require a patient seeking voluntary mental health 27 care to be on a 5150 hold as a condition of accepting transfer of 1 Cal. Bill Analysis, Assem. Comm. on Health, 2017–2018 Reg. Sess., A.B. 2983, at 2 (Cal. 2 April 17, 2018) (emphasis added). This “universal” scenario, corrected by the 2018 3 amendment, tracks exactly what plaintiff says happened to him (Stokes Dep. 106:8–107:14, 4 133:14–25). (This practice evidently was done to secure funding to pay for voluntary 5 treatment.) Oakcrest designated him under Section 5150, a necessary precursor to a Section 6 5250 certification, and then documented his treatment as a Section 5250 case. This order 7 accepts plaintiff’s testimony and finds that he voluntarily sought admission to both hospitals 8 for treatment. This is an alternative ground for decision. 9 6. THE CALIFORNIA ATTORNEY GENERAL’S MOTION IS DENIED. 10 The California Attorney General argues that the Eleventh Amendment bars this suit 11 against him. 12 “The Eleventh Amendment bars a suit against state officials when the state is the real, 13 substantial party in interest. Thus, the general rule is that relief sought nominally against an 14 officer is in fact against the sovereign if the decree would operate against the latter. And, as 15 when the State itself is named as the defendant, a suit against state officials that is in fact a suit 16 against a State is barred regardless of whether it seeks damages or injunctive relief.” 17 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 , 101–02 (1984) (cleaned up). 18 The Supreme Court has recognized an exception to the immunity under the Eleventh 19 Amendment in Ex parte Young, 209 U.S. 123 (1908). The Ex parte Young exception applies 20 to “suits for prospective declaratory and injunctive relief against state officers, sued in their 21 official capacities, to enjoin an alleged ongoing violation of federal law.” Agua Caliente Band 22 of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000). “Under Ex parte Young, 23 the state officer sued must have some connection with the enforcement of the allegedly 24 unconstitutional act. This connection must be fairly direct; a generalized duty to enforce state 25 law or general supervisory power over the persons responsible for enforcing the challenged 26 provision will not subject an official to suit.” Los Angeles Cnty. Bar Ass’n v. Eu, 979 F.2d 27 697, 704 (9th Cir. 1992) (cleaned up). 1 The California Attorney General acknowledges that California law does not now prohibit 2 plaintiff from owning or possessing a firearm (Dkt. No. 89 at 10, n. 4). Thus, only federal law 3 is at issue. 4 The California Attorney General argues there is no causal connection between himself 5 and plaintiffs injury. That is not quite true because the California Attorney General received 6 the report of plaintiff's Section 5250 certification from the facility and, without reviewing it, 7 passed it through to NICS. In order to provide relief to plaintiff, it may be required that the 8 California Attorney General undo the damage he has caused by correcting the entry in his own 9 database. It will also likely benefit our court of appeals to have the California Attorney 10 General participate in the appeal in case questions about the California scheme arise. 11 Otherwise, the motion would be granted, but, for now, it is DENIED. 12 CONCLUSION 5 13 The federal defendants and state defendants shall issue plaintiff his firearm permit for the 14 two firearms in question. This order, however, is STAYED PENDING RESOLUTION OF ALL 3 15 APPEALS. Final judgment shall be entered accordingly. [16] = 17 IT IS SO ORDERED. [18] 19 Dated: July 30, 2021. LAs Pee 21 ~ WILLIAM ALSUP 22 UNITED STATES DISTRICT JUDGE