Tyler v. Hillsdale Co. Sheriff's Dept

[kwc]

Big victory in the 6th Circuit Court yesterday!

 

Charles Tyler of Michigan had been involuntarily committed to a mental institution for a month 28 years ago for depression following a devastating divorce.

 

Although that incident has long passed, he was still barred from possessing a firearm per 18 U.S.C. § 922(g)(4).

 

Sixth Circuit Court just declared that 18 U.S.C. § 922(g)(4) as applied to Tyler is unconstitutional:

 

http://www.ca6.uscourts.gov/opinions.pdf/14a0296p-06.pdf

 

Quoting from the decision:

 

"The government's interest in keeping firearms out of the hands of the mentally ill is not sufficiently related to depriving the mentally healthy, who had a distant episode of commitment, of their constitutional rights."

 

To me this appears to be a major decision with far-reaching impact.

[Elmer Fudd]

Due to the fact that most mental health statutes have a five year look back the impact isn't going to be all that large.

[bmyers]

Every victory is a plus in reaffirming the right.

[mauserme]

I haven't finished reading but it looks like the court explicitly applied strict scrutiny in their analysis. That would be big.

[lockman]

Due to the fact that most mental health statutes have a five year look back the impact isn't going to be all that large.

 

The NICS check system has no limit on look back. The record is their unless it is ordered removed. There is no automatic time related purge function.

[skinnyb82]

This is great, iron clad, Judge Boggs knocked it out of the park because he made it airtight, spending a good deal of time analyzing the case to determine the appropriate level of scrutiny. The panel (Bush I, Bush II, and Reagan appointees) shredded the Michigan law, or lack thereof, and ripped its sister circuits for application of intermediate scrutiny to Second Amendment cases. I love Judge Boggs' citation of all of the different carry cases in the Circuits, showing the colossal split.

 

"Compare Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir. 2012) (same),

with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir. 2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, 134 S. Ct. 2134, No. 13-827 (May 5, 2014), Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (“merely” assuming, without deciding, that the “Heller right exists outside the home,” but upholding good-and-substantial-reason permit requirement), and Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89, 96 (2d Cir. 2012) (assuming that the Second Amendment “must have some application” beyond the home, but upholding “proper cause” handgun-license requirement)."

As to the level of scrutiny applied in the case, slamming CA7 in Skoien, then citing Citizens United. Judge Boggs clearly spent A LOT of time drafting the portion of the opinion containing the proper level of scrutiny....

"Although we might prefer to avoid a scrutiny-based approach altogether, see Heller,
554 U.S. at 634–35, Greeno now compels us to wade “into the ‘levels of scrutiny’ quagmire.”
Skoien II, 614 F.3d at 642."

 

"Fourth, and perhaps most importantly, we reject intermediate scrutiny here because it has
no basis in the Constitution. Both the Court and the academy have said as much. The Heller
Court’s reasons for explicitly rejecting rational-basis scrutiny apply equally to intermediate
scrutiny."

 

"Given the above, we prefer strict scrutiny over intermediate scrutiny. In choosing strict
scrutiny, we join a significant, increasingly emergent though, as yet, minority view that
concludes that as between intermediate scrutiny and strict scrutiny . . . the latter is more

appropriate. . . ."

 

"We conclude our explanation of choosing strict scrutiny with a reminder of intermediate
scrutiny’s shaky foundation in Second Amendment law. The Seventh Circuit was the first court
of appeals to apply intermediate scrutiny to a Second Amendment challenge in United States v.
Skoien (Skoien I), 587 F.3d 803 (7th Cir. 2009). That opinion was vacated, United States v.
Skoien, No. 08-3770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010), and on rehearing, the en banc
court expressly declined to wade 'more deeply into the "levels of scrutiny" quagmire' and simply
accepted the government’s 'concession' to apply intermediate scrutiny for the case at hand,
Skoien II, 614 F.3d at 641–42 (July 13, 2010)."

 

"With our analytic structure in place, we turn finally to the law at issue here. A challenged
law satisfies strict scrutiny if it 'furthers a compelling interest and is narrowly tailored to achieve
that interest.' Citizens United, 558 U.S. at 340."

 

With the application of strict scrutiny to 922(g), that blows the door open for more fun. The judiciary is slowly moving toward applying strict, rather than intermediate scrutiny in Second Amendment challenges. I find these paragraphs most interesting, it's almost as if Judge Boggs is saying "hey, challenge the constitutionality of the federal bans on guns in schools, banning firearms in D.C.,

 

"Congress probably can regulate firearms at schools, see Heller,
554 U.S. at 626; § 922(g), but it probably cannot ban all teachers from owning firearms. Such a
prohibition would no doubt implicate the government’s interest in preventing violent crime at
schools, see § 922(q)(1)(F), but it would also cover a substantial amount of conduct not
implicating the interest. Similarly, Congress can probably regulate firearms in government
buildings, see Heller, 554 U.S. at 626; 39 C.F.R. § 232.1, but it probably cannot ban firearms in
the District of Columbia, even though a disproportionately large number of government
buildings are located there."

Several notable quotes,

 

"Although the government presents two examples of persons adjudicated as mentally ill who committed gun
violence and cites one study in support of the claim that a prior suicide attempt is a 'risk
facto[r]' for suicide, Appellee Br. 26, it has offered not an iota of evidence that prohibiting the
previously institutionalized from possessing guns serves its compelling interests."

"'It has now fallen to the lower courts to delineate the
boundaries of the Second Amendment right,' Mahin, 668 F.3d at 123, and '[t]here is no turning
back,' Moore, 702 F.3d at 942."

From the concurrence filed by Judge Gibbons, she basically says the court wasted its time discussing the appropriate level of scrutiny because the 922(g)(4) commitment provisions, as applied, are unconstitutional, period. Intermediate or strict scrutiny, it makes no difference,

[C0untZer0]

A good article by Eugene Volokh:

 

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/18/second-amendment-and-people-who-had-been-committed-to-a-mental-institution-28-years-ago/

[McCroskey]

I love winning.

[firepiper]

Could this also be a stepping stone for removing the ban on felon possession?

At least in the case of NON-VIOLENT felonies?

Especially in light of the restoration of voting rights after completion of sentence/probation?

Apparently it happens in some form in 39 states.....

http://felonvoting.procon.org/view.resource.php?resourceID=000286

[borgranta]

Will the plaintiff need a court order to compel NICS to purge the information about his commitment? This case may be a stepping stone to enable anyone that has been committed 28 years ago or more to more easily challenge the law as applied to them.

[RoadyRunner]

SCOTUSblog published their take on the ruling....

 

http://www.scotusblog.com/2014/12/appeals-court-gun-control-must-meet-toughest-test/

 

[press1280]

Bad news here: The 6th Circuit has en banced this excellent opinion. This is yet another circuit taking the EXTRAORDINARY step of en banc in order to erase pro-2A precedent (along with Skoein, Nordyke, Peruta, and Moore v. Madigan was 1 vote away from en banc). Just goes to show the antis sitting on our circuit courts are trying to strangle the 2A in the cradle. The judges sympathetic to our side, however, aren't keen on en banc.

[skinnyb82]

This case has significant implications, it's an important question, therefore the en banc rehearing is proper. I don't believe they granted to simply dump the panel ruling and reverse the reversal, remand. I (the eternal...optimist...sorta) believe that the court wants to get this right because the panel ruling has significant implications, especially during a time when everyone is going ape over the mentally ill possessing firearms (as in, if you've ever had a bad day, no guns for you). IIRC it was the Sixth Circuit which split from CA5, CA7, and CA9 on the issue of gay marriage.

 

I dunno, I could be wrong. At this point it's all conjecture. I'm sitting in a dentist's chair waiting for half of my mouth to go numb, then...mmmyeah bust out the drill.

[ChicagoRonin70]

This is great, iron clad, Judge Boggs knocked it out of the park because he made it airtight, spending a good deal of time analyzing the case to determine the appropriate level of scrutiny. The panel (Bush I, Bush II, and Reagan appointees) shredded the Michigan law, or lack thereof, and ripped its sister circuits for application of intermediate scrutiny to Second Amendment cases. I love Judge Boggs' citation of all of the different carry cases in the Circuits, showing the colossal split.

 

"Compare Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014) (recognizing the right beyond the home), and Moore v. Madigan, 702 F.3d 933, 936–42 (7th Cir. 2012) (same),

with Drake v. Filko, 724 F.3d 426, 431–35 (3d Cir. 2013) (declining to “definitively declare” that Heller extends beyond the home), cert. denied sub nom. Drake v. Jerejian, 134 S. Ct. 2134, No. 13-827 (May 5, 2014), Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013) (“merely” assuming, without deciding, that the “Heller right exists outside the home,” but upholding good-and-substantial-reason permit requirement), and Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89, 96 (2d Cir. 2012) (assuming that the Second Amendment “must have some application” beyond the home, but upholding “proper cause” handgun-license requirement)."

As to the level of scrutiny applied in the case, slamming CA7 in Skoien, then citing Citizens United. Judge Boggs clearly spent A LOT of time drafting the portion of the opinion containing the proper level of scrutiny....

"Although we might prefer to avoid a scrutiny-based approach altogether, see Heller,

554 U.S. at 634–35, Greeno now compels us to wade “into the ‘levels of scrutiny’ quagmire.”

Skoien II, 614 F.3d at 642."

 

"Fourth, and perhaps most importantly, we reject intermediate scrutiny here because it has

no basis in the Constitution. Both the Court and the academy have said as much. The Heller

Court’s reasons for explicitly rejecting rational-basis scrutiny apply equally to intermediate

scrutiny."

 

"Given the above, we prefer strict scrutiny over intermediate scrutiny. In choosing strict

scrutiny, we join a significant, increasingly emergent though, as yet, minority view that

concludes that as between intermediate scrutiny and strict scrutiny . . . the latter is more

appropriate. . . ."

 

"We conclude our explanation of choosing strict scrutiny with a reminder of intermediate

scrutiny’s shaky foundation in Second Amendment law. The Seventh Circuit was the first court

of appeals to apply intermediate scrutiny to a Second Amendment challenge in United States v.

Skoien (Skoien I), 587 F.3d 803 (7th Cir. 2009). That opinion was vacated, United States v.

Skoien, No. 08-3770, 2010 WL 1267262 (7th Cir. Feb. 22, 2010), and on rehearing, the en banc

court expressly declined to wade 'more deeply into the "levels of scrutiny" quagmire' and simply

accepted the government’s 'concession' to apply intermediate scrutiny for the case at hand,

Skoien II, 614 F.3d at 641–42 (July 13, 2010)."

 

"With our analytic structure in place, we turn finally to the law at issue here. A challenged

law satisfies strict scrutiny if it 'furthers a compelling interest and is narrowly tailored to achieve

that interest.' Citizens United, 558 U.S. at 340."

 

With the application of strict scrutiny to 922(g), that blows the door open for more fun. The judiciary is slowly moving toward applying strict, rather than intermediate scrutiny in Second Amendment challenges. I find these paragraphs most interesting, it's almost as if Judge Boggs is saying "hey, challenge the constitutionality of the federal bans on guns in schools, banning firearms in D.C.,

 

"Congress probably can regulate firearms at schools, see Heller,

554 U.S. at 626; § 922(g), but it probably cannot ban all teachers from owning firearms. Such a

prohibition would no doubt implicate the government’s interest in preventing violent crime at

schools, see § 922(q)(1)(F), but it would also cover a substantial amount of conduct not

implicating the interest. Similarly, Congress can probably regulate firearms in government

buildings, see Heller, 554 U.S. at 626; 39 C.F.R. § 232.1, but it probably cannot ban firearms in

the District of Columbia, even though a disproportionately large number of government

buildings are located there."

Several notable quotes,

 

"Although the government presents two examples of persons adjudicated as mentally ill who committed gun

violence and cites one study in support of the claim that a prior suicide attempt is a 'risk

facto[r]' for suicide, Appellee Br. 26, it has offered not an iota of evidence that prohibiting the

previously institutionalized from possessing guns serves its compelling interests."

"'It has now fallen to the lower courts to delineate the

boundaries of the Second Amendment right,' Mahin, 668 F.3d at 123, and '[t]here is no turning

back,' Moore, 702 F.3d at 942."

From the concurrence filed by Judge Gibbons, she basically says the court wasted its time discussing the appropriate level of scrutiny because the 922(g)(4) commitment provisions, as applied, are unconstitutional, period. Intermediate or strict scrutiny, it makes no difference,

 

Wow, this opinion is the legal equivalent of this:

 

http://thehostages.files.wordpress.com/2009/08/bitchslap.jpg

[skinnyb82]

Pretty much a beat down issued by Judge Boggs. The opinion is unassailable. But the issue turns the entire NICS on its head, mandate materially alters the GCA, and, most importantly, the panel eviscerated the notion that rational basis or intermediate scrutiny is the proper level of scrutiny (would rational basis or intermediate scrutiny be acceptable in a First Amendment case? Absolutely not, yet 2A has a different standard of review aka "Heller two-step") which is why I believe en banc was granted. If one looks at the repercussions of the panel ruling, they will understand why the entire court wants to rehear the case. To get it right, to further solidify the ruling. So, no, the sky is not falling.

[Tango7]

I'd love to see this decision upheld and eventually provide the option for people who made mistakes, were convicted of felonies and since corrected the course of their lives to have the chance to fully exercise all of their rights, without the sham of the "ATF Rights Restoration" office that due to a perpetual lack of funding is nothing more than a storage closet with an empty desk and unanswered phone.

[press1280]

I suppose since a Federal statute is in play here, it's status is elevated. However, it's really narrow when you look at it. There's supposed to be relief for individuals in Tyler's circumstance according to the law, it's just Michigan doesn't provide an avenue for the relief (most other states do).

I really feel like the judiciary (lower courts) are flat out hostile to the 2A and just don't want anything positive coming through to cause a conflict that'll get to SCOTUS.

[MrTriple]

I suppose since a Federal statute is in play here, it's status is elevated. However, it's really narrow when you look at it. There's supposed to be relief for individuals in Tyler's circumstance according to the law, it's just Michigan doesn't provide an avenue for the relief (most other states do).

I really feel like the judiciary (lower courts) are flat out hostile to the 2A and just don't want anything positive coming through to cause a conflict that'll get to SCOTUS.

But wouldn't this just result in a bad ruling that you know will result in an appeal?

[press1280]

Sure, it'll be appealed but the lower courts have figured out (especially after Jackson v. SF) that "bad rulings" don't matter, as long as there's no split then SCOTUS won't act.

[skinnyb82]

The rehearing is scheduled for October...makes CA9 look like they push cases ex post haste.

[press1280]

Oral argument will be October 14th (Wednesday), audio will be here shortly after http://www.ca6.uscourts.gov/internet/court_audio/aud1.php

[Hipshot Percussion]

I would like to ask the proverbial 'stupid' question of those who know. Why would any cases about any of our Rights be anything BUT Strict Scrutiny? What is the basis for deciding how a case is looked at? It seems to a layman like me, if its in the Bill of Rights, then it ought to be Strict Scrutiny. What am I missing?

 

Thanks in advance..

[ChicagoRonin70]

I would like to ask the proverbial 'stupid' question of those who know. Why would any cases about any of our Rights be anything BUT Strict Scrutiny? What is the basis for deciding how a case is looked at? It seems to a layman like me, if its in the Bill of Rights, then it ought to be Strict Scrutiny. What am I missing?

 

Thanks in advance..

 

You see, that's the kind of common sense talk that ain't no one 'round here wantsta be hearin'. Who you think you are, using logic and intelligent thought like that?

[press1280]

It wouldn't/shouldn't always be strict scrutiny. Some laws are obvious like total/may -issue public carry. But other laws requiring handguns be holstered in public definitely wouldn't be on the same level.

[Hipshot Percussion]

It wouldn't/shouldn't always be strict scrutiny. Some laws are obvious like total/may -issue public carry. But other laws requiring handguns be holstered in public definitely wouldn't be on the same level.

I understand what you're saying, but a liberal judge's idea of obvious is certainly going to be different than mine. It just seems to me, knowing this and to do everything to avoid the 'obvious' or 'common sense' decisions, our Rights should only be looked at with Strict Scrutiny.

 

Is there a threshold that must be met for strict scrutiny or is it at the Judges discretion?

[Plinkermostly]

The phrase: "shall not be infringed" has always seemed pretty straight forward to me. Go figure.