Metropolitan News-Enterprise


Monday, September 11, 2017


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Ninth Circuit Determines

Man Denied Gun Permit Has No §1983 Cause of Action

Judges Hold That a Delay of Nearly Three Years in Plaintiff Being Able to Purchase a Rifle Based on A Delay in Correcting Records Did Not Rise to the Level of a Second Amendment Violation


By a MetNews Staff Writer


A man who was barred for nearly three years from purchasing a rifle based on the slowness of a mental health facility in clarifying the nature of his commitment has not suffered a constitutional violation giving rise to a federal civil rights action, the Ninth U.S. Circuit Court of Appeals held Friday.

In a memorandum opinion, the court affirmed a summary judgment in favor of Sempervirens Mental Health Facility, operated by Humboldt County, and its administrators, Drs. Asha George and Chris Starets-Foote. A man designated “John Doe” sued under 42 U.S.C. §1983, contending that by virtue of their conduct, he was deprived from early 2012 to late 2014 of his Second Amendment right to bear arms.

The allegation was based on his inability to purchase a rifle in 2012 in light of California Department of Justice (“DOJ”) records showing—as reported to it by Sempervirens—that he had been was involuntarily hospitalized in 1999 pursuant to Welfare & Institutions Code §5250.

Lifetime Ban

A person committed under that section has been found by the professional staff of a mental health facility to be “as a result of mental disorder or impairment by chronic alcoholism, a danger to others, or to himself or herself, or gravely disabled,” and is under a lifetime firearms ban.

Doe, however, insisted that records should show that he was placed in Sempervirens under §5150, which authorizes an “assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the county.” A person hospitalized under that section is subject to a five-year ban on buying firearms.

Although Sempervirens faxed DOJ a “correction form” in 2012, the department wanted a letter explaining the change from what it had reported in 1999.

Obstacle Encountered

 Doe had difficulty obtaining that letter. In his July 13, 2015 order granting summary judgment, District Judge James Donato of the Northern District of California recited:

“Plaintiff had several phone calls with Dr. George. Dr. Starets-Foote and other Sempervirens personnel, some of which took on an angry and contentious tone. In one call, Dr. Starets-Foote informed plaintiff that ‘Sempervirens would never provide the requested letter to the DOJ’ and that she ‘does not care about’ plaintiffs constitutional rights.”

George, the director of the facility, did send a May 2012 letter, but it recited that Doe had been “placed on a 5250.” It noted that he “did not have a Certification Review Hearing.”

Under §5250, there is a right to such a hearing “to determine whether or not probable cause exists to detain the person for intensive treatment related to the mental disorder or impairment by chronic alcoholism.”

Eventually, on Aug, 4, 2014—about six months after Doe brought his action—George sent a clarifying letter saying:

“[T]he hospitalization commencing June 26, 1999, would no longer be reportable or classified as pursuant to Welfare and Institution Code §5250 because no certification hearing was held.”

District Court Ruling

 Donato held:

“[E]ven viewing the evidence in favor of the non-moving plaintiff, as the Court must, the record shows that Drs. George and Starets-Foote acted negligently at worst: they did not act with deliberate indifference.”

He observed:

“Though it may be that the August 2014 letter makes more explicit the conclusions the DOJ should have drawn from the May 2012 letter, any failures in that regard can only be characterized as negligence, at worst, and cannot support a § 1983 claim,” adding:

“On this record, the Court finds as a matter of law that defendants Drs. George and Starets-Foote did not undermine or sabotage plaintiffs ability to purchase a firearm either intentionally or with deliberate indifference to his constitutional rights. Rather, while they may have made some statements to plaintiff in the heat of the moment that were angry and left him feeling attacked, the actual actions taken by defendants were in keeping with setting the record straight so that plaintiff would not be kept from being able to exercise his constitutional rights.”

The Ninth Circuit agreed, in a memorandum opinion signed by two judges of that court, Mary M. Schroeder and Johnnie B. Rawlinson, and by District Judge Gershwin A. Drain of the Eastern District of Michigan, sitting by designation.

They said:

“At bottom, the action complained of was the result of failure to completely adhere to a very technical administrative process complicated by an intervening change in the governing law. This situation does not rise to the level of deliberate indifference….

“As Doe conceded, Appellees ultimately rectified the reporting error, alleviating any constitutional injury….Absent a constitutional injury, no liability ensues under §1983.”

The case is Doe v. Sempervirens Mental Health Facility, No. 15-16612.

Donato on July 23, 2014, granted the plaintiff’s request to proceed as a “Doe.” The judge said in his order:

“The Court grants plaintiff’s request to proceed pseudonymously, but does so with the following caveat. The Court is concerned that its ruling today may be misinterpreted as a broader holding that any plaintiff who can assert a general stigma, such as the stigma that arguably attaches to those with mental health issues, should be permitted to sue in our courts under the cloak of anonymity. But that is not the Court’s holding. The Court’s conclusion is that in this case, the balance tips in plaintiffs’ favor primarily because defendants have uniformly agreed by choosing not to oppose plaintiff’s motion, that they will not be prejudiced by the granting of plaintiff’s request to proceed under pseudonym.”


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