Litigation Highlight: Doe v. Governor of Pennsylvania
In a decision earlier this week, Doe v. Governor of Pennsylvania, the Third Circuit rejected a facial due process challenge by two men whose mental health commitments rendered them ineligible to possess firearms. They challenged a Pennsylvania law that forbids anyone who has been “committed to a mental institution for inpatient care and treatment” under a specific state procedure from possessing firearms. The decision—and the reasoning of both the majority and the concurrence—could well have an impact on both Second Amendment and due process challenges to Extreme Risk Protection Order laws (colloquially known as “red flag” laws). Joseph and I argue in this forthcoming Virginia Law Review article that these laws can withstand due process challenges. Judge Fisher’s concurrence in this case adds even more support to that conclusion.
Under Pennsylvania law, people can be involuntarily committed to a mental institution when they present a clear and present danger to themselves or others. Emergency examinations are authorized upon (1) certification by a physician at a treatment facility, (2) warrant by a county mental health administrator, or (3) application by a physician or other authorized person who personally observes behavior indicating a need for examination. Those taken to a facility pursuant to this procedure must be evaluated within two hours to determine if they are “severely mentally disabled” and pose a “clear and present danger” of harming themselves or others to warrant involuntary commitment. This kind of commitment by itself renders a person ineligible to possess guns. Pennsylvania provides “three post-deprivation remedies to those who seek recovery of their firearm rights: (1) a determination by a court that an applicant is not a risk to himself or others, (2) a challenge to the accuracy of the mental health record, and (3) an expungement of the commitment record because of insufficient evidence.”
The plaintiffs challenged the law as a deprivation of their Second Amendment liberty interest without due process. The panel surveyed Heller and the Third Circuit’s own post-Heller case law to determine whether the Second Amendment was implicated at all. It noted that the circuit had previously concluded, in Beers v. Barr, that the historical class of mentally ill individuals excluded from the Second Amendment included those who were “considered dangerous to the public or to themselves.” It further explained:
As to who is vested with authority to determine that one is a danger to oneself or the public, and on what grounds that person may do so, we now make explicit what was implicit in Beers, that we defer to the relevant statute’s reasonable standards and designations.
It found “no reason to second-guess” Pennsylvania’s law investing physicians with authority to make the determination. “Thus, once a person has been involuntarily committed under [Pennsylvania law], that person has joined the class of those historically without Second Amendment rights.” The court then concluded that only two types of challenges remained open to the plaintiffs: (1) a procedural due process challenge to the process for involuntary commitment itself, or (2) a substantive Second Amendment challenge to the notion that involuntary commitment falls within Heller’s exception for mental illness. But the panel determined that the plaintiffs had expressly disavowed both of those challenges, and it therefore affirmed the lower court’s order granting the state summary judgment.
In an opinion concurring only in the judgment, Judge Fisher would not hold that those involuntarily committed under Pennsylvania law lose their Second Amendment rights. Instead, he would decide the procedural due process challenge on the ground that the state’s process was adequate to comply with the Due Process Clause: “[A]ssuming without deciding that Section 302 committees retain their Second Amendment right to possess firearms—and thus have a protected liberty interest—there is no Fourteenth Amendment violation because the State’s post-deprivation procedures provide Section 302 committees adequate due process.” In reaching that conclusion, Judge Fisher rejected the plaintiffs’ contention that they are constitutionally entitled to pre-deprivation process before permanent deprivation of their Second Amendment rights. He performed the Mathews v. Eldridge balancing test and found the factors weighed in favor of not requiring such pre-deprivation process here. The risk of error is low because a physician has to determine the person posed a clear and present danger of harm, and “Pennsylvania has a prevailing interest in public safety and ensuring that potentially dangerous individuals are not permitted to own deadly weapons.” He also concluded that the post-deprivation procedures the state provides are constitutionally adequate.