          United States Court of Appeals
                     For the First Circuit

No. 10-1812

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        NATHAN REHLANDER,

                      Defendant, Appellant.


No. 10-1831
                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                       BENJAMIN J. SMALL,

                      Defendant, Appellant.
                       ____________________

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
              Torruella and Boudin, Circuit Judges.


     Virginia G. Villa, Assistant Federal Defender, Federal
Defender Office, for appellants.
     Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.
January 13, 2012
           BOUDIN,    Circuit    Judge.     Benjamin   Small    and    Nathan

Rehlander were each involuntarily admitted to psychiatric hospitals

under Maine's "emergency procedure," Me. Rev. Stat. tit. 34-B,

§ 3863 (2011), and each was later convicted for possessing firearms

after having been "committed to a mental institution."               18 U.S.C.

§ 922(g)(4) (2006).    This court has previously held that a section

3863 hospitalization qualifies as a "commitment" under section

922(g)(4),1 but appellants say that District of Columbia v. Heller,

554 U.S. 570 (2008), has altered the equation.

           The   background     events    are   undisputed     and    quickly

recounted.     Maine has two procedures for involuntary psychiatric

hospitalization.      Section      3863     provides     for         temporary

hospitalization following ex parte procedures--that is to say,

without   an   adversary   proceeding.      The   procedures    include    an

application by a health or law enforcement officer, a certifying

medical examination by a medical practitioner, and an endorsement

by a judge or justice of the peace confirming that these procedures

have been followed.     Me. Rev. Stat. tit. 34-B, § 3863(1)-(3).

           For   full-scale     commitments (as    opposed     to    temporary

hospitalization),     Maine      requires   a     traditional        adversary


     1
      United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir.
1998); United States v. Holt, 464 F.3d 101, 105-06 (1st Cir. 2006),
cert. denied, 549 U.S. 1344 (2007). Not all circuits shared this
view. Compare United States v. Giardina, 861 F.2d 1334, 1337 (5th
Cir. 1988), United States v. Hansel, 474 F.2d 1120, 1122-23 (8th
Cir. 1973), with United States v. Waters, 23 F.3d 29, 31-36 (2d
Cir.), cert. denied, 513 U.S. 867 (1994).

                                    -3-
proceeding,    Me. Rev. Stat. tit. 34-B, § 3864, culminating in a

judicial determination as to whether the subject both is mentally

ill and poses a danger to himself or others, id. § 3864(6).           This

procedure is described in the statute as a "commitment," not

"emergency hospitalization," and one consequence is that under

Maine law, a section 3864 commitment causes a loss of the right to

possess firearms.    Me. Rev. Stat. tit. 15, § 393(1)(E).

            In May 1998, Small was twice hospitalized under section

3863--at the request of his mother and an emergency mental health

worker, respectively--based on suicidal tendencies and other signs

of mental illness.      In March 2009, the police found Small in

possession of an Astra .357 revolver.        In April 2009, Small was

again hospitalized under section 3863 and then committed on a

longer-term basis under section 3864.          Small was indicted in

November 2009 for violation of section 922(g)(4), based solely on

his   May   1998   section   3863   hospitalizations   and    March   2009

possession.

            In March 2007, Rehlander was involuntarily hospitalized

under section 3863 at the request of a crisis clinician, also based

primarily on suicidal impulses. After then submitting to voluntary

hospitalization for a few days, Rehlander changed his mind, and in

early April 2007 he was again involuntarily hospitalized under

section 3863 at the request of hospital personnel.           Section 3863




                                    -4-
hospitalizations are subject to strict time limits, so the hospital

applied for longer-term involuntary commitment under section 3864.

          A full-scale section 3864 proceeding followed at the end

of which the Maine state court ordered Rehlander discharged,

concluding that at this point Rehlander needed treatment but did

not pose a risk of serious harm.               In December 2008, police

responding to an assault complaint found Rehlander with a 9 mm.

caliber pistol.      Rehlander was indicted in September 2009 for

violation of section 922(g)(4), based on his March and April 2007

section 3863 hospitalizations and December 2008 possession.

          Both    Small   and   Rehlander      moved    to   dismiss   their

indictments on constitutional grounds, arguing that application of

section 922(g)(4) to them violated their Second Amendment right to

bear arms under the Heller decision and their Fifth Amendment due

process rights.     After the district court denied their motions,

each pled guilty to violating section 922(g)(4) but reserved--and

have now exercised--their right to appeal from the denial of their

motions to dismiss.

          The    issues   before   us    are   legal   and   our   review   is

therefore de novo.    United States v. Volungus, 595 F.3d 1, 4 (1st

Cir. 2010).     The appellants press their constitutional claims in

various permutations; the most potent is that, given Heller's

pronouncement of an individual constitutional right to possess

arms, the ex parte procedures employed under section 3863 may


                                   -5-
justify temporary hospitalization but not a permanent deprivation

of   the   right    to   bear    arms--permanent         given    the    lack    of     any

meaningful way ever to recapture that right.

             We conclude that this claim is sufficiently powerful that

the doctrine of constitutional avoidance requires us to revisit our

prior interpretation of section 922(g)(4); and, in doing so, we

conclude     that   section      3863     proceedings     do     not    qualify    as     a

"commitment" for federal purposes.                 Ordinarily, panel decisions

like Chamberlain are binding on subsequent panels but not where

intervening Supreme Court precedent requires reconsideration.

United States v. Rodríguez, 527 F.3d 221, 224-25 (1st Cir. 2008).

             Chamberlain,       at   the    time    it    was     rendered,       was    a

reasonable albeit not compulsory reading of section 922(g)(4).

Although section 3863 did not use the word "commitment" and its

procedures were effectively ex parte, it was clear from section

922's legislative history cited in the decision that Congress

intended an expansive interpretation.                    Other circuits reached

differing        conclusions      regarding        emergency           hospitalization

procedures similar to section 3863, see note 1, above, but none

indicated that there was a constitutional dimension to the problem.

             Heller now adds a constitutional component. Although the

right established in Heller is a qualified right, see note 3,

below,     the   right   to     possess    arms    (among      those     not    properly

disqualified) is no longer something that can be withdrawn by


                                           -6-
government    on   a    permanent     and       irrevocable    basis      without     due

process.     Ordinarily, to work a permanent or prolonged loss of a

constitutional     liberty     or    property       interest,       an    adjudicatory

hearing, including a right to offer and test evidence if facts are

in dispute, is required.2         It is evidently doubtful that a section

3863 commitment provides the necessary process for a permanent

deprivation.

           Section         3863          permits       three-day              involuntary

hospitalizations (earlier it was five days) without any adversary

proceeding and with no finding by an independent judicial or even

administrative     officer     that       the     subject     is    either       mentally

disturbed or dangerous.           True, there must be an application to a

judge and a certification by a "medical practitioner"; but the

judge merely determines that the procedural steps have been taken

and makes no substantive findings.               And the subject is never heard

by the judge, through counsel or otherwise.

           This    is    all      that     is    practical     for       an    emergency

hospitalization, and for this purpose, we agree with the Maine

courts that it is the only process that is due.                    Doe v. Graham, 977

A.2d 391, 399-400 (Me. 2009).              An observer has provided facts, a

medical professional has assessed mental illness and a threat to


     2
      E.g., Willner v. Comm. on Character & Fitness, 373 U.S. 96,
102-03 (1963); United States v. Fla. E. Coast Ry. Co., 410 U.S.
224, 244-45 (1973); Friendly, Some Kind of Hearing, 123 U. Pa. L.
Rev. 1267 (1975); Nowak & Rotunda, Constitutional Law §§ 13.7 &
13.8, at 547-557 (5th ed. 1995).

                                          -7-
the immediate safety of the subject or others, and hospitalization

is limited to a few days unless voluntarily extended by the subject

or extended by a court under protective procedures.

          By contrast, involuntary commitment under section 3864 is

allowed only after a court holds an adversary hearing--providing

counsel for the patient and an opportunity to testify and to call

and cross-examine witnesses. Me. Rev. Stat. tit. 34-B, § 3864(5).

The committing court must then itself determine whether there is

clear and convincing evidence that the patient is mentally ill and

poses a likelihood of serious harm, and whether better alternative

arrangements exist.   Id. § 3864(6); cf. Addington v. Texas, 441

U.S. 418 (1979).

          The Supreme Court made clear in Heller that its decision

did not undercut traditional restrictions on the possession of arms

by those who were mentally ill.3     But nothing suggests that the

Court was there addressing a permanent ex parte deprivation of its

newly recognized constitutional right.    And, given ordinary due

process requirements that the Court has adopted in the past, it is

highly doubtful that it would deem section 922(g)(4) adequate if it

were read to embrace the Maine emergency hospitalization--at least

absent further protective procedures or remedies.


     3
      Among other reservations, the Court stated that "nothing in
[Heller] should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill."
Heller, 554 U.S. at 626-27; accord McDonald v. City of Chicago, 130
S. Ct. 3020, 3047 (2010).

                               -8-
                This would be a different case if section 922 addressed

ex parte hospitalizations and provided for a temporary suspension

of the right to bear arms pending further proceedings.                It could

also       be   different   if    section   922   permitted   one   temporarily

hospitalized on an emergency basis to recover, on reasonable terms,

a suspended right to possess arms on a showing that he now no

longer posed a risk of danger.           Cf. note 4, below.     In all events,

right now there is no recovery procedure in Maine that would avoid

the ban of section 922.

                The Attorney General can grant relief from firearms

disability, 18 U.S.C. § 925(c), but Congress has prohibited action

on such petitions since 1992.           See Logan v. United States, 552 U.S.

23, 28 n.1 (2007); United States v. Booker, 570 F. Supp. 2d 161,

164 n.2 (D. Me. 2008).           Congress has also allowed states to develop

a "relief from disabilities program," NICS Improvement Amendments

Act of 2007, Pub. L. No. 110-180, 122 Stat. 2559 (2008) (codified

at 18 U.S.C. § 922 note), but Maine's program has not been approved

by the Attorney General.4

                Accordingly, as federal and Maine law stood and still

stand, Small and Rehlander were permanently deprived of a right to


       4
      Even if the state scheme were approved, in this case
Rehlander is ineligible for relief due to a five-year waiting
period running from the date of discharge from a section 3863
hospitalization.   Small's later commitment under section 3864
disqualifies him from relief entirely, see Me. Rev. Stat. tit. 15,
§ 393(4-A), which is not necessarily a problem but was also (as
noted above) not the basis for his conviction in this case.

                                         -9-
bear   arms     based    solely    on   procedures        suitable       for   temporary

hospitalization         under     emergency      conditions.         Understandably,

nothing    in    those      procedures      provided       an     advance      adversary

proceeding      to   test   whether       the    subject    was    mentally         ill    or

dangerous, but there is also no effective post-hospitalization

means to recover the right to bear arms if the subject had in fact

never been mentally ill or dangerous.

              The constitutional doubts raised by such a regime are

sufficient that we now conclude that section 922 should not be read

to encompass a temporary hospitalization attended only by the ex

parte procedures of section 3863.                   The ordinary rule is that

statutes are to be read to avoid serious constitutional doubts, if

that course is possible, Jones v. United States, 529 U.S. 848, 857

(2000), and it is readily possible here.                     Indeed, some circuit

courts    had    read    procedures       like   section     3863    not       to   create

disability even without constitutional doubts awakened by Heller.

See note 1, above. And it is textually permissible to read section

922 not to be triggered by a section 3863 hospitalization.

              It is at least suggestive that section 922 used the word

"commitment,"           and--while        state          nomenclature          is         not

controlling--section 3863 refers only to admissions on an emergency

basis,    Me.    Rev.     Stat.    tit.    34-B,     §     3863,    by    contrast        to

"commitment" under section 3864.                 Further, Maine law prohibits

firearm possession by those committed under section 3864 but not


                                          -10-
those admitted under section 3863.             Me. Rev. Stat. tit. 15,

§ 393(1)(E).    Thus, Maine treats its temporary hospitalization

procedures as insufficient to nullify the right to possess guns.

          Given the discrepant wording and the sparse procedures of

section 3863, only Congress' broad purpose in section 922--to keep

guns out of the hands of those who were mentally ill--trumped these

considerations in Chamberlain.     159 F.3d at 660, 662-64.         True,

that purpose would be still be served after Heller by reading

section 922 to cover Maine's ex parte hospitalization; yet due

process is now a countervailing concern, supported by considerable

Supreme Court precedent.     And, in enacting section 922, nothing

suggests that Congress had in mind temporary hospitalizations

supported only by ex parte procedures.

          Along with legislative purpose, the government points to

our speculation in Chamberlain that some "subsequent proceedings

before state tribunals may vitiate" an emergency hospitalization.

Chamberlain, 159 F.3d at 665.   But a close further look, focused by

Heller, persuades us that there is no ready way, at least in the

ordinary case, to use section 3864 procedures or any other obvious

device, to nullify the asserted arms-barring effect of a mistaken

section 3863 admission.    Nor does section 922 invite a review of a

factual mistake made in such an admission.

          The   government   argues     that    Small   and   Rehlander's

voluntary extension of their section 3863 hospitalizations--as well


                                 -11-
as Rehlander's failure to contest his emergency hospitalization in

section 3864 proceedings--confirms their mental illness and waives

any due process challenge.        Such voluntary hospitalizations do not

qualify as "commitments."          27 C.F.R. § 478.11 (2011).        And, as

Rehlander's experience demonstrates, a section 3864 proceeding

focuses on current condition and not a prior temporary admission.5

              Finally, the government points to evidence that Small and

Rehlander were mentally ill and dangerous both at the time of their

emergency admissions and when they possessed firearms.                But in

section 922, Congress did not prohibit gun possession by those who

were or are mentally ill and dangerous, and such a free floating

prohibition would be very hard to administer, although perhaps not

impossible.     This is why, as with the ban on prior felons, Congress

sought to piggyback on determinations made in prior judicial

proceedings to establish status.

              Thus, section 922(g)(4) does not bar firearms possession

for   those    who   are   or   were   mentally   ill   and   dangerous,   but

(pertinently) only for any person "who has been adjudicated as a

mental defective" or "has been committed to a mental institution."

As we read section 922 in light of the concerns already discussed,



      5
      As earlier noted, Rehlander prevailed in his section 3864
case; and, as also earlier noted, Small was committed under that
section and violated state and federal law if he thereafter
possessed a gun, but the government in this case relied only on
Small's firearms possession following his 3863 hospitalizations but
prior to his section 3864 commitment.

                                       -12-
a temporary hospitalization under section 3863 does not constitute

a "commitment" under section 922--just as it clearly does not

constitute a commitment under Maine law itself.

            If Rehlander is now mentally ill and dangerous, his

commitment may be sought under section 3864 which, if successful,

will create a presumptively valid section 922 ban; Small is already

subject to such a ban as to future gun possession.      See note 5

above.   As for the broader problem of those hospitalized under

section 3863 alone, Congress might well be able to impose a

temporary ban on firearms possession or perhaps even a permanent

one if procedures existed for later restoring gun rights.    Since

much might depend on the terms, it is unwise to say more about such

matters absent a concrete case and adequate briefing.

            It follows that the convictions of Small and Rehlander

must be set aside.      The district court cannot be faulted for

following Chamberlain, but the panel is constrained to abandon that

decision by Heller, which implicates the Supreme Court's earlier

due process precedents.   Complications may result, in relation to

prior convictions of others based on Chamberlain, but this often

occurs with new Supreme Court doctrine and the problems will be

resolved if and as they are presented.

            The judgments of conviction of Small and Rehlander are

reversed.




                                -13-
