PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 19-1927
________________
JOHN DOE I; JOHN DOE II,
Appellants
v.
GOVERNOR OF PENNSYLVANIA;
ATTORNEY GENERAL PENNSYLVANIA;
COMMISSIONER PENNSYLVANIA STATE POLICE;
PENNSYLVANIA STATE POLICE
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. Civil No. 2-16-cv-06039)
District Judge: Honorable Joel H. Slomsky
________________
Argued on December 9, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges
(Opinion filed: October 14, 2020)
James W. Porter, III (ARGUED)
Bradley Arant Boult Cummings
1819 Fifth Avenue North
One Federal Place
Birmingham, AL 35203
Marc A. Nadone
James P. Sweeney
Tara S. Woodward
Bradley Arant Boult Cummings
1615 L Street, N.W.
Suite 1350
Washington, DC 20036
Counsel for Appellants
Claudia M. Tesoro (ARGUED)
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Appellees
2
Adam J. Kraut
Joshua Prince
Prince Law Offices
646 Lenape Road
Bechtelsville, PA 19505
Counsel for Amicus Appellants
Allegheny County
Sportsmens League; Firearms
Owners Against Crime;
Gun Owners Foundation; Second
Amendment Organization
Peter A. Patterson
David H. Tompson
Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, DC 20036
Counsel for Amicus Appellant
Pennsylvania Federation of
Sportsmen and Conservationists
________________
OPINION
________________
ROTH, Circuit Judge
John Doe I and John Doe II were evaluated on an
emergency basis pursuant to Pennsylvania Mental Health
3
Procedures Act (MHPA) Section 302 and were found in need
of inpatient treatment. Section 6105(c)(4) of the Pennsylvania
Uniform Firearms Act (PUFA) prohibits “[any] person who
has been . . . committed to a mental institution for inpatient care
and treatment under [MHPA] [S]ection 302” from possessing
firearms. The Does challenge PUFA § 6105(c)(4)’s
constitutionality on its face. They argue that it deprives those,
who are certified committable under MHPA § 302, of their
Second Amendment rights without procedural due process.
For the reasons below, we hold that the Does have failed to
raise a proper challenge to Pennsylvania’s statutory scheme.
We will therefore affirm the judgment of the District Court.
I.
A very brief sketch of the facts is necessary to provide
context for the Does’ claim. Doe I was certified committable
in 2011 after he became depressed and his mother took him to
an emergency room for an emergency evaluation. Doe II was
certified committable in 1996 after police brought him to a
hospital upon learning that he had threatened to harm himself.
Both Does’ commitment certification records were reported to
and recorded in the Pennsylvania Instant Check System and the
National Instant Criminal Background Check System
databases. As a result, they were prohibited from purchasing
firearms when they later attempted to do so.
The Does filed this action in the District Court for the
Eastern District of Pennsylvania, alleging that PUFA §
6105(c)(4) is facially unconstitutional because it deprives all
those, who are committed under MHPA § 302, of their Second
Amendment rights without procedural due process. The
District Court denied the Does’ Motion for Summary
4
Judgment and granted summary judgment to the Pennsylvania
defendants. It held that although those committed under
MHPA § 302 have a protected liberty interest in the right to
bear arms, PUFA § 6105(c)(4) provides sufficient procedural
protections before depriving them of their Second Amendment
rights. The Does appealed.1
II.
Because the Does mount a facial, rather than an as-
applied challenge, we begin with the relevant statutes.
MHPA § 301(a) defines those who may be required to
undergo involuntary emergency examination and mental
health treatment. It provides that “[w]henever a person is
severely mentally disabled and in need of immediate
treatment,” he “may be made subject to involuntary emergency
examination and treatment.”2 This section further provides
that a “person is severely mentally disabled when, as a result
of mental illness, his capacity to exercise self-control,
judgment and discretion in the conduct of his affairs and social
relations or to care for his own personal needs is so lessened
that he poses a clear and present danger of harm to others or
to himself.”3
1
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331, and we have jurisdiction under 28 U.S.C. § 1291. We
review grants of summary judgment de novo. Foehl v. United
States, 238 F.3d 474, 477 (3d Cir. 2001).
2
50 Pa. C.S. § 7301(a).
3
Id. (emphasis added).
5
“Clear and present danger” is determined in accordance
with MHPA § 301(b). Under that provision, a clear and present
danger to others exists if, within the past thirty days, the person
being evaluated has “inflicted or attempted to inflict serious
bodily harm on another” and is reasonably likely to do so
again.4 Clear and present danger can also be established if a
person is a danger to himself. Such a danger exists if any of
three situations has arisen within the past thirty days: (1) the
person has been unable to care for himself such that, absent
adequate treatment, “death, serious bodily injury or serious
physical debilitation would ensue within 30 days”; (2) the
person “has attempted suicide” and, absent adequate treatment,
is reasonably likely to commit suicide; or (3) the person has
engaged in substantial actual or attempted self-mutilation and,
absent adequate treatment, actual self-mutilation is reasonably
probable.5
MHPA § 302 authorizes emergency examinations “at a
treatment facility upon the certification of a physician stating
the need for such examination,” upon a warrant issued by the
county mental health administrator, or “upon application by a
physician or other authorized person who has personally
observed conduct showing the need for such examination.”6 A
person taken to a facility for this purpose “must be examined
by a physician within two hours of arrival” to determine
whether he “is severely mentally disabled . . . and in need of
immediate treatment.”7 Only individuals who are found by an
examining physician to be “severely mentally disabled” and to
4
Id. § 7301(b)(1).
5
Id. § 7301(b)(2).
6
Id. § 7302(a).
7
Id. § 7302(b).
6
pose a “clear and present danger of harm” to themselves or
others can be involuntarily committed pursuant to MHPA §
302.8
Once a person is certified committable under MHPA §
302, section 6105(c)(4) of PUFA automatically prohibits him
from owning or possessing firearms. This restriction under
Pennsylvania law also applies to deprive individuals of their
gun rights under federal law.9 Pennsylvania does, however,
provide 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,10 (2) a
challenge to the accuracy of the mental health record,11 and (3)
an expungement of the commitment record because of
insufficient evidence.12
III.
The Does argue that they and all others, who have been
prohibited from possessing firearms under PUFA § 6105(c)(4)
and MHPA § 302, have been stripped of a protected liberty
interest under the Fourteenth Amendment: their Second
Amendment right to bear arms. The Second Amendment
8
Id. § 7301(b)(a).
9
18 Pa. C.S. § 6105(c)(4); 18 U.S.C. § 922(g)(4).
10
Id. § 6105(f)(1). Relief under this statute would also result
in restoration of firearm rights under federal law. See U.S.
Department of Justice, Bureau of Alcohol, Tobacco, Firearms
and Explosives, ATF Form 321012, Certification of Qualifying
Relief from Disabilities Program (March 2016).
11
18 Pa. C.S. § 6111.1(e).
12
Id. § 6111.1(g)(2).
7
states: “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.”13 In District of Columbia v.
Heller, the Supreme Court determined that at the “core” of the
Second Amendment is the right of “law-abiding, responsible
citizens to use arms in defense of hearth and home.”14 The
Court in Heller emphasized, however, that there are
“presumptively lawful regulatory measures” that can restrict
that right, and that the Court was decidedly not “cast[ing] doubt
on longstanding prohibitions on the possession of firearms by
felons and the mentally ill.”15
We have consistently hewed to the exceptions that
Heller preserved.16 As we stated in Beers v. Att’y Gen. United
States, 17 to determine whether a category of people is excluded
from the Second Amendment under Heller, “we look at the
historic, traditional justifications for barring a class of
individuals from possessing guns.” In Beers, we held that the
plaintiff lacked a right to bear arms because he was part of “the
13
Id. amend. II.
14
554 U.S. 570, 635 (2008). And the right applies to the states
through the Fourteenth Amendment. See McDonald v. City of
Chicago, 561 U.S. 742, 791 (2010).
15
Heller, 554 U.S. at 626.
16
See, e.g., Binderup v.
Attorney General United States of America, 836 F.3d 336,
347-48 (3d Cir. 2016) (en banc); United States v. Marzzarella,
614 F.3d 85, 89-92 (3d Cir. 2010).
17
927 F.3d 150, 153 (3d Cir. 2019), vacated on other grounds,
Beers v. Barr, No. 19-864, 2020 WL 2515441 (U.S. May 18,
2020).
8
historically-barred class of mentally ill individuals who were
excluded from Second Amendment protection.”18 In
configuring the “historically-barred class,” we concluded that
it consists of “individuals who were considered dangerous to
the public or to themselves.”19
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. The relevant statute in Beers was
18 U.S.C. § 922(g)(4), which prohibits firearm possession in
instances where one has been determined “a danger to himself
or others” “as a result of . . . mental illness.”20 In Beers we
deferred to § 922(g)(4) and to MHPA §§ 302–04, under which
the plaintiff had been involuntarily committed, in concluding
that he was a danger to himself or others as a result of mental
illness.21
In the case at bar, PUFA § 6105(c)(4) and MHPA § 302
are the relevant statutes for determining that an individual is a
danger to himself or others as a result of mental illness; it is to
these statutes that we defer. We find no reason to second-guess
the adequacy of Pennsylvania’s requirement under MHPA §
302 that a physician determine that one is a danger to himself
or others as a result of mental illness and is “severely mentally
disabled . . . and in need of immediate treatment.” Thus, once
a person has been involuntarily committed under MHPA § 302,
18
Id. at 157.
19
Id.
20
Id.
21
Id.
9
that person has joined the class of those historically without
Second Amendment rights.
Left without a Second Amendment right, the Does can
make only two challenges. They can challenge MHPA § 302
on procedural due process grounds—that is, that MHPA § 302
provides inadequate procedure before involuntarily
temporarily committing someone. Or they can challenge
PUFA § 6105(c)(4) on substantive Second Amendment
grounds—that is, that involuntary temporary commitment does
not fall under Heller’s mental illness exception and therefore
PUFA § 6105(c)(4) is substantively unconstitutional. The
Does have made it expressly clear that they are bringing neither
challenge.22 In presenting an appeal, parties must formulate
the correct challenge on their own and brief us accordingly.
“[W]e will not manufacture arguments [for them].”23
IV.
For the above reasons, we will affirm the order of the
District Court, granting defendants’ Motion for Summary
Judgment.
22
Pet. Br. 17, 20-21.
23
Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d
957, 987 (9th Cir. 2011) (first alteration “[w]” in original; the
change to “[W]” is added here.) (quoting Greenwood v. FAA,
28 F.3d 971, 977 (9th Cir. 1994)).
10
John Doe I, et al. v. Governor of Pennsylvania, et al., No. 19-
1927
FISHER, Circuit Judge, concurring in the judgment.
The majority affirms the District Court’s opinion on the
basis that the Does have failed to raise a proper challenge to
Pennsylvania’s statutory scheme. To come to that conclusion,
my colleagues hold that “once a person has been involuntarily
committed under MHPA § 302, that person has joined the class
of those historically without Second Amendment rights.” Maj.
Op. III. However, I believe that the issue of whether Section
302 committees retain their Second Amendment right to
possess firearms is a close question. Because we do not need
to reach this issue in order to decide the case before us, it is, as
a matter of judicial restraint, best left for another day.
Therefore, I respectfully disagree with the majority’s reasoning
and concur in the judgment only. I would affirm the District
Court on less contentious grounds: that, assuming 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.
The Does argue that PUFA § 6105(c)(4) is facially
unconstitutional because it deprives them, and all other
similarly situated individuals, of the right to bear arms without
due process of law. They sought a declaration that PUFA §
6105(c)(4) violates Fourteenth Amendment procedural due
process as to those whose only disqualifying event is that they
were certified committable under MHPA § 302.
We use a two-pronged analysis to evaluate whether a
law violates the Fourteenth Amendment’s Due Process Clause.
The court must ask whether there is a protected life, liberty, or
1
property interest at stake, and if so, whether the procedures
afforded amount to “due process of law.” Robb v. City of
Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984) (citing Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 569-72 (1972)).
Therefore, we would normally begin our analysis by evaluating
the asserted protected liberty interest. However, the Supreme
Court has warned that when confronted with difficult
questions, we should “confine ourselves to deciding only what
is necessary to the disposition of the immediate case.”
Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373 (1955);
see also Lyng v. Nw. Indian Cemetery Protective Assn., 485
U.S. 439, 445 (1988) (“A fundamental and longstanding
principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of
deciding them.”); Ashwander v. Tenn. Valley Auth., 297 U.S.
288, 347 (1936) (Brandeis, J., concurring) (“It is not the habit
of the court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.” (citation
omitted)).
Because Pennsylvania’s post-deprivation procedures
provide Section 302 committees with adequate due process,
regardless of whether the Does have a protected liberty
interest, we need not decide in this case whether they retain a
Second Amendment right to possess firearms.
Assuming, then, that the Does have a protected liberty
interest, the question becomes whether the procedures afforded
amount to “due process of law.” Robb, 733 F.2d at 292. The
Does first contend that they are entitled to pre-deprivation
procedures before being permanently deprived of their Second
Amendment rights. However, such procedures are not
constitutionally required in every case. “[T]he Supreme Court
‘has recognized, on many occasions, that where a State must
act quickly, or where it would be impractical to provide
2
predeprivation process, postdeprivation process satisfies the
requirements of the Due Process Clause.’” Nat’l Amusements
Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d Cir. 2013)
(quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)). In
Gilbert, for example, the Court held that a police officer
arrested on drug charges was not entitled to notice and a
hearing prior to being suspended without pay because of the
state’s significant interest in the officer’s immediate
suspension. 520 U.S. at 932-34.
To determine what procedures the Constitution requires
in a particular case, including whether pre-deprivation
procedures are required and whether post-deprivation
procedures are constitutionally adequate, a court must consider
three factors:
First, the private interest that will be affected by
the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government’s
interest, including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural requirement
would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
As noted, I assume, under the first factor, that a Section
302 committee has a protected liberty interest in the right to
bear arms. The other factors, however, weigh in favor of
finding that pre-deprivation procedures are not necessary in
this case. As to the second factor, risk of erroneous deprivation
is low because a Section 302 committee had to have posed a
“clear and present danger” to himself or others at the time of
3
his commitment. A physician would have had to examine the
individual, and only if the physician makes this determination
is the individual committed under Section 302. Furthermore,
additional pre-deprivation safeguards have little value here.
The District Court aptly observed, for example, that “[n]othing
in [PUFA § 6105(c)(4)] suggests that only Section 302
committees on the more dangerous or severe end of the mental
health spectrum are subject to the firearms prohibition. Thus, a
hearing to determine where a Section 302 committee falls on
that spectrum is not relevant to the statutory scheme and has no
value.” J.A. 38. Finally, the third factor also weighs against the
necessity of a pre-deprivation hearing. Pennsylvania has a
prevailing interest in public safety and ensuring that potentially
dangerous individuals are not permitted to own deadly
weapons.
Thus, as two of the three Mathews factors weigh against
the Does, in my view the District Court correctly concluded
that Section 302 committees’ due process right does not require
pre-deprivation procedures.
The Does next argue that, even if pre-deprivation
remedies are not constitutionally required here, the available
post-deprivation remedies are constitutionally inadequate.
There are three post-deprivation procedures available to an
individual who seeks to lift the firearm restriction imposed by
PUFA § 6105(c)(4) as a result of a Section 302 commitment.
First, an individual can file a petition in the Court of Common
Pleas, asserting that he is no longer mentally ill and should be
allowed to own a gun. 18 Pa. Cons. Stat. § 6105(f)(1). Both
state and federal firearm rights are restored “if the court
determines that the applicant may possess a firearm without
risk to the applicant or any other person.” Id. This process
allows for a full evidentiary hearing in the Court of Common
4
Pleas at which both parties have the right to present evidence
and cross-examine witnesses.
The predominant thrust of the Does’ argument was that
there is no meaningful due process because PUFA § 6105(f)(1)
cannot undo the federal firearms disqualification. However,
since July 1, 2019, relief under this provision also results in
restoration of firearm rights under federal law. See U.S.
Department of Justice, Bureau of Alcohol, Tobacco, Firearms
and Explosives, ATF Form 321012, Certification of Qualifying
Relief from Disabilities Program (March 2016).
Second, an individual can seek to have his Section 302
commitment expunged by “petition[ing] the court to review the
sufficiency of the evidence upon which the commitment was
based.” 18 Pa. Cons. Stat. § 6111.1(g)(2). Successful
expungement under this section results in the restoration of
both state and federal firearms rights.
Third, an individual can submit a challenge to the
Pennsylvania State Police that contests the accuracy of his or
her mental health record. 18 Pa. Cons. Stat. § 6111.1(e). “If the
challenge is ruled invalid,” the individual has “the right to
appeal the decision to the Attorney General” of Pennsylvania,
at which point an Administrative Law Judge will hold a
hearing de novo. Id. § 6111.1(e)(3). The Administrative Law
Judge’s decision may be appealed to the Pennsylvania
Commonwealth Court. Id. § 6111.1(e)(4).
Where a state provides adequate post-deprivation
remedies, it does not violate the Due Process Clause. Parratt
v. Taylor, 451 U.S. 527, 538–39 (1981), overruled on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986). PUFA’s
three post-deprivation remedies are adequate because they
satisfy the Mathews test.
A Section 302 committee’s liberty interest (which is
assumed for my purposes here) must be weighed against the
5
state’s strong interest in public safety and, hence, in proceeding
cautiously before permitting individuals who once “pose[d] a
clear and present danger” to reacquire firearms. 50 Pa. Stat. §
7301(a). Given that the risk of erroneous deprivation is low and
that the value of additional procedural safeguards is negligible
in this case, the balance weighs against the Does. The risk of
erroneous deprivation can still be low even if not every
questioned deprivation is undone—there may be real reasons
for not restoring every Section 302 committee’s firearms
rights. According to Pennsylvania State Police statistics, forty-
one Section 302 committees pursued restoration through one
of the three available post-deprivation procedures in 2017. Of
that number, seventeen individuals were successful. It is also
no longer the case that a successful PUFA § 6105(f) petitioner
cannot have his federal rights restored. See ATF Form 321012.
Thus, there is nothing “permanent” about PUFA § 6105(c)(4),
as the Does suggest. Appellants’ Br. 40.
As the District Court correctly determined that the three
post-deprivation procedures satisfy due process, there is no
Fourteenth Amendment violation, and I would affirm on that
basis.
For these reasons, I concur in the judgment affirming
the District Court.
6