SIMPSON v. LYNCH et al

Filing 15

MEMORANDUM OPINION. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 5/9/17. 5/10/17 ENTERED AND COPIES E-MAILED.(mas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BARRY L. SIMPSON,
Plaintiff,
v.

CIVIL ACTION
NO. 16-1334

JEFFERSON B. SESSIONS, III, ATTORNEY
GENERAL OF THE UNITED STATES and
THOMAS E. BRANDON, DIRECTOR OF THE
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS, and EXPLOSIVES,
Defendants.
MEMORANDUM OPINION

Schmehl, J.
I.

/s/ JLS

May 9, 2017

INTRODUCTION
Before the Court is the motion to dismiss of Defendants, Jefferson B. Sessions,

III, Attorney General of the United States 1, and Thomas E. Brandon, Director of the
Bureau of Alcohol, Tobacco, Firearms and Explosives (hereinafter “Defendants”)
(Docket No. 6). Plaintiff, Barry L. Simpson (hereinafter “Plaintiff”) has filed an
opposition to the motion, and Defendants have filed a reply.
Plaintiff’s Complaint asserts an as-applied challenge to the constitutionality of 18
U.S.C. § 922(g)(4) under the Second Amendment of the United States Constitution.
Having read the parties’ briefing, and after oral argument, for the reasons that follow, I
find that Plaintiff cannot rebut the presumption that he is disqualified from possessing a
firearm. Therefore, I will grant the motion to dismiss.

1

On February 9, 2017, Sessions was sworn in as Attorney General of the United States. Accordingly,
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Mr. Sessions should be substituted for the
former Attorney General of the United States as a defendant in this matter.

II.

BACKGROUND
Federal law includes “longstanding prohibitions on the possession of firearms by

felons and the mentally ill.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008).
Particularly, restrictions provide that any person who “has been committed to a mental
institution” may not possess firearms or ammunition. 18 U.S.C. § 922 (g)(4).
On May 4, 2002, Plaintiff in this case was involuntarily committed to a mental
health institution pursuant to Section 302 of Pennsylvania’s Mental Health Procedures
Act (“MHPA”), 50 Pa. C.S.A. § 7102, which allows for involuntary emergency
examinations and treatment not to exceed 120 hours. According to Plaintiff’s Complaint,
on May 4, 2002, he and his wife were at their Delaware beach house, where Plaintiff had
been drinking and they began to argue. (Compl., ¶ 9.) Plaintiff directed his wife to take
him home to Lancaster, when they both thought they were to meet with Plaintiff’s doctor,
Dr. Russo, at Lancaster General Hospital, to mediate the argument. (Id., ¶¶ 10-11.) Upon
arrival at the hospital, Plaintiff’s wife executed a Section 302 petition and, after medical
examination, it was determined that Plaintiff should be admitted to a facility for a period
of treatment not exceeding one hundred and twenty (120) hours. (Id. ¶ 12.) Plaintiff was
then transferred to Ephrata Community Hospital and was discharged on May 6, 2002.
(Id., ¶ 13.)
On January 7, 2014, Plaintiff petitioned the Court of Common Pleas of Lancaster
County in an effort to expunge the record of his involuntary commitment and to obtain
relief from state prohibitions on possessing a firearm arising out of his involuntary
commitment. (Docket No. 6, Ex. 1 at 1.) On September 11, 2015, the Court of Common

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Pleas issued a Memorandum Opinion, denying Plaintiff’s request to expunge his records
and granting Plaintiff’s request to relieve him of the Pennsylvania firearm disability. (Id.
at 11, 14.) Lastly, the Court denied Plaintiff’s request to “strike the federal law” and
“discharge the federal ban as well,” because it was not within the state court’s jurisdiction
to grant such relief. (Id. at 13-14.) In denying Plaintiff’s request to expunge the record of
his involuntary commitment, the Court stated that the record supported a finding that he
was reasonably found to be “severely mentally disabled” at the time of his commitment.
(Id. at 11.)
On March 18, 2016, Plaintiff filed the instant action, alleging that he has
“refrain[ed] from obtaining a firearm because he reasonably fears” enforcement of 18
U.S.C. §922(g)(4) “should he follow through with his plan to obtain a firearm.” (Compl.
at ¶ 20.) Plaintiff’s Complaint sets forth a cause of action for declaratory and injunctive
relief for an “Individualized, as Applied Claim for Relief Right to Keep and Bear Arms”
under the Second Amendment. (Id. at ¶¶ 21-22.) Plaintiff alleges that because he is a
“responsible, law-abiding American citizen” and “because of [his] unique personal
circumstances, including the passage of time since his hospitalization, his law-abiding
record over the years, his trustworthiness with firearms, and the lack of danger that his
possession of firearms would pose, it is unconstitutional to apply against [him] personally
the firearms probation of 18 U.S.C. §922(g)(1).” 2 (Id. at ¶¶ 1-2.)

2

Plaintiff’s Complaint references 18 U.S.C. §922(g)(1) as the statute being challenged. At oral argument in
this matter, Plaintiff’s counsel confirmed that he in fact intended to challenge the as-applied
constitutionality of 18 U.S.C. §922(g)(4). Therefore, this matter will be analyzed under 18 U.S.C.
§922(g)(4).

3

Defendants filed a motion to dismiss Plaintiff’s complaint on June 27, 2016, and
after multiple extensions allowing for a response and a reply brief, oral argument was
held on this issue on October 28, 2016.
III.

STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim satisfies the plausibility standard when the facts alleged “allow[]
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing
Iqbal, 556 U.S. at 678).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6)
motion: (1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a
claim;’” (2) “it should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth;’” and, (3) “[w]hen there are wellpleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.” Connelly v. Lane
Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675,
679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641 F.3d 560, 563 (3d. Cir.
2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d. Cir. 2010).
I also must address the opinion of the Court of Common Pleas of Lancaster
County that Plaintiff briefly referenced in his Complaint that was attached by Defendants
as an exhibit to their Motion. “[D]istrict courts are bound not to ‘go beyond the facts

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alleged in the Complaint and the documents on which the claims made therein [are]
based.’” Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir. 2016)(quoting Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). I may, however, “consider matters
of public record, exhibits attached to the complaint, and undisputedly authentic
documents attached to a motion to dismiss.” Delaware Nation v. Pennsylvania, 446 F.3d
410, 413 (3d Cir. 2006). Further, “judicial opinions and docket sheets are public records,
of which this court may take judicial notice in deciding a motion to dismiss.” Zedonis v.
Lynch, 2017 WL 511234, * 3 (M.D. Pa., Feb. 8, 2017)(referencing Pension Benefit Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993)). Accordingly, I
will take judicial notice of the opinion of the Honorable Jay J. Hoberg of the Court of
Common Pleas of Lancaster County that was issued on Plaintiff’s state court challenge to
the firearms disability, which is attached as an exhibit to Defendants’ motion.
IV.

DISCUSSION
Defendants move to dismiss the complaint in its entirety. For the reasons that

follow, I will grant Defendants’ motion in its entirety and dismiss Plaintiff’s Complaint.
A. §922(g)(4) Bars Plaintiff From Possessing a Firearm
There is no dispute that Second Amendment rights are limited. In Heller, the
Supreme Court held that “the District’s ban on handgun possession in the home violates
the Second Amendment, as does its prohibition rendering any lawful firearm in the home
operable for the purpose of immediate self-defense.” 554 U.S. at 635. This holding,
however, was narrow and addressed only the “core” right of “law-abiding, responsible
citizens to use arms in defense of hearth and home.” Id. at 634-35.

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In this matter, the parties do not dispute the fact that 18 U.S.C. §922(g)(4)
prohibits Plaintiff from possessing a firearm due to his 2002 involuntary commitment.
Therefore, I must examine whether Plaintiff’s Complaint sufficiently asserts an asapplied constitutional challenge under the Second Amendment to §922(g)(4). In doing so,
I must examine the case under the Third Circuit’s Marzzarella standard.
B. As-Applied Second Amendment Challenge
The Second Amendment protects “the right of the people to keep and bear
Arms[.]” U.S. Const. amend II. However, the Supreme Court “has not yet heard an asapplied challenge to a presumptively lawful ban on firearms possession.” Binderup v.
U.S. Att’y Gen., 836 F.3d 336, 359 (3d Cir. 2016) (en banc) (Hardiman, J., concurring),
petition for cert. filed, 83 U.S.L.W. 947 (U.S. Jan. 5, 2017) (No. 16-847). In Binderup,
the Third Circuit reiterated Heller’s holdings that the Second Amendment protects the
right of “law-abiding, responsible citizens to use arms in defense of hearth and home,”
and that such a right is “not unlimited.” Binderup, 836 F.3d at 343 (quoting Heller, 554
U.S. 582). Further, the court repeated Heller’s statement that “longstanding prohibitions
on the possession of firearms by felons and the mentally ill” are “presumptively lawful
regulatory measures.” Id. The Binderup court then reaffirmed Marzzarella’s “twopronged approach to Second Amendment challenges to firearms restrictions” such as the
instant restriction under §922(g)(4). Binderup, 836 F.3d at 346 (quoting Marzzarella, 614
F.3d at 89.) Accordingly, Plaintiff’s as-applied challenge in this matter will be analyzed
using the Marzzarella framework.

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C. Framework for an As-Applied Second Amendment Challenge Under
Marzzarella
Under the Marzzarella framework, there are two steps that must be taken in
evaluating an as-applied challenge to a firearm regulation. At step one, a challenger must
prove that a presumptively lawful regulation burdens his Second Amendment rights.
Binderup, 836 F.3d at 346-47. This requires a “challenger to clear two hurdles: he must
1) identify the traditional justifications for excluding from Second Amendment
protections the class of which he appears to be a member, and then 2) present facts about
himself and his background that distinguish his circumstances from those of persons in
the historically barred class.” Id. at 347 (citing Marzzarella at 173-74). If a challenger
succeeds at step one, courts then proceed to step two, where “the burden shifts to the
Government to demonstrate that the regulation satisfies some form of heightened
scrutiny.” Id.
1. Step One: Does a Presumptively Lawful Statute Burden Plaintiff’s
Right to Bear Arms
As discussed above, under step one, Plaintiff must first prove that a presumptively
lawful regulation burdens conduct protected by the Second Amendment. In order to do
so, he must identify the traditional justifications for excluding his class from Second
Amendment protections, and then present facts about himself that distinguish his
circumstances from those of persons in the historically barred class. Binderup, 836 F.3d
at 347 (citing Barton, 633 F.3d at 173-74.) “A challenger will satisfy the first step of the
[Marzzarella] framework only if he proves that the law or regulation at issue burdens
conduct protected by the Second Amendment.” Id. at 356. “Not only is the burden on the
challenger to rebut the presumptive lawfulness of the exclusion at Marzzarella’s step one,
but the challenger’s showing must also be strong.” Id. at 347.
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a. §922(g)(4)’s Ban is Presumptively Lawful
First, I find that the firearm ban contained in §922(g)(4) is presumptively lawful.
As stated by the Heller court, longstanding prohibitions on the possession of firearms by
the mentally ill are presumptively lawful. 554 U.S. at 626-27. Further, the Third Circuit
has interpreted Heller as “delineat[ing] some of the boundaries of the Second
Amendment right to bear arms,” and has concluded on that basis that “the Second
Amendment affords no protection for . . . possession by felons and the mentally ill.”
Marzzarella, 614 F.3d at 92. Thus, under Heller and Marzzarella, §922(g)(4) permissibly
prohibits firearms possession by an individual such as Plaintiff, “who has been
committed to a mental institution.” 18 U.S.C. § 922(g)(4). Therefore, the firearms ban is
presumptively lawful, and Plaintiff has properly alleged that he is subject to it. Therefore,
I must now analyze the instant matter under the first step of the Marzzarella framework.
b. Traditional Justification for Denying the Mentally Ill the Right to
Bear Arms
To meet the first hurdle under step one, Plaintiff must identify the traditional
justifications for barring someone who is mentally ill from the protections of the Second
Amendment. First, a review of Plaintiff’s Complaint shows that he has failed to discuss
the historical justifications of a common law right to bear arms at all, nor has he
attempted to refute the historical sources discussed by Defendants in their brief.
In setting forth the historical justification for barring the mentally ill from
possessing firearms, Defendants argue that “disarmament of individuals perceived to be
dangerous” was frequent in the American colonies, and was not viewed as being
inconsistent with the right to bear arms. (Docket No. 6, p. 10) (citing Joyce Lee Malcolm,
To Keep and Bear Arms at 140-41; United States v. Yancey, 621 F.3d 681, 684-85 (7th

8

Cir. 2010); United States v. Vongxay, 594 F.3d 1111, 11198 (9th Cir. 2010)). Defendants
also discuss a proposal offered by the Pennsylvania antifederalist faction at the
Pennsylvania Convention providing that “the people have a right to bear arms for the
defense of themselves and their own state or the United States, or for the purpose of
killing game; and no law shall be passed for disarming the people or any of them, unless
for crimes committed, or real danger of public injury from individuals.” Id. (citing The
Address and Reasons of Dissent of the Minority of the Convention of the State of
Pennsylvania to Their Constituents, 1787, reprinted in 2 Bernard Schwartz, The Bill of
Rights: A Documentary History 665 (1971). A similar proposal was made by Samuel
Adams at the ratifying convention in Massachusetts, recommending that “said
Constitution be never construed to authorize Congress . . . to prevent the people of the
United States who are peaceable citizens, from keeping their own arms.” Schwartz, The
Bill of Rights, at 674-75, 681. Both the Pennsylvania and Massachusetts proposals were
identified by Heller as “highly influential” precursors to the Second Amendment. 554
U.S. at 603-04. Defendants state that “historical sources further show that the colonial
public did not view persons with a history of mental disturbance as being among those
who could bear arms without ‘real danger of public injury.’”(Docket No. 6 at 11)(citing
Schwartz, The Bill of Rights at 665.) Defendants also argue that Second Amendment
scholars “agree that the right to bear arms was tied to the concept of a virtuous citizenry.”
(Docket No. 6 at 11) (citing United States v. Yancey, 621 F.3d 681, 684-85 (7th Cir.
2010).
However, Defendants have not presented any historical evidence that specifically
includes the class to which Plaintiff belongs – those previously committed to a mental

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institution – as a part of the group that historically were disarmed. In an attempt to justify
the lack of historical evidence, Defendants state “the absence of historical statutory
prohibitions on firearm possession [by such persons] may have been the consequence of
the fact that in eighteenth-century America, justices of the peace were authorized to lock
up persons deemed too dangerous due to mental illness,” Yancey, 621 F.3d at 685,
thereby eliminating the need for laws formally disarming them.
It is clear that the historical record does not specifically mention mentally ill
individuals and their alleged propensity for violence when discussing those who should
not be permitted to bear arms. Further, Congress did not prohibit firearm possession by
those who had been committed to a mental institution until 1968. United States v.
Yancey, 621 F.3d 681, 685 (7th Cir. 2010). When the Supreme Court in Heller discussed
the longstanding prohibition on gun possession by the “mentally ill,” it gave no direction
or guidance as to this category. Did the Supreme Court mean those who have ever
suffered from mental illness at any time or only those who are currently mentally ill? Did
the Supreme Court mean this term to include non-violent forms of mental illness as
opposed to some other forms of mental illness? As of this writing, we do not have the
guidance to answer these questions. However, I do find that there is clear historical
evidence that persons prone to violent behavior are outside the scope of Second
Amendment protection. As stated recently by a court in this circuit, “while we do not
know the exact intended parameters of the category of ‘mentally ill’ that the Supreme
Court referred to in Heller, it logically appears that the historical justifications for the
prohibition on firearm possession by the ‘mentally ill’ most likely involved a concern
over individuals who had mental impairments that made them dangerous to themselves or

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others in society.” Keyes v. Lynch, 195 F.Supp.3d 702, 719-720 (M.D. Pa. July 11,
2016.) Certainly, I agree, and I find that the historical record does not directly support the
proposition that persons who are once committed due to mental illness are forever barred
from exercising their Second Amendment rights. That will be a question for another day.
I do find, however, that the historical record does support the proposition that persons
with mental illness that made them dangerous to themselves or others are outside the
scope of Second Amendment protections.
c. Distinguishing the Historically Barred Class
Therefore, I must now determine whether Plaintiff has presented facts about
himself that distinguish his circumstances from those of person in the historically barred
class; that is, whether Plaintiff has presented facts that show he is “no more dangerous
than a typical law-abiding citizen,” or that he “poses no continuing threat to society.” See
Keyes, 195 F.Supp.3d at 720.
Plaintiff’s Complaint contends that “the passage of time since his hospitalization,
his law-abiding record over the years, his trustworthiness with firearms and the lack of
danger that his possession of firearms would pose” are all reasons why §922(g)(4) is
unconstitutional as applied to him. (Compl., at ¶ 22.) Specifically, Plaintiff alleges that he
is a “responsible, law-abiding American citizen. . . [with] no history of violent behavior,
or of any conduct that would suggest he would pose any more danger by possessing a
firearm than an average, law-abiding responsible citizen. (Id. at ¶ 16.) However, the
opinion from the state court proceedings contradicts these allegations. After “drinking”
and “arguing with his wife,” (Compl. at ¶ 9), Plaintiff was involuntarily committed. In
the state court opinion, it is documented that he threatened “to get his gun and end this.”

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(Docket No. 6, Ex. 1 at 9.) Clearly, this statement is evidence of a person who is a danger
to himself or to others.
The state court opinion also found that Plaintiff’s commitment had been proper
and that he had been reasonably determined to have been severely mentally disabled at
the time. (Id. at 9.) Plaintiff’s wife completed the §302 petition in the emergency
department which stated that Plaintiff had threatened suicide. (Id. at 10.) Clearly, at the
time of his commitment, Plaintiff posed a threat to himself, at a bare minimum, if not also
to his wife or to others as well. This directly refutes Plaintiff’s claimed “lack of
dangerousness.”
Next, Plaintiff argues that the passage of time, as well as his ongoing mental
health treatment during the intervening years, has caused him to no longer be a threat to
himself or to others. Plaintiff acknowledges that he “has continued to seek mental health
treatment since his commitment . . . and has worked with multiple health professionals to
manage his medication needs and mental health diagnoses.” (Docket No. 10 at 4, quoting
Pa. Order at 14.) However, as recently as 2015, Plaintiff continued to maintain a mental
health diagnosis of “anxiety disorder unspecified.” Id.
First, the passage of time is immaterial to the analysis in this matter. There is no
exception to §922(g)(4) for the passage of time. Further, when addressing other types of
firearms disabilities, courts have clearly rejected the claim that passage of time or
evidence of rehabilitation will restore Second Amendment rights. See e.g., Binderup, 836
F.3d at 349 (“We reject [Barton’s] claim that the passage of time or evidence of
rehabilitation will restore the Second Amendment rights of people who committed
serious crimes.”); United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) (declining to

12

create an exception to §922(g)(9) due to the fact that fifteen years had passed since
plaintiff’s domestic violence conviction, during which time he had been law-abiding).
In addition, the fact that Plaintiff continues to undergo mental health treatment,
seek medication management and as of 2015, maintained a diagnosis of anxiety disorder
unspecified, is unpersuasive. At the time when Plaintiff threatened to get his gun and
“end this,” (Docket No. 6, Ex. 1 at 3,) he had been undergoing psychiatric treatment for
several months. Clearly, despite Plaintiff’s claims that he has operated a successful
business and experienced “positive change” in his marriage over the last 15 years, had
owned guns since the age of 12, belonged to the high school rifle team and had, until this
incident, an approved concealed weapons permit, his mental illness ultimately caused
him to behave so dangerously that he was involuntarily committed. The fact that he is
now undergoing psychiatric care can be given no weight, since he also was seeking such
care leading up to the incident in question.
Lastly, two cases have recently found merit in as applied challenges to
§922(g)(4), finding that each plaintiff’s circumstances were distinguishable from the
historically-barred class. However, both cases are distinguishable from the instant set of
facts.
First, in Keyes v. Lynch, the Middle District of Pennsylvania found that
§922(g)(4) violated the Second Amendment as applied to Yox, one of the plaintiffs, who
had been involuntarily committed as a juvenile. 195 F.Supp.3d 702 (M.D. Pa. July 11,
2016). However, Yox was found to have an actual track record of responsible firearms
use in his career in the military and as a state correctional officer, which distinguished his
circumstances from those of persons historically barred from the Second Amendment.

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195 F.Supp.3d at 720. In addition, Defendants in that case provided no additional
evidence of mental illness after the one episode that led to Yox’s commitment. Id.
Plaintiff in this case does not have the benefit of either of those facts, as he has no record
of responsible firearm usage and he has continued to receive mental health treatment
throughout the years. The Court in Keyes stated that “it is highly unlikely that most of the
people who have been adjudicated as a ‘mental defective’ or who have been committed to
a mental institution will be able to present a court with sufficiently compelling facts to
warrant relief from federal firearms disability.” Id. at 722.
Plaintiff also relies upon Tyler v. Hillsdale County Sheriff’s Dept., 837 F.3d 678
(6th Cir. 2016), in which the majority of the court found that the case could not be
resolved at step one of the analysis and remanded to the district court for application of
the second step. Notably, Plaintiff in Tyler was thirty years removed from a brief
depressive episode and had no intervening mental health or substance abuse problems
since then. Id. Tyler is therefore distinguishable from the instant matter, as Plaintiff has
continued to seek mental health treatment since his involuntary commitment.
I find Plaintiff cannot produce sufficient facts or evidence to distinguish himself
from the historically barred class, as he has no record of responsible firearms usage and
he has undergone continuing mental health treatment. Accordingly, he cannot meet the
second prong of step one under the Marzzarella framework, and his as-applied challenge
to 18 U.S.C. §922(g)(4) must fail.
V.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted and this

matter shall be dismissed.

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