United States v. Four (4) Firearms and One Hundred Fifty Two Rounds of Assorted Ammunition

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,

Plaintiff,

vs. Case No. 19-CV-62-FHM

FOUR (4) FIREARMS AND ONE

HUNDRED FIFTY TWO ROUNDS OF

ASSORTED AMMUNITION,

Defendant.

OPINION AND ORDER

The Government’s Motion for Summary Judgment, [Dkt. 28-SEALED], is before

the Court. The matter has been briefed, [Dkt. 28, 32], and is ripe for decision.

Background1

Following an encounter with a Park Ranger and the Claimant, Derek Braswell,2

had a mental evaluation at Wagoner Community Hospital and was recommended for in-

patient hospitalization for stabilization. The evaluating doctor also signed a Petition for

Involuntary Commitment, reciting that Mr. Braswell has a mental illness requiring

treatment, that he presented a risk of harm to self or others based on suicidal ideations

and having a loaded firearm in his position. [Dkt. 28-4]. The doctor recommended that

the court order Mr. Braswell to be involuntarily committed to hospitalization of the least

restrictive treatment necessary. Id. In addition, a clinical interview was conducted and

two licensed mental health professionals at the hospital signed a Report of Evaluation

which recited their opinions that Mr. Braswell was a risk of harm to self and others and

further that hospitalization for treatment as an inpatient was required. Id. at pp. 3-4. The

1 The background is abbreviated because the operative facts are not in dispute.

2 Claimant and Mr. Braswell are used interchangeably throughout this Order.

Report of Evaluation was appended to the Petition for Involuntary Commitment filed on

May 15, 2009.

On May 15, 2009, the District Court in and for Cherokee County set a hearing for

May 15, 2009, on the Petition for Involuntary Commitment. After hearing, the Court

entered an Order of Admission to Medical Facility. [Dkt. 28-6]. The Order recited that the

hearing was held, that Claimant appeared in person and by counsel, and that the Court

examined the staff report and heard evidence and:

finds that the evidence is clear and convincing that said DERRICK

BRASWELL, is a person requiring treatment/medication and who should be

admitted to a medical facility as a patient; and, that said person is

incompetent to consent or refuse treatment that be ordered.

[Dkt. 28-6]. The Court ordered that Mr. Braswell be committed to the custody of the

Department of Mental Health/Tulsa Center for Behavioral Health and ordered treatment

as deemed necessary by the attending physician. Id. Claimant was discharged from the

Tulsa Center for Behavioral Health on May 18, 2009. [Dkt. 28-11]. The discharge

summary relates that Mr. Braswell was observed over the weekend to have no difficulties.

Id.

The Government brought this civil forfeiture action to forfeit four firearms and

ammunition under 18 U.S.C. § 924(d)(1) which provides in relevant part: “Any firearm or

ammunition involved in or used in any knowing violation of [18 U.S.C. § 922(g)(4)] . . .

shall be subject to seizure and forfeiture . . . .” 18 U.S.C. § 922(g)(4) provides: “It shall

be unlawful for any person who has been adjudicated as a mental defective or who has

been committed to a mental institution . . . to possess in or affecting commerce, any

firearm or ammunition.” Mr. Braswell filed a timely claim to the firearms.

Summary Judgment Standard

Under Fed. R. Civ. P. 56(c), summary judgment is appropriate if the pleadings,

affidavits and exhibits show that "there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A genuine issue of fact

exists only "if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,

2510, 91 L.Ed.2d 202 (1986). To survive a motion for summary judgment, the nonmoving

party "must establish that there is a genuine issue of material fact" and "must do more

than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348,

1455-56, 89 L.Ed.2d 538 (1986). However, the factual record and reasonable inferences

to be drawn therefrom must be construed in the light most favorable to the non-movant.

Gullickson v. Southwest Airlines Pilots' Ass'n., 87 F.3d 1176, 1183 (10th Cir. 1996).

Analysis

The Government seeks summary judgment on the basis that the undisputed facts

demonstrate that the elements of §922(g)(4) are satisfied, arguing that Claimant has been

adjudicated as a “mental defective” as that term is defined in the relevant regulations. 27

C.F.R. § 478.11(a). The Government further argues that Mr. Braswell has been

committed to a mental institution.

Claimant states that many of the facts are not in dispute. However, according to

Claimant there are disputed facts about what happened after he was evaluated at

Wagoner Community Hospital and whether he was, in fact, committed to a mental health

facility. Although Claimant asserts that there are disputed facts, he has not identified any.

The Court finds that Claimant has not demonstrated the existence of a genuine dispute

as to any material fact. Therefore, summary judgment is appropriate if the Government

is entitled to judgment as a matter of law.

Claimant asserts that the central issue is whether he was in fact committed to a

mental institution. Claimant argues that the statutory procedures were not followed and

concludes that the subject Order was not valid and should not be accepted as conclusive

evidence that Claimant was committed as that term is used in 18 U.S.C. § 922(g)(4). The

question of whether Claimant has been adjudicated a mental defective or has been

committed to a mental institution for purposes of 18 U.S.C. § 922(g)(4) is not a question

of fact. These are questions of law to be determined by the Court. United States v.

McLinn, 896 F3d 1152, 1156 (10th Cir. 2018).

Claimant argues that, rather than being “committed to a mental institution,” he was

in the “mental institution for observation.” The terms used in §922(g)(4), including

“committed to a mental institution” are defined in 27 C.F.R. § 478.11 which states: “The

term does not include a person in a mental institution for observation or a voluntary

admission to a mental institution.” According to this language, if Claimant was ordered to

the mental institution for observation, no violation of §922(g)(4) occurred and the

conditions for a forfeiture under 18 U.S.C. § 924(d)(1) are not met.

Claimant’s argument that he was placed in the mental institution for observation is

not supported by the subject Order. The Order of Admission to Medical Facility recites

that the Court examined the staff report from Wagoner Community Hospital and heard

evidence and found that the evidence was clear and convincing that Claimant was a

person requiring treatment/medication3 and should be admitted to a medical facility as a

patent. The Order further recites the finding that Claimant was incompetent to consent to

or refuse treatment. [Dkt. 28-6]. The Court ordered that Claimant be committed to the

custody of the Department of Mental Health/Tulsa Center for Behavioral Health and

further ordered treatment as deemed necessary by the attending physician. Id. This

Court finds that the subject Order involuntarily committed Claimant to a mental institution

for treatment.

Claimant contends that the subject Order is not a valid order. He asserts that there

were irregularities in the procedure for obtaining the Order which prevent this Court from

relying on it. Claimant asserts he was not given the statutory one-day notice of the

hearing and that the incident which lead to his hospitalization “did not rise to the level of

him requiring treatment for a mental illness.” [Dkt. 32, p. 4]. In his brief, Claimant refers

to an 11th Circuit case cited by the Government, U.S. v. McIlwain, 778 F.3d 688 (11th

Cir. 2014). Claimant notes that the McIlwain Court held that the defendant could not

collaterally attack the underlying state court commitment order to challenge his indictment

under 18 U.S.C. § 922(g)(4). Id. at 697-698. However, Claimant clearly states he “urges

this Court to do just that.” [Dkt. 32, pp. 5-6]. Claimant asks this Court to rule that the

3 The term “person requiring treatment” is a term of art in the Oklahoma Mental Health Law and is defined

by 43A Okla. Stat. § 1-103 (13) as follows:

a. “Person requiring treatment: means a person who because of his or her mental illness

or drug or alcohol dependency:

(1) poses a substantial risk of immediate physical harm to self as manifested by

evidence or serious threats of or attempts at suicide or other significant self-

inflicted bodily harm,

(2) poses a substantial risk of immediate physical harm to another person or

persons as manifested by evidence of violent behavior directed toward another

person or persons, . . .

failure of the state court to give him the statutory notice invalidates the facially valid state

court Order and precludes summary judgment.

Claimant has not provided pertinent authority for this Court to delve behind the

facially valid state court Order.4 Without providing any discussion, or even a citation to

those cases, Claimant argues that some of the cases cited by the Court in U.S. v.

McIlwain, 772 F.3d 688, 698-95 (11th Cir. 2014) provide authority for examining the basis

of the subject Order. Claimant refers to cases from the Fifth, Eighth, and First Circuits

cited by McIlwain. Those cases are inapposite. The appellate courts in those cases

determined that the circumstances of the hospital admissions did not constitute

commitments under the applicable state laws. See U.S. v. Rehlander, 666 F.3d 45, 50

(1st Cir. 2012)(involuntary admission to psychiatric hospital under Maine’s ex parte

emergency procedure does not qualify as a judicial commitment under Maine’s laws);

U.S. v. Giardina, 861 F.2d 1334, 1336-37 (5th Cir. 1988)(admission by emergency

certificate did not constitute a judicial commitment under Louisiana law and therefore

could not form the basis of a violation of 18 U.S.C. § 922); U.S. v. Hansel, 474 F.2d 1120,

1122 (8th Cir. 1973)(the hospitalization of the defendant was not a commitment under

Nebraska law, a point conceded by the government). Based on the findings contained in

the subject Order the Court finds that Claimant was involuntarily committed to a mental

institution under Oklahoma law.5 The Court further finds that the Order of Admission to

4 Oklahoma Mental Health Law provides that the rules of civil procedure apply to all judicial proceedings

provided for in the title on mental health, including the rules on vacation of orders and appellate review.

43A Okla. Stat. §1-107(F). A mechanism thus existed for Claimant to raise the irregularities he now

presents to this Court as a basis for the invalidity of the subject Order. Claimant has not informed the Court

that he availed himself of any state court procedure to invalidate the order.

5 The Court notes that the subject Order was recognized as an involuntary commitment by a Hearing

Officer for the Oklahoma State Bureau of Investigation and the Order was the basis for the revocation of a

license issued to Claimant under the provisions of the Oklahoma Self-Defense Act. [Dkt. 28-16],

Medical Facility constitutes a judicial involuntary commitment under 18 U.S.C. §

922(g)(4).

Claimant presented no argument in opposition to the Government’s contention that

the was adjudged “a mental defective” under 18 U.S.C. § 922(g)(2). The Court finds that

the finding in the subject Order that Claimant was a “person requiring treatment” is an

adjudication that Claimant is a mental defective under 18 U.S.C. § 922(g)(4). This finding

also supports summary judgment for the Government.

Claimant has made no argument in opposition to summary judgment as to any

other aspect of the Government’s motion for summary judgment. The Court finds

therefore that, based on the foregoing analysis, summary judgment should be granted to

the Government.

Conclusion

The Government’s Motion for Summary Judgment, [Dkt. 28-SEALED], is

GRANTED.

SO ORDERED this 18th day of December, 2019.