From Thursday’s Seventh Circuit ruling in U.S. v. Rose, authored by Judge Frank Easterbrook and joined by Judges Thomas Kirsch and Doris Pryor:
In September 2009 Jonathan Rose was involuntarily admitted to a mental hospital in Indiana, diagnosed with a mental-health disorder. The record does not specify the disorder or include a thorough assessment by a mental-health professional. He was discharged in January 2010 and has not been recommitted since.
In 2022 Rose acquired several firearms. He attempted to obtain more but faced refusals because of his civil commitment. (Discrepancies in birthdates across public databases appear responsible for some successes and some denials.) In 2023 Rose faced charges for acquiring firearms in violation of 18 U.S.C. § 922(g)(4), which forbids possession by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” He was also charged under 18 U.S.C. § 922(a)(6) for misrepresenting to gun dealers. Rose told each dealer that he had never been committed to a mental institution. United States v. Holden (7th Cir. 2023) holds that § 922(a)(6) is compatible with the Second Amendment.
But the district court held that § 922(g)(4) cannot be applied to someone who is no longer mentally ill. It dismissed those counts of the indictment, prompting this appeal by the United States.
Different courts of appeals have reached divergent conclusions about the validity of § 922(g)(4). See Tyler v. Hillsdale Sheriff’s Department (6th Cir. 2016) (en banc) (invalid except as applied to a currently dangerous person); Beers v. Attorney General (3d Cir. 2019) (valid), remanded with instructions to dismiss as moot, 590 U.S. 940 (2020); Mai v. U.S. (9th Cir. 2020) (valid). All of these decisions predate the Supreme Court’s rulings in Bruen, Rahimi, Hemani, and Wolford. Between Rahimi and Hemani, the Fourth Circuit rejected a facial challenge to § 922(g)(4) while preserving the possibility of an as-applied challenge. U.S. v. Gould (4th Cir. 2026). The issue remains unresolved in this circuit….
Heller [and later cases] declared categorically that “longstanding prohibitions on the possession of firearms by felons and the mentally ill” are presumptively valid…. But the Justices’ remarks target individuals who are mentally ill, not those who once were mentally ill. Yet § 922(g)(4) targets anyone who has ever been committed to a mental institution. Some individuals endure commitment but later recover; others are released after the error is uncovered. Neither group is currently mentally ill, yet § 922(g)(4) applies to both.
The United States maintains that § 922(g)(4) remains valid even when applied to people who were never dangerous or who have recovered. This stance is difficult to reconcile with Heller, McDonald, Bruen, Rahimi, Hemani, and Wolford. Rahimi rejected a challenge to § 922(g)(8) by stressing the importance of the defendant’s current danger and the fact that danger findings carry a time limit. And Hemani holds § 922(g)(3) invalid as applied to casual drug users who have not shown current danger (or addiction implying loss of control).
The government cites historical instances of laws disarming lunatics and other unstable individuals but offers no example from the seventeenth through nineteenth centuries of a statute permanently disarming people whose mental problems were temporary. Hemani analyzed several civil-commitment statutes from the 1700s and 1800s and found those cases not relevant to someone who is not demonstrably dangerous. All pertinent historical practices disarmed a mentally ill person only during civil commitment or ongoing insanity….
Rahimi explains at length that someone who is presently dangerous (or has recently been found dangerous) may be disarmed. The Court provided multiple historical analogies, which we need not repeat here. It concluded: “Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others.” But the Court’s use of the present tense—in this framework and throughout Rahimi—shows that § 922(g)(4) is problematic when applied to someone who is now mentally healthy and likely to remain so, and thus does not “present a credible threat to the physical safety of others.” Rahimi also leaves open whether danger must be shown by a recent adjudication—and, if so, how recent qualifies as “recent.” (Rahimi possessed a gun fewer than twelve months after a court issued an order declaring him dangerous and prohibiting firearms.)
Hemani reinforces the message of Rahimi. The Court noted that many illegal drug users (the substance in Hemani being marijuana) can regulate their behavior and are not dangerous, even while using drugs. The Court invalidated § 922(g)(3) as applied to such individuals, while leaving unresolved questions about addicts who cannot control themselves or who have misused firearms while intoxicated.
Viewed through the government’s lens, a civil commitment creates at least a presumption of ongoing danger, even if the adjudication occurred more than a decade earlier. That presumption would be potent only if it could be overcome by evidence of current mental health. But § 922(g)(4) focuses on historical conditions rather than present ones.
Indiana, like 32 other states, authorizes courts to relieve a person from a firearms disability once the individual is no longer confined to a mental institution—and when a state court does so, the federal disability is lifted as well. The difficulty for applicants is that the process is discretionary… It requires the applicant to demonstrate harmlessness by “clear and convincing evidence,” and even then relief is not guaranteed. If the court determines that the public interest supports continued disarmament, it may deny relief even if the danger criteria are satisfied.
Our conclusion that § 922(g)(4) cannot apply universally (for example, if a misdiagnosis occurred or the condition proved temporary) does not automatically resolve Rose’s situation. He was deemed dangerous in 2009, and it remains possible that he continues to pose a risk today. After his release, he sought Social Security disability benefits for mental health problems, and his award was granted. Federal law requires disability-benefit recipients to inform the Social Security Administration promptly if their qualifying condition changes. Rose has not informed the SSA of any improvement, so we must assume he remains afflicted by whatever mental condition led to the disability award.
But what exactly was that condition? Why was Rose committed in 2009? The record offers little, if any, detail on the nature of his mental state at that time. It remains silent about many matters that bear on whether Rose is mentally ill and dangerous today.
The district court did not hold an evidentiary hearing. Instead, it presumed mental health in Rose based on the absence of contrary assertions in the indictment and the charging papers. Yet why such information would appear in an indictment is uncertain; indictments do not require anticipatory defenses to constitutional challenges. A defendant challenging a federal statute on constitutional grounds may bear the burden of raising factual issues and producing evidence. Rose did not submit any evidence—yet Hemani demonstrates that evaluating current dangerousness on a case-by-case basis can be essential in resolving as-applied challenges. That approach is just as applicable to § 922(g)(4) as it was to § 922(g)(3) in Hemani.
Here is a concise account of the gaps in our knowledge:
- Why was Rose committed in 2009? Indiana’s statute permits involuntary commitment for danger to self or gravely disabled. Which of these applied to Rose? The state court’s record shows an order of commitment with some boxes checked but no narrative analysis. The boxes indicate that Rose was found dangerous to himself and gravely disabled. His commitment was extended to permit “psychiatric stabilization.” A physician indicated that Rose had “a psychiatric disorder” but did not name the disorder or describe the risks he posed. The 2009 documents include a few physician comments, such as: “Patient remains depressed with poor stress tolerance and judgment.” These notes do not attempt to judge the level of danger Rose would pose if not confined. Rose told a pretrial services worker that he had been diagnosed with bipolar disorder, anxiety, depression, and schizophrenia, but the medical documentation from either the state or federal records is incomplete. Rose may or may not have understood or accurately described the diagnoses recorded in 2009.
- Does the medical field view Rose’s 2009 conditions as lifelong, long-term, or temporary? Is the condition curable? Was it treated? If treated, was the treatment successful?
- Why was Rose released in January 2010? Was it due to medical improvement, the existence of a time-based limit under state law, or another reason? We know the hospital did not seek a long-term commitment under Indiana law, but the record does not reveal the rationale.
- Has Rose consulted a psychiatrist or other mental-health professional recently? The answer should be yes if a mental-health evaluation was required as a term of his pretrial release. Yet the record does not disclose the results of that evaluation, leaving his current mental state unsettled. (As noted earlier, the district judge did not hold an evidentiary hearing or make findings on this issue.)
- If Rose’s mental health is dependent on medication, is he taking prescribed drugs? A 2009 antidepressant prescription appears in the record, but it does not show what effect the prescribing clinician expected. It does show, however, that he did not consistently take the medication while confined.
- What did Rose tell the Social Security Administration when applying for disability benefits? Receiving benefits depends on unemployability, which can differ from danger. But danger to others can render a person unemployable, so the explanation Rose gave to the SSA matters. He cannot tell the SSA that he is dangerous to others due to a mental condition while telling a court that he is not dangerous.
- When the SSA awarded disability benefits to Rose, what findings did the administration make about his mental health?
Returning to the core principle in Rahimi, our tradition permits the Government to disarm individuals who present a credible risk to others’ safety. We cannot determine from this record whether Rose presented such a risk in 2009 when he was committed, in 2010 after his release, in 2022 when he purchased weapons, or in the present day. Rose carries the burden of producing evidence on these matters, after which the Government may offer “individualized proof” of current danger….
Rule 12(b) of the Federal Rules of Criminal Procedure authorizes judges to adjudicate pretrial motions on issues that can be resolved without a trial on the merits. Judges routinely hold hearings and make factual determinations as needed to resolve suppression motions or other pretrial challenges. A district judge has the authority to take evidence and issue findings even when those findings do not resolve guilt or innocence if the defendant contends that the criminal statute is unconstitutional as applied to him.
Because the district court’s dismissal of the § 922(g)(4) charges is vacated, the judge on remand will have discretion to permit Rose and the Government to present evidence addressing the seven questions identified above, now that Rahimi and Hemani have clarified the appropriate framework for analysis.
