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Sixth Circuit Reviews Federal Gun Ban for Involuntary Commitment

Posted on Wednesday, November 30, 2016
A divided en banc Sixth Circuit Court of Appeals reversed and remanded a district court’s order dismissing a Second Amendment challenge to the Federal ban on gun ownership by “anyone who has been adjudicated as a mental defective or who has been committed to a mental institution.”

Facts: In Tyler v. Hillsdale County Sheriff's Department, 837 F.3d 678, (6th Cir. 2016) Docket 13-1876 Clifford Tyler, 74, wanted to purchase a gun. He was rejected by the Hillsdale County Sheriff because he had been involuntarily committed for less than 30 days in the 1980’s. Despite a current clean bill of mental health, he was ineligible to own a gun under 18 U.S.C. § 922(g)(4).

Procedure:

Tyler first took his case to Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) who declined to review his petition for restoration of his right to own a firearm. He then turned to federal court seeking a declaratory judgment that § 922(g)(4) was unconstitutional as applied to him. The district court dismissed Tyler’s suit for failure to state claim.

While the federal law used to permit an applicant to apply to the Attorney General for an exception to the ban, the program was de-funded and left to the states. Michigan, Tyler’s home state didn’t fund the program, so Tyler had no recourse to a remedy.

The ruling sends the case back to the district court for further review. The 6th Circuit didn’t say whether the ban on gun ownership under these circumstances violates the Second Amendment. It did say that a person’s involuntary commitment doesn’t necessarily make them a danger today and with no way to challenge the statute, the federal ban may be too broad a sweep.

Analysis:

The court reviewed the Heller decision (District of Columbia v Heller, 554 U.S. 570 (2008)), which, while recognizing that the Second Amendment protected the right of law-abiding citizens to own firearms, it also recognized the right wasn’t unlimited and that the prohibition on the possession of firearms by felons and the mentally ill were presumptively lawful.

The court said that because § 922(g)(4) doesn’t have a history of challenges, it would be wrong to simply agree that legislature has the power to permanently exclude individuals from gun ownership based on a past involuntary commitment. The court used a two-part approach to the matter:
·         The ban places a burden on conduct protected under the Second Amendment as historically understood; and past decisions don’t support the position that individuals once committed due to mental illness are forever ineligible to purchase a firearm, and
·         While the government has important interests in keeping guns out of the hands of those who are a danger to themselves and to others, a blanket, lifetime ban is too broad.
The court, in summing up the principle opinion, said “…ten of us would reverse the district court; six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, if we employ a scrutiny-based analysis.


The court sent the matter back with instructions to allow the government an opportunity to meet the demands of intermediate scrutiny, which requires the government to show that the challenged law must further and important government interest by means substantially related to that interest. The government can present evidence in support of the lifetime ban or additional evidence that, because Clifford Tyler currently presents a risk of harm to himself or others,  the law is constitutional as applied to him. 

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Stick to the Rules in Child Protective Proceedings

Posted on Monday, November 21, 2016
The Court of Appeals recently reversed a trial court’s decision terminating parental rights based on the lack of jurisdiction and inadmissible evidence during the child protective proceedings. In Re Jones, unpublished per curiam, issued November 8, 2016 (Docket 332616). In Jones, the trial court relied on recordings of the children’s forensic interviews during a combined adjudicative and dispositional hearing. Id. The Court of Appeals found the trial court in Jones made two critical errors: (1) failure to conduct a separate dispositional and adjudicative hearing, and (2) fully relying on the legally inadmissible evidence of the recordings to find sexual abuse and to terminate parental rights.


Child protective proceedings must be separated into an adjudicative and dispositional proceeding. In re AMAC, 269 Mich App 533, 536; 711 NW2d 426 (2006).  First, the adjudicative proceeding happens in order to determine if the courts has jurisdiction over a child under MCL 712A.2(b). Id. During the adjudicative proceeding, hearsay evidence of a child’s statement is legally admissible under MCR 3.972(C)(2). In re Archer, 277 Mich App 71, 82; 744 NW2d 1 (2007). The Court of Appeals in Jones noted the trial court can view a recorded forensic interview during a separate tender-years evidentiary hearing in order to determine if hearsay testimony is allowed, but not admit the recorded interview itself. However,“a recorded forensic interview is admissible at all proceedings except the adjudication stage instead of the live testimony of the witness.” MCL 712A.17b(5) (emphasis added). If the trial court finds that it does have jurisdiction over the child after the adjudication proceeding, the parties continue to a dispositional hearing to determine what action to take for the child.  AMAC, 269 Mich App at 536-537. The court can terminate parental rights if it “finds on the basis of clear and convincing legally admissible evidence” during a dispositional hearing. MCR 3.977(E).

The trial court in Jones relied on the recorded forensic interview itself instead of non-hearsay evidence to establish jurisdiction over the children during a combined adjudicative and dispositional hearing. If the trial court in Jones had conducted a separate dispositional hearing, the forensic interview would be admissible evidence that could be a basis for parental termination. However, the fact that the evidence was used to establish jurisdiction during a combined adjudicative and dispositional hearing instead of relying on witness testimony during a separate adjudicative hearing, the trial court erred under MCL 712A.2(b) and MCR 3.972(C)(2). Therefore, the trial court committed grave procedural and evidentiary errors leading to an unfairness of Respondent-Father’s parental rights being terminated.

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Does my Appeal Return to the Same Trial Court Judge?

Posted on Tuesday, November 15, 2016
Liisa Speaker answers a fequently asked question about Judges in the appellate process:


If you're looking into appealing your trial court order, please call our office at 517-482-8933 to speak to a member of our team.

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The Courts’ Discretion in Parenting Time Decisions Questioned

Posted on Thursday, November 10, 2016
While parenting time between the preliminary hearing and adjudication and after the termination petition is filed are controlled by court rules (MCR 3.965(C)(7)(a); MCR 3.977(D) ) and statutes (MCL 712A.13a(13) ; MCL712A.19b(4)), visitation after adjudication is controlled by the court.

Under In re Laster,303 Mich App 485, 2013, the Court of Appeals held that termination of parental rights, “In the absence of a court rule or statute, the issue of the amount…and conditions of parenting time is left to the sound discretion of the trial court…”  This decision allowed a trial court to deny a parent whose child had been removed from parental care from having parenting time with their child – even during the dispositional phase of the case when the goal of DHHS is to reunify the parent and child.

That is how matters stood until In re Newman, Minors, (Nos. 329063, 329076, unpublished, 9/29/2016), an opinion which put a chink in the armor of the Laster case. Newman was also an appeal of a termination of parental rights. The results, however, were vastly different. The Newman court reversed the trial court decision and remanded the matter back to evaluate the parents, prepare a parent-agency plan, order visitation and continue monitoring in order to properly determine a final disposition.

Of interest is footnote 5, addressing the issue of visitation, which was not argued on appeal and therefore not properly before the court. The court’s discussion, however, is telling.



In the court’s view, “the inability of the department to observe the children and parents together…greatly limited the facts available for the determination of the factual questions before the court, and…greatly increased the likelihood of error as to those questions.”

“Unfortunately,” the Court of Appeals stated “there does not appear to be any case law providing guidance as to when a denial of all services including even supervised visitation is an abuse of discretion, and as noted above, neither the magistrate nor the judge provided any grounds for that denial other than that it had the discretion to do so.”

“If the only test is whether the court has such discretion, see MCL 712A.19b(4), then it would seem that the discretion cannot be abused, i.e. that the discretion is wholly unfettered and unreviewable. It is questionable whether this was the legislature’s intent and whether it comports with due process.”

“In the absence of briefing on the issue, however, we will not explore the issue here other than to
note its potential significance. Additionally, we also note that that the problem is compounded
by the fact that respondents were apparently not appointed counsel when the initial denial of
parenting time occurred.” (emphasis added)

It seems that, with the right set of facts, the issue of a court’s “unfettered and unreviewable” discretion in parenting time decisions is ripe for appeal. 

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How Bail Bond Agencies Can Recover Funds Under Michigan Statutes

Posted on Monday, November 7, 2016
Bail bond agencies act as surety for bonds for compensation in criminal cases in Michigan. Without them, our jails would be more over-crowded. The agencies can, however, seek return of funds under two statutes, MCL 765.28 and MCL 600.4835. The Michigan Court of Appeals clarified the relationship of the two in Calvert Bail Bond Agency, LLC v County of St. Clair, COA No. 324824.

Facts: The plaintiff, Calvert Bail Bond Agency, was the surety for several criminal defendants who did not appear for their court hearings, which resulted in forfeiture judgments being entered against them. Plaintiff paid the forfeiture amounts and brought the defendants into the court more than 56 days after the entry of the corresponding forfeiture amounts.

Calvert's request for recovery of the funds it paid under MCL 765.28, but was denied. It then turned to the circuit court and sought recovery under MCL 600.4835, which permits a circuit court to "remit any penalty" when it determines that doing so would be "just and equitable"  The trial court held no cause of action as Calvert’s sole remedy for return of the funds was under MCL 765.28. The Court of Appeals disagreed and reversed and remanded.

The Michigan Court of Appeals (MCOA) interpreted the two statutes involved explaining that they are In Pari Materia (Latin, Upon the same subject) a designation applied to statutes or general laws that were enacted at different times but pertain to the same subject or object. Such statutes must be interpreted in light of each other since they have a common purpose for comparable events or items.

The procedure to seek return of the funds, according to the Court of Appeals, is as follows:

1.      When the criminal defendant fails to appear, a default is entered under MCL. 765.28(1)
2.      Notice is given to the surety of the failure to appear
3.      The court also notifies the surety that they can appear to present facts why the defendant didn’t appear and ask that the judgment not be entered.



Once the judgment is entered under MCL 765.28 (1), sec. (2) allows the surety to have the judgment set aside and the money returned within one year from its entry when the defendant has been apprehended, the ends of justice haven’t been thwarted, and the county has been repaid its costs in apprehending the defendant.

The mandatory return of the funds, however, is subject to sec. 3 of the statute, which makes the return inapplicable where the defendant is apprehended 56 days or more after the entry of judgment of forfeiture and the surety hasn’t paid the full amount.

The question is: Whether the remedy under MCL 600.4835 remains viable. The Michigan COA held that it is. The statute governs the return of penalties, which includes forfeited recognizances. The statute, however, gives the court discretion to return all or part of the forfeited amount.

The MCOA reversed and remanded to the trial court to evaluate the plaintiff’s claims under MCL 600.4835.

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