United States v. Chamberlain

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1324



                          UNITED STATES,



                            Appellee,



                                v.



                     RICHARD W. CHAMBERLAIN,



                      Defendant, Appellant.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



           [Hon. Morton A. Brody, U.S. District Judge]


Before



                    Torruella, Chief Judge,

                                

                Campbell, Senior Circuit Judge, 

                                

                   and Stahl, Circuit Judge. 


Jeffrey M. Silverstein, with whom Billings & Silverstein was

on brief for appellant.

     Margaret D. McGaughey, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, and James L.

McCarthy, Assistant United States Attorney, were on brief for

appellee.


November 3, 1998


CAMPBELL, Senior Circuit Judge.  Richard Chamberlain

appeals from his conviction in the United States District Court for

the District of Maine on one count of possession of a firearm

pursuant to 18 U.S.C.  922(g)(4), which makes it unlawful for any

person who has been "committed to a mental institution" to possess

any firearm in interstate commerce.  Under Maine law, Chamberlain

had earlier been involuntarily admitted for five days, on an

emergency basis, to a Maine mental hospital.  Chamberlain moved to

dismiss the federal information, contending that his involuntary

emergency admission was not, as a matter of law, a "commitment" to

a mental institution as required for conviction under  922(g)(4). 

The district court denied the motion.  Chamberlain entered a

conditional guilty plea, reserving his right to challenge on appeal

the denial of his motion to dismiss.  He was sentenced to five

years probation and ordered to pay a $100 assessment.  This appeal

followed.  We affirm.  

                                I.

  On June 25, 1996, Chamberlain was involuntarily admitted,

on an emergency basis, to the Acadia Hospital in Bangor, Maine

pursuant to an application filed under a Maine statute, 34-B

M.R.S.A.  3863(1)-(3).  In the application seeking Chamberlain's

involuntary admission, a clinician at Acadia stated that

"Chamberlain has a mental illness and, due to mental illness, poses

a likelihood of serious harm, on the basis that he put a loaded gun

to his head and threatened his wife."  The application further

stated that "suitable resources for care and treatment are

unavailable in the community."  Chamberlain was examined on June

25, 1996, by a licensed physician, who certified pursuant to

section 3863 that Chamberlain posed a danger of serious harm due to

mental illness because he "held a gun to his head tonight" and

constituted a "[d]anger to [him]self and others."  A judge of the

Maine district court reviewed and endorsed the application and

certification as being prepared in accordance with law, and ordered

that Chamberlain be transported and admitted to Acadia for no more

than five days, the maximum length of an emergency detention under

section 3863.  

     After Chamberlain had been admitted to Acadia, a second

physician examined him and completed a "24-Hour Certification

Form."  On the form, the physician certified that he had "examined

[Chamberlain] and in my opinion the patient is mentally ill, and,

due to his [] mental illness, poses a likelihood of serious harm to

himself [] or others if discharged at this time."  As grounds for

the certification, the physician stated that Chamberlain had "put

a gun to his head last evening with suicidal ideation" and "remains

distraught today and constitutes a danger to [him]self."  

     A patient who has been detained for five days pursuant to

section 3863 may thereafter remain at the mental hospital if (1)

the patient voluntarily admits himself, see 34-B M.R.S.A.  3831,

or (2) the chief administrative officer of the mental hospital

obtains from the state district court an "involuntary commitment

order," see 34-B M.R.S.A.  3863 (5)(B), 3864.  After his initial

five-day emergency detention, Chamberlain voluntarily admitted

himself to Acadia on or about June 30, 1996, remaining there until

his release on July 8, 1996.  The chief administrative officer made 

no application in his case for an "involuntary commitment order." 

     On May 19, 1997, a police officer received a

suicide/attempt to locate report from Chamberlain's brother. 

Chamberlain's brother told the officer that Chamberlain was upset

over the breakup of his marriage, had stated that he had nothing to

live for, and was suicidal.  The officer located Chamberlain's

pickup truck in an airport parking lot.  Inside the truck were a

loaded Remington .270 caliber rifle, a box of .270 caliber

ammunition, and a Savage 30-30 caliber rifle.  These items, which

were manufactured outside the state of Maine, were seized and

Chamberlain was arrested and charged in the federal district court

with violation of 18 U.S.C.  922(g)(4).  

     Chamberlain filed a motion to dismiss the information on

the ground that he had not, as a matter of law, been "committed to

a mental institution" within the meaning of  922(g)(4).  The

federal district court denied the motion, and issued findings of

fact and conclusions of law. 

     Chamberlain entered a conditional plea of guilty under

Fed. R. Crim. P. 11(a)(2) to one count of unlawful possession of a

firearm, reserving his right to appeal from the district court's

denial of his motion to dismiss.  The court sentenced Chamberlain

to five years' probation and a mandatory $100 assessment.

                               II. 

     This appeal raises a single legal issue:  Whether

Chamberlain's involuntary admission pursuant to 34-B M.R.S.A. 

 3863 constituted a "commitment" for purposes of conviction under

18 U.S.C.  922(g)(4).  The federal district court held that

Chamberlain's five-day involuntary admission, which was followed by

his continued admission on a voluntary basis, constituted a

"commitment" for purposes of the federal firearms ban.  Chamberlain

contends that his five-day emergency detention under Maine law fell

short of amounting to a "commitment," and that only detention under

an involuntary commitment order obtained pursuant to section 3864,

note 3, supra, would have constituted a "commitment" allowing

conviction under the federal firearms statute.  We review de novothe district court's interpretation of the term "commitment."  SeeUnited States v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998).  

     We begin with the language of 18 U.S.C.  922(g)(4), part

of the federal Gun Control Act of 1968.  Section 922(g)(4) states

that it shall be unlawful for anyone

     (4) who has been adjudicated as a mental

     defective or who has been committed to a

     mental institution; 

               . . .

     to ship or transport in interstate or foreign

     commerce, or possess in or affecting commerce,

     any firearm or ammunition; or to receive any

     firearm or ammunition which has been shipped

     or transported in interstate or foreign

     commerce.



The Gun Control Act does not define the phrase "committed to a

mental institution."  See 18 U.S.C.  921, 922; see also United

States v. Waters, 23 F.3d 29, 31 (2d Cir.), cert. denied, 513 U.S.

867 (1994).  

     Determination of whether Chamberlain was so "committed"

is a question of federal law.  See Waters, 23 F.3d at 31; United

States v. Giardina, 861 F.2d 1334, 1335 (5th Cir. 1988).  Cf.Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 111-12 (1983)

("Whether one has been 'convicted' within the language of the gun

control statutes is . . . a question of federal . . . law, despite

the fact that the predicate offense and its punishment are defined

by the law of the State.") (citation omitted).  While we are

determining a question of federal law, we "may seek guidance from

state law," Giardina, 861 F.2d at 1335, since "commitment" occurs

pursuant to procedures required by state law.  See United States v.

Hansel, 474 F.2d 1120, 1122-23 (8th Cir. 1973).  After taking into

account whatever guidance state law may offer, our interpretation

must in any case be consistent with federal policy.  See Waters, 23

F.3d at 31; Giardina, 861 F.2d at 1335.  Accordingly, we examine

both Maine's statutory involuntary hospitalization procedures and

the federal gun control policy embodied in  922(g)(4). 

A.  Maine's Involuntary Hospitalization Law

     Under Maine law, a person may be "admitted to a mental

hospital, on an emergency basis," upon written application stating

the applicant's belief that the person is mentally ill and, because

of his illness, "poses a likelihood of serious harm."  34-B

M.R.S.A.  3863(1).  The Maine statute elsewhere describes such an

emergency admission as an "involuntary admission" and it is clear

that a person so admitted cannot leave the institution and is under

its control.  The application must be accompanied by a certificate

signed by a health care professional who has examined the patient

not more than three days before the date of admission and

determined that the patient "poses a likelihood of serious harm." 

Id.,  3863(2).  

     The application and the accompanying certificate must be

reviewed by a Justice of the Superior Court, Judge of the District

Court, Judge of Probate or a justice of the peace.  See id., 

 3863(3).  If the judicial officer determines that the application

and certificate are "regular and in accordance with the law," id.,

the statute requires that he or she endorse them.  A patient

admitted on an emergency basis may not be detained for more than

five days.  See id.,  3863(5)(B)(2). 

     Once a patient is involuntarily admitted, section 3863

requires that the patient be examined "as soon as practicable." 

See id.,  3863(7).  If this post-admission examination is not held

within twenty-four hours after the time of admission, or if a

health care provider fails or refuses after the examination to

certify that the patient is mentally ill and, due to his mental

illness, "poses a likelihood of serious harm," the patient must be

immediately discharged.  See id.,  3863(7)(C).

     After the initial five-day involuntary hospitalization,

a patient may elect to be "informally admitted" for a longer

period, provided the chief administrative officer of the hospital

determines that admission of the patient on an informal basis is

appropriate.  See id.,  3863(5)(A).  This informal, voluntary

admission may be indefinite.  If the patient does not choose to be

informally admitted, or the chief administrative officer determines

that admission of the patient on an informal basis is not

appropriate, and the chief administrative officer believes that

further hospitalization is warranted, the chief administrative

officer "may seek involuntary commitment" of the patient.  See id.,

 3863(5)(B).  

     To secure a further judicial "involuntary commitment" at

this later stage, the chief administrative officer must file "[a]n

application to the District Court to admit a person to a mental

hospital."  See id.,  3864(1).  The patient is entitled to notice

of the proceedings and of his or her right to retain counsel. 

Id., 3864(4).  If neither the patient nor anyone else provides

counsel, the statute requires that the court appoint counsel for

the patient.  Id.,  3864(5)(D).  The patient must be examined by

two examiners, each of whom must be a licensed physician or a

licensed clinical psychologist.  Id.  One of the examiners must be

a physician or psychologist chosen by the patient or the patient's

counsel.  Id.  If the report of the examiners is to the effect that

the person is mentally ill or poses a likelihood of serious harm,

the patient is entitled to a hearing before the district court, at

which the patient, the applicant, and others are afforded an

opportunity to appear and testify.  Id.,  3864(5)(C).  At the

hearing, the court "shall receive all relevant and material

evidence which may be offered in accordance with accepted rules of

evidence and accepted judicial dispositions."  Id. 

     To issue a commitment order at this stage, the district

court must find, by clear and convincing evidence, that the person

is "mentally ill" and "poses a likelihood of serious harm."  Id., 

 3864(6)(A)(1).  The court must also find that inpatient

hospitalization is the best available means for treatment and that

the proposed individual treatment plan is satisfactory.  Id., 

3864(6)(A)(2)-(3).  Upon making these findings, the court may order

the patient committed for a period not to exceed four months in the

first instance and not to exceed one year after the first and all

subsequent hearings.  Id.,  3864(7).  

B.  Federal Policy Relating to the Possession of Firearms

     Congress' intent in enacting 18 U.S.C.  922 was "to keep

guns out of the hands of those who have demonstrated that they may

not be trusted to possess a firearm without becoming a threat to

society."  Dickerson, 460 U.S. at 112 (quoting Lewis v. United

States, 445 U.S. 55, 63 (1980)).  In Huddleston v. United States,

415 U.S. 814 (1974), the Supreme Court stated:

     The principal purpose of the federal gun

     control legislation . . . was to curb crime by

     keeping 'firearms out of the hands of those

     not legally entitled to possess them because

     of age, criminal background, or incompetency.'



415 U.S. at 824 (citation omitted).  

     According to the Supreme Court, Congress in enacting the

firearms ban "sought to rule broadly."  Dickerson, 460 U.S. at 112

(quoting Scarborough v. United States, 431 U.S. 563, 572 (1977)). 

See also id., at 116 ("Congress was reaching far and was doing so

intentionally."); Huddleston, 415 U.S. at 824(stating Congress was

concerned with general availability of firearms "to those whose

possession thereof was contrary to the public interest"). 

Consistent with this broad purpose, Congress did not limit the

firearms prohibition only to those who had already committed

dangerous or violent acts.  See, e.g., 18 U.S.C.  922(n)

(prohibiting possession of firearms by any person under indictment

for crime punishable by imprisonment for a term exceeding one year,

whether crime was violent or not); id.,  922(g)(1) (prohibiting

possession of firearms by felons, whether or not convicted of a

crime of violence).  See also 18 U.S.C.  922(g)(3)(prohibiting

possession of firearms by unlawful users of controlled substances);

id.,  922(g)(5) (illegal aliens); id.,  922(g)(7)(citizens who

have renounced their citizenship).  

     The legislative history indicates that Congress intended

to apply the prohibition against the possession or ownership of

firearms by "mentally unstable" or "irresponsible" individuals. 

See H.R. 17735, 90th Cong., 2d Sess. (1968), 114 Cong. Rec. 21780,

21791, 21832, and 22270 (1968).  Congress considered the mere risk

or potential for violence or irresponsible use sufficient reason to

prohibit certain categories of persons from possessing firearms. 

See Dickerson, 460 U.S. at 112 n.6 ("Congress' intent in enacting

 922(g) . . . was to keep firearms out of the hands of

presumptively risky people."); Barrett v. United States, 423 U.S.

212, 220 (1976) (legislative history reflects a concern with

"keeping firearms out of the hands of categories of potentially

irresponsible persons").  As for an individual adjudicated a mental

defective or committed to a mental institution, "Congress obviously

felt that such a person, though unfortunate, was too much of a risk

to be allowed firearms privileges."  Dickerson, 460 U.S. at 116.  

     In enacting the federal firearms ban, Congress had a

second purpose in mind   national uniformity in determinations of

whether a person is within a category covered by the firearms

prohibition.  As the Supreme Court has stated, treating the scope

of the ban as a matter of federal law "makes for desirable national

uniformity unaffected by varying state laws, procedures, and

definitions . . ."  Dickerson, 460 U.S. at 112.  The DickersonCourt noted that giving effect to the intricacies of varying state

statutes would "seriously hamper effective enforcement of [the

firearms ban]."  Id., at 121. 

C.  "Commitment" Pursuant to 18 U.S.C.  922(g)(4)

     Chamberlain does not deny that Maine's procedural

requirements for an emergency involuntary hospitalization pursuant

to 34-B M.R.S.A.  3863 were met in his case.  He contends,

however, that his preliminary five-day involuntary hospitalization,

which was followed by his voluntary admission to the same

institution on an informal basis for an additional eight days, did

not amount to a "commitment" sufficient for conviction under 18

U.S.C.  922(g)(4).  He argues that a person can be deemed

"committed" under Maine law for purposes of the federal firearms

ban only after notice and issuance by a state judge of a formal

order of commitment following a full hearing at which the person

has had the opportunity to be heard.  

     As said, Congress itself has not defined the term

"commitment."  However, in ordinary usage, "commitment" means "to

place in or send officially to confinement . . . to consign legally

to a mental institution. . . ."  See Webster's Third New

International  Dictionary (1971).  In that sense, Chamberlain's

"involuntary admission" under section 3863 would seem no different

from a "commitment."  In urging us to interpret "commitment" so as

to exclude an initial five-day emergency detention, Chamberlain

relies upon the maxim that an "ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity."  Rewis v.

United States, 401 U.S. 808, 812 (1971); United States v. Bass, 404

U.S. 336, 347 (1971).  The rule of lenity serves important goals,

including allowing fair warning as to what conduct is criminal and

punishable, and is "the product of an awareness that legislators

and not the courts should define criminal activity."  Huddleston,

415 U.S. at 814.  As the Huddleston Court noted, however, "[z]eal

in forwarding these laudable policies . . . must not be permitted

to shadow the understanding that '[s]ound rules of statutory

interpretation exist to discover and not to direct the

Congressional will.'"  Id. (quoting United States ex rel. Marcus v.

Hess, 317 U.S. 537, 542 (1943)).  "Although penal laws are to be

construed strictly, they 'ought not to be construed so strictly as

to defeat the obvious intention of the legislature.'"  Huddleston,

415 U.S. at 814 (quoting American Fur Co. v. United States, 2 Pet.

358, 367 (1829)).  We believe that Congress's intent can reasonably

be ascertained in this case and that Chamberlain's restrictive 

interpretation of "commitment" would defeat the "broad prophylactic

purpose," Dickerson, 460 U.S. at 118, of the federal firearms ban. 

     Chamberlain focuses first on the fact that section 3863

of the Maine statute uses only the phrase "involuntary admission"

with respect to the five-day emergency detention in issue, whereas

section 3864 speaks expressly of "commitment" in regard to the

longer-term detention discussed there.  He argues that we owe this

difference in terminology "great deference."  We find no evidence,

however, that the Maine Legislature consciously used the

"involuntary admission" language to distinguish between that and a

"commitment."  To the contrary,  the legislature has used the terms

"admission" and "commitment" interchangeably.  Section

3864(1)refers to the post-emergency application filed by the chief

administrative officer of the hospital under  3863(5)(B)   filed

pursuant to a procedure Chamberlain urges us to interpret as a

"commitment"   as an application "to admit" a person to a mental

hospital.  This legislative imprecision undermines Chamberlain's

attempt to find an important meaning in the difference in

terminology here.  Chamberlain's argument likewise finds no support

in the opinions of the Maine courts concerning the involuntary

hospitalization statutes and their predecessors.  The Maine Supreme

Court has at times characterized the initial involuntary

hospitalization under  3863 as a "commitment," see, e.g.,In re

Faucher, 558 A.2d 705, 706 (Me. 1989), and at other times has

characterized the same  procedure as one for "emergency

admittance," Sukeforth v. Thegen, 256 A.2d 162 (Me. 1969).      

     Moreover, even if the Maine Legislature had been more

precise in its use of the two terms, we would be faced with the

question of how far to rely upon the language chosen by the state

legislature in interpreting "commitment" for purposes of the

federal firearms ban.  We would hesitate to convert a question of

federal law into one solely of state law, as such an approach could

destroy the uniformity Congress sought in enacting section

922(g)(4).  State statutes tend to vary widely as to the language

chosen to describe the process of involuntary hospitalization. 

Compare, e.g., Massachusetts General Laws, chapter 123, 

12(e)(referring to a ten-day emergency involuntary hospitalization,

similar to section 3863's five-day detention, as a "commitment")

with 34-B M.R.S.A.  3863(1)(characterizing emergency procedure as

"admission").  Were we to focus solely on whether or not the term

"commitment" is used, a patient in Massachusetts admitted on an

emergency basis would be deemed "committed" for purposes of

conviction under the federal firearms ban, while a patient

involuntarily hospitalized in Maine in identical circumstances

would not.  This is precisely the sort of "national patchwork,"

Dickerson, 460 U.S. at 122, Congress sought to avoid in enacting

the firearms ban.  

     In support of his narrow interpretation of "commitment,"

Chamberlain relies primarily upon Giardina and Hansel.  In those

cases, the courts indeed relied upon the words chosen by the

respective state legislatures in concluding that no "commitment"

had occurred.  In Giardina, petitioner was involuntarily

hospitalized for two weeks pursuant to a Louisiana statute allowing

detention of persons based upon a "Physician's Emergency

Certificate" stating that the person is "mentally ill."  The Eighth

Circuit carefully examined the language used by the Louisiana

Legislature in both the then-existing and superseded versions of

the involuntary hospitalization statutes, and concluded that since

no "commitment"   as the process had been characterized by the

state legislature   had occurred, no "commitment" had taken place

for purposes of the federal firearms ban.  861 F.2d at 1336.  In

Hansel, the Fifth Circuit followed a similar course.  The court

concluded that since the Texas statute at issue did not

characterize Hansel's involuntary detention as a "commitment," no

"commitment" had occurred pursuant to 18 U.S.C.  922.  474 F.2d at

1122-23.   

     With all respect, we believe that the proper

interpretation of the phrase, "committed to a mental institution,"

should not turn primarily on the label attached by the state

legislature to its procedures, but rather on the substance of those

procedures.  Thus, rather than focus on the nuances of state

statutory language in interpreting "commitment," we look at the

realities of the state procedures and construe them in light of the

purposes Congress sought to accomplish by prohibiting firearm

possession by someone who has been "committed to a mental

institution."  We ask whether identifying the state's procedures

for involuntary hospitalization as a "commitment" is reasonable and

consistent with the federal policy underlying the firearms ban  

namely, to keep firearms out of the hands of those who, if

permitted to possess them, would pose a risk or potential for harm. 

See Waters, 23 F.3d at 34.  

     For this reason, we respectfully decline to follow the

approach of Giardina and Hansel, the cases on which Chamberlain

primarily relies.  Our approach is similar to the analysis of the

Second Circuit in Waters.  In Waters, petitioner was involuntarily

hospitalized pursuant to a New York statute similar in many

respects to the Maine statute under consideration.  The statute

allowed for the "involuntary admission" of an individual for sixty

days based upon an application of a relative or other qualified

person and a certificate, signed by two physicians, showing that

the physicians had examined the individual within ten days of

admission and determined that he was "mentally ill."  Id., at 32. 

The statute provided that during the sixty-day period, the

individual may request a hearing on the question of the need for

involuntary treatment.  Id., at 30.  At the end of the sixty days,

the patient could be further detained if he voluntarily admitted

himself for an additional period or the director of the mental

health facility obtained a court order authorizing the person's

"continued detention."  Id.  At the end of the initial sixty-day

period, Waters voluntarily admitted himself for an additional seven

months.  No formal court order of "continued detention" was ever

obtained.  

     The Second Circuit held that these procedures, "whether

termed an 'admission' or a 'commitment' [by the legislature] . . .

established 'commitment' procedures under New York state law, and

Waters was 'committed' pursuant to those procedures."  Id., at 34. 

The court noted that no formal judicial proceeding was required

under the state statute to detain a person beyond the initial sixty

days   a person could voluntarily admit himself to the institution

for an indefinite period.  Id., at 34.  The court went on to

conclude that deeming the procedures at issue a "commitment" was

consistent with federal gun control policy, which seeks to prohibit

the possession of firearms by "those with a potential for

violence."  Id., at 34-35.  

     The procedures followed in this case, whether denominated

as an "involuntary admission" or a "commitment" by the Maine

Legislature, constituted in all functional respects a "commitment"

for purposes of  922(g)(4).  Chamberlain was involuntarily

hospitalized based upon an application filed by a clinician at a

mental hospital who stated that Chamberlain had put a loaded gun to

his head and threatened his wife.  Prior to admission, Chamberlain

was examined by a physician who certified, as required under Maine

law in order to detain Chamberlain involuntarily, that Chamberlain

suffered from a mental illness and posed a danger to himself and

others.  A judicial officer reviewed the application and the

certification of the first physician, determined that they were

prepared in accordance with law, and ordered that Chamberlain be

detained in a mental institution for five days.  A second physician

examined Chamberlain within twenty-four hours of admission and

certified that Chamberlain suffered from a mental illness and posed

a danger to himself and others.  During the five-day emergency

detention, Chamberlain was not free to go as he pleased.  In all

respects, then, we conclude that Chamberlain was formally

"committed" to a mental institution.  See H.R. Rep. No. 1577, 90th

Cong., 2d Sess.(1968), reprinted in 1968 U.S.C.C.A.N. 4410, 4421

(noting that it would be unlawful to possess a firearm under the

statute if one has been formally committed, for example, pursuant

to court order). 

     We reject Chamberlain's argument that a person is not

"committed" for purposes of the federal firearms ban unless all of

the requirements set forth in section 3864   including provision of

counsel, a full-blown adversary hearing, a finding by clear and

convincing evidence that the person suffers from a mental illness,

and a judicial order of commitment   are satisfied.  Persons held

under section 3863 are involuntarily detained as surely as are

those held for longer periods under the more elaborate procedures

of section 3864.  Moreover, to treat section 3864 detention as the

only "real" commitment would come close to limiting "commitments"

to cases in which a person has actually been "adjudicated a mental

defective" after an adversary hearing.  18 U.S.C.  922(g)(4)

separately bans persons who have been "adjudicated a mental

defective" from owning firearms, in addition to those who have been

"committed to a mental institution."  In denying firearms to those

"committed to a mental institution," Congress appears to have cast

a wider net   to "maximize the possibility of keeping firearms out

of the hands of [,among others, persons suffering from mental

illness]."  See 114 Cong. Rec. 21784 (1968) (remarks of Congressman

Celler).  Requiring an adversary hearing and a judicial finding of

mental illness would conflate two of the categories Congress

singled out for the firearms prohibition. 

     We repeat that Congress deemed the potential for misuse

of firearms or violence sufficient to bring various categories of

individuals within the firearms ban.  The legislative history

nowhere suggests the need for showing "clear and convincing

evidence" of dangerousness with regard to other categories of

individuals placed within the firearms ban   including those under

indictment, convicted felons, drug abusers, illegal aliens, and

those who have renounced their citizenship.  To require a full-

scale adversary proceeding and a finding, by clear and convincing

evidence, that a person is mentally ill and poses a likelihood of

harm to himself or others before giving effect to the firearms ban

would undermine Congress's judgment that risk or potential, not

likelihood, probability, or certainty, of violence is all that is

required.

     Nor does it appear that Congress intended that only

persons conclusively found to be suffering from mental illnesses or

difficulties after having been afforded the fullest possible

panoply of due process rights be deemed to have been "committed to

a mental institution" for purposes of the firearms ban.  That

level of formality is not required for most of the categories

Congress identified as within the firearms ban, including those who

have merely been indicted for a crime.  See 18 U.S.C.  922(n). 

When Congress has intended that a particular status triggering the

firearms ban be conditioned upon notice and the opportunity to be

heard, along with other procedural rights, it has stated so

explicitly.  In 1994, for example, Congress amended the Gun Control

Act to include within the firearms prohibition persons 

     subject to a court order that . . . restrains

     such person from harassing, stalking, or

     threatening an intimate partner of such person

     or child of such intimate partner or person,

     or engaging in other conduct that would place

     an intimate partner in reasonable fear of

     bodily injury to the partner or child . . .



18 U.S.C.  922(g)(8), Pub. L. 103-322,  110401(c).  Before the

ban can be applied against such persons, however, Congress required

that several procedural rights be provided, including a hearing at

which the person has the opportunity to participate and a judicial

finding that such person "represents a credible threat to the

physical safety of such intimate partner or child."  See 

922(g)(8)(A),(C).  See also 18 U.S.C.  922(g)(1) (imposing the ban

against those convicted of felony).  Congress imposed no such

procedural requirements with respect to determining those

"committed to a mental institution."  

     A further reason to find that the meaning Congress

envisioned for commitment encompasses Maine's five-day involuntary

admission procedure is that many patients of the type Congress

would not want to possess firearms may have undergone, like

Chamberlain, the five-day emergency detention under section 3863

followed by a voluntary stay at the institution, rather than 

followed by a further involuntary detention there under section

3864.  The initial five-day commitment requires, in both

situations, medical findings of dangerousness, although

Chamberlain's treatment at Acadia Hospital was thereafter prolonged

beyond the five days on a voluntary basis, permitting his continued

treatment without need for officials to request his additional

involuntary commitment.  Were we to hold that the initial emergency

commitment was an insufficient basis for bringing him under the

federal weapons ban, Chamberlain and many like him would be

exempted from the ban even though, in many instances, their mental

condition and potential for dangerousness might have been no

different from those whose additional hospitalization was under

section 3864 rather than being voluntary.

     While we conclude, therefore, that a five-day emergency

detention is a "commitment", and that it implicates the potential

for harm Congress sought to regulate under the firearms ban, we

realize the possibility of instances in which an initial commitment

of this type may later be shown, in further state proceedings, to

have been mistaken.  This, however, is not such a case, hence we

need not decide to what extent subsequent proceedings before state

tribunals may vitiate a five-day emergency detention for purposes

of section 922(g)(4).  Here, Chamberlain voluntarily elected to

remain at Acadia for more than a week after the initial five-day

admission period expired.  He does not contest the validity of his

emergency admission, but only whether that admission constitutes a

legally sufficient "commitment." 

     We also note that Chamberlain and others similarly

situated are provided by Congress with the administrative means to

contest and, in appropriate circumstances, to remove the firearms

ban Congress has imposed against those committed to a mental

institution.  Department of Treasury v. Galioto, 477 U.S. 556, 559

(1986).  See also Waters, 23 F.3d at 35.  Under 18 U.S.C.  925(c),

such persons may apply to the Secretary of the Treasury for relief

from the firearms ban.  The Secretary may grant relief

          if it is established to his

          satisfaction that the circumstances

          regarding the disability, and the

          applicant's record and reputation, are

          such that the applicant will not be

          likely to act in a manner dangerous to

          public safety and that the granting of

          the relief would not be contrary to the

          public interest. 



18 U.S.C.  925(c).  See 27 C.F.R.  178.144 (describing procedures

by which one may petition for relief).  These procedures allow a

formerly committed person to challenge the continuing validity of

a determination that he suffers from a mental illness and is a

danger to himself or others.  Although he could have done so,

Chamberlain did not avail himself of this administrative remedy.  

     We conclude that, under the circumstances presented here, 

Chamberlain was "committed" to a mental institution for purposes of

conviction under 18 U.S.C.  922(g)(4).   

     Affirmed.



                             APPENDIX

34-B M.R.S.A.  3863

      3863 Emergency procedure 

     A person may be admitted to a mental hospital on an

emergency basis according to the following procedures.



     1. Application.  Any health officer, law enforcement

officer or other person may make a written application to admit a

person to a mental hospital . . . stating:



       A. His belief that the person is mentally ill and,

because of  his illness, poses a likelihood of serious harm; and



       B. The grounds for this belief.



     2. Certifying Examination.  The written application shall

be accompanied by a dated certificate, signed by a licensed

physician or a licensed clinical psychologist, stating:

     

      A. The licensed physician or licensed clinical

psychologist has examined the person on the date of the

certificate; and

     

       B. He is of the opinion that the person is mentally ill

and, because of his illness, poses a likelihood of serious harm.



                           * * * * * *



     3. Judicial Review.  The application and accompanying

certificate must be reviewed by a Justice of the Superior Court,

Judge of the District Court, Judge of Probate or a justice of the

peace.

     

       A. If the judge or justice finds the application and

accompanying certificate to be regular and in accordance with the

law, the judge or justice shall endorse them. 



       B. A person may not be held against the person's will

in the hospital under this section, whether informally admitted 

under section 3831 or sought to be involuntarily admitted under

this section, unless the application and certificate have been

endorsed by a judge or justice, except that a person for whom an

examiner has executed the certificate under  subsection 2 may be

detained in a hospital for a reasonable period of time, not to

exceed 18 hours, pending endorsement by a judge or justice, if:

     

          (1) For a person informally admitted under section

3831, the chief administrative officer of the hospital undertakes

to secure the endorsement immediately upon execution of the

certificate by the examiner; and

          

          (2) For a person sought to be involuntarily

admitted under this section, the person or persons transporting 

the person sought to be involuntarily admitted to the hospital

undertake to secure the endorsement immediately upon execution of

the certificate by the examiner.



       C. Notwithstanding paragraph B, subparagraphs (1) and

(2), a person sought to be admitted informally under section 3831

or involuntarily under this section may be transported to a

hospital and held for evaluation and treatment at a hospital

pending judicial endorsement of the application and certificate if

the endorsement is obtained between the soonest available hours of

7:00 a.m. and 11:00 p.m.



                          * * * * * *  



     5. Continuation of hospitalization.  If the chief

administrative officer of the hospital recommends further

hospitalization of the person, the chief administrative officer

shall determine the suitability of admission, care and treatment of

the patient as an informally admitted patient, as described in

section 3831.  



       A. If the chief administrative officer of the hospital

determines that admission of the person as an informally admitted

patient is suitable, the chief administrative officer shall admit

the person on this basis, if the person so desires.



       B. If the chief administrative officer of the hospital

determines that admission of the person as an informally admitted

patient is not suitable, or if the person declines admission as an

informally admitted patient, the chief administrative officer of

the hospital may seek involuntary commitment of the patient by

filing an application for the issuance of an order for

hospitalization under section 3864, except that if the hospital is

a designated nonstate mental health institution and if the patient

was admitted under the contract between the hospital and the

department for receipt by the hospital of involuntary patients,

then the chief administrative officer may seek involuntary

commitment only by requesting the commissioner to file an

application for the issuance of an order for hospitalization under

section 3864.


(1) The application must be made to the District

Court having territorial jurisdiction over the hospital to which

the person was admitted on an emergency basis.



          (2) The application must be filed within 5 days

from the admission of the patient under this section, excluding the

day of admission and any Saturday, Sunday or legal holiday.



       C. If neither readmission nor application to the

District Court is effected under this subsection, the chief

administrative officer of the hospital to which the person was

admitted on an emergency basis shall discharge the person

immediately.



     6. Notice.  Upon admission of a person under this

section, and after consultation with the person, the chief

administrative officer of the hospital shall notify, as soon as

possible regarding the fact of admission, the person's:



       A. Guardian, if known;



       B. Spouse;



       C. Parent;



       D. Adult child; or



       E. One of next of kin or a friend, if none of the other

persons exist.



If the chief administrative officer has reason to believe that

notice to any individual in paragraphs A to E would pose risk of

harm to the person admitted, then notice may not be given to that

individual.



     7. Post-admission examination.  Every patient admitted to

a hospital shall be examined as soon as practicable after his

admission.



       A. The chief administrative officer of the hospital

shall arrange for examination by a staff physician or licensed

clinical psychologist of every patient hospitalized under this

section.



       B. The examiner may not be the certifying examiner

under this section or under section 3864.



       C. If the post-admission examination is not held within

24 hours after the time of admission, or if a staff physician or

licensed clinical psychologist fails or refuses after the

examination to certify that, in his opinion, the person is mentally

ill and due to his mental illness poses a likelihood of serious

harm, the person shall be immediately discharged.



                           * * * * * *



34-B M.R.S.A.  3864  



      3864 Judicial procedure and commitment



     1. Application.  An application to the District Court to

admit a person to a mental hospital, filed under section 3863,

subsection 5, paragraph B, shall be accompanied by:

     

       A. The emergency application under section 3863,

subsection 1;



       B. The accompanying certificate of the physician or

psychologist under section 3863, subsection 2; 



       C. The certificate of the physician or psychologist

under section 3863, subsection 7 that:



          (1) The physician or psychologist has examined the

patient; and

          

          (2) It is the opinion of the physician or

psychologist that the patient is a mentally ill person and, because

of that patient's illness, poses a likelihood of serious harm;



       D. A written statement, signed by the chief

administrative officer of the hospital, certifying that a copy of

the application and the accompanying documents have been given

personally to the patient and that the patient and the patient's

guardian or next of kin have been notified of the patient's right

to retain an attorney or to have an attorney appointed, of the

patient's right to select or to have the patient's attorney select

an independent examiner and regarding instructions on how to

contact the District Court; and



       E. A copy of the notice and instructions given to the

patient.



     2. Detention pending judicial determination. 

Notwithstanding any other provisions of this subchapter, a person,

with respect to whom an application for the issuance of an order of

hospitalization has been filed,, may not be released or discharged

during the pendency of proceedings, unless:



       A. The District Court orders release or discharge upon

the request of the patient, or the patient's guardian, parent,

spouse or next of kin;



       B. The District Court orders release or discharge upon

the report of the applicant that the person may be discharged with

safety;



       C. A court orders release or discharge upon a writ of

habeas corpus under section 3804; or



       D. Upon request of the commissioner, the District Court

orders the transfer of a patient in need of more specialized

treatment to another hospital.  In the event of a transfer, the

court shall transfer its file to the District Court having

territorial jurisdiction over the receiving hospital.



     3. Notice of receipt of application.  The giving of

notice of receipt of application and date of hearing under this

section is governed as follows.



       A. Upon receipt by the District Court of the

application and accompanying documents specified in subsection 1,

the court shall cause written notice of the application and date of

hearing:



          (1) To be mailed within 2 days of filing to the

person; and



          (2) To be mailed to the person's guardian, if

known, and to the person's spouse, parent or one of the person's

adult children, if none of these persons exist or if none of those

persons can be located, to one of the person's next of kin or a

friend, except that if the chief administrative officer has reason

to believe that notice to any of these individuals would pose risk

of harm to the person who is the subject of the application, notice

to that individual may not be given.



       B. A docket entry is sufficient evidence that notice

under this subsection has been given.



     4. Examination.  Examinations under this section are

governed as follows.



       A. Upon receipt by the District Court of the

application and the accompanying documents specified in subsection

1 and at least 3 days after the person who is the subject of the

examination was notified by the hospital of the proceedings and of

that person's right to retain counsel or to select an examiner, the

court shall cause the person to be examined by 2 examiners.



          (1) Each examiner must be either a licensed

physician or a licensed clinical psychologist.



          (2) One of the examiners must be a physician or

psychologist chosen by the person or by that person's counsel, if

the chosen physician or psychologist is reasonably available.



          (3) Neither examiner appointed by the court may 

be the certifying examiner under section 3863, subsection 2 or 7.



       B. The examination shall be held at the hospital or at

any other suitable place not likely to have a harmful effect on the

mental health of the person.



       C. If the report of the examiners is to the effect that

the person is not mentally ill or does not pose a likelihood of

serious harm, the application shall be ordered discharged

forthwith.

     

       D. If the report of the examiners is to the effect that

the person is mentally ill or poses a likelihood of serious harm,

the hearing shall be held on the date, or on the continued date,

which the court has set for the hearing.



     5. Hearing.  Hearings under this section are governed as

follows.



       A. The District Court shall hold a hearing on the

application not later than 15 days from the date of the

application.



          (1) On a motion by any party, the hearing may be

continued for cause for a period not to exceed 10 additional days.



          (2) If the hearing is not held within the time

specified, or within the specified continuance period, the court

shall dismiss the application and order the person discharged

forthwith.



          (3) In computing the time periods set forth in

this paragraph, the District Court Civil Rules shall apply.



       B. The hearing must be conducted in as informal a

manner as may be consistent with orderly procedure and in a

physical setting not likely to have harmful effect on the mental

health of the person. 



                           * * * * * *



       C. The court shall receive all relevant and material

evidence which may be offered in accordance with accepted rules of

evidence and accepted judicial dispositions.



          (1) The person, the applicant and all other

persons to whom notice is required to be sent shall be afforded an

opportunity to appear at the hearing to testify and to present and

cross-examine witnesses.



          (2) The court may, in its discretion, receive the

testimony of any other person and may subpoena any witness.



       D. The person shall be afforded an opportunity to be

represented by counsel, and, if neither the person nor others

provide counsel, the court shall appoint counsel for the person.



       E. In addition to proving that the patient is a

mentally ill individual, the applicant shall show:



          (1) By evidence of the patient's actions and

behavior, that the patient poses a likelihood of serious harm; and



          (2) That, after full consideration of less

restrictive treatment settings and modalities, inpatient

hospitalization is the best available means for the treatment of

the person.



       F.  In each case, the applicant shall submit to the

court, at the time of the hearing, testimony, including expert

psychiatric testimony, indicating the individual treatment plan to

be followed by the hospital staff, if the person is committed under

this section, and shall bear any expense for witnesses for this

purpose.



                           * * * * * *



     6. Court findings.  Procedures dealing with the District

Court's findings under this section are as follows.



       A. The District Court shall so state in the record, if

it finds upon completion of the hearing and consideration of the

record:



          (1) Clear and convincing evidence that the person

is mentally ill and that the person's recent actions and behavior

demonstrate that the person's illness poses a likelihood of serious

harm;



          (2) That inpatient hospitalization is the best

available means for treatment of the patient; and



          (3) That it is satisfied with the individual

treatment plan offered by the hospital to which the applicant seeks

the patient's involuntary commitment.



                           * * * * * *



     7. Commitment.  Upon making the findings described in

subsection 6, the court may order a commitment to a hospital for a

period not to exceed 4 months in the first instance and not to

exceed one year after the first and all subsequent hearings.  



       A. The court may issue an order of commitment

immediately after the completion of the hearing, or it may take the

matter under advisement and issue an order within 24 hours of the

hearing.



       B. If the court does not issue an order of commitment

within 24 hours of the completion of the hearing, it shall dismiss

the application and order the patient discharged immediately.



     8. Continued involuntary hospitalization.  If the chief

administrative officer of the hospital to which a person has been

committed involuntarily by the District Court recommends that

continued involuntary hospitalization is necessary for that person,

the chief administrative officer shall notify the commissioner. 

The commissioner may then, not later than 30 days prior to the

expiration of a period of commitment ordered by the court, make

application in accordance with this section to the District Court

that has territorial jurisdiction over the hospital designated for 

treatment in the application by the commissioner for a hearing to

be held under this section.



                           * * * * * * 



     11. Appeals.  A person ordered by the District Court to

be committed to a hospital may appeal from that order to the

Superior Court.



       A. The appeal is on questions of law only.



       B. Any findings of fact of the District Court may not

be set aside unless clearly erroneous.



       C. The order of the District Court shall remain in

effect pending the appeal.



       D. The District Court Civil Rules and the Maine Rules

of Civil Procedure apply to the conduct of the appeals, except as

otherwise specified in this subsection.