U.S. v. Vertz: no mans land

​“The term "mental defective" is not defined in the firearms statute.” 
U.S. v. Vertz, 102 F. Supp. 2d 787, 788 (W.D. Mich. 2000). 

This case is interesting in that it discusses when a state's commitment procedures do not comport with the CFR and Mai/Stokes/Rehlander as a defendant was not formally adjudicated mentally defective nor adjudicated mentally defective within the meaning of 27 C.F.R 478.11.  


Defendant's adjudication is not sufficient to bring defendant within the statute. His state probate court made no finding that he was a danger to himself or others or that he lacked the mental capacity to contract or manage his own affairs. Accordingly, the government has presented no evidence that defendant had been adjudicated mentally defective. The only adjudication on record was a 1988 adjudication by a probate judge that defendant was a person requiring treatment because he is mentally ill. This adjudication is not sufficient to bring defendant within the statute within the opinion in Vertz. His treating doctor certified that defendant was mentally ill, that he presented a likelihood of injury to self and others, that he did not understand need for treatment, and that he required treatment. U.S. v. Vertz, 102 F. Supp. 2d 787, 789 (W.D. Mich. 2000). Although at the time of this case, Stokes and Mai had not been decided, this does not meet the criteria of committed to a mental institution as defendant was not formally committed to a mental institution even though the CFR is not predicated on dangerousness to self, others, or grave disability/inability to manage affairs. Defendant was admitted to the Ypsilanti Regional Psychiatric Hospital pursuant to a petition signed by a registered nurse at the psychiatric unit of McLaren Hospital. The petition was accompanied by a physician's certificate signed by his doctor. Another doctor filed a similar certificate on September 12, 1988, certifying that Defendant was a danger to himself, that he was unable to attend to his basic physical needs, and that he did not understand his need for treatment. At the court hearing on September 15, 1988, the County Probate Court adjudicated defendant mentally ill. The probate court found that Defendant was a person requiring treatment because the individual is mentally ill. However, the court order did not result in a hospital commitment. It specified there were less restrictive alternatives to hospitalization. Since the CFR does not define mental institution, ATF clarifies such to be "mental health facilities, mental hospitals, sanitariums, psychiatric facilities, and other facilities that provide diagnoses by licensed professionals of mental illness, including a psychiatric ward in a general hospital". Of note future considerations ATF's clarification of mental institution is subject to Auer deference.

The two main points with this case is that defendant was not 1) formally committed even though he was committed to a hospital and 2) that he was not adjudicated mentally defective since the court found he was mentally ill and in need of treatment but did not make the requisite finding of dangerousness or inability to care for his affairs.


Subsequent case law deems that a physician certification for treatment and commitment to a hospital does not qualify as formal as defendant has had no chance to present evidence to the contrary, be represented by counsel, or have an avenue to challenge such. Although precedent advises that federal courts seek guidance from state law in resolving the federal question of whether an individual has been committed to a mental institution, in this case United States v. Giardina, 861 F.2d 1334, 1335 (5th Cir. 1988). A statute is "substantive" if the consequences of said statute impairs defendant's rights, imposes new or additional burdens, duties, obligation, or liabilities, or enumerates new rights.


Many state involuntary commitment proceedings meet the criteria even without having formal judges or legal counsel. A defendant's second amendment rights and their access to relief from disabilities be it through the NIAA or federal courts should not be limited by their state of residence.

Advocacy groups like Giffords, Brady, or Moms Demand Action would decry such adherence to due process considerations as they would opine "the potential for misuse of firearms or violence is sufficient to bring various categories of individuals within the firearms ban: 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". Citing Heller and ignoring Bruen and Rahimi, they would continue to say that "nothing in Heller should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" and such a “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).

Unfortunately since Mai and its progeny had not been decided yet, the court found sufficient evidence to support the indictment, and the court denied defendant's motion to dismiss the indictment. 



27 C.F.R 478.11 reads in pertinent part:
(a) A determination by a court or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.


Committed to a mental institution. 
A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority.
The term includes a commitment to a mental institution involuntarily.
The term includes commitment for mental defectiveness or mental illness. ​