Can A City Refuse Land-Use Permits Because it Doesn’t Like the Federal Policies the Property Will be Used to Implement?

VIKRAM DAVID AMAR

Illinois Law dean and professor Vikram David Amar explains why a local government cannot constitutionally create policy discriminating against entities that do business with the feds. Specifically, Amar discusses a situation in which the city of Farland, California, is trying to prevent a privately operated state prison facility located in that city from contracting with Immigration and Customs Enforcement (ICE).

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Duy Mai v. United States

Docket: 18-36071

Opinion Date: March 11, 2020

Judge: Susan Graber

Areas of Law: Civil Rights, Constitutional Law

The Ninth Circuit affirmed the district court's dismissal of a 42 U.S.C. 1983 action alleging an as-applied Second Amendment challenge to 18 U.S.C. 922(g)(4). Section 922(g)(4) prohibits plaintiff from possessing firearms due to his involuntary commitment in 1999 to a mental institution for more than nine months after a Washington state court found plaintiff to be both mentally ill and dangerous. Plaintiff argued that the statute's continued application to him despite his alleged return to mental health and peaceableness violates the Second Amendment. The panel held that, assuming without deciding, section 922(g)(4)'s prohibition burdens Second Amendment rights, intermediate scrutiny applies. The panel also held that the prohibition on the possession of firearms by persons, like plaintiff, whom a state court has found to be both mentally ill and dangerous is a reasonable fit with the government's indisputably important interest in preventing gun violence. The panel explained that scientific evidence supports the congressional judgment that those who have been committed involuntarily to a mental institution still pose an increased risk of violence even years after their release from commitment. Therefore, in this case, the panel held that the statute's continued application to plaintiff did not violate the Second Amendment.