from the United States District Court for the District of
Kansas (D.C. No. 2:14-CR-20098-CM-1)
T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public
Defender and Chekasha Ramsey, Assistant Federal Public
Defender with him on the briefs) Office of the Federal Public
Defender, Kansas City, Kansas, appearing for the appellant.
Stephen R. McAllister, United States Attorney (Thomas E.
Beall, United States Attorney and Carrie N. Capwell,
Assistant United States Attorney on the brief) Office of the
United States Attorney, Kansas City, Kansas, appearing for
MATHESON, McKAY, and EBEL, Circuit Judges.
criminal case Defendant Edward McLinn appeals the district
court's denial of his motion to dismiss the indictment
for failure to state an offense under Fed. R. Crim. P.
12(b)(3)(B)(v). Because the district court mistakenly treated
the dispositive issue in this case as a fact question
properly reserved for the jury, we VACATE the district
court's order and REMAND for further proceedings
consistent with this opinion.
August 27, 2013, Lawrence, Kansas, police officers responded
to a call at a local gas station to find Mr. McLinn wandering
the premises wrapped only in a shower curtain. The officers
observed that Mr. McLinn had "chemical burns on his
person, bloodshot eyes, and other minor injuries[, ]"
but when they initially asked McLinn about drug use he
responded that he had used methamphetamine
"approximately 3 ½ years" earlier, and that
his symptoms were the result of having been cleaning his
house with heavy cleaners. R. Vol. I at 84
the officers asked Mr. McLinn how he came to be at the gas
station, he indicated he had fled his residence through the
window in his shower because he was afraid the police were
pumping "knock-out gas" into his home. Id.
Worried about his dogs and the effect of the gas on their
well-being, McLinn "panicked and left the residence by
climbing out a window, only wearing the shower curtain."
Id. Mr. McLinn "later admitted that he had used
methamphetamine the night before," at which point he
became "concerned the police were going to get a search
warrant for his house, so he began to clean the residence
with industrial cleaner." Id. Concerned for Mr.
McLinn's own safety, the officers on the scene had him
taken to a local emergency room.
same day Mr. McLinn arrived at the emergency room, Leah Hadl,
apparently a hospital employee, petitioned the district court
for Douglas County, Kansas, for a determination of mental
illness. In a written petition, Ms. Hadl indicated her belief
that Mr. McLinn was "a mentally ill person subject to
involuntary commitment," that he was "suffering
from a severe mental disorder," that he lacked "the
capacity to make an informed decision concerning
treatment," and that he was "likely to cause harm
to [him]self or others, if not immediately detained." R.
Vol. III at 38. She explained that when he arrived at the
emergency room, Mr. McLinn exhibited "extreme psychosis
with visual hallucinations . . . auditory hallucinations . .
. [and] paranoia." Id. at 39. She ultimately
requested that Mr. McLinn be placed in protective custody,
and ordered to undergo mental health evaluation at Osawatomie
State Hospital ("OSH").
days later, on August 29, 2013, the state court convened a
hearing to determine whether there was probable cause to
believe that Mr. McLinn should be involuntarily committed.
After the hearing, at which Mr. McLinn was represented by
counsel, the state court determined that "there
[was] probable cause to believe that Edward E. McLinn
[was] suffering from a severe mental disorder, lacks the
capacity to make an informed decision concerning treatment
and [was] likely to cause harm to [him]self or
others[.]" Id. at 44 (emphasis added). On the
basis of this determination, the state court ordered that Mr.
McLinn would be detained at OSH "until such time and
date that the . . . County District Court sets the matter for
trial, but in no event later than 14 days from the filing of
the application [for involuntary commitment]."
Kansas law, a mental health facility, such as OSH, is
required to discharge any patient who has been involuntarily
committed to its care "when the patient is no longer in
need of treatment." Kan. Stat. Ann. § 59-2973(a).
Apparently pursuant to this requirement, Mr. McLinn was
discharged from OSH on September 3, 2013, less than a week
after he had originally been admitted. As part of the
discharge process, Mr. McLinn was required to sign a document
entitled "Discharge Instructions," which included
language indicating that "it is a violation of the law
for any person who has been involuntarily civilly committed
to possess a firearm. For the restoration of the ability to
legally possess a firearm, a petition must be filed in the
District court where treatment was ordered." R. Vol. I
at 54 (emphasis omitted).
a year later, a number of City Commissioners in Lawrence
began to receive a series of bizarre emails. The emails
referred to firearms and explained that police were
surveilling the author using "see-thru-walls
surveillance" technology. Id. at 85. Police
launched an investigation into the emails, which ultimately
led them to Mr. McLinn's public Instagram account, on
which he had posted several photos of himself with firearms.
this account, police obtained and executed a search warrant
for Mr. McLinn's residence. There they recovered "a
.45 caliber Sig Sauer pistol," "a fully constructed
.223 caliber Stag Arms rifle," and "a camouflage
tactical vest with plates." Id. at 86. Police
then arrested Mr. McLinn and charged him with, among other
offenses, possession of a firearm by an individual who has
been adjudicated as a mental defective and ...