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February 7, 1985


The opinion of the court was delivered by: SAROKIN


 In a society which persists and insists in permitting its citizens to own and possess weapons, it becomes necessary to determine who may and who may not acquire them. At issue in this matter is a statute reminiscent of the Dark Ages, which permits a person convicted of a crime to purchase a gun under certain circumstances, but denies that same right to a person once committed for mental illness no matter what the circumstances. Apparently one who has been convicted of a crime can be relieved of the stigma arising from such a conviction, but a commitment for mental illness renders one permanently disqualified. The statute thus implies that mental illness is incurable, and that those persons with a history of mental illness who have never committed a crime are deemed more likely to commit one in the future than those persons who have actually done so in the past. If persons with criminal records are permitted to purchase and possess weapons after meeting certain standards, certainly persons who have conquered past mental illness are entitled to the same consideration and rights. To impose a perpetual and permanent ban against anyone who has ever been committed for mental illness, no matter how ancient the commitment or how complete the cure, is to elevate superstition over science and unsupported fear over equal protection and due process. Accordingly, the court finds this provision of the subject statute to be unconstitutional.

 The instant motion has been brought by defendant to dismiss plaintiff's complaint or, in the alternative, for summary judgment. A party moving for summary judgment cannot prevail unless there exists no genuine issue of material fact and the party is entitled to judgment as a matter of law. Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 95 (3d Cir. 1982). When the court has determined upon undisputed facts that the non-moving party, rather than the movant, is entitled to judgment as a matter of law, "it is well within the district court's discretion to enter summary judgment for the non-moving party." Selected Risks Ins. Co. v. Bruno, 555 F. Supp. 590 (M.D. Pa. 1982) rev'd on other grounds, 718 F.2d 67 (3d Cir. 1983); see also 6 Moore's Federal Practice, para. 56.12 (2d ed. 1984). Such is the case here. The defendant Bureau of Alcohol, Tobacco, and Firearms (Bureau), asks the court to grant summary judgment in its favor on the grounds that the plaintiff has no entitlement to relief under 18 U.S.C. § 925(c), pursuant to which the plaintiff sues. Instead, the court finds that section 925(c) and the related statutory provisions in 18 U.S.C. § 921 et seq, are invalid as infringements upon the plaintiff's right to due process as guaranteed by the fifth amendment to the United States Constitution.


 Plaintiff Anthony Galioto is a 57-year-old longstanding resident of West Orange, New Jersey. Galioto served in the Armed Forces from 1951 to 1953, was honorably discharged, and has since held a position as an engineer with the New York and New Jersey Port Authority. Plaintiff's Memorandum of Law, Exh. D. In 1971, having had no prior history of mental illness, Galioto suffered an acute mental breakdown and voluntarily entered Fair Oaks Hospital in Summit, New Jersey. Plaintiff's Mem., Exh. B. He was diagnosed as having suffered an acute schizophrenic episode with paranoid features. Galioto remained hospitalized for twenty-three days from May 11 to June 4, 1971.

 During Galioto's hospital stay, when Galioto expressed his intention to leave, his physician, Dr. R. G. Alvarez, sought to have him committed. On May 31, 1971, the Essex County Juvenile and Domestic Relations Court entered a final order of commitment. Galioto was released five days later, after Dr. Alvarez determined that Galioto's condition had improved. There is no evidence that Galioto was ever again hospitalized for mental illness.

 Ten years after this hospitalization, Galioto applied to the Superior Court of New Jersey, Essex County, Law Division, for an order granting him a firearms purchase identification card pursuant to New Jersey Statute Annotated 2C:58-3(b), which order was granted on April 27, 1981. Thereafter, in October, 1982, plaintiff attempted to purchase a firearm at Ray's Sport Shop in North Plainfield, New Jersey. Ray's Sport Shop refused to sell any firearm to plaintiff when he responded "yes" to a question on a standard Bureau questionnaire asking: "Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?" 18 U.S.C. § 922(d)(4) makes it unlawful for a licensed dealer in firearms "to sell . . . any firearm . . . to any person knowing or having reasonable cause to believe that such person . . . has been adjudicated as a mental defective or has been committed to any mental institution." *fn1"

 A few days after said refusal, Galioto applied to the defendant Bureau in Washington, D.C., for a release from firearms disability pursuant to 18 U.S.C. § 925(c). Papers submitted by plaintiff included a certification from Dr. Alvarez, the physician who had sought Galioto's commitment in 1971, to the effect that Galioto was no longer suffering from any mental disability that would interfere with his handling of firearms. Section 925(c), under which Galioto sought relief from his firearm disability, provides in pertinent part:

A person who has been convicted of a crime punishable for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition . . . of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding such conviction, 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. *fn2"

 There is no equivalent provision establishing a mechanism by which a former mental patient can seek relief from the firearms disabilities imposed upon him by federal law. By letter dated April 13, 1984, the Director of the Bureau of Alcohol, Tobacco, and Firearms, Stephen E. Higgins, denied plaintiff's application for relief from firearms disability, asserting that Galioto was "subject to Federal firearms disability because of his commitment." Exhibit A to Complaint.


 I. Issues of ...

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