Gallegos v. Dunning

Joseph D. GalleGos , appellant, v. timothy F. D unninG,
D ouGlas C ounty sheriFF, appellee .
764 N.W.2d 105
Filed April 17, 2009. 	No. S-08-221.
1. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Mental Health: Federal Acts: Appeal and Error. Whether a person has been
committed to a mental institution within the meaning of 18 U.S.C. § 922(g)(4)
(2006) is a question of federal law. However, an appellate court may seek guid-
ance from Nebraska law as to the meaning of commitment.
Appeal from the District Court for Douglas County, James
t. G leason, Judge, on appeal thereto from the County Court
for Douglas County, marCena m. henDrix, Judge. Judgment of
District Court reversed, and cause remanded with directions.
J.K. Harker, P.C., L.L.O., for appellant.
Donald W. Kleine, Douglas County Attorney, and Renee L.
Mathias for appellee.
heaviCan, C.J., WriGht, C onnolly, G errarD, stephan, and
mCC ormaCk , JJ.
heaviCan, C.J.
INTRODUCTION
Joseph D. Gallegos appeals from the district court’s order
affirming the county court’s denial of his application to register
a handgun. We reverse, and remand with directions.
FACTUAL BACKGROUND
On October 9, 2001, Gallegos, a veteran, voluntarily sought
treatment at a veterans hospital in Omaha, Nebraska. Gallegos
was examined by Dr. Michelle Jorgensen. Following this exam-
ination, Jorgensen completed and filed a petition before the
Mental Health Board of the Fourth Judicial District (MHB). In
that petition, Jorgensen averred that she believed Gallegos to be
mentally ill and she prayed for “a hearing to determine whether
[Gallegos] is a mentally ill dangerous person.”
The petition was signed by Jorgensen and by a deputy
Douglas County Attorney and alleged that immediate custody
GALLeGOS v. DUNNING 	611
Cite as 277 Neb. 611
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

of Gallegos was necessary. Attached to the petition was an
intake form completed with respect to Gallegos. On that form,
Jorgensen indicated that Gallegos had both suicidal and homi-
cidal thoughts, apparently as a result of the breakup of his
marriage. According to Jorgensen, although Gallegos acknowl-
edged such thoughts, he indicated that he would not act on
them because of his religious beliefs and because he did not
want to be incarcerated. The form also noted that Gallegos had
suffered from posttraumatic stress disorder for 10 years and
from depression.
That same day, October 9, 2001, the MHB issued an order
appointing another doctor at the veterans hospital, Dr. William
Marcil, as Gallegos’ custodian “with the understanding that
[Gallegos] is to be held in [Marcil’s] custody . . . for care and
treatment up to a period of 7 days from the date of this order.”
A hearing was scheduled for October 12.
On October 12, 2001, Gallegos filed before the MHB a
request for a 90-day continuance so that he could complete
inpatient treatment at the veterans hospital. In signing that
form, Gallegos agreed that if he did not “fully comply with
[his] treatment plan, the County Attorney may pursue civil
commitment against [him].” On October 16, Gallegos’ request
was granted, and the petition was “continued for 90 days on
recommendation of . . . Marcil . . . for reason the subject agrees
to treatment at the mental hygiene clinic and [posttraumatic
stress disorder] Clinic.” On January 16, 2002, the MHB peti-
tion filed against Gallegos was dismissed.
Several years later, on December 26, 2006, Gallegos obtained
a firearms certificate and purchase permit. On January 3, 2007,
he presented a federal firearms application to the Omaha Police
Department 	(OPD). That 	application 	was 	initially 	denied,
because 	an 	investigation 	uncovered 	the 	October 	9, 	2001,
MHB order on Gallegos’ instant criminal history check. OPD
then completed an investigation into Gallegos’ application.
OPD contacted the physician responsible for Gallegos’ fol-
lowup treatment, who provided documentation indicating that
Gallegos was not a danger to himself or others. On January 19,
2007, OPD granted Gallegos’ application and issued Gallegos
his gun registration.
612 	277 NeBRASKA RePORTS

On February 1, 2007, Gallegos presented a federal firearms
application, this time to Timothy F. Dunning, the Douglas
County sheriff, for approval. At that time, the investigat-
ing deputy also checked Gallegos’ instant criminal history
check. In the course of that check, the deputy noted that
Gallegos’ initial application had been denied by OPD. The
deputy then asked to see Gallegos’ firearms certificate, which
she proceeded to confiscate. The deputy also refused to
issue Gallegos a gun registration. The deputy indicated that
Gallegos’ “[MHB] Order with hospital stay” was a “Federal
Handgun Prohibitor.”
Gallegos 	appealed 	the 	denial 	to 	the 	Douglas 	County
Court. The county court affirmed the sheriff’s decision and
denied 	Gallegos’ application. 	The 	district 	court 	affirmed.
Gallegos appeals.
ASSIGNMeNT OF eRROR
On appeal, Gallegos assigns that the district court erred in
affirming the county court’s finding that he had been com-
mitted to a mental institution for the purposes of 18 U.S.C.
§ 922(g)(4) (2006) and thus was ineligible to hold a fire-
arms certificate.
STANDARD OF ReVIeW
[1] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.1
ANALYSIS
The sole question presented by this appeal is whether
Gallegos was committed to a mental institution for the pur-
poses of 18 U.S.C. § 922(g)(4). Section 922(g) of the Gun
Control Act of 1968 provides:
It shall be unlawful for any person . . .
(4) who has been adjudicated as a mental defective or
who has been committed to a mental institution . . .
to . . . possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition
1 Loves v. World Ins. Co., 276 Neb. 936, 758 N.W.2d 640 (2008).
GALLeGOS v. DUNNING 	613
Cite as 277 Neb. 611

which has been shipped or transported in interstate or
foreign commerce.
In this case, there is no argument that Gallegos has ever been
“adjudicated as a mental defective.” As such, we are concerned
only with whether Gallegos has been “committed to a mental
institution.” The Gun Control Act provides no definition for
this term, but 27 C.F.R. § 478.11 (2008) states that
[c]ommitted to a mental institution [means a] formal com-
mitment 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 involun-
tarily. The term includes commitment for mental defec-
tiveness or mental illness. It also includes commitments
for other reasons, such as for drug use. The term does not
include a person in a mental institution for observation or
a voluntary admission to a mental institution.
(emphasis omitted.)
[2] Whether a person has been committed to a mental
institution within the meaning of § 922(g)(4) is a question of
federal law.2 We may, however, seek guidance from Nebraska
law as to the meaning of “commitment.”3 The eighth Circuit,
in United States v. Hansel,4 concluded that because the defend-
ant was not committed under state law, he was not prohibited
from possessing a firearm.5 The Fifth Circuit has also adopted
this approach.6
Under the version of the Nebraska Mental Health Commitment
Act (MHCA)7 in effect at the time of Gallegos’ hospitalization,
any person who believed another might be mentally ill and
2 U.S. v. Giardina, 861 F.2d 1334 (5th Cir. 1988); U.S. v. Dorsch, 363 F.3d
784 (8th Cir. 2004); U.S. v. Whiton, 48 F.3d 356 (8th Cir. 1995). See, also,
United States v. Hansel, 474 F.2d 1120 (8th Cir. 1973).
3 See, U.S. v. Giardina, supra note 2; U.S. v. Dorsch, supra note 2; U.S. v.
Whiton, supra note 2.
4 United States v. Hansel, supra note 2.
5 Cf. U.S. v. Dorsch, supra note 2.
6 U.S. v. Giardina, supra note 2.
7 See Neb. Rev. Stat. § 83-1001 et seq. (Reissue 1999 & Cum. Supp. 2002)
(now codified at Neb. Rev. Stat. § 71-901 et seq. (Reissue 2008)).
614 	277 NeBRASKA RePORTS

dangerous could communicate that belief to the county attor-
ney.8 If the county attorney agreed, he or she could file a peti-
tion with the local board of mental health stating such belief9
and indicating whether the subject of the petition should be
immediately taken into custody.10
Assuming it was necessary to take someone into immediate
custody, a warrant would be issued for that purpose.11 Under
this circumstance, Nebraska law required the subject to be
examined by a mental health professional within 36 hours
unless the subject had been examined within the previous 24
hours.12 A hearing was required
to determine whether there [was] clear and convincing
proof that the subject of a petition [was] a mentally ill
dangerous person and that neither voluntary hospitaliza-
tion nor other alternatives less restrictive of his or her
liberty than a mental-health-board-ordered treatment dis-
position [were] available or would suffice to prevent the
harm described in section 83-1009 [a substantial risk of
harm to the subject or to others].13
After such a hearing, the governing mental health board
could either conclude there was not clear and convincing evi-
dence that a subject was a mentally ill dangerous person, and
dismiss the petition,14 or could conclude there was clear and
convincing evidence that the subject was a mentally ill danger-
ous person.15 If the subject was found to be mentally ill, and if
the board made a determination that voluntary hospitalization
would be sufficient to prevent any harm, then the board could
dismiss the petition and unconditionally discharge the subject
or suspend the proceedings for no more than 90 days so the
8 § 83-1024.
9 Id.
10 §§ 83-1027 and 83-1028.
11 § 83-1028.
12 § 83-1029.
13 § 83-1035.
14 § 83-1036.
15 Id.
GALLeGOS v. DUNNING 	615
Cite as 277 Neb. 611

subject could undergo voluntary treatment.16 But if the board
concluded that “neither voluntary hospitalization nor other
treatment alternatives less restrictive of the subject’s liberty
[were] available,” the board was required to enter an order pro-
viding for treatment of the subject.17
We conclude that Gallegos was not committed within the
meaning of the MHCA. While Gallegos was initially hospital-
ized under an MHB order, the MHB never made any finding
that Gallegos was a mentally ill dangerous person. Nor did the
MHB ever find that “neither voluntary hospitalization nor other
alternatives less restrictive of his . . . liberty than a mental-
health-board-ordered treatment disposition” were necessary.18
Instead, the MHB granted Gallegos’ request that he be allowed
to undergo voluntary treatment and eventually dismissed the
petition filed against him.
Our conclusion that Gallegos was not committed is consist-
ent with the exclusions contained in the definition of “commit-
ted to a mental institution” as set forth in § 478.11 of the Code
of Federal Regulations. That definition notes that a “formal”
commitment is required. As we noted above, Gallegos was not
committed within the meaning of Nebraska law. No hearing
was held, there was no finding that Gallegos was a mentally ill
dangerous person, and Gallegos was not ordered by the MHB
to undergo any treatment.
To the extent that Gallegos’ 3-day hospitalization prior to
his request to undergo voluntary hospitalization could be con-
sidered a “commitment,” such was also unaccompanied by any
hearing or finding that Gallegos was a mentally ill dangerous
person. Thus, we conclude that it also was not a “formal” com-
mitment as required by § 478.11.
Moreover, § 478.11 excludes from its definition “a person in
a mental institution for observation.” According to the MHCA,
unless an examination had already taken place within the pre-
ceding 24 hours, a subject of a mental health petition is to be
16 Id.
17 § 83-1037.
18 See § 83-1035.
616 	277 NeBRASKA RePORTS

examined within 36 hours after he or she is taken into custody,
and prior to his or her hearing. In this case, under the MHCA,
the purpose of Gallegos’ initial 3-day hospitalization could be
characterized as observational in nature and, as such, not con-
sidered “committed to a mental institution” under the definition
set forth in § 478.11.
We conclude that Gallegos was not “committed to a mental
institution” within the meaning of § 922(g)(4). As such, the
district court erred when it affirmed the decision of the county
court upholding the Douglas County sheriff’s refusal to issue
Gallegos his gun registration. We therefore reverse the decision
of the district court affirming the county court’s decision and
remand the cause to the district court with directions to remand
the matter to the county court with directions to approve
Gallegos’ request for a gun certificate.
CONCLUSION
We conclude that Gallegos was not committed to a mental
institution for purposes of § 922(g)(4) and therefore was not
prohibited from possessing a firearm. We reverse the decision
of the district court and remand the cause to the district court
with directions.
reverseD anD remanDeD With DireCtions.
miller-lerman, J., participating on briefs.
TAYLOR v. TAYLOR 	617
Cite as 277 Neb. 617
robert e. taylor , appellee , v. leatha l. taylor ,
appellee , anD shirley J. little , appellant.
764 N.W.2d 101
Filed April 17, 2009. 	No. S-08-303.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
and when reviewing questions of law, an appellate court resolves the questions
independently of the lower court’s conclusions.
2. Contracts: Mechanics’ Liens. A construction lien is not valid absent a contract
between the parties.
3. Property: Sales: Mechanics’ Liens. General cleanup activities in preparation
for sale of property are inconsistent with the property changes contemplated
and required by Neb. Rev. Stat. § 52-130 (Reissue 2004) for a valid construc-
tion lien.