No. 94,583
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
THE ESTATE OF JOSHUA C. PEMBERTON,
and
JAY PEMBERTON and SUSAN PEMBERTON,
Appellants,
v.
JOHN'S SPORTS CENTER, INC.,
Appellee.
SYLLABUS BY THE COURT
1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. On appeal, an appellate court applies the same rules and when the appellate court finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.
2. In maintaining a negligence per se action, a plaintiff must show (1) that a violation of a statute, ordinance, or regulation has occurred and (2) that the violation of the statute, ordinance, or regulation caused the harm suffered by the plaintiff. In addition, the plaintiff must show that a private right of action for injury arising out of the violation was intended by the legislature.
3. Whether a private right of action exists under a statute is a question of law. An appellate court reviews questions of law de novo.
4. One who supplies directly or through a third person a chattel for the use of another whom the supplier knows, or from facts known to him or her should know, to be likely because of youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of bodily harm to himself or herself and others whom the supplier should expect to share in, or be in the vicinity of its use, is subject to liability for bodily harm caused thereby.
5. Foreseeability, for the purpose of proving negligence, is defined as a common-sense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.
6. Whether the risk of harm is reasonably foreseeable is a question for the trier of fact. Only when reasonable persons could arrive at but one conclusion may a court decide the question as a matter of law.
Appeal from Crawford District Court; DAVID F. BREWSTER, judge. Opinion filed June 2, 2006. Affirmed.
Toby Egan and Patrick M. Cuezze, of Egan and Cuezze L.L.C., of Kansas City, Missouri, for appellants.
Steve R. Fabert and Larry G. Pepperdine, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Before GREEN, P.J., MALONE and BUSER, JJ.
GREEN, J.: The decedent, Joshua C. Pemberton (Josh), shot and killed himself with a shotgun purchased from John's Sports Center, Inc. (JSC). Josh's parents, Jay and Susan Pemberton, both as personal representatives of Josh's estate and in their own capacity (collectively, the Pembertons) sued JSC. JSC moved for summary judgment, which the trial court granted. On appeal, the Pembertons contend that the trial court erred in determining that 18 U.S.C. § 922(d) (2000), the federal firearms statute, had not been violated by JSC and that the evidence was sufficient to establish that JSC had negligently entrusted a shotgun to the decedent. We disagree and affirm the judgment of the trial court.
On July 15, 2002, Josh was found shot to death at about 1:30 p.m. in a parking lot in rural Crawford County, Kansas. Investigating officers concluded that Josh shot himself with a shotgun. Josh had purchased the shotgun from JSC shortly after 9 a.m. the day of his death. Josh was 22 years old.
After graduating from high school, Josh enrolled at Pittsburg State University. While in college, Josh worked as a counselor at Elm Acres, a center for teenagers with substance abuse problems. On Monday, July 15, 2002, Josh was fired from his job at Elm Acres at approximately 8:15 a.m.
At approximately 9 a.m. that day, Josh entered JSC in Pittsburg. Two clerks were working at that time: Brant Duncan and Rod Pulliam. Neither Duncan nor Pulliam had ever met Josh before. Josh told Duncan that his friends wanted to take him hunting and that he wanted to buy a shotgun. Duncan showed Josh several different models, and Josh selected one to purchase.
Duncan provided Josh with the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF) form 4473 to complete and watched Josh complete the form. Question 12(f) of the form asked: "Have you ever been adjudicated mentally defective (which includes have been adjudicated incompetent to manage your own affairs) or have you ever been committed to a mental institution?" Josh initially wrote "Yes" in response to this question. Question 13 of the form asked: "If you are a nonimmigrant alien, do you fall within any of the exceptions set forth in Important Notice 6, Exception 2?" Josh answered this question "No."
When Duncan reviewed the form, he noticed Josh's answers to questions 12(f) and 13. Duncan asked Josh if he understood question 12(f) and underlined the terms "committed" and "mental institution" on the form. Thereafter, Josh crossed out the word "Yes," wrote "No," and initialed his change. Josh also changed his answer to question 13 by crossing out the "No" and checking the box labeled "Not applicable."
After Josh completed the ATF form, Duncan called the NICS Division of the Federal Bureau of Investigation. NICS told Duncan that the sale could proceed. Pulliam then reviewed the form and approved it. The transaction was then completed, and Josh left with the shotgun.
Duncan testified in his deposition that he did not see any unusual behavior or nervousness on the part of Josh during the sale. Moreover, Duncan testified that he was comfortable with the transaction. Likewise, Pulliam testified in his deposition that he did not see Josh acting oddly while in the store.
After the transaction, however, Pulliam developed a "hunch" that Josh had "other motives" for buying the gun. According to Pulliam, this hunch was not based upon Josh's behavior while in the store or anything Duncan said. Approximately 1 hour after the transaction, Pulliam called Josh and left a message stating that a discrepancy existed with the gun's serial number. Pulliam asked Josh to bring the gun back to the store so they could verify the gun's serial number. Pulliam admitted that there was no problem with the serial number. Josh called back and told Pulliam that he had a class to attend and that he would bring the gun back as soon as class was over. In the afternoon, Duncan called and left a message on Josh's answering machine because Josh had not returned to the store. Pulliam also called Josh later when Josh did not return to the store, and Pulliam left another message on the answering machine.
At approximately 1:30 p.m., the Crawford County Sheriff's Department received information that a body had been found in a car in a rural area near a restaurant. Josh was found in the driver's seat of the car holding the barrel of the shotgun in his right hand. A cord had been tied to the shotgun's trigger and then wrapped around the car's accelerator pedal. The officer opined that Josh had sat in the driver's seat, put the shotgun in his mouth, and stepped on the accelerator, causing the cord to pull the shotgun's trigger. There also was a bullet hole in the driver's seat of the car, about chest high, and the back window of the car was shattered. The officer opined that Josh had fired a test shot through the seat and out the back window before he shot himself. The coroner determined that Josh's blood alcohol concentration was .09. There were four suicide notes on the floor of the car.
Both the investigating officer and Josh's father, a physician, testified that Josh died instantly from the gunshot wound to his head.
Several days after Josh's death, Pulliam told an investigating police officer that at some point during the sale Josh was anxious or nervous. Pulliam described Josh's conduct as similar to someone who was late for work or for class. Pulliam also told the officer that he had tried to talk Josh into coming back into the store because Pulliam had a bad feeling. Pulliam told the officer that he simply wanted to get another look at Josh.
During discovery, it was disclosed that Josh had a long history of mental illness. Josh was diagnosed as having "extreme sibling rivalry" as a 4-year-old child. Josh's parents took him to a psychologist when he was in elementary school, and he was diagnosed with an "overanxious disorder." Josh was seen by the psychologist for 2 or 3 years.
When Josh was a freshman in high school, Josh's parents noticed that his behavior was sullen and depressive. They took Josh to see another psychologist. This psychologist treated Josh until sometime during his junior year in high school. During this time, Josh was prescribed antidepressants.
When Josh was a sophomore in high school, Josh's mother found Josh in the bathroom with a knife. Josh was making superficial cuts on his wrist with the knife. The Pembertons voluntarily admitted Josh to the Research Psychiatric Hospital in Kansas City, where he remained for 2 or 3 weeks. No court action was involved in this admission. Josh was diagnosed as depressed and bipolar.
Approximately 1 month after this incident, the Pembertons found Josh hallucinating. In addition, they found a suicide note he had written. The Pembertons again had Josh admitted to the Research Psychiatric Hospital. It was determined that Josh had overdosed on Benadryl, an over-the-counter medication. He was hospitalized for about 2 weeks. Thereafter, Josh continued to see a psychologist and participated in a voluntary outpatient program through the hospital.
Approximately 5 months after his discharge, Josh took approximately 100 Benadryl pills and then called his mother to say good-bye. Josh's parents called police, who located Josh unconscious in his car. After receiving medical treatment for the overdose, Josh was taken by his parents to Menninger's for a long-term treatment program. He remained at Menninger's for 3 months. Again, the Pembertons had Josh admitted voluntarily, thus avoiding a court proceeding to secure treatment for Josh. Josh finished his sophomore year of high school at Menninger's.
Halfway through his junior year of high school, Josh moved into an adult residential living center in Olathe and transferred to a high school there. The facility was for older teenagers who were having mental problems. Josh returned home in January of his senior year in high school and finished high school.
Josh became depressed again during the fall of his freshman year at Pittsburg State. On October 7, 1998, he climbed to the top of a water tower in Pittsburg and threatened to jump. Police talked him down, took him into custody, and called his parents. The police gave Josh the option of going with his parents or being sent to Larned State Hospital. The Pembertons took him to the Research Psychiatric Hospital. Josh was 18 years old and consented to being admitted voluntarily there. There was no court order requiring his admission. Josh remained at the hospital for 1 or 2 weeks; he then returned to college.
Josh was seeing a psychologist at that time. Josh's sophomore and junior years at the university passed without incident. In February 2000, Josh began receiving treatment from Dr. Nauphyll Zuberi, a psychiatrist in Joplin, Missouri. Dr. Zuberi found that Josh suffered from a bipolar disorder and prescribed mood-stabilizing and antidepressant drugs for Josh.
In June 2002, approximately 1 month before his suicide, Josh went to a Joplin, Missouri, hospital. He stated that he was depressed and suicidal. Josh was transferred to the Freeman Hospital in Joplin and remained there for about 1 week. Dr. Zuberi treated Josh while at Freeman Hospital. Dr. Zuberi testified that when Josh was discharged from the hospital on June 25, 2002, he was feeling better and there was no indication that he was suicidal. Dr. Zuberi did not believe Josh was a danger to himself or others.
In March 2004, Josh's parents sued JSC for wrongful death and for a survival action on behalf of Josh's estate. The Pembertons asserted wrongful death claims under the theories of negligence per se and negligent entrustment. The negligence per se claim was based on an alleged violation of 18 U.S.C. § 922 by JSC's employees.
JSC moved for summary judgment. The district court granted summary judgment in JSC's favor on all claims. The district court found that there was no evidence that the federal firearms act was violated in the sale of the shotgun. The court determined that this holding undermined both negligence theories as a matter of law. The district court also granted judgment in JSC's favor on the survival claims because the evidence indicated that Josh experienced little or no pain or suffering before his death.
I. Did the District Court Err in Finding the Negligence Per Se Claims Failed as a Matter of Law?
On appeal, the Pembertons contend that the district court erred in finding that the federal firearms statute, 18 U.S.C. § 922, was not violated by JSC's employees and that their negligence per se claim failed as a matter of law. Setting out the elements of negligence per se, our Supreme Court stated:
"'The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation, and (2) the violation must be the cause of the damages resulting therefrom. In addition, the plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature.' [Citation omitted.]" Pullen v. West, 278 Kan. 183, 194, 92 P.3d 584 (2004).
In this case, the district court did not specifically address whether a private right of action existed under 18 U.S.C. § 922. Instead, it simply found that § 922 was not violated. The Pembertons contend that this conclusion was incorrect. JSC contends that the district court was correct. Moreover, JSC argues that there is no private right of action under the federal statute.
This court's standard of review of a summary judgment ruling is well established.
"'"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. . . . On appeal, [an appellate court must] apply the same rules and where . . . reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." [Citations omitted.]'" State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Is there a Private Right of Action?
In order for a person injured by a statutory violation to recover damages, there must be a private right of action. A private right of action exists if the legislature intended to give such a right. Pullen, 278 Kan. at 194. Whether a private right of action exists under a statute is a question of law. Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, 126, 958 P.2d 1162, rev. denied 265 Kan. 886 (1998) (hereinafter Ringler). An appellate court reviews questions of law de novo. See Griffin v. Suzuki Motor Corp., 280 Kan. 447, 451, 124 P.3d 57 (2005) (under facts of the case, admissibility of evidence involved a question of law and allowed unlimited review).
Kansas courts generally use a two-part test to determine whether a private right of action was intended to be created in a statute. First, the party must show that the statute was intended to protect a specific group of people rather than protecting the general public. Second, the court must review legislative history of the statute to determine whether a private right of action was intended. Pullen, 278 Kan. at 194. This court has recognized that Kansas law on private rights of action is similar to the principles of Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975). See Ringler, 25 Kan. App. 2d at 126.
The Tenth Circuit Court of Appeals has recognized, however, that the four-part test of Cort v. Ash has been condensed by the federal courts to simply determining whether Congress, expressly or by implication, intended to create a private cause of action. Sonnefeld v. City and County of Denver, 100 F.3d 744, 747 (10th Cir. 1996), cert. denied 520 U.S. 1228 (1997). Under recent federal cases, a federal court, when determining whether Congress intended to create a private right of action, must look for "'rights-creating language'" which "'explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff'" and language identifying "the class for whose especial benefit the statute was enacted." Boswell v. Skywest Airlines, Inc., 361 F.3d 1263, 1267 (10th Cir. 2004) (quoting Alexander v. Sandoval, 532 U.S. 275, 288, 149 L. Ed. 2d 517, 121 S. Ct. 1511 [2001], and Cannon v. University of Chicago, 441 U.S. 677, 688, n. 9, 60 L. Ed. 2d 560, 99 S. Ct. 1946 [1979]).
The federal statute, 18 U.S.C. § 922(d), provides in relevant part:
"(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person--
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance . . . ; [and]
(4) has been adjudicated as a mental defective or has been committed to any mental institution." (Emphasis added.)
Anyone who knowingly violates 18 U.S.C. § 922(d) is subject to fines and imprisonment of not more than 10 years. 18 U.S.C. § 924(a)(2) (2000).
This federal statute was enacted as part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 228 and was amended that same year by Title I of the Gun Control Act of 1968, Pub. L. 90-618, 82 Stat. 1216. Title IV of the Omnibus Crime Control Act noted the number of murders and crimes committed with guns. 1968 U.S.C.C.A.N. 2163-64. Congress was concerned that the traffic in firearms moving in interstate commerce prevented states from adequately controlling firearms traffic within their own borders. Moreover, the availability of firearms to criminals, juveniles, drug addicts, mental defectives, and militant groups was found to be a significant factor in the prevalence of lawlessness and violent crime in the United States. Consequently, restrictions on transfers and sales of firearms were deemed necessary. 1968 U.S.C.C.A.N., 2197-98. The Gun Control Act of 1968 amended Title IV to subject rifles and shotguns to the same restrictions imposed on other firearms. 1968 U.S.C.C.A.N. 2197, 4412-13.
Under the federal standard for determining a private right of action, there is no legislative language in 18 U.S.C. § 922 or the accompanying provisions which can be classified as "'rights-creating language'" which explicitly conferred a right directly to a class of persons that includes the plaintiffs or language identifying the class for whose especial benefit the statute was enacted. See Boswell, 361 F.3d at 1267. As discussed above, the legislative history of the two federal enactments focuses on protecting the public in general from crime and violence created by the ready availability of firearms. While the laws were focused at keeping firearms out of the hands of felons and irresponsible persons, the protection was aimed at society in general. See Huddleston v. United States, 415 U.S. 814, 824-25, 39 L. Ed. 2d 782, 94 S. Ct. 1262 (1974) (discussing legislative history of § 922 in context of appeal from a criminal prosecution for unlawful possession). Based upon the federal private right of action analysis set forth in Boswell, no private right of action would exist under 18 U.S.C. § 922.
Recent Kansas appellate decisions consistently look at the legislative history of legislation and evaluate whether the applicable statute is "designed to protect a specific group of people, not just designed to protect the general public with incidental consideration given to the protection of a certain group." OMI Holdings, Inc. v. Howell, 260 Kan. 305, 340, 918 P.2d 1274 (1996) (criminal embracery statute protects the sanctity of the trial process and the general public, not just parties in litigation); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 370-73, 819 P.2d 587 (1991) (statute requiring certain professionals to report any suspicion of child abuse did not create private right of action); Brunett v. Albrecht, 248 Kan. 634, 642, 810 P.2d 276 (1991) (no private right of action under Real Estate Brokers' and Salespersons' License Act; Act protects general public and stated it did not create a new right of action); see also Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, Syl. ¶ 1, 804 P.2d 978 (1991) (a plaintiff must show that the legislature intended to establish a private right of action and proof of violation of the statute); Ringler, 25 Kan. App. 2d at 129-32 (legislative history reflects intent to protect neighbors of livestock feedlot facilities; private right of action for injunctive relief permitted); Jack v. City of Wichita, 23 Kan. App. 2d 606, 611, 933 P.2d 787 (1997) (Wichita Flood Damage Prevention Code not designed to protect any individual class of plaintiffs but to protect general public); Cf. Kerns v. G.A.C., Inc., 255 Kan. 264, 282, 875 P.2d 949 (1994) (the absence of an express legislative intent will not bar creation of an individual right of action when a ordinance is enacted to protect a special class of persons: those who gain access to a closed pool and require rescuing, a class which included plaintiff).
The Pembertons rely on a number of out-of-state cases to argue that a majority of states recognize a private right of action for violations of 18 U.S.C. § 922. Nevertheless, many of those states did not apply a legal analysis similar to the federal or the Kansas standards in deciding whether a private right of action existed. Several of the decisions were based upon state statutes or common-law rules that broadly permit negligence per se claims based upon any statutory violation. See, e.g., Hetherton v. Sears, Roebuck & Co., 593 F.2d 526, 529 (3d Cir. 1979) (allowing negligence per se claim for violation of state weapons statute; under Delaware law, violation of a statute enacted for the safety of others is negligence per se); Martin v. Schroeder, 209 Ariz. 531, 536, 105 P.3d 577 (Ct. App. 2005) ("A duty of care and the attendant standard of conduct can . . . be found in a statute even though the statute is silent on the issue of civil liability."); Franco, Admn'x v. Bunyard, 261 Ark. 144, 147, 547 S.W.2d 91 (1977) (violation of statute or valid regulation is ordinarily evidence of negligence); Coker v. Wal-Mart Stores, Inc., 642 So. 2d 774, 776 (Fla. Dist. App. 1994) (recognizing violation of § 922 constitutes negligence per se if the state where the sale occurs recognizes that violation of a penal statute is negligence per se); Rubin v. Johnson, 550 N.E.2d 324, 329 (Ind. App. 1990) (where state firearms statute is enacted to ensure the safety of others, its violation constitutes negligence per se).
Although one case cited by the Pembertons considers who 18 U.S.C. § 922 is intended to protect, it fails to distinguish between statutes enacted to protect the general public and statutes enacted to protect a specific class of persons. See King v. Story's Inc., 54 F.3d 696, 697 (11th Cir. 1995) (citing prior decision recognizing private right of action; prior decision, Decker v. Gibson Products Co. of Albany, 679 F.2d 212, 214 [11th Cir. 1982], relied on state law which allows adoption of statute as a standard of conduct and finding victims were intended to be protected).
Conversely, other states have rejected the arguments made by the Pembertons. See Hulsman v. Hemmeter Dev. Corp., 65 Hawaii 58, 67-68, 647 P.2d 713 (1982) (neither the statute nor the legislative history of § 922 reveal an intent to create civil liability for injuries sustained in firearms misuse); Lewis v. Jamesway Corporation, 291 App. Div. 2d 533, 534, 737 N.Y.S.2d 657 (2002) (federal Act does not create a private right of action for victims injured by firearms obtained in violation of § 922); Rains v. Bend of the River, 124 S.W.3d 580, 591 (Tenn. App. 2003) (expressing "substantial doubt" that § 922 was intended to create a private civil cause of action to unlawful sale of ammunition to 18 year old); Olson v. Ratzel, 89 Wis. 2d 227, 248-50, 278 N.W.2d 238 (1979) (principles of ordinary care rather than statutory standard determines liability in negligence case; legislative history insufficient to permit a negligence per se claim for violation of § 922).
The analysis applied in the latter group of cases is more consistent with the approach that Kansas courts have employed in evaluating negligence per se issues. It is apparent that no private right of action would exist under Kansas' two-part analysis. The legislative history of 18 U.S.C. § 922 contains no implication that Congress was attempting to create a private right of action if the federal criminal statute was violated. Moreover, nothing in § 922 reflects that it was designed to protect a specific group of people. Instead, it clearly was enacted to protect the general public. See OMI Holdings, Inc., 260 Kan. at 340.
The Pembertons, however, assert that our Supreme Court has "tacitly approved" the use of gun and explosive sale statutes to support a claim of negligence per se, citing Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980). Nevertheless, the issue in Arredondo was whether the "comparative negligence statute applies in an action for personal injuries where liability is premised upon a violation of a statute prohibiting sale of explosives to minors." 227 Kan. at 842. There was no discussion in Arredondo whether the plaintiff could bring a negligence per se claim. To the contrary, the question was whether the minor victim's fault should be compared. Moreover, recently our Supreme Court held that violation of rules and regulations for the storage, use, and sales of fireworks and firecrackers did not create a private cause of action and could not be a basis for a negligence per se claim. See Pullen, 278 Kan. at 199-201.
For these reasons, we determine that a private right of action does not exist under either the federal or Kansas laws.
Did JSC Violate the Federal Firearms Statute?
Even if we were to assume that a private right of action exists under 18 U.S.C. § 922, to assert a successful negligence per se claim, the Pembertons would have to establish that the statute was violated. See Pullen, 278 Kan. at 194. Section 922 makes it unlawful for anyone to sell a firearm to any person who "has been adjudicated as a mental defective or has been committed to any mental institution . . . ." 18 U.S.C. § 922(d)(4).
The statute does not define the terms used in § 922(d)(4). See 18 U.S.C. § 921 (2000) (definitions). In its regulations, however, the ATF defines various terms. "Adjudicated as a mental defective" is defined as follows:
"A determination by a court, board, commission, 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." (Emphasis added.) 27 C.F.R. § 478.11, p. 20 (2005).
Likewise, "[c]ommitted to a mental institution" is defined as:
"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 does not include a person in a mental institution for observation or a voluntary admission to a mental institution." (Emphasis added.) 27 C.F.R. § 478.11, pp. 21-22 (2005).
The parties dispute whether Josh was ever "committed" within the meaning of 18 U.S.C. § 922. The Pembertons argue that Josh was committed to a mental institution by law enforcement on two separate occasions. They maintain that after Josh's third suicide attempt (where he took pills and called his mother to say good-bye), police "placed" him at the Shawnee Mission Medical Center. He was then transferred to Menninger's for long-term psychiatric care. Likewise, the Pembertons cite to the police involvement in the Pittsburg water tower incident as a basis for alleging Josh was committed.
As to the first incident, the record reflects that police found Josh unconscious in his car and had him transported to the Shawnee Mission Medical Center. According to his father, Josh was admitted there "for medical purposes" to make sure the overdose did not cause any other medical problems. When asked if the Shawnee Mission admission was for psychiatric treatment, Dr. Pemberton testified that the admission was "for medical purposes" and to make sure Josh was "medically stable" because he could not be transferred to a psychiatric facility until he was medically stable. Dr. Pemberton believed that police had filed an affidavit putting a 72-hour hold on Josh because of the suicide attempt. Nevertheless, it was the Pembertons who had Josh admitted to Menninger's. They chose to do it voluntarily rather than involuntarily "to keep the courts and everything out of it."
Now we turn our attention to the water tower incident. A Pittsburg Police Departm