BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 491 (Scott)
As Amended June 15, 1999
Hearing date: June 22, 1999
Penal Code
JM:br
CONCEALED HANDGUNS/LOADED FIREARMS - PENALTIES;
FIREARM POSSESSION BY PERSONS SUBJECT TO PSYCHIATRIC HOLDS
HISTORY
Sources: California Police Chiefs' Association (Possession
of firearm with ready ammunition)
Attorney General (Alleged mental incompetence and
firearm possession)
Prior Legislation: AB 304 (Scott) - Chapter 459, Statutes
of 1997
AB 632 (Katz) - Chapter 787, Statutes of 1976
Support: California Police Chiefs' Association; City of
Los Angeles; City of West Hollywood; Handgun
Control; Legal Community Against Violence; Public
Health Institute; Trauma Foundation; Women
Against Gun Violence
Opposition:California Public Defenders Association;
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California Rifle and Pistol Association;
California Shooting Sports Association; Gun
Owners of California, Inc.; National Rifle
Association
Assembly Floor Vote: Ayes 43 - Noes 27
KEY ISSUES
SHOULD ANY PERSON WHO POSSESSES A CONCEALED HANDGUN IN PUBLIC WITH READY
AMMUNITION BE GUILTY OF AN ALTERNATE FELONY/MISDEMEANOR, NOT A MISDEMEANOR AS
UNDER CURRENT LAW, IF HE OR SHE IS NOT THE REGISTERED OWNER OF THE FIREARM?
SHOULD ANY PERSON WHO OPENLY CARRIES A LOADED HANDGUN IN PUBLIC BE GUILTY OF
AN ALTERNATE FELONY/MISDEMEANOR, NOT A MISDEMEANOR AS UNDER CURRENT LAW, IF HE
OR SHE IS NOT THE REGISTERED OWNER OF THE FIREARM?
SHOULD THE STATE BEAR THE BURDEN OF PROOF IN A HEARING TO DETERMINE WHETHER A
PERSON WHO HAS BEEN SUBJECTED TO A 72- HOUR HOLD PURSUANT TO WELFARE AND
INSTITUTIONS CODE SECTION 5150 CAN SAFELY POSSESS A FIREARM?
PURPOSE
The purpose of this bill is to allow a felony conviction
where a person carries in public a loaded handgun, or a
handgun for which he or she has ready ammunition, and where
he or she is not the registered owner of the firearm.
The purpose of this bill is to allow a felony penalty
regardless of whether or not the handgun is concealed and
regardless of whether or not the possessor is otherwise the
lawful owner or borrower of the handgun.
The purpose of this bill is to require the Department of
Justice to bear the burden of proof in a hearing to
determine whether a person held for 72-hours observation
and subsequently released without further commitment
pursuant to Welfare and Institutions Code section 5150 can
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safely possess a firearm.
EXITING LAW AND THIS BILL - CARRYING GUNS IN PUBLIC
1. Existing Law as to Carrying Concealed Handguns
a. Carrying a Concealed Firearm, Defined:
i. Every person who carries concealed within any
vehicle which is under his or her control or
direction any pistol, revolver, or other firearm
capable of being concealed upon the person; or,
ii Causes to be concealed within any vehicle in
which the person is an occupant any pistol,
revolver, or other firearm capable of being
concealed upon the person; or
iii. Carries concealed upon his or her person any
pistol, revolver, or other firearm capable of being
concealed upon the person, is guilty of carrying a
concealed handgun. (Pen. Code 12025, subd. (a).)
A number of exceptions and limitations are contained in law
pertaining to this crime, including methods to lawfully
carry firearms in a vehicle, in a home or business, etc..
(Pen. Code 12025, 12025.5, 12026, 12026.2, 12027, and
12050.)
b. Punishment for Carrying a Concealed Firearm
i Violations of carrying a concealable firearm
concealed or in a vehicle are generally punished as a
misdemeanor punishable by up to one year in a county
jail.
ii Violations by a person who has been convicted of
a crime against a person or property, or of a
narcotics or dangerous drug violation, are
punishable as either a misdemeanor (up to one year
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in jail) or a felony.
iii Specified violations are punishable as a felony:
where the person has previously been convicted of
any felony, or of any crime made punishable by the
Dangerous Weapons' Control Law; where the firearm is
stolen and the person knew or had reasonable cause
to believe that it was stolen; where the person is
an active participant in a criminal street gang; and
where the person is not in lawful possession of the
firearm, as defined, or the person is within a class
of persons prohibited from possessing or acquiring a
firearm. (Penal Code 12025, subd. (b).)
2. Existing Law as to Openly Carrying a Loaded Firearm in
Public :
A person is guilty of carrying a loaded firearm when he or
she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street
in an incorporated city or in any public place or on any
public street in a prohibited area of unincorporated
territory. (Pen. Code 12031, subd. (a)(1).) (A number
of exceptions and limitations are contained in law
pertaining to this crime.)
Violations are punishable as in Penal Code section 12025:
generally as a misdemeanor (up to one year in jail); a
felony in specified circumstances; and as a misdemeanor (up
to one year in jail)/felony where the person has been
convicted of a crime against a person or property or of
narcotics or dangerous drug violations. (Pen. Code
12031, subd. (a)(2).)
3. Existing Law - Definition of a Loaded Firearm
A person is guilty of carrying a loaded firearm under
existing law when he or she carries a loaded firearm on his
or her person or in a vehicle while in any public place or
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on any public street in an incorporated city or in any
public place or on any public street in a prohibited area
of unincorporated territory. (Pen. Code 12031(a)(1).)
A number of exceptions and limitations are contained in law
pertaining to this crime.
Violations are punishable as in Penal Code section 12025:
generally as a misdemeanor (up to one year in jail); a
felony in specified circumstances; and as a misdemeanor (up
to one year in jail)/felony where the person has been
convicted of a crime against a person or property or of
narcotics or dangerous drug violations. (Pen. Code 12031,
subd. (a)(2).)
4. This Bill - New Alternate Felony/Misdemeanor of Carrying
a Concealed Handgun with Ready Ammunition
This bill creates a new alternate felony/misdemeanor of
carrying a concealable firearm (handgun), punishable by 16
months, two or three years in state prison, or by up to
one year in the county jail and/or a fine up to $1,000,
where the following are proved:
a) A person conceals and carries, on his or her
person, or within any vehicle, a concealable firearm
(handgun);
b) The gun is loaded, or ammunition for the handgun is
in the person's immediate possession or is readily
accessible; and
b) The person is not listed as the registered owner or
the borrower of the handgun on Department of Justice
(DOJ) records pursuant to Penal Code section 11106.
5. This Bill - New Alternate Felony Misdemeanor of Openly
Carrying a Loaded Firearm
This bill increases the penalty for possession of a loaded
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firearm to an alternate misdemeanor/felony where the
firearm is a pistol, revolver, or other firearm capable of
being concealed upon the person and the possessor is not
the registered owner.
EXISTING LAW AS TO PROHIBITION ON POSSESSION OF A FIREARM
BECAUSE OF MENTAL HEALTH TREATMENT OR MENTAL CONDITION
Existing law , the Lanterman-Petris-Short Act (LPS),
provides that persons, who, by reason of a mental disorder,
are dangerous to others or to themselves, or who are
gravely disabled" may be involuntarily held for 72 hours,
and then treated for 14 additional days, and 180 days
following a judicial hearing. (Welf. & Inst. Code 5000
et seq.)
Existing law provides that a person who has been taken into
custody for a 72 hour LPS hold may not own a firearm for five
years unless the person proves by a preponderance in a
judicial hearing that he or she may safely possess a firearm.
(Welf. & Inst. Code 8130, subd. (f).)
Existing law provides that a person who has been certified
for intensive treatment under the LPS law may not own a
firearm for five years unless the person proves by
preponderance in a judicial hearing that he or she may
safely possess a firearm. (Welf. & Inst. Code 8130,
subd. (f).)
Existing law provides that a person found to be a mentally
disordered offender or a mentally disordered sex offender,
a person who have been placed under a conservatorship, a
person who has been found to be a danger to self or others
because of a mental disorder, may not possess a firearm
unless a court certifies that the person may possess a
firearm without endangering others. (Welf. & Inst. Code
8130, subd. (a)(1).)
Existing law provides that any person who has been found
guilty of specified serious offenses by reason of insanity
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may not possess a firearm. (Welf. & Inst. Code 8130,
subd. (b).)
Existing law provides that any person who has been found
guilty of lesser offenses by reason of insanity may not
possess a firearm until sanity has been restored. (Welf. &
Inst. Code 8130, subd. (c).)
This bill would provide that a person previously held for a
72 hour "5150" - and not held for further treatment beyond
the 72-hours - may request a hearing for relief from the
five-year firearm possession prohibition at which the state
would bear the burden of proving that the person would not
safely possess a firearm.
COMMENTS
1. Need for this Bill
According to the author:
Existing law (Pen. Code 12020) provides that
concealed carrying of pen knives, brass knuckles,
dirks, daggers, zip guns and certain other devices
can be prosecuted as a felony. However, the illegal
carrying of a concealed handgun can only be
prosecuted as a misdemeanor [absent additional
elements].
The Policy Council on Violence Prevention
convened by the former Attorney General Lungren
concluded that "carrying a concealed, loaded
firearm without a permit is a serious crime and
should be treated as such. Therefore, the
council recommended that California enact
legislation to increase the penalty to a
'misdemeanor or felony" at the discretion of the
district attorney."
AB 491 would allow district attorneys and judges
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to charge or convict individuals who illegally
conceal unregistered firearms with either a
misdemeanor or felony. The only individuals
subject to the wobbler will be those carrying a
gun and ammunition if they have not undergone a
background check to acquire the gun.
Prior to the 1997 decision of the Sacramento
County Superior Court in Dayacamos v. Department
of Justice (Sacramento No. 96 CS 10471) Welfare
and Institutions Code section 8103, subdivision
(f) prohibited persons placed in a mental health
facility from owning or possessing firearms for a
period of five years. However the Sacramento
Superior Court in Dayacamos invalidated section
8103, subdivision (f) as a violation of
procedural due process under both the federal and
state constitutions. Specifically, the court
emphasized that the statute did not provide for
any meaningful notice or hearing prior to the
deprivation of the ability to possess, own,
control, receive or purchase a firearm.
Furthermore, the court found that the statutory
burden of proof placed on the person subject to
the firearm disqualification also violated due
process. The court then permanently enjoined the
Attorney General from the receipt or processing
of information regarding persons placed on
72-hour holds. (Welf. and Inst. Code
5150-5152.)
This bill would address the constitutional
infirmities cited by court in Dayacamos with
respect to Welfare and Institutions Code section
8103, subdivision (f). It would expressly
provide person discharged from a mental health
facility following a 72 hour hold to be informed
of their right to a judicial hearing concerning
their firearms legal disability under section
8103, subdivision (f). The proposal would also
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place the burden of proof upon the People to show
by preponderance of the evidence that the person
will not be likely to use firearms in a safe and
lawful manner.
This bill would satisfy the constitutional
requirement outline by the Dayacamos court case while
at the same time ensuring the safety of the public.
2. Increased Penalties Proposed in This Bill for Loaded
Handguns - Concealed and Openly Carried
a) Concealed Handguns
This bill proposes to increase the penalty from a
misdemeanor to an alternate felony/misdemeanor for a
person who carries a loaded, concealed handgun under
Penal Code section 12025 where he or she is not the
registered owner of the gun. (Other elements, most
notably a prior felony conviction, would make such
conduct a felony under current law.)
Under current law - Penal Code section 12025 - a person
may receive no more than a misdemeanor for carrying a
concealed, loaded handgun where he or she is in "lawful
possession"<1> of the firearm, not otherwise be
prohibited from possessing the firearm, not otherwise
violating a law or committing a crime, not a member of a
street gang, and not otherwise subject to a felony
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<1> Penal Code sections 12025, subdivision (f), and 12031,
subd. (a)(2)(G), define lawful possession thus: "For
purposes of this section, 'lawful possession' means that
the who has possession or custody of the firearm either
owns the firearm or has the permission of the owner or a
person who otherwise has apparent authority to possess or
have custody of the firearm. A person who takes a firearm
without the permission of the owner or without the
permission of a person who has custody of the firearm does
not have lawful possession of the firearm."
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penalty.
b) Loaded, Openly Carried Handguns
This bill proposes to increase the penalty from a
misdemeanor to an alternate felony/misdemeanor for a
person who openly carries a loaded handgun under Penal
Code section 12031 where he or she is not the registered
owner of the gun. (Other elements, most notably a prior
felony conviction, would make such conduct a felony under
current law.)
Under current law - Penal Code section 12031 - a person
may receive no more than a misdemeanor for carrying a
loaded handgun where he or she is in "lawful
possession"<2> of the firearm, not otherwise be
prohibited from possessing the firearm, not otherwise
violating a law or committing a crime, not a member of a
street gang, and not otherwise subject to a felony
penalty.
Thus, the critical issue raised by this bill is whether
or not handgun registration should be the determining
factor in the penalty for possession of a concealed
handgun (apart from prior felony convictions etc, that
render possession of any firearm a felony).
Determination of this issue likely turns on what is
accomplished by gun registration and the process
necessary to registers a gun.
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<2> Penal Code sections 12025, subdivision (f), and 12031,
subd. (a)(2)(G), define lawful possession thus: "For
purposes of this section, 'lawful possession' means that
the who has possession or custody of the firearm either
owns the firearm or has the permission of the owner or a
person who otherwise has apparent authority to possess or
have custody of the firearm. A person who takes a firearm
without the permission of the owner or without the
permission of a person who has custody of the firearm does
not have lawful possession of the firearm."
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3. Possible Ambiguity in Section 12025 Created by Definition
in This Bill of a Loaded Firearm
a) The Dangerous Weapons' Control Law Contains at Least
Two Definitions of a "Loaded" Firearm
Penal Code section 12031, subdivision (g), states:
A firearm shall be deemed to be loaded for the
purposes of this section when there is an
unexpended cartridge or shell, consisting of a
case which holds a charge of powder and a
bullet or shot, in, or attached in any manner
to, the firearm, including, but not limited
to, in the firing chamber, magazine, or clip
thereof attached to the firearm; except that a
muzzle-loader firearm shall be deemed to be
loaded when it is capped or primed and has a
powder charge and ball or shot in the barrel
or cylinder. Penal Code section 12031
prohibits the carrying of any loaded firearm.
Penal Code section 12035, which contains penalties for
the "criminal storage" of a loaded firearm, provides:
"'Loaded firearm' has the same meaning as set forth in
subdivision (g) of Section 12031." Penal Code section
12023 makes it a crime to carry a loaded firearm with the
intent to commit a felony.
Penal Code section 12001, subdivision (j). provides that
for purposes of section 12023, a firearm shall be deemed
to be "loaded" whenever both the firearm and the
unexpended ammunition capable of being discharged from
the firearm are in the immediate possession of the same
person.
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b) This Bill May Include Only One Definition of a Loaded
Firearm for Purposes of Section 12025
The amendments to section 12031 in this bill most closely
follow the definition of a loaded firearm set out in
Penal Code section 12001, subdivision (j). Arguably,
this bill covers only defendants who possess handguns
with readily available ammunition, not those who possess
a weapon that is loaded under the definition of Penal
Code section 12001, subdivision (g). This argument would
be made under the rule of statutory construction,
"expressio unius est exclusio alterius" - the expression
of one thing is the exclusion of the other. That is,
because this bill specifically employs the definition of
a loaded firearm in section 12001, subdivision (j), the
definition in section 12001, subdivision (g), is
excluded.
c) Possible Claims that only Misdemeanor may be
Charged for Possession of Concealed and Actually
Loaded Handgun
A rule of statutory construction holds that where a
person can be charged under a general criminal law and a
law that more specifically describes the defendant's
conduct, the more specific law shall apply. This is
particularly likely where the laws governing a subject
are comprehensive and inter-related. (People v. De La
Cruz (193) 20 Cal.App.4th 955.) The language of this
bill may be interpreted to only impose a felony for
possession of a concealed handgun where the possessor of
the gun has ready ammunition, not where the gun is
actually loaded.
4. Registration of Firearm as Defense to Felony, Possible
Equal Protection and Due Process Arguments
This bill provides that possession of a loaded handgun is a
misdemeanor - in the absence of other elements such as
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prior felony conviction, stolen gun etc. - where the
possessor of the handgun is the registered owner. This
raises issues as to how a person establishes this defense.
It appears from discussions among interested parties that
the DOJ computer database includes registrations only back
to 1979. Earlier registrations are on microfiche. Where
the owner of a firearm is arrested for being in possession
of a loaded handgun that was registered prior to 1979, the
information will not be in the computer system. Thus, the
arresting officer will likely arrest the person for felony
possession of a handgun. The arrested person will then
likely be charged with a felony until he or she can
establish that he or she is the registered owner of the
handgun. This may take some time and effort.
It may be argued that the bill denies equal protection and
due process under the 14th Amendment to the United States
Constitution for persons who registered handguns prior to
1979. This is the argument of the NRA and the California
Rifle and Pistol Association. A felony conviction in such
circumstances would turn on the vagaries of the
registration records.
In contrast, the Attorney General notes that any person who
carries a concealed handgun has necessarily committed a
crime - the existing misdemeanor - even where he or she is
the lawful possessor or registered owner of the gun.
Essentially, the Attorney General argues that it is not
unreasonable to place the burden of registration on a
person who intentionally commits a crime. Where the
handgun is registered, the defendant will avoid a felony.
5. Arguments in Support of the New Wobbler
The California Department of Justice argues:
AB 491 addresses a longstanding anomaly in the law
whereby an individual found in possession of a dirk
dagger or club can be found guilty of a felony while an
individual carrying a loaded and concealed handgun may be
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subjected to a misdemeanor. AB 491 provides individuals
who may choose to violate Penal Code section 12025 with
relief from the felony should they demonstrate that they
are the lawful owner of the firearm. This can be easily
accomplished by merely voluntarily registering the
handgun prior to choosing to violate section 12025.
Individuals unlawfully possessing handguns will not seek
this relief.
6. Arguments in Opposition - New Concealed Handgun/Ready
Ammunition Wobbler
The National Rifle Association argues:
Assemblyman Scott proposes that the penalty for
illegally carrying a concealed weapon be increased
to a misdemeanor/felony (wobbler) if the firearm is
not registered in the Department of Justice (DOJ)
database. In spite of legislative direction in SB
1308 (Peace) in 1994, online DOJ handgun
registration information is only available to law
enforcement from 1979 on. Without this online
registration information, unwarranted felony arrests
would result.
A similar bill was carried by then Assemblyman
Burton (AB 2469) in 1994. He dropped the penalty
increase linkage with registration status when it
became clear that DOJ's online capabilities were
deficient.
It is unclear why DOJ has been unwilling or unable
to bring their records up to date. However it is
clear that there can be no "quick fix." The policy
contained in AB 491 could not be implemented fairly
until DOJ's handgun registration databases are fully
accessible to patrol officers.
The California Rifle and Pistol Association argues:
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The California Rifle and Pistol Association is opposed
to AB 491 which would make the first offense of carrying
a concealed handgun without a permit an alternate
felony/misdemeanor, instead of the current misdemeanor
where the person carrying the firearm is in lawful
possession of the gun, although not the registered
owner.
This provision was considered by the Legislature in
recent years but not adopted. Instead, the Legislature
passed AB 632 (Katz) in 1996 which added Penal Code
section 12025, subdivision (b)(4), that took effect on
January 1, 1997. AB 632 addressed the primary problem
of persons who carry . . . stolen handguns. Most gang
members and other criminals carry stolen handguns. They
are the real threat to society, not the person who
carries his or her own handgun concealed because they
are afraid of death or great bodily injury at the hands
of another but could not obtain a permit to carry a
handgun concealed because their local issuing agency has
a policy of not granting permits, regardless of need.
AB 632 has not been in effect long enough to assess
its effectiveness. In the meantime, it would be
inappropriate to increase penalties as proposed in AB
491. This is especially true since there is no
documented problem of otherwise lawful individuals
carrying handguns without permits . . . that would
justify the enactment of this bill.
SHOULD ONE'S PENALTY FOR CARRYING A LOADED, CONCEALED
HANDGUN BE LIMITED TO A MISDEMEANOR, NOT AN ALTERNATE
FELONY/MISDEMEANOR, WHERE HE OR SHE HAS REGISTERED THE GUN?
DOES THE DEPARTMENT OF JUSTICE DATABASE ACCURATELY REFLECT
THOSE WHO HAVE REGISTERED HANDGUNS, I.E., EITHER PURCHASED
A HANDGUN SINCE PURCHASE INFORMATION HAS BEEN MAINTAINED -
AND PRIVATE TRANSACTIONS HAVE BEEN REQUIRED TO BE MADE
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THROUGH A DEALER - OR OTHERWISE HAVE "REGISTERED" A HANDGUN
WITH THE DEPARTMENT?
HAS PRE-1979 DATA BEEN MAINTAINED IN THE CURRENT ACCESSIBLE
DEPARTMENT OF JUSTICE SYSTEM?
SHOULD PERSONS IN LAWFUL POSSESSION OF HANDGUNS BE TREATED
DIFFERENTLY BASED ON WHETHER OR NOT THE FIREARM WAS
"REGISTERED" PRIOR TO 1979?
SHOULD PERSONS IN LAWFUL POSSESSION OF A HANDGUN BY VIRTUE
OF PERMISSION OF THE OWNER BE EXCLUDED FROM THE LIMITED
MISDEMEANOR PENALTY ONLY, AS UNDER CURRENT LAW?
7. Three-Strikes Impact of This Bill
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This bill would add a felony penalty option to the existing
misdemeanor penalty pertaining to possession of a concealed
firearm. However, any person subject to this new felony
could not have had any felony convictions in the
past--serious, violent, or not--since the new felonies
proposed by this bill would only apply to persons without
such a record. Thus, the new felony penalty options
proposed by this bill are unaffected by the "three-strikes"
law. (Any person who has a prior felony conviction is
currently subject to a straight felony penalty in sections
12025 and 12031.)
8. The Dayacamos Decision
The Dayacamos case, a decision of the Sacramento County
Superior Court, concerned the 5-year prohibition on
possession of a firearm by a person who has been subject to
a 72-hour psychiatric hold under section 5150 of the
Welfare and Institutions Code, the most widely known
provision of the Lanterman-Petris-Short (LPS) Act. Welfare
and Institutions Code section 8130, subdivision (f), allows
a person who had been held pursuant to a 72-hour 5150 hold
to obtain a hearing to obtain a judicial order relieving
him or her of the firearm possession bar. (Section 8103,
subdivision (g) concerns an equivalent bar for those who
have been held for additional 14-day periods beyond the
72-hour hold.)
The court in Dayacamos held that section 8130 denied due
process in barring former LPS detainees (those subject to
72-hour holds) from possessing a firearm without a
"meaningful hearing" prior to the imposition of the
prohibition. In particular, the court found that requiring
a former LPS detainee to carry the burden of demonstrating
that he or she can safely own a firearm denied due process.
The court did not attempt to limit section 8103,
subdivision (f), to constitutionally acceptable
applications, but found the entire subdivision to be void.
The court further ordered the Department of Justice to
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"purge its databases or other records of all commitments
that occurred under Welfare and Institutions Code section
5150." (Order - Writ of Mandate and Prohibition, Sac. No.
96 CS 01471, p. 3)
9. Proposed Amendment to Clarify Dayacamos Burden of Proof
Language
The bill as currently drafted provides that the state bears
the burden of proving that a person who has been subject to
a 72-hour "5150" hold could not safely possess a firearm.
The language describing the findings the court must make
after the hearing appears to be somewhat awkward. The bill
currently reads: "If the court fails to find that the
people have met their burden . . . the court shall order
that the person may own . . . firearms." (Sic.) It is
suggested that the provision would be better phrased: "If
the court finds . . . that the People have not met their
burden . . . the court shall order that the person may own
. . . firearms."
WILL THE 5-YEAR PROHIBITION ON FIREARM POSSESSION FOR A
PERSON WHO HAS BEEN SUBJECTED TO A 72-HOUR PSYCHIATRIC HOLD
PURSUANT TO WELFARE & INSTITUTIONS CODE SECTION 5150 BE
MADE CONSTITUTIONAL WHERE THE HELD PERSON CAN DEMAND A
HEARING TO DETERMINE WHETHER HE OR SHE CAN SAFELY POSSESS A
FIREARM AND WHERE THE STATE HAS THE BURDEN OF PROOF IN THE
HEARING?
SHOULD SUCH PROVISIONS BE ENACTED?
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