BILL ANALYSIS SENATE COMMITTEE ON Public Safety Senator John Vasconcellos, Chair A 1999-2000 Regular Session B 1 5 8 AB 1587 (Scott) 7 As Amended July 8, 1999 Hearing date: July 13, 1999 Welfare and Institutions Code (URGENCY) JM:br POSSESSION OF FIREARMS PERSONS HELD FOR OBSERVATION AS DANGER TO SELF OR OTHERS HISTORY Source: Attorney General Prior Legislation:AB 78 (Granlund) - Ch. 158, Sts. 1997; related provisions deleted AB 497 (Connelly) - Ch. 9, Sts. 1989/90 Support: Handgun Control, Inc.; Legal Community Against Violence; Orange County Citizens for the Prevention of Gun Violence; Trauma Foundation; Women Against Gun Violence Opposition:None known Assembly Floor Vote: Not relevant as amended KEY ISSUES SHOULD THE STATE BEAR THE BURDEN OF GOING FORWARD AND PROOF IN A HEARING UNDER WELFARE AND INSTITUTIONS CODE SECTION (More) AB 1587 (Scott) Page 2 8103, SUBDIVISION (f), 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, AS SPECIFIED? (CONTINUED) DOES IMPOSING THE BURDEN OF PROOF UPON THE STATE IN A SECTION 8103, SUBDIVISION (f) HEARING TO DETERMINE IF A FORMER "5150" PATIENT SHOULD BE PROHIBITED FROM FIREARM POSSESSION RENDER THE PROVISION CONSTITUTIONAL? PURPOSE The purpose of this bill is to create a meaningful judicial hearing to determine whether a person formerly subject to a 72- hour "5150" hold under the LPS law as a danger to self or others may be prohibited from possessing a firearm. 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 as a danger to self or others, but not required to undergo further treatment, 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 - a writ of mandate issued by the Sacramento County Superior Court - requires the California Department of Justice to purge all records on persons subject to 72 (More) AB 1587 (Scott) Page 3 hour LPS holds in regard to firearm possession prohibitions on the grounds that the current law provides no meaningful hearing to persons covered by the prohibition. (Dayacamos v. Department of Justice. (Sacramento No. 96 CS 10471; that decision was made February 7, 1997, and the order was stayed until January 1, 1998, in order to allow the Department of Justice to comply.)) 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. (g).) Existing law provides that a person found to be a mentally disordered offender or a mentally disordered sex offender, a person who has 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 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 provides 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. (More) AB 1587 (Scott) Page 4 COMMENTS 1. Need for this Bill According to the author: 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 persons 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 (More) AB 1587 (Scott) Page 5 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. 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 "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) (Hereinafter in this analysis, Welfare (More) AB 1587 (Scott) Page 6 and Institutions Code section 5150 shall be referred to as "section 5150".) 3. Issue of whether This Bill Provides a Meaningful Hearing for Persons Previously Held for 72 Hours under the LPS Law The court in Dayacamos held that the provisions in current law (Welf. & Inst. Code 8103, subd. (f)) that bar a person formerly subject to a 72-hour psychiatric pursuant to the LPS Act from possessing a firearm for five years do not provide due process. The court specifically held that the law provided no meaningful hearing prior to deprivation of the constitutional right to possess a firearm. Existing law requires the former patient to petition for a hearing and to bear the burden of proof to establish that he or she can safely possess a firearm. The issue is raised as to whether providing a less formal procedure whereby a person may "request" a hearing at which the State would become the plaintiff and bear the burden of proof by a preponderance of the evidence. The bill provides that upon release of a person held pursuant to section 5150, the psychiatric "facility shall inform the person that he or she may request a hearing from the court . . ." The bill does not specifically describe how a person may exercise his or her right to request a hearing. As the decision in Dayacamos criticized burdens placed upon former section 5150 patients, the request for hearing should likely be relatively simple to make. It appears that the releasing facility could forward a request for hearing to the court if the request is made at the time of release. If a request is made some time after release, the former patient could obtain such a form from an appropriate facility, the district attorney or the Department of Justice, and the form could be filed with the clerk of the superior court. SHOULD THE BILL SPECIFY THE MECHANICS OF HOW A HEARING REQUEST WOULD BE MADE BY A RELEASED OR FORMER SECTION 5150 (More) AB 1587 (Scott) Page 7 PATIENT? SHOULD THE BILL BE AMENDED TO SPECIFICALLY PROVIDE THAT A PERSON SUBJECT TO A FIVE-YEAR FIREARM POSSESSION PROHIBITION MAY REQUEST A HEARING AT ANY TIME DURING THE PROHIBITION PERIOD? 4. Designation of the People as Plaintiff - Suggested Amendment for Circumstances Where State does not go Forward with Litigation to Bar Firearm Possession (More) AB 1587 (Scott) Page 8 The significance of designating the People the plaintiff appears to be in imposing upon the People the burden of going forward with the litigation per se, not only in imposing the evidentiary burden of proof. It would further appear that if the People did not go forward with the litigation that the person previously held under section 5150 would not be subject to the hold. The bill should perhaps provide that if the People do not go forward with a hearing after request therefor by a former section 5150 patient, the district attorney must notify the Attorney General of his or her decision. Upon notice, the Attorney General must delete the person's name from the applicable database identifying persons prohibited from possessing firearms for five years under Welfare and Institutions Code section 8103, subdivision (f). SHOULD THE BILL BE AMENDED TO PROVIDE THAT IF THE PEOPLE DO NOT GO FORWARD WITH A REQUESTED HEARING THAT THE PROSECUTOR MUST NOTIFY THE ATTORNEY GENERAL AND THAT THE ATTORNEY GENERAL MUST DELETE ANY REFERENCE TO THE PERSON WHO REQUESTED THE HEARING AFTER A 72-HOUR "5150" HOLD? 5. Application of Existing Law and This Bill to Persons Held as Dangerous to Self or Others, not Gravely Disabled Persons Discussions with the author, co-author and interested parties have considered whether or not this bill is limited to those people held pursuant to section 5150 who are a danger to self or others, or whether it applies to gravely disabled persons. It appears from the specific terms of current law that gravely disabled persons are not included in the prohibition on firearm possession in current law for persons subject to 72-hour holds, while those persons held because they are dangerous are included in the law. (Welf. & Inst. Code 8103, subd. (f).) The distinction between gravely disabled and dangerous persons remains in this bill. AB 1587 (Scott) Page 9 WILL THE 5-YEAR PROHIBITION ON FIREARM POSSESSION FOR A PERSON WHO HAS BEEN SUBJECTED TO A 72-HOUR PSYCHIATRIC HOLD (BECAUSE HE OR SHE PRESENTS A DANGER TO SELF OR OTHERS) 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? ***************