BILL ANALYSIS                                                                                                                                                                                                    







             SENATE COMMITTEE ON Public Safety
                   Senator John Vasconcellos, Chair   A
                      1999-2000 Regular Session       B

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AB 1587 (Scott)                                       7
As Amended July 8, 1999
Hearing date:  July 13, 1999
Welfare and Institutions Code  (URGENCY)
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                    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  




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                                             AB 1587 (Scott)
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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  




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                                             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. 




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                                             AB 1587 (Scott)
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                          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  




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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.   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  




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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  




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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  


































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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.












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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?



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