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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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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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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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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