BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1587|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: AB 1587
Author: Scott (D)
Amended: 8/31/99 in Senate
Vote: 27 - Urgency
SENATE PUBLIC SAFETY COMMITTEE : 6-0, 7/13/99
AYES: Vasconcellos, Burton, Johnston, McPherson, Polanco,
Rainey
SENATE APPROPRIATIONS COMMITTEE : 12-0, 8/23/99
AYES: Johnston, Alpert, Bowen, Burton, Johnson, Karnette,
Kelley, Leslie, McPherson, Mountjoy, Perata, Vasconcellos
NOT VOTING: Escutia
ASSEMBLY FLOOR : Not relevant
SUBJECT : Possession of firearms: persons held for
observation as
danger to self or others
SOURCE : Attorney General
DIGEST : This bill creates a meaningful judicial hearing
to determine whether a person formerly subject to a 72-hour
"5150" hold under the Lanterman-Petris-Short Act as a
danger to self or others may be prohibited from possessing
a firearm. The bill establishes procedures to be followed
prior to and relative to the hearing.
ANALYSIS : Existing law, the Lanterman-Petris-Short Act
(LPS), provides that persons, who, by reason of a mental
CONTINUED
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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.
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.
Existing law (a writ of mandate issued by the Sacramento
County Superior Court) requires the State Department of
Justice (DOJ) to purge all records on persons subject to 72
hour LPS hold. Existing law provides that any person who
has been found guilty of specified serious offenses by
reason of insanity may not possess a firearms 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.
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.
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.
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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.
This bill requires that the facility, upon discharge,
provide the person with a form requesting a hearing and
forward the completed form to the superior court, unless
the person states that he or she will deliver the form to
the court personally. The court will be required to set a
hearing within 30 days of receipt of the request for the
hearing. Upon good cause, the district attorney will be
entitled to a continuance not to exceed 14 days, as
specified. If additional continuances are granted, the
total length of continuance shall not exceed 60 days.
The bill specifies that if the district attorney declines
or fails to go forward in the hearing, the court shall
order that the person shall not be subject to the five-year
prohibition required by this subdivision on the ownership,
control, receipt, possession, or purchase of firearms. A
copy of the order shall be submitted to DOJ. Upon receipt
of the order, DOJ shall, within 15 days, delete any
reference to the prohibition against firearms from the
person's state summary criminal history administration.
Background
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 LPS. 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
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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 DOJ to "purge its databases or
other records of all commitments that occurred under
Welfare and Institutions Code section 5150."
The court, in Dayacamos, held that the provisions in
current law that bar a person formerly subject to a 72-hour
psychiatric pursuant to the LPS 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.
FISCAL EFFECT : Appropriation: Yes Fiscal Com.: Yes
Local: No
Fiscal Impact (in thousands)
Major Provisions 1999-2000 2000-01
2001-02 Fund
Courts Minor, absorbable
increased costs General
SUPPORT : (Verified 8/31/99)
Attorney General (source)
Handgun Control, Inc.
Legal Community Against Violence
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Orange County Citizens for the Prevention of Gun Violence
Trauma Foundation
Women Against Gun Violence
ARGUMENTS IN SUPPORT : According to the author's office:
"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."
"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 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 of the Dayacamos court case while at the same time
ensuring the safety of the public.
RJG:cm 8/31/99 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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