BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1587| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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. Senate Floor Amendments of 8/31/99 delay the implementation of the bill until 30 days after the State Department of CONTINUED AB 1587 Page 2 Justice supplies the required forms to the mental health facilities. ANALYSIS : 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. 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. AB 1587 Page 3 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. 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. The bill provides that the provisions of this bill shall not go into effect until 30 days after DOJ provides the forms requested by the fill to the designated facilities. 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 AB 1587 Page 4 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 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 AB 1587 Page 5 Courts Minor, absorbable increased costs General SUPPORT : (Verified 8/31/99) Attorney General (source) Handgun Control, Inc. Legal Community Against Violence 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 AB 1587 Page 6 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 9/1/99 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****