LEGAL GUIDE
Written by attorney Michael Sean Devereux | Oct 5, 2016
By Michael Sean Devereux
Oct 5, 2016
GUN RIGHTS IN CALIFORNIA
There are two sets of laws concerning gun rights. There are Federal requirements pursuant to 18 U .S .C . § 922(g). And then there is the more stricter gun rights pursuant to California law (Pen . Code, §§ 29800-29825, 29900; Welf . & Inst . Code, §§ 8100, 8103).
Summary
If you have been convicted of a felony, you are considered a *felon* and automatically lose your gun rights for life. But, that doesn*t have to be the end of the story. There are several ways to restore a felon*s right to possess a firearm. Determining which strategy to use to restore your gun rights depends on whether you were sentenced to prison or granted probation and on the exact code section of your conviction. While an expungement under Cal. Penal Code, * 1203.4 (or * 1203.4a) has many benefits, it has no effect on gun rights. The plain language of Proposition 64 is that a felony reduced to a misdemeanor under Prop 64 is a misdemeanor *for all purposes.* If DOJ/NICS rejects a gun purchase after a Prop 64 reduction, this issue will need to be resolved in court. Prop 47 was written so that it does not provide gun restoration. A felony reduction under California*s Proposition 47 (now codified at Penal Code, * 1170.18) has no effect on firearm rights.How To Determine If You Are Eligible To Possess Guns & Ammunition
Any person may obtain from the DOJ a determination as to whether he or she is eligible to possess firearms (review of California records only) . The personal firearms eligibility check application form and instructions are on the DOJ website at http://oag.ca.gov/firearms/forms . The cost for such an eligibility check is $20.Who Is Not Eligible To Possess Guns & Ammunition (Federal Law)
Pursuant to Federal Law it is unlawful for the following people to possession or own guns and/or ammunition.
(1) anyone who has been convicted of a felony;
(2) anyone anyone who has been convicted in any court of a misdemeanor crime of domestic violence (there are some instances in which this would not apply);
(3) anyone who is a fugitive from justice;
(4) anyone who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(5) anyone who has been adjudicated as a mental defective or who has been committed to a mental institution;
(6) anyone who, being an alien--
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a non-immigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(7) anyone who has been discharged from the Armed Forces under dishonorable conditions;
(8) anyone who, having been a citizen of the United States, has renounced his citizenship;
(9) anyone who is subject to a court order that--
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.Who Is Not Eligible To Possess Guns & Ammunition (California Law)
The following persons are prohibited from possessing firearms (Pen . Code, ?? 29800-29825, 29900; Welf . & Inst . Code, ?? 8100, 8103):
Lifetime Prohibitions
o Any person convicted of any felony or any offense enumerated in Penal Code section 29905 .
o Any person convicted of an offense enumerated in Penal Code section 23515 .
o Any person with two or more convictions for violating Penal Code section 417, subdivision (a)(2) .
o Any person adjudicated to be a mentally disordered sex offender . (Welf . & Inst . Code, ? 8103, subd . (a)(1) .)
o Any person found by a court to be mentally incompetent to stand trial or not guilty by reason of insanity of any crime, unless the court has made a finding of restoration of competence or sanity . (Welf . & Inst . Code, ? 8103,
subds . (b)(1), (c)(1), and (d)(1) .)
10-Year Prohibitions
o Any person convicted of a misdemeanor violation of the following: Penal Code sections 71, 76, 136 .5, 140, 148, subdivision (d), 171b, 171c, 171d, 186 .28, 240, 241, 242, 243, 244 .5, 245, 245 .5, 246, 246 .3, 247, 273 .5, 273 .6, 417, 417 .1, 417 .2, 417 .6, 422, 626 .9, 646 .9, 830 .95, subdivision (a), 17500, 17510, subdivision (a), 25300, 25800, 27510, 27590, subdivision (c), 30315, or 32625, and Welfare and Institutions Code sections 871 .5, 1001 .5, 8100, 8101, or 8103 .
5-Year Prohibitions
o Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270 .15 . Persons certified under Welfare and
Institutions Code sections 5250, 5260, or 5270 .15 may be subject to a lifetime prohibition pursuant to federal law .
Juvenile Prohibitions
o Juveniles adjudged wards of the juvenile court are prohibited until they reach age 30 if they committed an offense listed in Welfare and Institutions Code section 707, subdivision (b) . (Pen . Code, ? 29820.)
Miscellaneous Prohibitions
o Any person denied firearm possession as a condition of probation pursuant to Penal Code section 29900, subdivision (c) .
o Any person charged with a felony offense, pending resolution of the matter . (18 U .S .C . ? 922(g) .)
o Any person while he or she is either a voluntary patient in a mental health facility or under a gravely disabled conservatorship (due to a mental disorder or impairment by chronic alcoholism) and if he or she is found to be a danger to self or others . (Welf . & Inst . Code, ? 8103, subd . (e) .)
o Any person addicted to the use of narcotics . (Pen . Code, ? 29800, subd . (a) .)
o Any person who communicates a threat (against any reasonably identifiable victim) to a licensed psychotherapist which is subsequently reported to law enforcement, is prohibited for six months . (Welf . & Inst . Code, ? 8100, subd . (b) .)
o Any person who is subject to a protective order as defined in Family Code section 6218 or Penal Code section 136 .2, or a temporary restraining order issued pursuant to Code of Civil Procedure sections 527 .6 or 527 .8 .Gun Rights For 5150 Holds
If you were adjudicated as to a mental defect or had a commitment to a mental health institution then it is likely a lifetime ban. However, as interpreted by the U.S. Bureau of Alcohol, Tobacco, and Firearms, involuntary detention in a psychiatric facility "for observation" (as in California's 72-hour hold) is specifically excluded. An individual who has been on a 72-hour hold is not federally barred from owning firearms and will pass a background check performed in California once the 5 year ban expires or is ended by court order. If your experienced only included the 72-hour hold, you may be eligible to have a hearing to terminate any gun restriction earlyHow A Gun Rights Law Firm Can Assist
Have a gun rights law firm obtain your official DOJ report and prepare a gun rights restoration plan for you. They should be able to determine exactly what*s needed to get your gun rights back.
Additional resources provided by the author
For more on California Firearms Law visit the California Attorney General's summary of firearm laws published in 2016 at: https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/pdf/cfl2016.pdf
Or https://www.wex.law/los-angeles-2nd-second-amendment-gun-rights-attorney-lawyer-devereux.html
Or https://www.wex.law/los-angeles-2nd-second-amendment-gun-rights-attorney-lawyer-devereux.html
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