Restoring Firearm Rights After A 5150 Hold.
California codifies firearm laws relating to mental health treatment in Welfare and Institutions Code, sections 8100-8108. The subsection of the law with the broadest application is 8103(f)(1). The Journal of Psychiatric Practices summarizes this provision succinctly:
Added in 1990, this provision provides that, when an individual is placed on a 72-hour hold on grounds of danger to self or others (but not grounds of grave disability) and admitted to a treatment facility, he or she is thereafter prohibited from purchasing or possessing firearms for a period of 5-years. As described in Welfare and Institutions Code section 5150 et seq., the process of involuntary inpatient psychiatric treatment in California begins with a 72-hour hold. The hold is initiated when, based on a face-to-face evaluation, an authorized evaluator (a psychiatrist, a social worker, or a peace officer) determines that there is probable cause to believe that, as a result of a mental disorder, the individual poses a danger to self or others or is gravely disabled. Once initiated, the 72-hour hold is not subject to any process of appeal or review, except when the hold has been placed “in the field" (e.g. by a peace officer). In the latter case, the receiving clinician at the treatment facility decides whether to continue the hold and admit the patient, or terminate the hold and release the patient (sections 5151 and 5152). California case law has established that the hold does not have meaning in terms of firearm possession unless the patient is admitted.
(Simpson, Joseph R. (2007). Issues Related to Possession of Firearms by Individuals with Mental Illness: An Overview Using California as an Example. Law and Psychiatry, Vol. 13(No.2), pp. 1-2.)
Note that a Welfare and Institutions Code section 5150 (“5150") admission does not require a court hearing or any real due process – rather, it is based solely upon the opinion of a psychiatrist, social worker, and/or peace officer. There is no opportunity to be heard by a court of law before one is admitted should the patient disagree with the admitting party’s findings. Further, the firearm prohibition applies regardless of how long one was actually held for evaluation. In most of the Welfare and Institutions Code section 8103 (“8103") petitions I have handled, the client was not held at the hospital for the full 72-hours, and most were released within less than 24-hours; some clients who automatically lost their rights as a result of a 5150 were held for less than a couple of hours and spent less than 15 minutes under real evaluation.
More significantly, the firearm restriction automatically imposed by admission pursuant to 5150 is a five year loss of the fundamental right to possess and own firearms, ammunition and certain firearm components ; fortunately, the restriction is limited to the confines of California.
The restriction established by section 8103(f)(1) is stricter than that provided under federal law, which provides for a lifetime federal prohibition on firearms purchase or possession following “adjudication as a mental defective" or a “commitment to any mental institution." 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. The California Department of Justice, which performs background checks on individuals attempting to purchase firearms in the state, implements the law in accordance with this principle. Thus, 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.
(Id at 2.)
The only due process safeguard is a series of burden shifting barriers, beginning with the initial burden of the patient to file a petition to restore his or her firearm rights.
Section 8103(f)(5) allows individuals prohibited from possessing firearms on the basis of a 72-hour hold because of danger to self or others to petition the court in their county of residence, once within the 5-year period, for early relief from the prohibition. There is no statutory requirement that the individual be evaluated by a mental health clinician – or any healthcare professional – as part of the probation. The respondent county attorney has the burden of showing by a preponderance of evidence that the petitioner is not likely to use firearms in a safe and lawful manner.
While filing the initial petition is as easy as filling out a simple form, the processing varies from county to county. And, a person held 5150 may only file a petition to restore their firearm rights once during the five-year ban. Thus, it is essential for such individuals to either consult with an attorney before making the petition or tread these waters very carefully. Reliance upon the court or the district attorneys to know and appreciate the laws is the biggest mistake one can make, as they often do not know the laws themselves. I recently had to remind a district attorney that it is not my client’s burden to prove that they will use firearms in a safe and lawful manner, but the district attorney’s burden to prove that my client will not use firearms in a safe and lawful manner. As such, it is important to consult with a qualified attorney before embarking on the restoration process.
Los Angeles County has the most comprehensive system in place for the restoration of firearm rights for 5150 patients - it provides on staff psychological examinations for petitioners prior to each hearing. Even then, Los Angeles County grants only 40 percent of all 8103(f)(5) petitions. (Id. at 4.)
Other courts, such as those in San Diego County, Orange County, San Bernardino County, and Riverside County do not have on-staff psychiatrists to evaluate the petitioner. However, they do have their own unwritten practice guidelines. Specifically, I have found that, for some counties, there is a minimum 6 month period that must pass from the time of the 5150 to the time the hearing is heard before any district attorney that I have worked with will agree not to oppose a petition (even if the medical records state that the patient was not a danger to self or others at the time of release). I have found that the further away in time that the hearing is held from the initial 5150 incident, the more likely the courts and the district attorney’s offices will agree to restoring a client’s firearm rights.
Moreover, even though the law places the burden on the People to prove that the patient is not likely to use firearms in a safe and lawful manner, courts both implicitly and expressly (in the case of Los Angeles) almost always require some form of continued psychological counseling and/or a confirmation of current mental status from a third-party psychiatrist or psychologist. Such measures often prove difficult as most medical professionals are against firearm rights; finding a medical professional to appear in person to testify or to provide a written declaration under penalty of perjury that their patient who was 5150 is likely to use firearms in a safe and lawful manner can sometimes be downright impossible. When medical professionals are available to provide such evaluations, they come at a price – as expert testimony is not covered by insurance and is not cheap, sometimes costing hundreds or thousands of dollars for both evaluation and testimony.
Because these issues involve purported mental health issues and firearms, the process can be very political. While most district attorneys are fair and willing to listen to the facts before taking a position on whether to oppose a client’s petition, I recently spoke with a district attorney who informed me that she is a “leftist leaning democrat who believes in all the rights except the Second Amendment," and it is her “opinion that nobody should own firearms, and that the Second Amendment was written for muskets – not modern firearms." I advised her of the 2008 ruling in District of Columbia v. Heller, which held that the Second Amendment was a fundamental right to possess, at a minimum, firearms in common use. She stated that she “disagreed with the opinion." The political nature of firearm rights restoration is unavoidable.
Since the unfortunate shootings at Sandy Hook Elementary, such politicizing of the issue has become more wide spread. After Sandy Hook, I spoke with a judge who handles 8103 restoration of firearm rights hearings. The judge inquired as to how other counties were handling these matters post Sandy Hook – as the judge wanted to ensure that the restoration process in his courtroom was on par with other courtrooms. There is, on all parts, a concern to not be the person who puts firearms back in the hands of someone who is a danger. Unfortunately, this has caused many judges and district attorneys to act more stringently towards restoration – regardless of the validity of the underlying basis for the 5150.
While many 5150 holds are legitimate and involve persons who are a danger to themselves or others, that is not always the case. A 5150 is often a result of very serious events or circumstances that caused an adverse, isolated, and rectifiable reaction in the client: Sometimes, however, a 5150 is the result of an overreaction on the part of all various parties involved, work place harrassment, a reaction to medication, or a number of other factors.
In short,restoring firearm rights after a 5150 hold is convoluted. While navigating the restoration of rights process is not impossible, it can be difficult, and it is strongly recommended that such individuals consult with a qualified attorney. Qualified attorneys can assist in any number of ways, from providing complete representation to providing qualified expert psychiatrist referrals, to reviewing and consulting with an individual who seeks to pursue their firearm rights restoration on their own.