In the District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment provides a fundamental right of individuals to keep and possess firearms. But, in the opinion, the Court held that “[a]lthough we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” But the key question that arises in this context is what does the term “mentally ill” mean? When the law imposes restrictions on the fundamental right to keep and bear arms due to “mental illness,” does the government’s definition of the term mesh with the common understanding? And, what procedural protections does California law have in place to protect the rights of its citizens? As described herein, California paints with a broad brush regarding its restrictions on firearm ownership by the “mentally ill.” Moreover, the procedural “protections” are minimal, but restoration of one’s firearm rights is possible under the right circumstances.
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, in my experience, the most comprehensive system in place for the restoration of firearm rights for 5150 patients:
In Los Angeles County, the county with the largest population in California, an average of 6 section 8103(f)(5) petitions are filed each month. All hearings are conducted in Superior Court Department 95, the division that hears cases relating to mental health issues, including civil commitments and certain types of forensics cases. The court has made an informal decision to have every petition evaluated by a forensic psychiatrist. The evaluation consists of a review of records from the involuntary admission triggering the ban, a psychiatric interview with the petitioner, and if deemed necessary, contact with collateral sources such as family members or current treatment providers. The assistant district attorney in the department may choose to oppose the petition and, in many cases, testimony is heard, often including that of the forensic psychiatrist. Roughly half of the petitions filed are heard, and a ruling made by the judge. Of these, about 80% are granted.
(Emphasis added. Id. at 4)
Phrased differently, in Los Angeles County, only 40 percent of all 8103(f)(5) petitions filed are actually granted. Presumably, the reason for 50 percent of the petitions are not heard is due to the withdrawal or abandonment of petitions after the individual is advised by the county’s psychiatrist that the petition will be opposed or will likely be denied.
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:
Example: The client had an unforeseeable series of events and tragedies that occured causing the client to enter into severe depression. Upon visiting the hospital for the depression related anxiety and other symptoms, the client was held pursuant to 5150 and evaluated. The client was diagnosed with severe depression and began seeing a psychiatrist for treatment. Upon experimentation with medication and routine treatment, the client’s depression became manageable and the client’s psychiatrist was willing to provide a declaration under penalty of perjury stating that the client was not likely to use firearms in an unsafe or unlawful manner. Court agreed and restored client’s firearm rights.
Sometimes, however, a 5150 is the result of an overreaction on the part of all various parties involved:
Example: The client was fired by employer. After being informed of the firing and during the exit interview the client stated as an expression of dissatisfaction “I wish I was dead.” After the client left the employer, the employer informed the police of the client’s statement and also informed the police that that the client is a firearms owner. Later that day, dozens of police and SWAT show up armed and with helicopters to seize the client’s weapons and take the client to a hospital pursuant to 5150. The client’s comment was clearly and off the cuff comment and did not consist of any ideation or plans to commit suicide, nor was any actual threat made. Upon presentation of a threat assessment expert report, discussion of the facts with the district attorney’s office, the People did not oppose the restoration of client’s rights. The client’s rights were restored.
Example: The client suffered from long term medical issues, but is an avid shooter. The client was cleaning firearms when the client’s spouse entered the room. The client handed the spouse a firearm and said “you better keep this” because the firearm was the spouse’s firearm, not the client’s. Later that day, the client has an adverse reaction to medication and was taken to the hospital. While at the hospital, the nurse asked the spouse whether there was anything wrong with the client. The spouse stated that the client had been acting strangely all day, and reported the statement regarding the spouse’s firearm. The hospital overreacted and claimed that the statement coupled with the action of handing the spouse the firearm indicated that the client had been suicidal. The hospital placed the client on 5150 hold. The client automatically lost firearm rights as a result of the 5150. We submitted a petition to restore firearm rights and discussed matter with the district attorney’s office. The district attorney’s office agreed to not oppose petition and the client’s firearm rights were restored.
Sometimes, a 5150 is the result of workplace harassment:
Example: A client was sexually harassed by a workplace supervisor. The client filed a claim against the supervisor. The client was required by the supervisor to see a workplace psychiatrist about the matter. The client was held 5150 by the psychiatrist, who claimed that the client was in “grave condition” because the client had not eaten that day or slept well due to the stress of the workplace. The client was incorrectly told that a “grave condition” 5150 hold is a firearm prohibiting category. We successfully petitioned the court to restore the client’s rights after presenting a threat assessment report detailing the fact that the client’s condition is workplace stress related and that the client was, at no time, a threat to self or others, as well as a presentation to the court clarifying that “grave condition” is not a firearms prohibiting category. The workplace psychologist learns of the restoration and then subsequently reported the client to the California Department of Justice (“DOJ”) as being prohibited from possessing firearms. In response, the DOJ designated the client as prohibited until a court order was provided to the DOJ to clarify that the client was not and should not be prohibited from possessing firearms.
Sometimes, a 5150 is the result of a reaction to medication:
Example: A client was injured in a motorcycle accident, causing severe spinal injuries and life-long pain. The client incurred a day of extreme pain and medicated more than the prescribed amount, causing an unintended reaction to the medication. While the client was at the hospital to address reaction, the hospital feared that the client may have been attempting suicide and placed the client on a 5150 72-hour hold. The client was monitored and was determined not to be a threat to self or others and was released. Nevertheless, due to the 5150, the client was prohibited from possessing firearms. A petition filed and a threat assessment report was provided to the district attorney’s office. After discussion of the matter, the district attorney’s office did not oppose the client’s petition, and the client’s firearm rights were restored.
In short, if you are reading this because you have found yourself in a similar position, you’re not crazy, the system is. Restoring firearm rights after a 5150 hold is difficult and convoluted. There are many reasons that people have been held 5150 but shouldn’t have their fundamental Second Amendment right to keep and bear arms automatically taken from them. Such individuals are not insane, they do not suffer from mental illness, and they are not a danger to themselves or others. They are individuals who have found themselves in extraordinary situations, but have been forced to prove their mental status in order to be complete citizens because of a politicized system and the bias against firearm ownership in California.
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.
 I have often wondered what those groups who supported and passed these automatic restrictions on an express fundamental right would think if a similar automatic ban based upon the judgment of police officers, social workers, and psychiatrists were placed on other rights (expressed and non-expressed) such as abortion, free-speech, privacy, the right to vote, the right to travel, etc. Such a reversal would surely expose the hypocritical nature of those advocating for these automatic restrictions.