due process for those wrongfully adjudicated on 5256 cert hearings and stripped of their rights ?
For those who have faced 5150s, 5250s, or LPS conservatorships, the concept of firearm disabilities is not clearly discussed and the attendant implications of being placed on a hold. Proper notice is not required in regards to federal lifetime bans and their enforceability so when people try and assert lack of notice, it fails in large part to the balancing test of government vested interests vs the individual rights lost.
Most persons when filling out their 4473's years after being released from their holds or LPS conservatorship may be surprised that they are denied via the NICS/DROS system.
Most persons when filling out their 4473's years after being released from their holds or LPS conservatorship may be surprised that they are denied via the NICS/DROS system.
california law conflicts with federal law
Firearm law in CA is nuanced. For those with mental illness conflict of state law against federal law makes navigating the laws pretty convoluted. Most defendants receive the mandatory firearm prohibition notice at the end of their 72 involuntary hold. They are or in their order establishing LPS conservatorship and its attendant disabilities. However, nothing in the notices provided to patients suggests that there are two levels of disability; state and federal. Neither the ATF or FFL dealers know much about the fact that CA state law relief from disabilities fails to qualify under 35 U.S.C. § 40915 because the state code fails to establish the federal mandatory finding that restoration of firearms is not contrary to the public interest.
extremely narrow fact pattern
The fact pattern bears greater relevancy if the petitioner is mounting an as applied challenge vs a facial challenge to the prohibitor. An as applied challenge addresses the specific circumstances that brought petitioner under section 8103 and how such conditions are exempt from the application of the prohibitor. Facial vagueness challenges to criminal statutes are allowed only when the statute implicates second Amendment rights. If petitioner is being prosecuted under § 8103, the petitioner must demonstrate how it implicates the second amendment. The complainant must demonstrate that the law is impermissibly vague in all of its applications of defendants who were committed under section 5250. Village of Hoffman, 455 U.S. at 497.14. Therefore an as applied challenge is easier than a facial challenge.
More ante.
More ante.
jurisdiction
This section shall discuss for theoretical purposes how CA LPS intersects with federal issues for your future reference if you get the question from someone. The Supreme Court establishes that the 28 U.S.C. § 1367 provides plaintiffs an opportunity to pursue relief in a federal-court lawsuit even if there are issues of mixed jurisdiction. see Arbaugh v. Y & H Corp., 126 S. Ct. 1235, 1240 (2006). USC section 1367 allows for a statutory basis where a federal district court can exercise subject matter jurisdiction over a state law claim that could not, by itself, be brought in federal court if such a claim arises from a common nucleus of operative facts form the basis of the underlying federal claim. Specifically, § 1367(a) provides that if there is a common-nucleus-of-operative-fact that plaintiffs allege violates federal law our federal southern district court may assume jurisdiction over any related state-law claims that in inherent from the same set of facts as the federal claims providing a basis for federal subject-matter jurisdiction.
second amendment claims are generally reviewed under strict scrutiny but mental health claims are narrow and thus reviewed under intermediate scrutiny
Under Heller, the Supreme court ruled upheld that felons, domestic abusers, and mentally incompetent fall outside of the purview of lawful abiding citizens. This bears importance when determining what level of scrutiny applies when challenging a second amendment restriction. A challenged law may fall within the limited category of presumptively lawful regulatory measures that does not offend the Second Amendment; however, if the regulation is subject to Second Amendment protections, the court then proceeds to the second step of the inquiry to determine the appropriate level of scrutiny to apply. Clifton v. United States Dep't of Just., 615 F. Supp. 3d 1185, 1202 (E.D. Cal. 2022)
For this class of persons, Heller's second test is an inquiry into the strength of the justification for restricting or regulating the protected class's reason to exercise their Second Amendment rights” by employing a means end scrutiny inquiry. Both Heller and Bruen do not bear provisions that make challenging 922 prohibitions easier as Bruen's standard does not address mental health adjudications. The Bruen court found that the Heller approach was one step too many and that second amendment challenges should be based on a historical analysis. It replaced the two-step test with a standard based on whether the plain text covers an individual's conduct.” If it does, the Constitution presumptively protects that conduct and the government must then move to justify the regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. At this point, the government has a relatively long history of disarming the adjudicated mentally ill and felons. With the Rahimi case pending, this would be the better case to build a 922 (g) (4) challenge upon.
Federal question 28 U.S.C. § 1441(a),
Federal jurisdiction exists only when federal question is presented at face of plaintiff's pleaded complaint. The opposing party may not defeat federal jurisdiction through artful pleading, in which plaintiff disguises federal claims as state ones plaintiff may not defeat federal jurisdiction through artful pleading, in which plaintiff disguises federal claims as state ones. This means that to overcome section 8103, plaintiff's state prohibition would have had to expired five years from the date of issuance of the notice and only the federal Brady prohibition remains and no state lifetime prohibition remains.
If defendant is party to a criminal proceeding, then on a motion to remand state court, the burden is on defendant to establish that case is properly removed to federal court. 28 U.S.C.A. § 1441; Nelson v. United Artist Theater Cir., Inc., 835 F. Supp. 844 (E.D. Pa. 1993).
Four preconditions exist to the establishment of federal question jurisdiction: federal law must be “essential” element of plaintiff's cause of action; federal question must be disclosed only on face of complaint, and not in answer or by petition for removal; federal question cannot be inferred from defense asserted by defendant; and federal question must be “substantial.” 28 U.S.C.A. § 1331.
If defendant is party to a criminal proceeding, then on a motion to remand state court, the burden is on defendant to establish that case is properly removed to federal court. 28 U.S.C.A. § 1441; Nelson v. United Artist Theater Cir., Inc., 835 F. Supp. 844 (E.D. Pa. 1993).
Four preconditions exist to the establishment of federal question jurisdiction: federal law must be “essential” element of plaintiff's cause of action; federal question must be disclosed only on face of complaint, and not in answer or by petition for removal; federal question cannot be inferred from defense asserted by defendant; and federal question must be “substantial.” 28 U.S.C.A. § 1331.
legislative intent is addressed in brady handgun act and gun control act of 1968
Congress sought “to keep firearms out of the hands of presumptively risky people.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112, n.6, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).
lie and try; prosecution of those under section 8103/922 (g)(4) for lying on the 4473
Although federal law has proscribed that persons who lie on the 4473 shall be prosecuted under 18 U.S.C. § 922(a)(6) for knowingly making a false statement in connection with the acquisition of a firearm, it is rarely prosecuted. State law varies but in CA, when a prospective buyer submits to a background check and fails, the [DOJ] is required to submit the notice of failed background check to law enforcement so that they are noticed of the failed attempt. It is up to the discretion of law enforcement to investigate the prospective buyer to see if they had previous failed attempts to purchase a firearm and whether to prosecute them for lying on a federal form. Most prosecutions for lying and trying are for convicted felons who make multiple attempts to purchase firearms. [citation]
Passed on October 1, 2022, the FBI now will be required to report to the National Instant Criminal Background Check (NICS) denied transactions to state, local, or tribal law enforcement within 24 hours. B
The law calls for that upon receipt of information demonstrating that a person is prohibited from possessing a firearm pursuant to federal or state law, relevant agencies shall submit the name, date of birth, and physical description of the person to the NICS "Denied Persons Files". This information shall remain privileged and confidential, and shall not be disclosed. However, agencies whose purpose is the enforcement of federal or state firearms laws may have access to such information. Cal. Pen. Code § 28220
Lying on a 4473 is rarely prosecuted for mental health prohibitors given that it is very hard to prove that defendant knew that they were prohibited under section 8103. Perhaps if the involuntary hold was relatively recent prosecutors could prove that defendant signed BOF form 4009 (B) and understood the recent memory and thus has knowledge they were prohibited. However, prosecution is still rare and most FFLs will deny the sale and the buyer will not be prosecuted.
The clause barring false statements in, 18 U.S.C. §922(a)(6):
for any person in connection with the acquisition of any firearm from a licensed dealer knowingly make[s] any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended to deceive the dealer with respect to any fact material to the lawfulness of the sale.
Passed on October 1, 2022, the FBI now will be required to report to the National Instant Criminal Background Check (NICS) denied transactions to state, local, or tribal law enforcement within 24 hours. B
The law calls for that upon receipt of information demonstrating that a person is prohibited from possessing a firearm pursuant to federal or state law, relevant agencies shall submit the name, date of birth, and physical description of the person to the NICS "Denied Persons Files". This information shall remain privileged and confidential, and shall not be disclosed. However, agencies whose purpose is the enforcement of federal or state firearms laws may have access to such information. Cal. Pen. Code § 28220
Lying on a 4473 is rarely prosecuted for mental health prohibitors given that it is very hard to prove that defendant knew that they were prohibited under section 8103. Perhaps if the involuntary hold was relatively recent prosecutors could prove that defendant signed BOF form 4009 (B) and understood the recent memory and thus has knowledge they were prohibited. However, prosecution is still rare and most FFLs will deny the sale and the buyer will not be prosecuted.
The clause barring false statements in, 18 U.S.C. §922(a)(6):
for any person in connection with the acquisition of any firearm from a licensed dealer knowingly make[s] any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended to deceive the dealer with respect to any fact material to the lawfulness of the sale.
Chevron deference applies to the atf's definitions of mental defects
"We agree and conclude that Chevron deference categorically does not apply to the judicial interpretation of statutes that criminalize conduct, i.e., that impose criminal penalties. Because the definition of machine gun in § 5845(b) applies to a machine-gun ban carrying criminal culpability and penalties, we cannot grant Chevron deference to the ATF's interpretation". Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 454 (6th Cir. 2021)
When asking whether an agency has acted within its authority in promulgating a rule that interprets a statute, the court generally applies the Chevron framework. At first of two steps of Chevron framework for determining whether an agency has acted within its authority in promulgating a rule that interprets a statute, the court asks if the statute is ambiguous, and, if so, then at the second step the court sustains the rule as long as the rule's conclusion is reasonable.If the Chevron framework for determining whether an agency has acted within its authority in promulgating a rule that interprets a statute is not applicable, then the court accepts the agency's interpretation only if it is the best reading of the statute. In determining whether an agency has acted within its authority in promulgating a rule, legislative rules generally receive Chevron deference from the court, whereas interpretive rules enjoy no Chevron deference as a class. 5 U.S.C.A. §§ 553(b, d). In determining whether an agency has acted within its authority in promulgating a rule, legislative rules generally receive Chevron deference from the court, whereas interpretive rules enjoy no Chevron deference as a class. 5 U.S.C.A. §§ 553(b, d). Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020)
When asking whether an agency has acted within its authority in promulgating a rule that interprets a statute, the court generally applies the Chevron framework. At first of two steps of Chevron framework for determining whether an agency has acted within its authority in promulgating a rule that interprets a statute, the court asks if the statute is ambiguous, and, if so, then at the second step the court sustains the rule as long as the rule's conclusion is reasonable.If the Chevron framework for determining whether an agency has acted within its authority in promulgating a rule that interprets a statute is not applicable, then the court accepts the agency's interpretation only if it is the best reading of the statute. In determining whether an agency has acted within its authority in promulgating a rule, legislative rules generally receive Chevron deference from the court, whereas interpretive rules enjoy no Chevron deference as a class. 5 U.S.C.A. §§ 553(b, d). In determining whether an agency has acted within its authority in promulgating a rule, legislative rules generally receive Chevron deference from the court, whereas interpretive rules enjoy no Chevron deference as a class. 5 U.S.C.A. §§ 553(b, d). Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020)
SECTION 922 G 4 exempts judicial commitments that lack judicial involvement/rigorous process
Commitments under state-law procedures that lack robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4). This finding is mentioned in Mai v. United States, 952 F.3d 1106, 1110 (9th Cir. 2020); Stokes v. United States Dep't of Just., 551 F. Supp. 3d 993, 1004 (N.D. Cal. 2021); Clifton v. United States Dep't of Just., 615 F. Supp. 3d 1185, 1194 (E.D. Cal. 2022); and United States v. Rehlander, 666 F.3d 45, 47–49 (1st Cir. 2012)).
When applied strictly to § 5250 not 5350, 5250 holds mandate a certification review hearing in front of a judicial commissioner [citation]. When a patient is served their notice of 14 day hold, the hospital notices them of their right to a hearing or writ of habeas corpus. For most patients they opt for a certification review hearing. The manner in which most certification hearings are executed is that a judicial officer holds the hearing in a room in the unit with a patient's rights advocate, the nurse and doctor testifying about the patient's medical history, and the patient being allowed to testify about their own plan for care and why they may or may not fall within the definition of danger to self, others, or grave disability. The evidentiary standard is lower than a hearing [CITATION] and the patient is not allowed to present formal exhibits or cross examine witnesses.
The court in Mai established described robust judicial proceedings only when the individual is found to be both mentally ill and dangerous. 952 F.3d at 1110. Mai added that an individual falls within the meaning of section 922(g)(4) when they have gone through legal procedures satisfying due process.
For the meaning of what comports due process we turn to other cases of [_____] since the above case law does not address it.
cont....
When applied strictly to § 5250 not 5350, 5250 holds mandate a certification review hearing in front of a judicial commissioner [citation]. When a patient is served their notice of 14 day hold, the hospital notices them of their right to a hearing or writ of habeas corpus. For most patients they opt for a certification review hearing. The manner in which most certification hearings are executed is that a judicial officer holds the hearing in a room in the unit with a patient's rights advocate, the nurse and doctor testifying about the patient's medical history, and the patient being allowed to testify about their own plan for care and why they may or may not fall within the definition of danger to self, others, or grave disability. The evidentiary standard is lower than a hearing [CITATION] and the patient is not allowed to present formal exhibits or cross examine witnesses.
The court in Mai established described robust judicial proceedings only when the individual is found to be both mentally ill and dangerous. 952 F.3d at 1110. Mai added that an individual falls within the meaning of section 922(g)(4) when they have gone through legal procedures satisfying due process.
For the meaning of what comports due process we turn to other cases of [_____] since the above case law does not address it.
cont....
patient's invocation of writ of habeas corpus still falls outside of definition of robust judicial involvement
There should be a holding that given the statutory intent and construction of section 8103 subd. (a)(1) if the court makes a finding by clear and convincing evidence that the petitioner is able to safely manage firearms without endangering others, has not been subsequently adjudicated since then under 5150 and 5250, and issues the appropriate certificate relieving them from the state disability the federal requirement under 40915 requiring an additional finding of not contrary to public interest shall be implicit in the CA court's ruling. Otherwise as discussed below, the court's time invested into holding these hearings under section 8103 would be nugatory; to hold that something more is necessary than what is already required under section 8103 to further support the inference that must be found in the record under state law would create an unncessary ad hoc rule.
An inquiry into CA violation of federal statute is one of intermediate scrutiny because although the [CITATION] establishes that violations of second amendment rights is subject to strict scrutiny due to every "law abiding" citizen, the case of [CITATION DC vs HELLER?] clarified that those exempt from firearm ownership such as the mentally ill or felons are a small class of persons within the general populus and due to the limited affect, intermediate scrutiny is the proper level of review.
When it comes to challenging federal statute as to whether it correctly interpreted section 8103 as a formal court adjudication, there exists no formal avenue of relief like suing the board of alcohol tabacco and firearms or attacking the constitutionality of California's lack of state funded program for relief from disabilities.
A two-step inquiry is used to assess whether the California policy _____ which bars funding for the relief from disabilities program and Cal. Welf. & Inst. Code § 5250 subd. _____ which proscribes that certification review hearings are reported by default to the NICS violate the Second Amendment, which (1) asks whether the challenged policy burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.
U.S. Const. Amend. CA law does not burden Second Amendment rights if it either falls within one of the presumptively lawful regulatory measures identified in District of Columbia v. Heller, 128 S.Ct. 2783, such as prohibitions on the possession of firearms by felons, ____ mentally ill, and laws forbidding firearms in sensitive places. State or federal laws that impose on Second Amendment rights must withstand more _____ scrutiny than the federally proscribed rational basis review. U.S. Const. Amend. 2. The level of scrutiny applied to laws burdening Second Amendment rights depends on (1) how close the law strikes at the core of the Second Amendment and (2) the degree of burden on this right. U.S. Const. Amend. 2. Strict scrutiny applies only to laws that both implicate a core Second Amendment right and place a substantial burden on that right. U.S. Const. Amend. 2. Intermediate scrutiny applies when a prospective firearm buyer claims that federal statute prohibiting them from possessing firearms due to prior involuntary commitment to a mental health institution violated his Second Amendment rights. Although the statute [CITATION] places substantial burden on prospective buyer, the specific statute of ______ did not burden the public at large but instead burdened only a narrow class of individuals [SIMILARILY SITUATED TEST] who were are not the core target population of the Second Amendment due to their unique status of mandatory formal intervention and involuntary commitment by the State due to dangerousness; and therefore fall out of the general definition enumerated in the second amendment so of law-abiding, responsible citizens. U.S. Const. Amend. 2 ;18 U.S.C.A. § 922(g)(4); [CITATION]. The core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of hearth and home. U.S. Const. Amend. 2. To satisfy an intermediate scrutiny inquiry, the objective of the challenged statute must be significant, substantial, or important [to public safety] and there must be a reasonable fit between the challenged law and that objective. A statute does not need rely on some form of least restrictive means enforcing this interest to withstand intermediate scrutiny inquiry. To withstand intermediate scrutiny, the statute simply needs to promote a substantial government interest that would be achieved less effectively absent the regulation [CITATION]. To withstand intermediate scrutiny, the statute simply needs to promote a substantial government interest that could or may not be achieved effectively absent the regulation.
The federal and state statute prohibiting individuals who were involuntarily committed from possessing firearms was deemed to meet the legal criteria described ante per the Mai court meets the intermediate scrutiny standard as it upholds Congress’ important goal of reducing gun violence and suicide and as a result withstood intermediate scrutiny when the prospective firearm purchaser raised a Second Amendment challenge; even though he distinguished himself from currently detained persons as he claims he was released from his nine consecutive months long involuntary commitment two decades ago. Appellant claimed he no longer had a psychiatric disability, had been safe and stable in recent years, and he had no avenue for seeking relief from the prohibition. Amici? submitted scientific studies that mental illness despite being in remission presented an increased risk of violence for those who were committed involuntarily; well after they were released, and the challenged statute only applied to those with demonstrated history of dangerousness. U.S. Const. Amend. 2; 18U.S.C.A. § 922(g)(4). With nine consecutive months of hospitalization, the court opined that this demonstrated _______ of past risk history of dangerousness to others and self. It extrapolated that there would be future risk of dangerousness to self and other. In enacting statute banning the possession of firearms by those who were involuntarily committed to a mental health institution and related restrictions, Congress passed the gun control act of ___ and the Brady Handgun violence act of ______ to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society. 18 U.S.C.A. § 922(g)(4). This statutory prohibition is by an order for involuntary commitment to a psychiatric facility and takes effect as a result of a past event. The statute is in place to prevent a present danger posed by those who previously have been involuntarily committed to a mental institution who later decide to bear arms. 18 U.S.C.A. § 922(g)(4).
When applying intermediate scrutiny to whether a statute violates the amendment, the court is not bound to an unnecessarily rigid burden of proof as the court may rely on any material reasonably believed to be relevant to substantiate its interests. The evidence proffered does not need to be irrefutable evidence of such but only that it fairly supports Congress’ reasonable conclusions. Mai v. United States, 952 F.3d 1106, 1110 (9th Cir. 2020). When the court lacks empirical evidence, in order to stay within the bounds of intermediate scrutiny, it must complete its analysis by deferring to the predictive judgments of Congress in its reasoning. The Mai court held that per the Second Amendment, the court was not obligated to conduct an individualized hearing to assess the purchaser’s specific level of risk when applying intermediate scrutiny to his claim that 18 U.S.C.A.§ 922(g)(4) statute banning possession by involuntarily committed persons violated the Second Amendment rights, citing that he was released from commitment two decades ago. U.S. Const. Amend. 2; 18 U.S.C.A.§ 922(g)(4). However, since the Bruen case this may change.
The issue with the firearm lifetime prohibition due to mental illness is whether a person can recover from mental illness or was wrongly committed earlier and the lack of relief from disability at the state and federal level. As a result of an involuntary commitment, California law prohibits a mentally ill person from possessing a firearm for five years if they were committed once under Cal. Welf. & Inst. Code § 5150. If they were committed twice in one year under section 5150 they face a state life time ban. If they were committed under Cal. Welf. & Inst. Code § 5250 with no certification review hearing or attendant writ of habeas corpus, then they face the same five year prohibition. If they were committed under section 5250 and had the mandatory certification review hearing, they triggered the federal lifetime ban which has no federal relief program or statewide relief program. The same applies to LPS conservatorships as a conservatorship order is another prohibiting category under federal statute. Federal regulations clearly establishes that the prohibition does not apply to “a person in a mental institution for observation or a voluntary admission to a mental institution” 27 C.F.R. § 478.11. This explains why multiple 5150s trigger the CA lifetime ban but not the federal disability.
Currently California law allows for a person who has a lifetime ban at the state level to petition the court to lift the statewide ban. (Cal. Welf. & Inst. Code § 8103 subd. (f)(1)). At this hearing the petitioner may petition the county’s superior court for a hearing and request that the hearing be closed to the public. Unless there is good cause for it to be public, the court will usually grant the hearing be closed to the public. The state bears the burden of proof (clear and convincing evidence) of demonstrating that the petitioner is unlikely to use the firearm in an unsafe way and lawful manner. Cal. Welf. & Inst. Code § 8103(f)(6). If the judge decides at the hearing that the state has failed to meet its burden it shall consider that the petitioner is “restored to competency” and order that the state level lifetime disability be lifted. A copy of the court’s order shall be submitted to the Department of Justice. Upon receipt of the order, the Department of Justice must delete any reference to the prohibition from the person’s state prohibition system. However, the law does not clearly define that the DOJ referred herein refers to the California DOJ and not the FBI’s NICS system. Although it is imperative to lift the state ban for proof of a court order _____, the federal lifetime ban must also be lifted for the person to in essence lawfully own a firearm in the state and federally.
But, many people during their involuntary commitment face the mandatory certification hearing under Cal. Welf. & Inst. Code § 5256 subd. (a). This code section reads in pertinent part, “When a person is certified for intensive treatment pursuant to Section 5250 or 5270.15, a certification review hearing shall be held unless judicial review has been requested as provided in Sections 5275 and 5276. The certification review hearing shall be within four days of the date on which the person is certified for a period of intensive treatment unless postponed by request of the person, their attorney, or advocate”. Title 18 U.S.C. § 922(g)(4) considers that a certification review hearing is considered a court order that “commits someone to a mental institution”. When examining the federal statute its definitions of mental institution include hospitals and psychiatric facilities where licensed professionals can provide treatment and formal diagnosis. For California this shall presumptively mean IMDs and State hospitals too. The ATF provides that the federal lifetime disability may be lifted if the court order was set aside or expunged. Although Cal. Welf. & Inst. Code § 8103 subd. (f)(1)-(6) serves this purported purpose, it does not apply at the federal level. Technically under 18 U.S.C. § 925 (c), BAF allowed those subject to a prohibition to submit an application for relief from disabilities. However, in 1992 Congress leveraged the Appropriations Act to bar funding to the BAF to fund investigations into relief from disabilities applications. to provide applicants a chance to appeal their disability. This persisted for many years until the passage of the NICS Improvement Amendments Act of 2007. This reopened the possibilities to challenge disabilities. However, it was subject to state discretion to operate each program. (NICS Improvement Amendments Act of 2007, 110 P.L. 180, 121 Stat. 2559, ¶ 101(c)(4). 33 States have adopted a state relief program that complied with federal requirements. However, California has yet to implement a program. When applicants submit their petitions, they only face delayed and nonresponsive results. Case law established that no response is legally the same as a denial and there is no legal avenue to appeal a denial. [CITATION !!!!]. For many years this remained the case in CA until recently the case of Stokes v. United States Dep't of Just., 551 F. Supp. 3d 993 (N.D. Cal. 2021) which challenged the definition of “commitment” as it pertains the specific structure and application of the LPS Act.
It is derivative from the case of United States v. Rehlander, 685 F.Supp.2d 159, 162-63 (D.Me.2010). Both cases and Mai (indirectly) opine that involuntary commitment procedures only comport with due process only when the individual is found to be both mentally ill and dangerous. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118L.Ed.2d 437 (1992). In Rehlander, the high court classified mental health commitments governed by state-law procedures lacking robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4). This court found that statutes criminalizing possession of weapon by prohibited persons due to being “committed” to mental institution could not be extended to encompass those who were temporarily involuntary hospitalized and whose related court proceedings were governed only by ex parte procedures, since such procedures did not provide proper proceedings before an independent judicial or administrative officer to test whether subject was mentally ill or dangerous and there was no effective post-hospitalization means of review or relief to determine whether the defendant who was subject to involuntary proceedings was in fact not mentally ill or dangerous. U.S.C.A. Const. Amend. 2; 18 U.S.C.A. § 922(g)(4); 27 C.F.R. § 478.11. There are many cases where persons are inappropriately detained on mental health holds when they were suffering from temporary emotional reactions or other physiological issues that exists outside of the DSM V. Without proper judicial review or opportunity for relief from disabilities, persons may be committed under false pretenses and lose their second amendment rights forever. The second and fourteenth amendment both ensure that the right to possess arms cannot be stripped by the government on a permanent and irrevocable basis without proper due process. U.S.C.A. Const.Amends. 2, 14.
We face two issues here; the issue of 1) whether certification review hearings and their attendant writ of habeas corpus proceedings comport with due process within the meaning of section 925 (c) and 2) the constitutionality of California’s lack of state funding relief from disabilities in the wake of the Bruen decision of 2022. The latter argument is underdeveloped so this discussion shall primarily focus on the statutory scheme of Cal. Welf. & Inst. Code § 5256.
The ATF 4473 form mandated by federal law asks whether the person seeking to purchase a firearm must answer "Have you ever been adjudicated as a mental defective OR have you ever been committed to a mental institution"?. Now under most States' law this means being formally adjudicated by a judge with a "final order" finding the defendant mentally incompetent.
However, CA and NY have the most restrictive 2A laws. For the scope of this discussion, we shall discuss CA amendments that have made certain populations subject to unnecessary restrictions.
Firstly, according to several FFL dealers CA does not use the instant NICS system. The state opts to use the DROS system which necessitates a manual review of pertinent records. Aside from the State's 10 day waiting period, the DROS may return a result as early as 4 days but often takes up to the full 10 days. Persons wishing to purchase a firearm must wait in limbo to see if they qualify or begin contacting counsel to fight a ban be it criminally related or mental health related. Since this site primarily deals with conservatorship and involuntary holds, the scope shall be limited to the mental health bans.
If the person detained pursuant to section 5150 controls or possesses firearms, the firearms may be confiscated by a law enforcement agency. If the person does not own firearms at the time there is also a five year ban on owning firearms (Cal. Welf. & Inst. Code § 8103 (f)(1)). Should the person be detained again under the same provisions, then a lifetime ban shall be in place until the person petitions for review of the lifetime ban. The patient has a right to appeal the ban once every five years (§ 8103 subd. (f) and (g)). The State bears the burden of proof showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner (§ 8103, subd. (f)(6)). On review, the State bears the burden of proof on the issue of the danger presented by return. If the court finds that the State has not met its burden, the restriction shall be lifted, and the person entitled to own, possess, control, receive or purchase firearms, unless another legal restriction applies (§ 8103, subd. (f)(1)). The court may consider whether the circumstances leading to the involuntary detention might occur again and whether possession or control of firearms in such circumstances would pose a risk of danger to the patient or to others. (Cal.Welf. & Inst.Code § 8103(f)(5, 6); People v. Jason K., 188 Cal. App. 4th 1545, 116 Cal. Rptr. 3d 443 (2010).
Westlaw is pretty silent on the matter of presenting a case to the presiding bench officer. Given that most who file their petition cannot afford legal counsel at a steep cost of thousands of dollars, the best assumption is to prepare a brief of points and authorities with proper Exhibits. Assume that the State may attempt to subpoena past expert witnesses. The Jason case presents the picture that this is a informal hearing with its attendant low burden of proof; preponderance of the evidence. However, given that a petitioner is allowed to petition once every years and in most cases a denial precludes petitioners from further relief, it would be wise to treat this hearing as a formal hearing but with the unusual evidentiary rules that govern LPS conservatorship court or dependency as public safety is the primary and most pressing inquiry. Although the state must conduct its balancing test, the reality when mental illness is the contravailing factor, the judgement shall be in favour of stripping the mentally ill of their 2A rights even in the absence of a specific nonspeculative nexus to exact future harm to others. Where there is smoke there is fire.
With the opinion issued in New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022), conceal carry permits do not require a "good moral character" standing. As anyone who undergone the trials of character and fitness, mental illness can lead to delays of up to a year as the state Bar determines whether the applicant is mentally sound to practice. The same shall apply for anyone who needed to prove good cause and posses good character to have a conceal carry permit. The process was extremely difficult leading to very few conceal carry permits being issued in most counties. Now those standards have been lifted many persons are now eligible for conceal carry permits making the waitlist long but issuance not impossible.
All the rights all the time
What a possible denial letter may look like if DROS returns a denial.
REGISTRATION LEADS TO CONFISCATION !