Since writers originate from the southern district under the Ninth circuit this comment shall address the lawful citizen test under Heller not Bruen. Bruen analysis have not address 922 (g)(4) prohibitors and the lawful citizen historical analyses.
History and common sense confirm that restricting the firearm possession of persons with a history of mental disturbance is not inconsistent with “the right of law-abiding, responsible citizens to” keep and bear arms. District of Columbia v. Heller, 554 U.S. 570, 635 (2008). The Second Amendment is thus not violated by the application to plaintiff of section 922(g)(4)'s “longstanding prohibition on the possession of firearms by ... the mentally ill.” Id. at 626. The ATF has determined that mental illness alone does not confer a prohibition. It is the determination by a court that a person is incompetent or a formal commitment to a mental hospital that confers the lifetime prohibition. Given that CA's state relief from disabilities process is not recognized at the federal level, the lifetime prohibition stays. However, given the overburdened hospital system, many patient face long stays and eventually run up against the mandatory 5250 certification review hearing. This cert hearing must occur by law and often happens on day three or four of the 5250 hold.. Now given the high case loads, patients often find themselves in the ER triage for a day or two waiting before they are send to the actual psychiatric unit or transported to another facility that does have space. By the time the patient may have actually arrived, the clock has already began to run even though the law suggests otherwise [link]. Therefore, by the time the patient will have arrived at the facility they will soon receive the 5250 hold paperwork and the notice of upcoming certification hearing. They have yet to meet their actual treating doctor who will fully review their file and history and make decisions about their treatment and plan for release. This brings us to the facts of our case where the patient may have had a medication induced manic episode from pseudoephedrine and was admitted to the hospital under dangerousness to self and others. In the case of many people who are diagnosed with some milder forms of mental illness, medications can trigger an episode that is very uncharacteristic for them and the resultant hospitalization will have marked them as unfit and not a "law abiding citizen" under Heller. Their certification of dangerousness to self and others is not characteristic of their mental illness or for those without an underlying mental illness, not characteristic of themselves and therefore do fall within the intent of the legislature and Heller in regards to the federal prohibition under 922(g)(4). Within the scope of Bruen, the historical tradition of keeping and bearing arms extends to those who are not chronically severely mentally ill; but rather, just suffering a transient period of medication imbalance relating to an unrelated condition such as pneumonia. With no recourse for them to seek relief from disabilities at the federal level from within California, they would have no way to restore their rights without having to go through expensive lawsuits entailing suing the DOJ. Furthermore, if the BSCA intends to prosecute more lie and try cases and investigate failed NICS background checks, a patient may have even forgotten they were certified danger to self and others if this was a one time occurrence from a medication never to be repeated again. Jasani, R., Deacon, J. W., & Sertich, A. (2021). Corticosteroid-Induced Mania After Previous Tolerance of Higher Doses. Cureus, 13(9), e17719. https://doi.org/10.7759/cureus.17719 Panwar, V., & Lassi, K. (2011). Stable Bipolar Patient Switched to Mania following Clinical Doses of Prednisone. Case reports in psychiatry, 2011, 797658. https://doi.org/10.1155/2011/797658
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5/11/2024 the expanded definition of engaged in the business of dealing in firearms and mental healthRead NowThe BSCA removed the requirement to consider income for ‘‘livelihood’’ when determining that a person is ‘‘engaged in the business’’ of dealing in firearms at wholesale or retail. The definition of ‘‘predominantly earn a profit’’ now determines earn a profit on whether the seller's intent underlying the sale or of firearms was predominantly one of obtaining pecuniary gain. Pecuniary gain per the ATF's determination means any kind of benefit wether it was financial or for personal gain. The ATF determined that a single sale does not usually qualify as engaged in the business; however, it does not quantify in the GCA or in this final rule how many sales fall within the meaning of engaged in the business of dealing in firearms. This final rule according to gun control advocacy groups like Giffords and Everytown are intended to target sellers who try and engage in firearm "trafficking" or multiple sales to persons who they choose to ignore signs that the buyer is a prohibited person. With this final rule coming into effect within 30 days of its publication, private party sellers must register as an FFL eg (FFL-01) and whenever they conduct a sale or transfer they must abide by their state's laws and federal laws which include conducting a background check using the 4473.
For mental health prohibitors, this may cut down on some illegal sales where the proposed buyer may have tried to go through the private party transfer route to bypass the . However, federal law does dictate regardless of the means of sale, the seller must have reasonable belief the person they are transferring the firearm to is not a prohibited person. With the expanded definition of For current CA residents, this rule does not affect them as CA is a point of contact state where all transfers must go through an FFL and no firearms may enter the state without being registered in the CFARS within 30 days of entering the state. However, it could impact some buyers who may have triggered the lifetime prohibition through a 5250 cert hearing, moved state, and then attempted to buy a firearm via private party transfer years later in a state like Maine. With the stricter regulations of who is considered engaged in the business of dealing in firearms, the private party transfer seller would have to run a NICS background check, where they would then realize the person to whom they about to sell the firearm to was prohibited under federal law as the CA mental health records. A few concerns raised were that the rule would cause such an increase in the number of dealer applicants and licensees that ATF and NICS would not have the resources to handle the corresponding increased workload. With many states having the "Charleston loophole" active, concerns would be raised that they would still release on an undetermined when there may be a prohibiting entry. According to the group Giffords, even a full POC state like Florida allows for releases on undetermined statuses. Related concern raised were that even though this final rule was proposed, most private party sellers especially ones that resided in border states to CA are already extra careful about checking for real IDs and proof of residency that evinced the buyer was a resident of their same state. 2A proponents also contend that interstate sales of firearms is illegal and CA state law prohibits any transfer of magazines, ammunition, and firearms into the state without registry. Finally, they argue that someone who wishes to acquire a firearm will a means to procure the firearms and that increasing the burden on private party sellers who may not have the financial means to become an FFL are punished. They also contend that this rule will generate more sale data that can be used in growing an illegal centralized registry that may not be immediately searchable but still searchable none the less. Furthermore, they argue that if there is another federal "assault weapons ban" passed, more firearms will be known to ATF and if there is no grandfather clause, they will be subject to either confiscation or a mandatory buyback. Additionally given that federal mandates that all FFLs when they close must provide the last 20 years of 4473's to the ATF who does not have a date where they destroy the 4473s gives rise to concern about the growing illegal registry as many private party transfers occur because people do not want their information in a registry. If there were mental health patients from decades ago who acquired their firearms via private party transfer, when they attempted to purchase a firearm and now the private party seller conducted a background check, the "surprised" buyer would be prosecuted for lying per 18 U.S.C. section 922 (a)(1) as they might not be aware they triggered the federal prohibition years ago. Pro gun control advocacy groups like Moms Demand and Everytown assert that even though some criminals will find means to acquire their firearms, this will slow the flow of firearms that enter tightly regulated states like CA and lower the rate of firearm related deaths in states with less restrictions as less readily accessible firearms will deter criminals. A note: many term this closing the "gun show loophole". Most gunshows booths inside are run by FFLs who must already conduct the background check and 4473s regardless. This rule would be more apt to be termed the "private party transfer" exception. At many gun shows and around border state FFLs like Cabela's, undercover ATF agents monitor the sales going on within and outside for out of state buyers, straw purchasers, and suspicious buyers. They search for out of state plate, buyers with non state IDs, or alerts of denied persons. 5/10/2024 Should 922 (g)(4) denials trigger prosecution under 922 (a)(1) (False Statement to Acquire a Firearm)Read NowFalse Statement in Connection With Acquisition of a Firearm,
18 U.S.C. § 922(a)(6) For purposes of this discussion most of it will cover federal law. State law will be covered later. If a person attempts to purchase a firearm from an FFL and they are denied, when the denial is reported to the state, the state technically has the discretion to pursue an investigation as to whether the prospective buyer was attempting to deceive the FFL by providing information they knew was materially false. Most of the time § 922 (a)(6) is used when charging defendants who have prior felonies or domestic violence convictions and civil court orders. However, with the increased focus on mental health, expanding gun control laws, and the passage of the BSCA, many proponents against gun control believe that mental health patients will be prosecuted for "lie and try"; even for a first time attempt to purchase a firearm. Per CA law, when the person completes their 5250 hold assuming they did not prevail on their cert hearing/writ of habeas corpus, they will be given legal document describing the prohibitions. The document states that the prohibition term under state law is five years for one 5150 and a lifetime for 2 5150's in a year. The document then states that if you were held for more than three days federal law may prohibit you from owning and possession firearms for a longer period of time. The BOF 4009B at the bottom has a signature where it reads "I certify that I have read and understand that I am subject to the prohibition(s) indicated in this document". It is important to note that the 4009B does not have this disclosure certifying that the patient read and understood the document. This to a charging prosecutor is likely to qualify as knowingly making a false statement about prohibition status. The ATF endorses legal enforcement of those who fill out a 4473 without ensuring that they are very reasonably certain they are not in a prohibited class. “Prior to stepping foot in a gun store, potential purchasers with eligibility concerns have access to a variety of information, reference materials and Q&A at www.atf.gov or by contacting their local ATF Office,” -Dallas Division ATF Special Agent in Charge Jeffrey C. Boshek II. Many years down the road, a person who may have been certified when they were 18 years old have forgotten that they signed such a document. Most mental health patients discard their paperwork and do not sign that they wish to have a hearing to restore their rights. When they sign the 4473, a federal document, they most likely do not understand that the 5250 certification review hearing triggers the lifetime prohibition. Even though Stokes found this prohibitor unconstitutional, Stokes was an as applied case and therefore did not change federal law. With the push for gun control and past events of mass shooters having been mentally committed years before, there could be a push to charge prospective buyers with making a false statement in connection with trying to buy a firearm/ammunition, specifically about "have you ever been adjudicated mentally defective or committed to a mental institution". The law mandates that the FFL cannot assist a buyer in filling out the form 4473. Rather, they can only guide the buyer to the end pages with the definitions of each criterion. Most persons who were committed in CA remember the 5150 and being told about the 5 year prohibition. They do not know about the lifetime prohibitor and neither do most hospital persons administering the paperwork. Because of this it is difficult to prove the mens rea behind filling out the 4473 falsely. For the court to find [defendant] guilty of this crime, it must be convinced that the US District Attorney has proven each of these things beyond a reasonable doubt: First, that defendant knowingly made a false statement as charged in the Indictment; Second, that at the time they made the statement, defendant was trying to buy a firearm/ammunition from a licensed dealer; and Third, that the statement was intended to, or likely to, deceive the licensed dealer about a fact material to the lawfulness of the sale. It is important in all of the facts discussed above, that the government does not have to prove that defendant knew that they were violating the law regarding false statements on a 4473. They only have to show that the statement is "false" if it is untrue when made. The false statement is made "knowingly" if the person making it knows that it is false or demonstrates a reckless disregard for the truth, with a conscious purpose to avoid learning the truth. Finally, the fact of 5150's being different from 5250's and their attendant certification hearings is "material" as it either has a natural tendency to influence or to be capable of influencing the decision of the licensed dealer as to whether it is lawful to sell the firearm. Legally it is irrelevant if the licensed dealer actually relies upon the statement in processing the 4473. For reference, the FFL is charged with denying the sale up front if they have reasonable suspicion that the person is a prohibited purchaser or a straw buyer even without providing a 4473. [CITATION] The court may consider any statements made or acts done or omitted by defendant and all other facts and circumstances received in evidence that may aid in its determination of defendant's knowledge or intent. That is where a pro gun control judge may use the certified signature of read and understood the prohibitions in BOF 4009B against defendant in proving that they knew about their status. Ignorance of the law is almost never an equitable excuse. Case law that has addressed this issue United States v. Currier, 621 F.2d 7, 10 (1st Cir. 1980), stated that section 922(a)(6) "does not require a showing that appellant 'knowingly' violated the law; it simply requires proof that appellant 'knowingly' made a false statement." (2) The definition of "knowingly" is different from the customary definition of "knowingly" for other types of offenses. It comes from United States v. Wright, 537 F.2d 1144, 1145 (1st Cir. 1976), a case arising under 18 U.S.C. § 922(a) United States v. Santiago-Fraticelli, 730 F.2d 828, 831 (1st Cir. 1984), emphasized that section 922(a)(6)'s scope is "not limited to situations in which an accused knew he was lying." When a person recklessly fails to ascertain the meaning of the questions contained in Form 4473, and simply answers the questions without regard to whether the answers are truthful, he is acting "knowingly" for purposes of this section. For purposes of the 5250 federal prohibitor, this would entail finding that defendant was responsible for reading the back of the 4473 and even possibly researching what kind of prohibition a 5250 hold triggers both statewide and federally. The defendant may also be required to due their due diligence in researching the difference between a certification review hearing and just the mere beginnings of a 14 day hold as the cert hearing is the triggering event. (3) Section 922 does not require proof that the transaction was in interstate commerce. see Scarborough v. United States, 431 U.S. 563 (1977). The requirement of a transaction with a licensed dealer is sufficient. Those dealers' general involvement with interstate commerce is ample to justify federal regulation of even intrastate sales. see United States v. Crandall, 453 F.2d 1216, 1217 (1st Cir. 1972). (4) The definition of "material" is defined in United States v. Arcadipane, 41 F.3d 1, 7 (1st Cir. 1994). Do GVRO's under California Penal Code section ______ violate due process?
For to consider the criteria to grant an ex parte GVRO. (b) A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to subdivision (a) of Section 18155, and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true: (1) The subject of the petition poses a significant danger, in the near future, of causing personal injury to the subject of the petition or another by having in their custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155. (2) An ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition. The factors in section 18155 are as follows: In determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following: (A) A recent threat of violence or act of violence by the subject of the petition directed toward another. (B) A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself. (C) A violation of an emergency protective order of the Family Code that is in effect at the time the court is considering the GVRO petition. (D) A recent violation of an unexpired protective order of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code. (E) A conviction for any offense listed in Section 29805 (most misdemeanor convictions) (F) A pattern of violent acts or violent threats within the past 12 months, including, but not limited to, threats of violence or acts of violence by the subject of the petition directed toward himself, herself, or another. (2) In determining whether grounds for a gun violence restraining order exist, the court may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following: (A) The unlawful and reckless use, display, or brandishing of a firearm by the subject of the petition. (B) The history of use, attempted use, or threatened use of physical force by the subject of the petition against another person. (C) A prior arrest of the subject of the petition for a felony offense. ... (F) Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses by the subject of the petition that involve controlled substances or alcohol or ongoing abuse of controlled substances or alcohol by the subject of the petition. (G) Evidence of recent acquisition of firearms, ammunition, or other deadly weapons. (3) For the purposes of this subdivision, “recent” means within the six months prior to the date the petition was filed. Many of these are credible criteria as evidence demonstrates that DV occurs without any paper trail and even police reports. There are circumstances where partners may lie in retaliation but data demonstrates that this is the minority not the majority. Prior felonies and convictions are prohibitors at the federal level. For mental health this is where there could be possible due process concerns as the allowed persons to have standing in a GVRO petition covers a large class of persons. It is criterion F and G where the ambiguity lies. There have been persons with mental illness who make verbal threats to harm themselves The Department on July 6, 2001, published a notice of proposals for changes to the NICS which was eventually passed into law. The changes addressed the amount of time the NICS retains information about approved transfers, the manner in which that information may be used to audit the NICS, how the privacy interests of law-abiding firearm transferees were handled, and the Department's obligation to enforce the Brady Act in preventing prohibited persons from receiving firearms.
Thanks for reading Legal Updates! Subscribe for free to receive new posts and support my work. The changes would require information relating to transfers (minus the NICS Transaction Number (NTN)) to be destroyed before the beginning of the next day of NICS operations (24 hrs). The NICS regulations in the past before the change required destruction of this information within 90 days of the system allowing a transaction. 28 CFR § 25.9 (b)(1). The President signed into law, the requirement that the NICS is required to destroy certain information in the records of approved transactions. Section 617 of Pub. L. No. 108–199, the Consolidated Appropriations Act, 2004 requires the NICS to destroy any identifying information of any person who has been determined not to be prohibited no more than 24 hours after the system advises a FFL that possession or receipt of a firearm would not violate 18 U.S.C § 922 (g) or (n). When there are no missing records, NICS employees are able to make their determinations quickly within a matter of minutes. However there is concern over the “Charleston” loophole, which is when the NICS has cases in which it cannot make a determination within three business days as to whether a potential transferee is prohibited, and lawfully releases the firearm to the buyer (in many states but not all like CA). Because the NICS cannot reach a final determination within three business days because relevant information is missing, the final rule defines these cases as “open” responses and allows the NICS to retain information about them until a “proceed” determination is reached or for not more than 90 days. Initially, the purpose of the proposal was to create a separate category of transactions called “unresolved”; cases where the FFL was unable to determine whether the prospective buyer was prohibited. In the final published rule, the name of the category was changed from “unresolved” to “open.” “Open” transactions are non-canceled transactions where the FFL has not yet been notified of the final determination. In these cases, additional information is needed before the NICS examiner can verify whether a “hit” in the database demonstrates that the prospective buyer is disqualified. However, to be clear, the 24-hour record destruction requirement applies only to transactions in which the NICS has affirmatively determined that possession or receipt of a firearm by the purchaser would not violate 18 U.S.C. § 922(g) or (n) or any state law like Welf and Inst Code § 8103 et seq. The FFL must have received a “proceed” response for the above provisions to apply. In the case of denied transactions, records are retained indefinitely. This is relevant as the NICS denial notification act which under the ____ requires that a denial be reported to local law enforcement agencies so in the case the prohibited person attempts to purchase a firearm at a different FFL or attempts to unlawfully obtain a firearm. Receiving information about POC states’ denials will enable the FBI to refer all denials, not just those made by the FBI NICS Operations Center, to ATF for investigation. [Citation] The reports indicate that if the referring agency deems that this is beyond a simple one time denial, they may send an investigator from the office of the DA to inquiry into the nature of the denial. Some commenters suggested that reducing the retention period to less than 24 hours will hinder investigation into unlawful firearm transactions specifically straw purchases. A “straw purchase” occurs when the actual purchaser of a firearm compensates another person, the “straw purchaser,” to fill out the form 4473 so that their own prohibited status does not bar them from buying a firearm. Although this is illegal federally (affirmed by Abramski) and statewide, the way the law is written, the onus of catching a straw purchaser is on the FFL. They are trained it recognize the signs of a straw purchase, but with technology evolving this is proving to be harder and harder. According to notice and comment, the authors note that the provision in the final rule stated that this shortened time frame would still allow the FBI and ATF to pursue cases of straw purchases that come to the FBI's attention. When a potential straw purchase comes to the attention of the FBI while processing a NICS check within 24 hours after a dealer is advised of a proceed determination, this provision in the regulation will authorize the FBI to provide records of the approved transfer to ATF before the identifying information in records in the NICS Audit Log must be destroyed as required. [more] Another concern raised was that the proposed change would prevent the NICS from referring a “proceed” transaction for a firearm retrieval when a disqualifying record is subsequently entered into the system after the approval. The concern indicated that this would allow a prohibited buyer to “beat the clock” and buy a firearm after they become disqualified but before his or her disqualifying record is entered into the system. For example if someone is released very soon after a certification hearing, they may try to buy a firearm. Now in CA because of our 10 day waiting period this risk is negated but a state like Maine would face possible issues with beating the clock. The NICS does not currently have a process for automatically comparing new history or other disqualifying information received by the FBI against proceed transactions. Other concerns raised were that the Brady Act does not allow the FBI to retain information about the FFL identification number or to transfer any information on allowed transfers or open transactions to ATF. The comments asserted that the FBI can only keep the NTN and date of transfer and may only share said information with ATF when there is a bona fide criminal investigation. The ATF may not share that information publicly for researchers; only with law enforcement per the Tiahrt Riders Amendment. In relation to CA this could mean that the ATF trace data could not be used for researchers to determine whether a prohibitor under 922 (g)(4) was successful in driving down gun related deaths as mental health prohibitors may resort to relying on straw purchases, obtaining privately made unserialized lowers given their rise in popularity, and buying stolen firearms with obliterated serial numbers. It is true that the ATF's NICS 24 hour reporting and destruction of records would not largely cut down on this type of illegal procurement of firearms. However, with the NICS denial notification act would possibly alert law enforcement and other FFLs to keep an eye out for poorly conducted straw purchases. The final change was to require POC states like California to transmit state determinations (like cert hearings and writ of habeas corpus outcomes) to the NICS. California already submits its mental health records to the NICS per state law when the person is certified. The 5150 holds are not reported to the NICS because they do not federally qualify as a commitment per Mai but do trigger the five year state prohibition for a single 5150 and a lifetime state prohibition for 2 or more 5150s in a 365 period. Presumably, if the CA resident were to move before their prohibition were to expire, it is unlike that a FFL in North Dakota would inquire into CA records as the state disqualifiers are only reported to our DOJ and North Dakota is not a POC state. Final note: In relation to the NICS database data destruction, CA law mandates that the prohibiting category is recorded in the APPS database. According to publications by the CA attorney general, the 5150 record “self deletes“ after the five year expiry date. PROCEDURAL POSTURE
CASE SPECIFIC ! ISSUES PRESENTED Defendant moves to dismiss the temporary conservatorship because the statute of limitations on the temporary conservatorship has expired a little over six months ago. Defendant contends that the Public Guardian initiated the temporary conservatorship on an inappropriate factual basis for grave disability. Although Defendant acknowledges that the core facts of grave disability are beyond the scope of this motion to dismiss, they plan a small role in why his counsel and the Public Guardian attempted to toll the statute far beyond what is considered reasonable. However, Defendant avers that the facts of his case do not present a compelling enough reason to toll the statute 7 or 8 months past the allowable time limit for temporary conservatorships. Defendant alleges that the criteria for equitable tolling do not apply here and the temporary conservatorship should be dismissed. DISCUSSION A. The Doctrine of Equitable Tolling Is Not Applicable To All Statutes Equitable tolling is a “judicially created, non-statutory doctrine” that “suspend[s] or extend[s] a statute of limitations as necessary to ensure fundamental practicality and fairness”. McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99. Our courts draw authority to toll a filing deadline from their inherent equitable powers — not from what the Legislature has declared in any particular statute. The authority by which courts equitably toll a statute’s limitations comes not from any statute, but instead from the court’s judicial power which itself derives from the Constitution, and the Laws of the United States. U.S. Const. Art. III, § 2; (Smith v. Davis, 953 F.3d 582, 592 (9th Cir. 2020)). Thus courts may presume that statutory deadlines can be subject to equitable tolling even if the statute does not explicitly address it. Irwin v. Department of Veterans Affairs (1990) 498 U.S. 89, 95–96. The power to employ equitable tolling doesn't mean it will apply in every or even most cases. Many cases have explained that equitable tolling is a narrow remedy that applies only “occasionally and in special situations”. (Addison v. State of California, supra, 21 Cal.3d at p. 316, 146 Cal.Rptr. 224, 578 P.2d 941); (see also Lantzy v. Centex Homes, 31 Cal. 4th 363, 370, 73 P.3d 517, 523 (2003)). Any conclusion that the Legislature hadn't intended to prohibit a statute of limitations from being tolled ought not construe equitable tolling into “a cure-all for an entirely common state of affairs.” (Wallace v. Kato (2007) 549 U.S. 384, 396). Courts must instead carefully examine the facts of each case to determine whether “justice and fairness” demand that the limitations period be tolled. (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1081, 282 Cal.Rptr. 445, 811 P.2d 737). The tolling doctrine allows courts, “in carefully considered situations,” to exercise their inherent equitable powers to “soften the harsh impact of technical rules” by tolling statutes of limitations. (Addison, supra, 21 Cal.3d at p. 316, 146 Cal.Rptr. 224, 578 P.2d 941). Furthermore, equitable tolling may be applied in situations where, “despite all due diligence, the party requesting tolling is unable to obtain vital information”. Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1207 (9th Cir.1995) (internal quotations and citation omitted). Case law additionally adds that equitable tolling doctrines should not apply if equitable tolling is “inconsistent with the text of the relevant statute” (United States v. Beggerly (1998) 524 U.S. 38, 48, 118 S.Ct. 1862, 141 L.Ed.2d 32). Welfare and Institutions Code does not address tolling its rigid deadlines nor is there is case law that address such the issue. Therefore, equitable tolling of the deadlines for California's involuntary holds, temporary conservatorship, and permanent LPS Conservatorship remains an unanswered query that is just now being brought to a court's attention. As with other general equitable principles, application of the equitable tolling doctrine requires a balancing act betwee the deprivations to the Defendant’s rights against the important public interest expressly stated in the LPS Act. (Addison v. State of California, 21 Cal. 3d 313, 321, 578 P.2d 941, 945 (1978). Defendant asserts that given the totality of the circumstances this court would conclude that situational shortcomings such as beds or staffing shortages and the Public Conservator's interest in continuing supervised treatment cannot be reconciled with permitting unfettered equitable tolling as the LPS Act has already achieved the balancing act between state interests and patients' rights via its various legal safeguards and deadlines. B. DEFENDANT ASSERTS THAT THERE ARE NO EXTRAORDINARY CIRCUMSTANCES JUSTIFYING TOLLING THE STATUTE FOR A LENGTHY PERIOD Defendant alleges that the Public Guardian has yet to proffer a compelling enough reason to continue his temporary conservatorship ___ times pushing his proposed permanent conservatorship hearing date more than 6 months out from the establishment of the temporary conservatorship. Defendant points out that the code governing the timelines of LPS conservatorship hearings demands that courts adhere to a rigid timeline. He states that although the code states that the court may extend the temporary conservatorship until the matter has been decided, it may not continue the case for more than 180 days pursuant to Welf & I C §5352.1. Furthermore, if the conservatee demands a jury trial the court has up to six months to complete jury selection and to hold the trial or else the case must be dismissed. Welf & I C §5352.1. Defendant asserts that the Public Guardian and the hospital have had plenty of time to make an assessment as to whether he is currently gravely disabled within the meaning of Welf & I C § 5008 et seq, and that that determination should have been made within the statutory framework. Given the nature of the deprivations faced by conservatee, Defendant asserts that these timelines are a bright line rule, not intended to be subject to equitable tolling even when the conservatee may be found currently gravely disabled. As discussed, ante Defendant, made timely requests for a rehearing and a jury trial. All times Defendant was informed by the Public Guardian or his counsel that San Francisco does not hold jury trials. Defendant acknowledges that the court does bear that inherent right to extend the hearing beyond the statutory framework, but avers that the Public Conservator has yet to offer a very compelling reason to continue the hearing six months beyond what Welf. & Inst. Code § 5352.1 allows. The Public Conservator has yet to evince that Defendant's life would be placed in imminent risk of bodily harm or death if the permanent conservatorship hearing were not continued. The only reasoning the Public Conservator gave was to place Defendant on a "trial" of being outpatient and then setting the permanent conservatorship hearing to determine whether after the trial period, Defendant was gravely disabled. Defendant states that although the LPS Act imposes a conservatorship when needed as a tool to aid the state in treating a conservatee and protecting the public, it must also actively safeguard the patient’s right to be free from unnecessary restraint and unnecessary treatment. If there were extraordinary circumstances Defendant alleges that the best recourse would be to follow the directive of the Welfare and Institutions code and convene the permanent conservatorship hearing and let the facts present themselves. C. TOLLING THE STATUTE DEPRIVES DEFENDANT OF HIS LEGAL SAFEGUARDS AS PROVIDED FOR UNDER THE LPS ACT Because the private interests implicated in an LPS conservatorship are significant, the Legislature has incorporated “several layers of important protections” into the commitment system. (Conservatorship of Ben C., supra, 40 Cal.4th at p. 540, 53 Cal.Rptr.3d 856, 150 P.3d 738) The LPS scheme safeguards patient’s rights via a series of temporary successive detentions for evaluation and treatment. For each new hold, the patient is conferred the right to a certification review hearing and a writ of habeas corpus. The holds lengthen each time, eventually cumulating in the creation of the one year LPS Conservatorship. The temporary conservatorship is designated to provide a temporary period of investigation for the Public Guardian to conduct its investigation into suitability of LPS Conservatorship and appropriate placement for the LPS conservatee (Welf. & Inst. Code § 5354). It is the legislative intent for a temporary conservatorship period to create a 30 day window of time between the 14 day certification for dangerousness to others and self and creation of the one year LPS Conservatorship. Defendant notes that most temporary conservatorships are created ex parte and that during this time LPS conservatees are not granted many procedural safeguards except the right to a writ of habeas corpus. This lack of rigorous legal safeguards is presumably so because within 30 days, the hearing for permanent LPS Conservatorship will transpire or a jury trial date will be set and a trial by jury will commence within a month. However, Defendant distinguishes himself from most LPS defendants in that he has continuously had his permanent LPS Conservatorship hearing date moved and requests for jury trials denied or deferred. Therefore, the safeguards that come with a permanent conservatorship hearing are effectively foreclosed to Defendant as he finds himself currently locked into a loop of continuances. As much as the private interests at stake are weighty and deserving of protection, the stated purpose of the LPS Act forecloses any argument that an LPS commitment is equivalent to criminal punishment in its design or purpose. Because of their differing objectives, “the analogy between criminal proceedings and proceedings under the LPS Act is imperfect at best and ... not all of the safeguards required in the former are appropriate to the latter.” Conservatorship of John L., 48 Cal. 4th 131, 151, 225 P.3d 554, 565 (2010). Defendant differentiates himself from the John L case, as this case addressed rights such as right to confront witnesses and the right against self incrimination. Defendant avers that the right to have hearings on time is a right enjoyed by both criminal defendants and LPS conservatees as both face commitment and a loss of their civil liberties. Given these special circumstances, Defendant cites our California Supreme Court which has indicated its disapproval of “any [legal] procedure that denies or limits any relevant party access to the proceedings and the opportunity to be heard” except “in cases of imminent danger to the life or health of the patient or a similar exigency”. (See Thor v. Superior Court (1993) 5 Cal. 4th 725, 733). Through unnecessary tolling the hearing deadline, Defendant avers he has been subject to unnecessary exclusion from meaningful participation in this determination of whether to deprive him of his right to dictate psychiatric medication and placement options, a direct abnegation of the basic tenets of the CA judicial system and affront to the principles of individual integrity that sustain it. (Ibid). Defendant anticipates that the Public Conservator will state he has a right to writ of habeas corpus and therefore his right to judicial review is not entirely barred. Defendant disagrees and states that writ review is an extraordinary remedy. Courts generally do not grant writ relief absent extraordinary circumstances. (City of Half Moon Bay v. Superior Court (2003) 106 Cal.App.4th 795, 803, 131 Cal.Rptr.2d 213.) Pertinent factors that a court must consider in a writ of habeas corpus hearing include whether (1) “the party seeking the writ lacks an adequate means, such as direct appeal, to obtain relief,” (2) “the petitioner will suffer harm or prejudice which cannot be corrected on appeal,” or (3) “the petition presents an issue of first impression that is of general interest to the bench and bar.” (Dep't of Corr. & Rehab. v. Superior Ct., 94 Cal. App. 5th 1025, 1037, 312 Cal. Rptr. 3d 755, 763 (2023), review denied (Nov. 15, 2023). Defendant notes that most conservatorship fact patterns do not qualify for writ relief and that rehearings are the better avenue for LPS conservatorship challenges. Moreover, Defendant points out that patients are only granted one writ per hold. For temporary conservatorships normally they are granted one writ with the expectation that they will soon have a full hearing on the merits within a month. However, when the permanent conservatorship hearing keeps on being continued, Defendant alleges that his right to periodic writ review is nullified and deprivations to his rights can accrue with no foreseeable avenue of relief. D. LPS CONSERVATORSHIPS MUST BE TERMINATED IF A DEFENDANT NO LONGER MEETS CRITERIA FOR GRAVE DISABILITY AND TOLLING THE STATUTE TO PREVENT FUTURE RELAPSE IS AN ABUSE OF EQUITABLE TOLLING AND DIRECT VIOLATION OF LPS LAW Defendant states that Welfare and Institutions Code mandates that if the goals of that treatment plan are met and the person is no longer gravely disabled, the “conservatorship shall be terminated by the court”, not that the LPS Conservatorship continue to ensure that the goals of the treatment plan continue to be met. (Welf. & Inst. Code, § 5352.6.) Defendant’s final contention is that even if the statute did theoretically intend for continuances beyond the narrow time limits, the reasons undergirding the continuances are a direct violation of the Welfare and Institutions Code and the intent allowing for equitable tolling. Defendant alleges that his treatment team wished to continue the temporary conservatorship as they were concerned about future relapse into grave disability. Defendant states that in determining grave disability, the only metric allowed in establishment of an LPS conservatorship, the court must consider present grave disability not future likelihood of grave disability. Conservatorship of Murphy (1982) 134 CA3d 15. The threshold and most important question in a case such as this is not whether the proposed conservatee would benefit from conservatorship, but whether, as a practical matter, his basic needs for food, clothing, and shelter cannot be met except by imposing some limitation on that person's liberty. (Conservatorship of Jesse G., 248 Cal. App. 4th 453, 466, 203 Cal. Rptr. 3d 667, 677 (2016). Defendant points out that the hospital records indicate that in the last ___ months he has been consistent in taking his medication. Any disruptions to his medication have been due to technical errors such as the REMS system being down, or dangerous side effects where the benefits did not outweigh the consequences to his health. He has the support of his mother who the Public Conservator approved as a reliable third party for housing and health assistance. This fact evinces that his condition is not "beyond an ordinary person's ability to deal with" because the person was able to provide the proposed conservatee with food, clothing, and shelter on a regular basis. (see Jesse G. (2016) 248 CA4th 453) (supra). Moreover, he highlights the case of Guerrero where the court decided that other factors such as insight into illness, need for medication, willingness to take said medication without strict oversight, and ability to care for oneself without consistent medication in the system must be considered in this determination of grave disability. Conservatorship of Guerrero (1999) 69 CA4th 442. Defendant asserts that he meets all of these criteria and that witness testimony along with reliable hospital records will indicate that in the last few months he has been stable and not met criteria for current grave disability. Therefore, he concludes that he is not currently gravely disabled within the meaning of the LPS Act. Because the goal of the LPS Act is to rehabilitate the conservatee so that they are no longer gravely disabled, the Public Conservator must petition the court to terminate the conservatorship presently; not in six months when he is in their perspective completely stable. Tolling the temporary conservatorship statutory deadline is an abuse of the court's power and a flagrant disregard for the Welfare and Institutions Code. RELIEF REQUESTED Petitioner moves this court for summary dismissal of the temporary conservatorship and all of its attendant restrictions on Petitioner's rights. Most people are familiar with the powers to place a conservatee in a closed locked treatment facility and order the conservatee take psychiatric medication. However, an LPS conservator of the person has the power of placement of the conservatee as well as the same general powers granted a Probate conservator.
To be county specific our letters of LPS conservatorship state that the conservator has the right to consent to routine medical treatment related and unrelated to remedying the conservatee's grave disability. The investigating officer submits its recommendations as to what powers should be granted to the conservator and the court issues orders and letters once it receives all the evidence from both parties. Welf & I C § 5357, 5360. continued...... |
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