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Proper Findings per the NIAA § 105(a)(2):
In granting relief, the lawful authority administering the state level relief from disabilities must issue 2 findings: 1) the applicant will not be likely to act in a manner dangerous to public safety; and 2) granting the relief will not be contrary to the public interest. When CA courts make a finding they must document where there is substantial evidence that supports a finding that appellant would be likely to use firearms in a safe and lawful manner (§ 8103 subd (6)) and that return of the firearms to appellant would not endanger appellant or others. (§ 8102 subd (h)). These findings implicitly implicate public interest, Code of Civil Procedure § 425.16 subd (e)(3) requires a showing the speaker made the statements in connection with an issue of “public interest.” Public interest is a higher standard to meet than the other two. Evaluating what qualifies as an issue of “public interest” requires consideration of the public/private distinction, a changing standard. (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621; Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624, 631. In Rand, the Court laid out three categories of statements or conduct that qualify as “public interest”: 1. Conduct that concern a person or entity [state of CA] vis a vis the public perception; 2. Conduct that could directly affect a large number of persons beyond the direct participants; and 3. Conduct involving a topic of widespread interest. The definition of “public interest” shall include not only governmental matters, but also private conduct that impacts a broad segment of society or that affects a community in a manner similar to the actions and laws of a governmental entity.” Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479. Firearms are such an activity that tangentially links to restoration of rights to bear arms that have the potential, in the wrong hands, to seriously impact the lives of many individuals. Another way of phrasing such is saying that restoring firearms to mentally ill persons is an activity/conduct that effects large numbers of people beyond the direct participants (the plaintiffs or defendants), and keeping firearms out of the hands of mentally ill and felons is both a state and federal widespread public interest per Heller. In cases where the issue is not of great interest to the public at large, but rather to a limited, but definable small class of persons the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy (federal and state gun legislation relating to prohibited persons), and be of such a nature that it warrants protection by state or federal statute that embodies the public policy of encouraging participation in matters of public significance[?]. The state could easily contends allowing mentally adjudicated persons intricately involves an issue of high priority public interest because CA DOJ has long fought gun violence and used prohibitions to safeguard the public from potentially dangerous persons. CA would deem that mentally defective persons who regained their rights, a source of fear to the public and a shortcoming of the state akin to the Charleston loophole. Next, the state can assert both it and hospitals are in the public eye when it comes to gun control protests and the mentally ill. By allowing some "mentally ill" to get their rights through this relief from disabilities program will create an "arbitrary" system that Giffords would deem a dangerous loophole. Akin to how many gun control activists decried Trump repealing the VA disabilities rep payee automatic NICS entry rule, groups would take CA to task for allow dangerous adjudicated mentally ill to get their guns back through the court system no matter what evidentiary hurdles need to be crossed before a court can grant their p petition for relief.
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 18 U.S.C.S. § 922(g) and CA state law prevents a court from ordering the sale or other transfer of a prohibited person's guns to someone willing to give them access to them or to accede to their later requests to gain access for future use. In such a case, the prohibited would have control over the guns, even though legally person maintained physical custody. This falls under constructive possession which is also foreclosed under federal law. The concept behind constructive possession is designed to preclude just such a loophole. By ensuring the law addresses "puppets" and "puppeteers". A prohibited person cannot evade the strictures of § 922(g) by arranging a "sham" transfer that leaves him effectively still in control of his guns. And because of the import of the Brady Act, a court may no more approve such a transfer than order the return of the firearms to the felon himself. Henderson v. United States (2015) 575 U.S. 622, 622 [135 S.Ct. 1780, 1781, 191 L.Ed.2d 874, 874].
Possession may be imputed when the firearm is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the prohibited person and another non prohibited person. The person need not be found in actual possession like with the firearm in his hands or house. If he can knowingly wield power and has any intention at any given time to exercise dominion or control over it, either directly or through another person that shall suffice. A court when presented with a motion to transfer a newly prohibited person's firearms to a third party may only approve the transfer that comports with 18 U.S.C.S. § 922(g) if and only if, that disposition prevents them from later exercising control over those weapons, so that he could either use them or tell someone else how to do so. Because CA is ranked an "A" from Giffords, it is unlikely the courts will simply "seek certain assurances: by asking the proposed transferee to promise to keep the guns away from the prohibited person, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation". The CA BOF remains silent as to whether they conduct in person interviews, background checks, or home checks on the proposed transferee to ensure they have no personal connection indicative of whether they would allow the prohibited person to access the firearms later. Precedent has established that states have the sovereign right to protect the general welfare of the people through the exercise of their police power. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 503 (1987). States have a vested interest in the protection of the public thus they are afforded “great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996) (internal quotations omitted). California has long recognized that regulation of firearms is a proper exercise of that police power, and discretion courts and police maintain over who a transferee may be does not constitute an abuse of power. City of San Diego v. Boggess, 216 Cal. App. 4th 1494, 1505 (2013) Federally speaking, neither Heller nor McDonald are to be interpreted to cast aspersions on the already “presumptively lawful” longstanding regulatory measures upholding “prohibitions on the possession of firearms by felons and the mentally ill”. Transferees fall under such regulations as courts have regularly upheld that is a direct nexus between sham buyers and prohibited persons. Abramski v. United States, 134 S. Ct. 2259, 2267 (2014). Drawing from the legal underpinnings controlling 18 U.S.C § 922(a)(6), the law bars material misrepresentations “in connection with the acquisition,” and not just the purchase, of a firearm. That broader word, acquisition, has direct connection to a transfer from a prohibited person to a friend or relative. As Abramski holds, the law does not focus solely on “legal title” as a legal title can last only for few short moments, until another, the one whom the intended transfer is for takes possession rendering the legal title moot. The background of each person who applies to gain possession of the firearm must be investigated as a "not prohibited" sham transferee is not anymore lawfully allowed to possess the firearm than the prohibited person themselves. So within the clarifying perimeters established by Abramski and Heller, each person who may come into actual or constructive possession of the firearm is material and relevant to the case, and a court is not abusing its discretion or violating the second amendment by conducting such inquiries. Because of the federal prosecutor's immense power to strike at citizens, not with mere individual strength, but with all the force of the US government itself, federal defendants' rights enshrined in the Constitution ought better shield them from United States Attorneys' attempts to frustrate these defendants' right to jury trial with the infamous distorted trial penalty.
Sentencing Guidelines for adjudicated mentally defective or committed to a mental institution found in possession of a firearm affecting interstate commerce Base offense level 14 applies if the defendant either was a prohibited person at the time of the offense or was convicted of certain firearms transfer offenses. 67 USSG §2K2.1(a)(6). Base offense moves up to a level 20 applies if the offense involved either possession of a “firearm that is described in 26 U.S.C. § 5845(a) (NFA item) or a semiautomatic firearm that is capable of accepting a large capacity magazine and defendant is a prohibited person like 18 U.S.C 922 (g)(4). §2K2.1(b)(2), does not apply to mentally defective persons. The sentencing guideline states the offense level is reduced to 6 if the court finds that the defendant “possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.” This reduction does not apply if the defendant receives a base offense level premised on the offense involving certain types of firearms or the defendant having certain prior convictions, discussed above (base offense levels 26, 24, 22, 20, 18). This is construed to mean that an adjudicated mentally defective defendant may have their level reduced if their firearm is like a break action rifle that they can show was used only for hunting or shooting clays (or another sporting purpose) and there is no proof it was also for self defense/protection. USSG §2K2.1(b)(2) dictates that defendant bears the burden of proving the applicability of this reduction. This evinces that mentally ill defendants are not treated as severely as felons in possession in connection with controlled substances or commission of a crime but mentally ill defendants in possession are still considered serious offenses by the USSC especially with firearms with certain features. So in this scenario mentally ill defendant could be charged as a level 14 for renting: "Defendant called the agent to ask (1) whether he could rent guns to shoot at a range, and (2) whether he could purchase a firearm if he stated that he had been adjudicated as a mental defective. The agent answered "no" to both questions". (United States v. Tucker (5th Cir. 2022) 47 F.4th 258, 260.) This discussion applies to a very narrow fact pattern:
Challenging a federal firearm prohibition through a petition for injunctive relief, declaratory relief, and writ of mandamus with a Monell claim at the core of the legal argument. By showing that the county routinely violated certification review hearing procedural federal due process protections as set forth in Monell, plaintiffs could move a district court for declaratory relief, injunctive relief, and a writ of mandate that compels DOJ to find that the certification review hearing violated defendant's constitutional rights, nullify? the outcome of that hearing, and order DOJ to remove the 5250 certification review hearing from the NICS indices. If the certification review hearing was conducted without proper notice and due process, plaintiffs would have to first file a writ of coram nobus and then file in federal the motions for declaratory relief, injunctive relief, and mandamus. Monell is not an viable claim when the violation of due process is not a very routine occurrence (training defect) or policy in that county. Monell claims are a very unusual basis to predicate a second amendment prohibition challenge on. Defendants claim a violation of their fourteenth amendment rights occurred when a [certain] county's routine practice/policy of barring defendants from being present at their certification review hearing, have legal counsel, and of being informed of their right to challenge the findings via writ of habeas corpus. However, Monell dictates that a municipality can only be held liability under § 1983 if plaintiff shows (1) she was deprived of a constitutional right; (2) the municipality had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy or custom was a moving force behind the constitutional violation. Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). CA and federal law define the due process protections for those facing a 14 day hold under seciton 5250 and how they are safeguarded during certification review hearings. However, many people have asserted that they have had their presence at their cert hearing waived against their wishes or had had the cert hearing conducted while they were involuntarily sedated. Firstly, Monell claims may only be raised when a municipality has enacted a rule or custom that violates a defendant's civil liberties. It does not apply when a county enforces a state law or enforces a state law with varying levels of compliance with the fourteenth amendment. Municipalities extend beyond just a city; counties are included in the definition; "Since a county is an integer or part of a State, the United States can impose upon it, as such, any obligations to keep the peace in obedience to United States laws" ie the Constitution. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 672-73, 98 S. Ct. 2018, 2026-27 (1978). Under Monell, the way plaintiff may establish a policy or custom is by showing that the alleged constitutional violation was done in accordance with the governmental body's longstanding practice or custom. Nyarecha v. Cnty. of L.A., No. 23-55773, 2024 U.S. App. LEXIS 26252, at *1 (9th Cir. Oct. 17, 2024). To establish liability on the part of governmental entities under this theory, a plaintiff must show: (1) that they possessed a constitutional right of which they were deprived; (2) that the municipality had a policy or custom; (3) that this policy "amounts to deliberate indifference" to the plaintiff's constitutional right; and, (4) that the policy is the "moving force behind the constitutional violation. Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (internal quotation marks omitted). . A plaintiff may establish municipal liability under 42 U.S.C.S. § 1983 even where the municipality does not expressly adopt the alleged policy through manuals or codes. There are three alternative ways: (1) if an employee commits a constitutional violation pursuant to the county/municipality's long-standing practice or customs; (2) when the person causing the violation has final policymaking authority (not a supervisor or employee), or (3) where the county or municipality's failure to train their employees amounts to deliberate indifference to the rights of persons with whom the police [sic] come into contact. It is not enough for a § 1983 plaintiff to identify conduct properly attributable to the municipality. Rather, plaintiff must demonstrate that it is the county's deliberate conduct, the municipality was the moving force behind the injury alleged. At the pleading stage, a plaintiff's claim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to provide the opposing party with fair notice so it can defend itself. Estate of Chivrell v. City of Arcata, 623 F. Supp. 3d 1032, 1036 (N.D. Cal. 2022) To successfully defend the elements required to show a failure to train, a plaintiff must show (1) "the existing training program" is inadequate "in relation to the tasks the particular officers must perform"; (2) the officials have been deliberately indifferent "to the rights of persons with whom the police come into contact"; and (3) the inadequacy of the training "actually caused the deprivation of the alleged constitutional right." Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) Hence if say the county of San Bernardino was enforcing or engaging in the customary practice of not noticing patients of their pending certification review hearing, their rights to present witnesses, right to an advocate, and right to writ of habeas corpus; defendants could advance a Monell claim, but if the habit of violating their rights was variable then Monell would not be appropriate. First, Plaintiff claims the County failed to notify her about, or even hold, a certification hearing as required by California law, which deprived her of her Due Process and her Second Amendment rights. Plaintiff's briefs root her legal theory as a result of both "affirmative policymaking and inadequate training". She asserts defendant county's failure to train employees resulted in the failure to adequately notify plaintiff of her right to a certification review hearing. In Monell, a plaintiff may establish liability by demonstrating that the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity. Plaintiff avers there is no evidence that she had received notice of a 5250 certification hearing and the hearing never occurred. Second, she claims the routine destruction of [her] records, both by the Superior Court and the treatment center, deprived her of any chance to clear her name through later judicial review, violating her substantive due process rights and as a result her Second Amendment rights. Plaintiff framed this claim as alleging a “per se substantive due process violation.”. Third, she argues the County's policy of allowing patients to waive their right to appear at their certification hearings, without prior advice from legal counsel, is a facial violation of procedural due process because it deprived her of a right to representation by counsel and subjects her to the stigma of a mental health certification without adequate process of law. see Pervez v. Becerra, 2:18-cv-02793-KJM-KJN, 9 (E.D. Cal. Jun. 27, 2022) As noted above, Plaintiff advances her claims under 42 U.S.C. § 1983 using a Monelle claim. Because the County of Sacramento is the sole remaining defendant, for her claims to survive summary judgment, she must satisfy the requirements set forth by Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978). Under Monell, counties and municipalities are not automatically responsible for the constitutional torts of their employees under a “ de facto respondeat superior” theory of liability. Some direct official act by the municipality must be the moving force behind the constitutional violation. Monell, 436 U.S. at 694. To establish a municipality's liability under § 1983, a plaintiff must therefore show (1) she was deprived of a constitutional right; (2) the municipality had a policy or custom; (3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional right; and (4) the policy or custom was a moving force behind the constitutional violation. Mabe v. San Bernardino Cty., 237 F.3d 1101, 1110-11 (9th Cir. 2001). This “policy or custom” requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or, as here, prospective. Los Angeles Cty. v. Humphries, 562 U.S. 29, 39 (2010).” A writ of coram nobis is "a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable. United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). A writ of coram nobis is distinguished from a writ of habeas corpus, which is available only to defendants who are in custody. United States v. Robles, No. 24-00321 SOM/KJM, 2024 U.S. Dist. LEXIS 167132, at *6-7 (D. Haw. Sep. 17, 2024). A writ of coram nobis allows petitioner to attack a judgement when the petitioner has already finished his sentence and is no longer in custody. Although usually reserved for defendants who are in the criminal justice system it could have applications for other proceedings that have far reaching impacts but due to petitioner being released from confinement; a writ of habeas corpus is foreclosed. To qualify for coram nobis relief, a petitioner must establish all of the following: (1) a more usual remedy is not available; (2) valid reasons exist for not having attacked the judgement earlier; (3) there are adverse consequences from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). "Because these requirements are conjunctive, failure to meet any one of them is fatal." Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). This writ can relieve defendant of continuing non-custodial effects of a final judgement only when fundamental errors were made in obtaining the conviction. This implicates second amendment prohibitors as they are lifelong under 18 USC 922 (g)(4); even if the state five year prohibition expires. Although Federal Rule of Civil Procedure 60(b) expressly abolishes use of coram nobis in civil cases, involuntary commitment proceedings in California are considered quasi-criminal proceedings. (Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). Although this is an unsettled area of law; due to the nature of involuntary commitment proceedings and the legal precedents like Blackburn and Tran, an argument could very well be made that coram nobis is allowed for quasi- civil commitments. |