CARE COURT AND 18 U.S.C.A. § 922(g)(4) PROHIBITION

CARE COURT AND 18 U.S.C.A. § 922(g)(4) PROHIBITION
 
Relating to the issue of a CARE court order triggering a firearm prohibition, correct me if I am incorrect but the newly passed CARE court legislation does not mention a firearm prohibition be it state or federal. The point of contact process for CA is essentially useless if a CARE court adjudication does not trigger a prohibition within the various databases.
 
https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=202120220SB1338
 
Relevant parts selected
 
Cal. Welf. & Inst. Code § 5972
 
To qualify for CARE court, Cal. Welf. & Inst. Code § 5972, an individual shall qualify if the following criteria are met:
 
(b) The person is currently experiencing a severe mental illness, as defined in paragraph (2) of subdivision (b) of Cal. Welf. & Inst. Code § 5600.3 and has a diagnosis identified in the disorder class: schizophrenia spectrum and other psychotic disorders.
 
(c) The person is not clinically stabilized in on-going voluntary treatment.
 
(d) At least one of the following is true:
(1) The person is unlikely to survive safely in the community without supervision and the person’s condition is substantially deteriorating.
(2) The person is in need of services and supports in order to prevent a relapse or deterioration that would be likely to result in grave disability or serious harm to the person or others, as defined in Section 5150.
(e) Participation in a CARE would be the least restrictive alternative necessary to ensure the person’s recovery and stability.
 
To review 27 C.F.R. § 478.11 defines
 
Adjudicated as a mental defective as
 
(a) A determination by a court or other lawful authority that a person, as a result of mental illness, incompetency, condition, or disease:
 
(1) Is a danger to himself or to others; or
 
(2) Lacks the mental capacity to contract or manage his own affairs
 
 
The conflict lies in that a CARE court adjudication technically is a court proceeding with the indicias of due process per Mai. “Commitments under [California] state-law procedures that lack robust judicial involvement do not qualify as commitments for purposes of § 922(g)(4). Mai v. United
States, 952 F.3d 1106, 1110 (9th Cir. 2020).
 
 
Per Cal. Welf. & Inst. Code § 5976.
Respondent shall:
(a) Receive notice of the hearings.
(b) Receive a copy of the court-ordered evaluation.
(c) Be entitled to be represented by counsel at all stages of a proceeding commenced under this chapter, regardless of the ability to pay.
(d) Be allowed to have a supporter, as described in Section 5982.
(e) Be present at the hearing unless the respondent waives the right to be present.
(f) Have the right to present evidence.
(g) Have the right to call witnesses.
(h) Have the right to cross-examine witnesses.
(i) Have the right to appeal decisions, and to be informed of the right to appeal.
 
Unlike the Stokes case where the challenged law under § 5250 et seq was an informal certification hearing with no automatic right to formal legal counsel, CARE court has laid out in its provisions the right of the defendant to avail himself of the protections afforded by formal court processes. Stokes v. United States Dep't of Just., 551 F. Supp. 3d 993, 1001 (N.D. Cal. 2021)
 
 
CARE court legislation is written in relatively ambiguous manner so that triggering the federal prohibition would be challenging to justify. The legislative guidelines both intone that the defendant is mentally ill and presenting as a danger to themselves but in the same clause they are not yet currently gravely disabled or such a danger to themselves or others that they meet criteria for a 5150 hold. Within § 5972, the wording of the qualifying criteria renders conformity with the ambit of 27 C.F.R. § 478.11 difficult as the federal code mandates that there must be a clear finding of dangerousness to self or others and mental illness. Subdivision (2) of § 5972 reads that CARE court services should be ordered to prevent a decompensation or relapse that would be “likely to result in [current] grave disability or serious harm to others or self within the meaning of § 5150”. If the DOJ were to follow strictly apply 27 C.F.R. § 478.11, this particular phrasing “to prevent a relapse” that would result in serious physical harm does not appear to confer a finding of current serious harm to others or self and thus does not fall within the federal definition that defendant is a danger to self or others; the first prong of the federal code.
 
In fighting against a federal prohibition, advocates could draw from LPS Conservatorship precedents. Perceived likelihood of future relapse, without more, is not enough to justify establishing [current grave disability] and need for LPS Conservatorship. Conservatorship of Jones (1989) 208 Cal.App.3d 292, 302 [256Cal.Rptr. 415]. The pivotal issue in whether [respondent] is presently gravely disabled, not whether the patient would incur some incidental benefit from conservatorship. Conservatorship of Benvenuto (1986) 180 Cal.App.3d. 1030, 1034 [226 Cal.Rptr. 33]
 
However, advocates in California in making their case can articulate to adjacent LPS Conservatorship case law to support a finding that a CARE court determination is the same as a finding that a defendant is dangerous to themselves or others due to a serious mental illness diagnosis.
 
Drawing from LPS Conservatorship precedent, advocates can rely on other case law which does address that in certain cases the likelihood of future deterioration foreclose a finding of current grave disability if the fact finder can determine the patient has no insight into their mental disorder which is the majority of the serious mentally ill population. Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1576-1577 [254 Cal.Rptr.552]. They can also assert that if dangerousness to self cannot be assessed at the present moment through physical actions alone, the threat of harm to oneself may be through neglect or inability to care for oneself”. In re Doremus v. Farrell (D.Neb. 1975) 407 F.Supp. 509, 515.
 
 
A note; CARE court determination based on grave disability alone is moot as the BATFE clarified that grave disability finding alone does not trigger the prohibition. Whether that is proper legal analysis is a discussion for later.
 
Therefore, I believe that if there were to be prohibition it would be at the state level and follow the same format as Cal. Welf. & Inst. Code § 8103 et seq. Perhaps it would be a five year prohibition.