attacking cert hearings with no due process after the fact (discharge)

This discussion applies to a very narrow fact pattern:
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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).
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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.