california mental health firearms prohibition · section 5150 is unique to california, providing a...
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California Mental Health Firearms Prohibition
California Welfare and Institutions Code, sections 8100 - 8108
There are a number of circumstances under which mental health clients may lose their right to purchase and possess firearms. You should read this entire publication before deciding which, if any, of these circumstances apply to you. Persons Receiving Voluntary Inpatient Mental Health Treatment Who Are a Danger to Self or Others If you are receiving inpatient mental health treatment on a voluntary basis and
your treating mental health professional determines that you are a danger to
yourself or others, you may not possess, purchase, or attempt to purchase
any firearms while you are in the facility or on a temporary pass or leave from
the facility. Once you are discharged from the facility, this prohibition no longer
applies.
Persons Receiving Involuntary Inpatient Mental Health Treatment on 72-Hour Holds as a Danger to Self or Others If you are placed on a 72-hour hold (also known as a "5150"[1]) as a danger to
self or others and admitted to a facility for treatment, you are prohibited from
purchasing or possessing firearms while you are in the facility and for five
years from the date of admission to the facility. When you are admitted to a
facility as a danger to self/others, the facility is required to notify the state
Department of Justice. The Department of Justice then adds your name to the
state mental health firearms prohibition database.
Before discharging you, the facility staff must notify you that you cannot
possess or purchase firearms for a period of five years. At the same time, the
staff must advise you of your right to go to court and ask a judge to restore
your right to possess and purchase firearms. If you request this hearing when
you are being discharged from the facility, the staff should provide you with a
hearing request form and forward the form to the court on your behalf. After
you are discharged from the facility, you can request a hearing by calling the
California Department of Justice at (916) 227-3664.
The hearing takes place in the superior court of the county in which you
live.[2] Because a lot of personal information about you and your mental
health treatment will likely be discussed at the hearing, you can ask the judge
to close the court room so that the public cannot attend. At the hearing, the
state has the burden of showing that you would not be likely to use firearms in
a safe and lawful manner. If the state does not meet this burden, the judge will
issue an order finding that you are not subject to this five year prohibition and
the state Department of Justice will remove your name from the state mental
health prohibition firearms data base.
Persons Certified for Intensive Treatment On 14-Day Holds If you have been placed on a 14-day hold (5250),[3] had a certification hearing
(also known as a Gallinot hearing) and were held for additional treatment at
the hearing, you are prohibited from purchasing or possessing firearms for five
years under California law and for life under federal law.[4] When you are held
or certified for additional treatment as a danger to self or others, or gravely
disabled, the facility is required to notify the California Department of Justice.
The Department of Justice then places your name on the state mental health
firearms prohibition database.
You may ask the superior court in the county in which you live for a hearing to
restore your right to possess firearms under California law. At this hearing, the
burden will be on you to prove that you can safely possess firearms. However,
even if you have your right to purchase and possess firearms restored under
California law, you may still be subject to the federal life-time prohibition.
Persons on Conservatorship If you are placed on a mental health or LPS conservatorship by the court, the
judge will decide whether or not you should be allowed to purchase or
possess firearms. If the judge finds that you cannot safely possess firearms,
you are prohibited from possessing or purchasing firearms while you are on
the conservatorship. At any time however, you can ask the court for a hearing
to contest the denial of your right to possess firearms.[5]
Persons Making Threats of Physical Violence If you communicate to a licensed psychotherapist a serious threat of physical
violence against an identifiable victim, you cannot purchase or possess any
firearms for a period of six months after the threat is reported to a local law
enforcement agency. This prohibition does not apply unless your
psychotherapist reports the threat to local law enforcement, which he/she may
be compelled to do. If your psychotherapist does notify law enforcement, you
will be notified by the California Department of Justice. The notice will tell you
the dates between which you are prohibited from purchasing and possessing
firearms and that you can petition the superior court in the county in which you
live to restore your right to possess firearms. At this hearing, you will have the
burden of proving that you can safely possess firearms.
Other Mental Health Firearms Prohibitions People found by a court of any state to be a danger to others, people who are
mentally disordered sex offenders, people found not guilty by reason of
insanity of any crime, and people who are incompetent to stand trial are
prohibited from purchasing or possessing firearms.
What Happens To the Information that is Reported to the California Department of Justice? Information about you in the California Department of Justice's mental health
firearms prohibition database is confidential and can only be (1) used by the
department to determine your eligibility to possess or purchase firearms and
(2) provided to the court if you request a hearing to restore your right to
possess and purchase firearms.
The California Department of Justice must delete any reference to your
firearms prohibition from the state mental health firearms database when
either (1) the court issues an order saying that you are not subject to the
prohibition or (2) the prohibition period ends.[6] However, you should be
aware that, if you were certified for intensive treatment[7] on a 14-day hold or
30 day hold, the California Department of Justice will retain your name in the
mental health firearms prohibition database for life in order to enforce the
federal life-time firearms prohibition.
I'm Not Sure If I am Prohibited from Owning a Firearm. How Can I Find Out? When you are subject to a mental health firearms prohibition, it is a crime to
possess, purchase or attempt to purchase a firearm. You can find out if you
are subject to a firearms prohibition before trying to purchase a firearm by
asking the California Department of Justice to conduct a Personal Firearms
Eligibility Check (PFEC). You request a PFEC by submitting a PFEC
application along with a copy of your California driver's license or Identification
Card, and a $20 fee. The application must be signed and notarized, and
include an impression of your right thumb print. The Department will check all
relevant state and federal databases to determine if you can lawfully purchase
or possess firearms and will notify you of the results of the check.
PFEC applications are available online from the California Department of
Justice Website:
http://caag.state.ca.us/firearms/forms/pdf/pfecapp.pdf
Protection & Advocacy, Inc
100 Howe Avenue, Suite 235N, Sacramento, CA 95825-8202
tel. 916/ 488-9950, fax 916/ 488-9960
tty 800/719-5798, toll free 800/776-5746
[1] This is a reference to section 5150 of California's Welfare and Institutions
Code.
[2] Upon motion of the District Attorney, or on its own motion, the court may
transfer the hearing to the county in which the person resided at the time of
his/her detention, the county in which the person was detained, or the county
in which the person was evaluated and treated.
[3] Persons certified for intensive treatment under Welfare and Institutions
Code, sections 5260 (2nd 14-day hold for suicidal persons) and 5270.15
(additional 30-day hold for persons who are gravely disabled).
[4] Code of Federal Regulations, tit 27 งง 478.11 and 478.32
[5] Welfare and Institutions Code ง 5358.3
[6] Deletion of your information from the state mental health firearms
prohibition database does not necessarily mean that you are not prohibited
from possessing and purchasing firearms. There are several categories of
people who are prohibited from possessing and/or purchasing firearms,
including people convicted of felonies and some misdemeanors, people
subject to retraining orders, and people addicted to narcotics. Always review
documents related to any criminal conviction because they may contain
information about firearms restrictions.
[7] "Certified for intensive treatment" means that you were placed on a 14-day
hold or a 30-day involuntary hold, had a certification hearing and were held for
additional treatment at the hearing.
______________________________________________________________
______________________
5150 Hold & Firearms Eligibility in California Eligibility Prohibitions As part of the firearms eligibility requirements and background check criteria
in California, persons who have been detained and declared a danger to
themselves or others pursuant to various Welfare and Institutions Code
Sections (งง 5150, 5151, 5152, 5250, 5260, 5270, 5270.15) are not eligible to
have a firearms for specified periods of time, based on the severity of the
threat posed by the person's mental health condition.
The Welfare and Institutions Code Sections are based upon the immediacy of
the threat to the patient and the threat to others posed by the patient. A
detainment under a lesser section, such as 5150 would result in a five year
prohibition. However a more severe detainment under 5250 of the federal
statute would result in a lifetime prohibition from possessing firearms.
A prohibition restarts with every subsequent detainment; thus, a person who is
in the fourth year of their five year prohibition who is detained again, and
again found to be a danger, will have their five year prohibition restarted at the
time of the second detainment.
Section 5150 is unique to California, providing a tougher standard than the
federal statute and in other states, such as Virginia, home to the recent
shooting on the campus of Virginia Tech, which does not have a 5150-esque
statute and relies on the federal law.
Facility Procedure Once a facility has determined a patient to be a danger
pursuant to one of the Welfare and Institutions Code Sections listed above,
the facility must immediately, prior to the patient's discharge, submit a Mental
Health Facilities Report of Firearms Prohibition form to the California
Department of Justice.
The Department of Justice places the patient in its database, which is
subsequently used for background checks, including those that are processed
for firearms eligibility.
______________________________________________________________
______________________
Notifying Patients of Firearms Prohibition By Michael Bailey, M.D., Associate Medical Director California statutes prevent firearm access by someone who is involuntarily
admitted to a psychiatric facility. Welfare and Institutions Code (WIC) Section
8103(f)(2) requires a facility to report to the State of
California Department of Justice instances in which an individual has been
admitted to the facility on an involuntary hold. Individuals identified by this type
of report are prohibited from owning, possessing, receiving, controlling, or
purchasing any firearm for a period of five years from the admission date to a
facility. This law applies to all persons taken into custody as a danger to
themselves or others under the provision of WIC Section 5150. In these
cases, all firearms within the household must be removed or secured to
prevent access. Firearms can be turned over to local law enforcement
authorities if other arrangements to secure them cannot be made.
While facilities are required to notify the individual of the firearms prohibition,
this notification is sometimes issued only in a written form given to the patient
upon admission. In addition to this initial notification, it should be reviewed
during the course of treatment and emphasized as part of the discharge
planning process with the enrollee and his or her family as appropriate. The
patient and family should be made aware that the patient cannot possess,
control, receive, own or purchase a firearm. Since making a firearm available
to an individual prohibited from having access is a felony, family members
need to be educated about this legal requirement. California law (WIC
Sections 8100-8108) also prevents firearm ownership or access for those
individuals who:
● Communicate a serious threat of physical violence against a reasonably identifiable victim or victims.
● Have been adjudicated as not guilty by reason of insanity of a crime. ● Have been adjudicated to be a mentally disordered sex offender. ● Have been found mentally incompetent to stand trial. ● Have been placed under a conservatorship by a court because of grave
disability as a result of a mental disorder or impairment by chronic alcoholism.
Any person subject to these provisions may appeal such a prohibition by
requesting a hearing by the Superior Court to provide relief from the firearms
prohibition. A signed request may be made to the Superior Court during the
five-year prohibition period. The form to request the hearing may be provided
by the facility at discharge. Following discharge, a hearing may be requested
by contacting the State of California Department of Justice at 916.227.3664. A
form will be sent to the individual to complete and then mail to the State of
California Superior Court in the county of residence. USBHPC encourages all
facilities and clinicians to remain vigilant in educating and informing enrollees
and their families about firearms regulations.
Issues Related to Possession of Firearms by Individuals with Mental Illness: An Overview Using California as an Example JOSEPH R. SIMPSON, MD, PhD Since 1968, federal law has prohibited individuals with a history of certain
types of mental health adjudications from purchasing or possessing firearms.1
The implementation of a nationwide system of background checks in 1999,
following the passage of the Brady Handgun Violence Prevention Act,2 has, at
least to some degree, facilitated the identification of individuals who are
federally banned from owning firearms. An increasing number of states also
have their own laws in this area, making the issue relevant to more clinicians.
In some states, including California, the criteria for being barred from
possessing firearms are more stringent than those provided for by federal
statute. This column uses California as an example to illustrate laws and
practices relating to firearm possession by individuals with a history of
psychiatric illness.
Federal laws and court decisions and the laws of other states have recently
been reviewed elsewhere. Mental health professionals should be aware of the
potential ramifications of firearm laws for their patients and be prepared to
respond to requests to render an opinion regarding an individual's suitability
for restoration of the ability to possess firearms. This last issue, although little
explored to date, has the potential to develop into a new area of expertise
within forensic psychiatry. In some states, laws addressing firearms and
mental illness distinguish between categories of weapons, for example
handguns versus rifles and shotguns.5 In California, however, the statutes
prohibiting firearm possession by individuals with a history of mental illness
treatment are broader, banning possession of a broad category of
implements, including all firearms (except antiques) and other so-called
"deadly weapons." The law specifies "any firearm whatsoever or any other
deadly weapon." These other deadly weapons are enumerated in California
Penal Code section 12020 and include a variety of martial arts weapons such
as nunchaku and throwing stars as well as other devices such as brass
knuckles and blackjacks. Many of the other dangerous weapons are in fact
illegal for anyone in the state to possess, with some exceptions. For simplicity,
the text of this article will use the term firearm.
California Statutes California codifies firearm laws relating to mental health treatment in the
Welfare and Institutions Code, sections 8100-8108. Section 8100(b)(1)
provides for a 6-month ban for outpatients who communicate a serious threat
of physical violence against a reasonably identifiable victim to a licensed
psychotherapist. The ban begins when the therapist makes a "Tarasoff"
warning to a police department. The patient can petition for relief before the 6
months are over. Section 8103 enumerates the legal statuses that prohibit an
individual from possessing firearms. These include being adjudicated a
danger to others as a result of a mental disorder and being found incompetent
to stand trial or not guilty by reason of insanity. In addition, when a patient is
placed on a mental health conservatorship (1-year, renewable), the imposing
court has the discretion to bar the person from possessing firearms if it finds
that such possession would pose a danger to the safety of the person or
others.
In all these situations, the prohibition ends when the person changes status
(e.g., is restored to competency or sanity or the conservatorship is
terminated), with the exception of individuals found not guilty by reason of
insanity of certain serious violent felonies listed in the statute. For such
individuals, the firearms ban is indefinite and does not end with a court finding
of restoration to sanity. The subsection of the law with the broadest
application is 8103(f)(1). Added to the law in 1990, this statute JOSEPH R.
SIMPSON, MD, PhD, is Staff Psychiatrist, VA Long Beach Healthcare System
and Clinical Assistant Professor, Department of Psychiatry, Keck School of
Medicine, University of Southern California. He also maintains a private
practice in forensic psychiatry.
Simpson 03-07.qxd 2/22/2007 2:06 PM Page 1 provides that, when an
individual is placed on a 72- hour hold on grounds of danger to self or others
(but not on grounds of grave disability) and admitted to a treatment facility, he
or she is thereafter prohibited from purchasing or possessing firearms for a
period of 5 years. As described in Welfare and Institutions Code section 5150
et seq, the process of involuntary inpatient psychiatric treatment in California
begins with this 72-hour hold. The hold is initiated when, based on a face-to-
face evaluation, an authorized evaluator (a psychiatrist, a social worker, or a
peace officer) determines that there is probable cause to believe that, as a
result of a mental disorder, the individual poses a danger to self or others or is
gravely disabled. Once initiated, the 72-hour hold is not subject to any process
of appeal or review, except when the hold has been placed "in the field" (e.g.,
by a peace officer). In the latter case, the receiving clinician at the treatment
facility decides whether to continue the hold and admit the patient, or
terminate the hold and release the patient (sections 5151 and 5152).
California case law has established that the hold does not have meaning in
terms of firearm possession unless the patient is admitted.
The restriction established by section 8103(f)(1) is stricter than that provided
under federal law, which provides for a lifetime federal prohibition on firearms
purchase or possession following "adjudication as a mental defective" or a
"commitment to any mental institution." As interpreted by the U.S. Bureau of
Alcohol, Tobacco and Firearms, involuntary detention in a psychiatric facility
"for observation" (as in California's 72-hour hold) is specifically excluded. The
California Department of Justice, which performs background checks on
individuals attempting to purchase firearms in the state, implements the law in
accordance with this principle. Thus, an individual who has been on a 72-hour
hold is not federally barred from owning firearms and will pass a background
check performed in California once the 5-year ban expires or is ended by
court order. Section 8103(g) provides for a 5-year ban on firearms possession
for patients certified for longer periods of involuntary treatment (14 or 30
days). In contrast to the 72-hour hold, being certified on grounds of grave
disability also triggers a ban on firearms possession in 14- and 30-day
commitments. Such commitments are also sufficient to trigger a federal ban
on firearm possession, which is indefinite and thus supersedes the California
law.
Consequently, an individual who has previously been placed on a 14-day or
longer hold would still be unable to purchase or possess firearms legally even
after 5 years. In other words, in the case of these longer commitments, the 5-
year California ban provided by section 8103(g) is legally moot in the sense
that it has no practical significance, since the individual is barred during the 5
years (both by federal and California law) and, when the California ban has
expired after 5 years, he or she is still federally barred from possessing
firearms. This may also be the case with mental health conservatorships,
although I have not been able to locate any information specifically addressing
this issue. Another question that has apparently not been litigated involves the
status of a patient who is released from a 14- or 30-day hold at a probable
cause hearing or in a writ of habeas corpus proceeding. Probable cause
hearings are required for 14- and 30-day holds. Patients for whom probable
cause is found can still challenge this finding before a judge by filing a writ of
habeas corpus (Latin for "that you have the body") hearing.
This is a legal procedure in which an individual being held involuntarily in a
psychiatric hospital petitions a court to review the confinement. The court
must then find by a preponderance of the evidence that the individual
continues to meet the legal criteria for involuntary hospitalization. However,
there is no mechanism in place to remove the firearm prohibition triggered by
the initial certification if the patient is later released after either a probable
cause or writ of habeas corpus hearing. Section 8103(f)(5) allows individuals
prohibited from possessing firearms on the basis of a 72-hour hold because of
danger to self or others to petition the court in their county of residence, once
within the 5-year period, for early relief from the prohibition. There is no
statutory requirement that the individual be evaluated by a mental health
clinician, or any healthcare professional as part of the petition process. The
respondent county attorney has the burden of showing by a preponderance of
evidence that the petitioner is not likely to use firearms in a safe and lawful
manner. Section 8102 provides for the confiscation of firearms found in the
possession of an individual "detained or apprehended for examination of his
or her mental condition" or who is a person described in sections 8100 or
8103. Firearms are automatically returned after 30 days unless the
confiscating agency petitions to have them destroyed. The firearm owner can
then request a hearing challenging the petition.
California Case Law Two appeals court decisions have been published related to an individual
committing suicide using a firearm purchased after the person had received
involuntary inpatient psychiatric treatment. The first case, Katona v. County of
Los Angeles, was decided in 1985, prior to the 1990 addition of the 5-year ban
for persons placed on a 72-hour hold. At that time, there was no provision in
California law to prohibit a person with a history of being involuntarily admitted
for danger to self from later purchasing a firearm. Thus the court held that,
since "decedent was not within one of the statutorily proscribed categories,
the Department of Justice would not and was under no duty to notify [the
firearm dealer] of any impediment to the delivery of the firearm, and [the
firearm dealer] violated no statute when it delivered the gun to the decedent. It
is clear that the thrust of the deadly weapon control scheme is to prevent
harm to third persons and is not concerned with harm to the gun possessor
himself." The second case was decided after the 1990 amendment that
specified that a 72-hour hold for danger to self or others was a trigger for
firearms prohibition. In Braman v. California, the court ruled that a cause of
action was stated by the family of a man who committed suicide with a
handgun he legally purchased after having been involuntarily hospitalized on
a 72-hour hold for danger to self.
The court observed that by "expanding the statutory categories to include a
patient who is a danger to himself or herself, the Legislature has sought to
prevent harm to those individuals from self-inflicted injury with a firearm." The
other published decisions in this area all relate to section 8102, the statute
allowing the seizure of firearms from individuals detained for examination of
their mental condition. The reasoning of the courts in these cases is
informative with regard to potential future challenges to provisions of section
8103 and is also relevant for practicing clinicians who may be called to testify
in firearms proceedings. In People v. One .22-Caliber Ruger Pistol,13 a
hearing was held to determine whether Todd Veden's confiscated firearms
could be destroyed. The psychiatrist who treated him as an inpatient testified
over Mr. Veden's objection. The court ruled that the testimony of a psychiatrist
at a section 8102 hearing does not violate psychotherapist-patient privilege.
"Section 8102 protects firearm owners and the public from the consequences
of firearm possession by people whose mental state endangers themselves or
others. Information obtained on the question of endangerment during section
5150 treatment and evaluation is admissible because it is necessary to
prevent the threatened danger. Doctor Humeid's testimony constituted
substantial evidence in support of the trial court's decision. Doctor Humeid
testified that he treated Veden during his confinement and that he believed
Veden should be deprived of firearms 'for his own safety and also for the
safety of the public at large.'" In Rupf v. Yan,14 Alexander Yan raised several
challenges to the proposed destruction of his confiscated firearms under the
provisions of section 8102. He argued that:
1. the statute was unconstitutional as there was no relation between
legislative intent and application, and it was vague and overbroad;
2. the right to bear a firearm is fundamental, so the law is subject to strict
scrutiny;
3. the statute does not require a relationship between the weapons possessed
and the incident precipitating the 72-hour hold;
4. the confiscated firearm should be returned when the patient is released;
5. a medical professional should make the assessment of dangerousness;
6. Sections 8100 & 8103 have more rigorous and precise standards.
The appellate court rejected all of these arguments, commenting that the
"purpose of section 8102, like other statutes that limit the availability of
handguns to persons with a history of mental disturbance, is to protect those
persons or others in the event their judgment or mental balance remains or
again becomes impaired." They also pointed out that in a section 8102
hearing, the plaintiff has the opportunity to call medical experts if he or she
desires. In City of San Diego v. Kevin B.,6 the city moved to destroy the
confiscated firearms of an individual whom the police wished to place on a 72-
hour hold but were unable to locate. The appellate court found in favor of the
defendant, stating that section 8102 requires that the person receive a face-
to-face evaluation. They reasoned that "on a practical level, unless the power
to confiscate and forfeit weapons is closely tethered to the assessment and
evaluation required by section 5151 and 5152, a risk arises that weapons will
be taken from law-abiding citizens who in fact are not a danger to themselves
or others.
Absent assessment and evaluation by trained mental health professionals, the
seizure and loss of weapons would depend solely on the necessarily
subjective conclusion of law enforcement officers who may or may not have
the mental health training and experience otherwise available at a designated
mental health facility within the meaning of section 5150." These California
appellate decisions are generally similar to decisions regarding the limits of
the federal law in this area, which have been reviewed elsewhere. Taken
together, the body of case law illustrates the approach courts are likely to take
when analyzing the pros and cons of firearm restrictions on individuals with a
history of mental health problems. This approach could be briefly summarized
as essentially supporting the premise that the government does not violate
constitutional rights when it prevents individuals with a history of mental health
problems from acquiring firearms, provided that there is sufficient evidence
that the individual in question does in fact suffer from a mental disorder.
Implementation by the California Department of Justice All hospitals that admit patients on 72-hour holds report each instance when
an individual is placed on a hold for danger to self or others to the California
Department of Justice (DOJ). Fourteen- and 30-day holds are also reported.
The names of the reported individuals are maintained in a database that is
used in the background check that occurs whenever an application is made to
purchase a firearm. Section 8108 exempts facilities and providers from liability
for making these reports: "Mental hospitals, health facilities, or other
institutions, or treating health professionals or psychotherapists who provide
reports subject to this chapter shall be civilly immune for making any report
required or authorized by this chapter." On average, over 11,000 such
notifications are made each month (information provided to the author under
the U.S. Freedom of Information Act by the California DOJ, Firearms
Division). Although the Firearms Division does not keep separate statistics by
type of hold, it is likely that the majority of reports are for 72-hour holds, since
these are more common than longer periods of involuntary treatment. A much
smaller number of individuals-approximately 20 per month statewide-are
reported due to Tarasoff warnings. As noted above, section 8103(f)(5) gives
individuals the opportunity to petition in the superior court of their county of
residence for early relief from the firearms prohibition once during the 5-year
period in which the prohibition is in effect. There is no statutory requirement
that a mental health professional be involved in the hearing to determine
whether the prohibition should be lifted.
The California DOJ, Firearms Division receives notification that relief has been
granted for approximately 30-60 individuals statewide each month
(information provided to the author by the California DOJ under the U.S.
Freedom of Information Act). Statistics are not kept concerning the number of
8103(f)(5) petitions that are denied. However, other data suggest that most
individuals with a history of involuntary mental health treatment in California
do not attempt to purchase firearms. According to the California DOJ,15 3,096
applications for the purchase of firearms (approximately 1% of the total
applications) were denied in 2004 for all causes, Of these, 382 (12%) were
denied because of mental health prohibitions. This is a small number indeed
when one considers that somewhere in excess of 100,000 people are added
to the California DOJ's database of banned individuals each year. In Los
Angeles County, the county with the largest population in California, an
average of 6 Section 8103(f)(5) petitions are filed each month.16 All hearings
are conducted in Superior Court Department 95, the division that hears cases
relating to mental health issues, including civil commitments and certain types
of forensic cases. This court has made an informal decision to have every
petitioner evaluated by a forensic psychiatrist. The evaluation consists of a
review of records from the involuntary admission triggering the ban, a
psychiatric interview with the petitioner, and, if deemed necessary, contact
with collateral sources such as family members or current treatment providers.
The assistant district attorney in the department may choose to oppose the
petition and, in many cases, testimony is heard, often including that of the
forensic psychiatrist. Roughly half of the petitions filed are heard, and a ruling
made by the judge. Of these, about 80% are granted.
Implications for Mental Health Professionals Ramifications of involuntary psychiatric treatment may extend beyond the
treatment episode. One consequence, the loss of the right to purchase or
possess firearms as a result of involuntary hospitalization, has received little
attention in the psychiatric and legal literature until very recently.3,5,17 Under
federal law, any individual who has been formally committed to a mental
institution loses the ability to purchase or possess firearms. Some states,
including California, also ban firearm possession by individuals who have
been involuntarily hospitalized for brief periods, without administrative or
judicial review, as is the case with California's 72-hour hold. Clinicians who
involuntarily hospitalize patients in jurisdictions with such provisions may wish
to reflect on the actual need to use involuntary treatment in cases where
inpatient care could be rendered on a voluntary basis. The impetus to
consider the consequences to the patient of the loss of firearm rights may be
particularly significant for individuals experiencing a temporary crisis who must
possess firearms as a part of their employment. An actual case may serve to
illustrate this point (some details have been changed).
Officer M was a career police officer with no previous psychiatric history who
was in the process of reconciling with his estranged wife. When his wife
expressed doubts about reuniting, he became dysphoric and drank alcohol to
the point of intoxication. He called a friend and expressed feelings of
hopelessness. The friend became concerned that Officer M might be suicidal
and called the local police. The police took Officer M to a psychiatric hospital,
where he was placed on a 72-hour hold for danger to self. He was released at
the end of the hold, with no medications and no planned follow-up. The
discharge diagnosis was adjustment disorder. As a result of the hold, he was
placed on limited duty. He petitioned the court for relief from the 5-year ban.
When evaluated by a forensic psychiatrist as part of the petition process,
there was no evidence of mental illness or substance abuse. His petition was
granted. Had this person been hospitalized voluntarily, a 5-year ban would not
have been triggered.
As the number of states with laws of this type has increased, it becomes more
likely that a treating clinician may be asked to give an opinion regarding
restoration of firearm rights. As is the case with other assessments of future
risk or dangerousness, reaching an opinion on this issue may be challenging,
so that clinicians may wish to seek consultation or suggest that the requesting
court obtain a forensic psychiatric evaluation. Because most states do not
specify a procedure to be followed in determining whether to lift a firearm
prohibition, judges are free to make decisions without obtaining input from a
mental health professional. It would appear that this state of affairs increases
the risk of errors being made, both when individuals, who are in fact at
increased risk and should not be allowed to possess firearms, have their
rights restored, and when individuals who are at low risk are denied. Mental
health professionals who practice forensically may wish to consider offering
their services to judges or attorneys dealing with these cases to reduce the
chance of these types of errors being made. To the author's knowledge, there
has been no formal outcome study of individuals after restoration of firearms
rights in terms of suicide, homicide, arrest, or any other measure.
Conclusions This column has focused on California's statutory and case law concerning
prohibition of firearms purchase and possession by individuals with a history
of mental health adjudications and involuntary psychiatric treatment and
discussed how these laws have been implemented. With the exception of
individuals placed on a 72-hour hold for grave disability whose involuntary
treatment is not extended, every patient who is admitted involuntarily in
California is prohibited from possessing firearms for at least 5 years. Several
other states also have firearm laws that apply to a broader population than
that identified by the federal definition. Clinicians who practice in jurisdictions
with such laws should familiarize themselves with the potential impact of these
statutes on their patients and should be prepared to respond to requests for
opinions on restoration. This area represents a potential new source of
referrals for forensic practitioners as well as for epidemiological and clinical
research. Future research directions could include studies of the impact of
firearm laws on patients (including on their employment), rates of prohibition,
rates of prohibition relief, and rates of suicide and violence. A discussion of
the ethics, efficacy, and reasonableness of firearm prohibition laws is beyond
the scope of this paper. Although the federal law is nearly four decades old,
many state laws are of more recent origin.
Discussions of this trend and of the ethics and efficaciousness of firearms
prohibitions for individuals with a history of psychiatric treatment have recently
been published. Appelbaum commented that "given that only a tiny fraction of
violence, including gun violence, is perpetrated by persons with mental
disorders, efforts that center disproportionately on restricting their access
reflect a deeply irrational public policy." Concerns about confidentiality in the
context of databases of individuals barred from purchasing firearms for mental
health reasons have also been raised. No research has yet specifically
examined the impact of firearm laws that affect individuals with histories of
mental health problems in terms of important issues such as employment,
health insurance, violence, or suicide. However, several studies have
demonstrated an increased risk for death by suicide18-21 and homicide19,22
among firearm purchasers and owners. In one of these studies, a positive
correlation between household handgun ownership and suicide rates could
not be explained by differing rates of major depression, suicidal thoughts, or
alcohol consumption.21 This finding suggests that individuals with psychiatric
diagnoses may be at higher risk for suicide if there is a firearm in their
household. Thus, there appears to be at least some evidence to suggest that
limiting access to firearms on the basis of mental health issues may have the
potential to reduce suicide rates. Clearly, much more research on this topic is
needed. Mental health practitioners should be aware of any laws in their
jurisdiction affecting access to firearms by individuals with a history of mental
illness or treatment. Such laws can have a significant impact on patients and
may also present difficult challenges for treatment providers asked to give
opinions about restoration. Despite some persisting questions about their
appropriateness and fundamental fairness, these types of laws are
increasingly common and highly likely to remain on the books for the
foreseeable future.
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