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View Full Version : Confirming I understand 5150/5250 before correcting law class...


AVS
09-23-2013, 12:38 PM
I'm currently taking a law and ethics class for psychotherapists. Firearms are not the focus, but they have been touched upon, and I'm happy to say no one seems particularly enthused about disarming their clients. Unfortunately the professor and students have both been fed a lot of FUD.

My professor is great person who is still open to learning, but before I start correcting her and everyone else, I was hoping some of you could confirm whether or not I know what I'm talking about.

I've read numerous 5150 threads on here over the years, and I've checked out the following sites, but I don't want to pretend I'm proficient with legalese:

http://www.leginfo.ca.gov/cgi-bin/displaycode?file=5150-5157&group=05001-06000&section=wic

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wic&group=08001-09000&file=8100-8108

Here is how I understand it:

If one is held under a 5150, they are prohibited from owning a firearm for 5 years. This is not just for police and military, this is for *everyone*.

Upon release, one has 30 days to file a petition to get their gun back, which can be approved or denied. After 30 days, they'll be required to go to court and convince the judge they aren't dangerous.

When the 5150 is issued, the state is permitted to go to one's home and confiscate all firearms on the premises. (Yours as well as anyone else's?)

If one is held past the 72 hours through a 5250 or 5260 then they lose their right to own firearm permanently as their is currently no expiration date on the prohibition and no way to appeal. (I have a feeling there's some FUD in this one.)

Is all of this correct, or am I carrying around some FUD of my own?

Thank you everyone for any help you may offer, especially from our resident attorneys.

marcusrn
09-24-2013, 8:17 AM
If one is held 5150 as gravely disabled criteria they are not prohibited from owning a gun. They are prohibited from owning guns if held 5250 gravely disabled.

RickD427
09-24-2013, 10:20 AM
AVS,

Thanks for taking the time to fact-check before taking on the professors. Thanks also for taking them on. There are a few mis-conceptions in here. Please check out my comments below (Your questions are in quotes):

"If one is held under a 5150, they are prohibited from owning a firearm for 5 years. This is not just for police and military, this is for *everyone*."

The prohibitions apply to all occupational groups. As the above poster correctly pointed out, they do not apply to a person who was 5150 committed due to "Grave Disability."
"Upon release, one has 30 days to file a petition to get their gun back, which can be approved or denied. After 30 days, they'll be required to go to court and convince the judge they aren't dangerous."

This is a correct summary of one provision of law, but you need to remember that there are several provisions of law and the courts and LEO's will apply the most restrictive combination of the law to a particular circumstance. The "Five Year" prohibition on "Danger to Self" and "Danger to Others" 5150's prevents the application of this section to those cases. Those 5150's have to go to court and have their firearms rights restored before the weapon can be released.
"When the 5150 is issued, the state is permitted to go to one's home and confiscate all firearms on the premises. (Yours as well as anyone else's?)"

LEOs are permitted to seize all deadly weapons (not just firearms) in the possession of, or under the control of, the 5150 patient. It is important to note that this statute (8102 WIC) does not override the provisions of the Fourth Amendment. Any search conducted by state officials must meet the "Reasonableness" test of that amendment. Absent any exigent circumstances, that would normally call for a warrant, or consent, before a search of a residence could occur. The Penal Code was amended several years ago to permit LEOs to obtain search warrants (even though no crime was committed) under such circumstances.
"If one is held past the 72 hours through a 5250 or 5260 then they lose their right to own firearm permanently as their is currently no expiration date on the prohibition and no way to appeal. (I have a feeling there's some FUD in this one.)"

This one is actually correct. That's not a state law issue. That one is federal law (18 USC 922). Persons who have been "Adjudicated" as mentally defective (The term "defective" may be offensive to some. I use it because that's the word contained in the statute) are prohibited from firearm possession. There is no appeal provision.

Scott Connors
09-24-2013, 2:56 PM
Also, you can be served with a 5250, but you have to appear before a hearing officer and the state's petition approved in order for the prohibition to be in effect. There is one way to appeal: you must file for a writ of habeas corpus while in the facility. This gets you a hearing before a judge and an attorney from the public defender's office, unless of course you can afford your own. If the judge grants the writ, then the 5250 is void and never happened.

RickD427
09-24-2013, 3:07 PM
Also, you can be served with a 5250, but you have to appear before a hearing officer and the state's petition approved in order for the prohibition to be in effect. There is one way to appeal: you must file for a writ of habeas corpus while in the facility. This gets you a hearing before a judge and an attorney from the public defender's office, unless of course you can afford your own. If the judge grants the writ, then the 5250 is void and never happened.

Scott,

Actually the process works slightly different from what you posted. Please check out Welfare and Institutions Code sections 5256.4 through 5256.6 for the details.

You are correct in that if the judicial officer finds no basis for the commitment, then there is no triggering of 5250 and therefore no federal disability.

Please note that if there is any form of "Adjudication", from a 5250 or any other provision of law, then 18 USC 922 applies. There is no appeal provision under 18 USC 922.

AVS
09-25-2013, 2:23 PM
Thank you very much guys! I really appreciate your help. All this will be extremely useful in class.

RickD427
09-30-2013, 10:04 AM
AVS,

Did you make the presentation in class yet?

If so, how did it go?

Sakiri
09-30-2013, 10:56 PM
Scott,

Actually the process works slightly different from what you posted. Please check out Welfare and Institutions Code sections 5256.4 through 5256.6 for the details.

You are correct in that if the judicial officer finds no basis for the commitment, then there is no triggering of 5250 and therefore no federal disability.

Please note that if there is any form of "Adjudication", from a 5250 or any other provision of law, then 18 USC 922 applies. There is no appeal provision under 18 USC 922.


I'm not sure I like the fact that there is no appeal provision.

Someone could just slap you with a 5250 because you pissed them off bad enough and screw you for life.

I don't put it past people.

AVS
10-11-2013, 1:03 PM
@RickD427 Thank you again for your help! I gave my professor all of the information I had gathered, and she was very receptive. My classmates have also been receptive. There was already a consensus that 5150's are no small matter due to the civil rights issues. I was able to point out that since June of 2010, the 2nd amendment is yet another right to consider.

The professor did a good job explaining that (similar to guns) involuntary confinement is something only to be used to protect a life from death or grave bodily harm.

@Sakiri In CA at least, shrinks are not able to directly place someone in involuntary confinement. That is a misnomer. The person who can actually do it is a "county designate", who in turn is under scrutiny themselves. This is done to specifically counter the situation you described. Otherwise, you'd have sleazy shrinks being bought off to commit people. All the shrink can do is suggest someone be looked at by the county designate. Even then, the 5250 is only going to come into play typically as an extension of the 5150 if after 3 days the person is still considered a serious danger to yourself or someone else. I'm not inferring that the system is perfect; I just want to keep the FUD at bay. --Fully agree with you 100% that 5250 either needs to be separated from 18 USC 922, or an appeal provision needs to be provided for that federal law.