While there are several common reasons for gun purchase denials, perhaps one of the more common reasons, and one which our law firm is often asked about, is mental health and gun rights, or what are commonly referred to as various “mental health” bans. Within the state of California, these bans include holds pursuant to California Welfare and Institutions code §5150, §5250, and when someone is deemed mentally incompetent to stand trial (pursuant to California Penal Code §1370 or §1370.1) or not guilty by reason of insanity (pursuant to California Penal Code §1026). Finally, there is also a potential lifetime federal ban pursuant to 18 U.S.C. §922(g)(4).
If you have ever been subject to a 5150 or 5250 hold or have been deemed by a Court incompetent to stand trial within the state of California, then this article may provide some helpful information on mental health and gun rights that are pertinent to your Second Amendment Rights.
Mental healthy and gun rights can be a nuanced subject. In order to help navigate this difficult area of law, we will briefly discuss each in turn and then conclude with a discussion of the federal lifetime ban under 18 U.S.C. §922(g)(4).
Lifeback Legal is a division of the Law Firm of Shea M. Randall, a trusted California Law Firm. We specialize in helping individuals get their life back with California criminal record expungements and federal licensing services. Our expert gun rights restoration attorneys are prepared to help you navigate mental health and gun rights. We are ready to take on the issues to give you back the constitutional rights that you deserve.
California Mental Health Bans and Gun Rights
A “5150” Hold
When someone is held pursuant to California Welfare and Institutions code §5150, the individual receives a five year state ban on owning, possessing or attempting to purchase a gun.
CA Welfare and Institutions Code §8103(f)(1)(A) states the following:
A person who has been (i) taken into custody as provided in Section 5150 because that person is a danger to himself, herself, or to others, (ii) assessed within the meaning of Section 5151, and (iii) admitted to a designated facility within the meaning of Sections 5151 and 5152 because that person is a danger to himself, herself, or others, shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm for a period of five years after the person is released from the facility.
If they are held more than one time, then this five year ban turns into a lifetime ban within the state of California (CA Welfare and Institutions Code §8103(f)(1)(B)).
For those who have been held only once, and thus have a five year ban, the CA Welfare and Institutions Code §8103(c), allows that they may regain their firearm rights before the five year wait period has been reached, if the Court finds, pursuant to the standard laid out in paragraph (5) of the CA Welfare and Institutions Code §8103, that the people of the State of California have not met their burden pursuant to paragraph (6).
Those who have been held more than once, and thus have a lifetime ban, can similarly request a hearing pursuant to CA Welfare and Institutions Code §8103(11). Just as for those with a five year ban, they may restore their firearm rights if the Court find pursuant to the standard laid out in paragraph (5) of the CA Welfare and Institutions Code §8103, that the people of the State of California have not met their burden pursuant to paragraph (6).
Lifting this five year or lifetime ban, however, does not affect any bans that may be in effect due to a person’s criminal record (CA Welfare and Institutions Code §8103(9)).
An individual with a five year ban can only request a hearing once within this five year period (CA Welfare and Institutions Code §8103(4)) and a person with a lifetime ban can only request a hearing once every five years (CA Welfare and Institutions Code §8103(11)). The facility where the person is held must before, or during discharge of the patient, inform the person that he or she is prohibited from owning or purchasing any firearm for a period of five years. The facility must also inform the person that he or she may request this hearing from the Court, pursuant to CA Welfare and Institutions Code §8103(5), for an order permitting the person to own or purchase a firearm. The facility must also provide the person with a copy of the most recent “Patient Notification of Firearm Prohibition and Right to Hearing Form” prescribed by the Department of Justice (CA Welfare and Institutions Code §8103(3)).
If the petitioner requests the hearing allowed by the CA Welfare and Institutions Code §8103(5), then the clerk of the court must set a hearing date and notify the person, the Department of Justice, and the district attorney. Within seven days after the request for a hearing, the Department of Justice (DOJ) shall file copies of the reports described in this section with the Court. The reports shall be disclosed upon request to the person and to the district attorney. The Court shall set the hearing within 60 days of receipt of the request for a hearing, and may upon motion of the person subject to paragraph (1) establishing that confidential information is likely to be discussed during the hearing that would cause harm to the person, conduct the hearing in camera with only the relevant parties present, unless the Court finds that the public interest would be better served by conducting the hearing in public (CA Welfare and Institutions Code §8103(5)).
At the hearing, the people must show by a preponderance of the evidence that the person would be unlikely to use firearms in a safe and lawful manner (CA Welfare and Institutions Code §8103(6)).
If the Court finds at the hearing that the people have not met their burden as set forth in CA Welfare and Institutions Code §8103(6), then the Court shall order that the person not be subject to five year prohibition and a copy of the order shall be submitted to the Department of Justice. Upon receipt of the order, the Department of Justice shall delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information (CA Welfare and Institutions Code §8103(7)).
In addition, if the district attorney declines or fails to go forward in the hearing, the Court must similarly order that the person not be subject to the five-year prohibition and a copy of the order shall be submitted to the Department of Justice. Upon receipt of the order, the Department of Justice shall, within 15 days, delete any reference to the prohibition against firearms from the person’s state mental health firearms prohibition system information, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms (CA Welfare and Institutions Code §8103(8)).
Finally, if the Court denies the petition, then the person subject to the five year or lifetime ban remains under prohibition until their time has expired. For those with lifetime bans, all future hearings past their first hearing also has one additional requirement: whereas at the initial hearing, the state had the burden to prove by a preponderance of the evidence that they would use a firearm in an unsafe and unlawful manner, the petitioner now has the burden of showing the Court that they would use a firearm in a safe and lawful manner (CA Welfare and Institutions Code §8103(11)). In other words, the burden shifts and it becomes more difficult to restore your firearm rights. This is why it is imperative to be successful on the initial hearing and to learn as much possible about mental health and gun rights law.
A “5250” Hold
When someone is held pursuant to CA Welfare and Institutions Code §5250, a California five year ban is also created. CA Welfare and Institutions Code §8103(g)(1)(i) states the following:
A person who has been certified for intensive treatment under Section 5250, 5260, or 5270.15 shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm for a period of five years.
Similar to the process with a 5150 hold, however, a person may petition the Court to lift this ban prior to the five years expiring (CA Welfare and Institutions Code §8103(g)(4)). Also similar to a 5150 hold, if the Court chooses to lift the ban the Court order does not affect any bans that may be in place due to the petitioner’s criminal record (CA Welfare and Institutions Code §8103(9)).
The facility holding them must inform them of this right before or during discharge and provide them with a copy of the most recent “Patient Notification of Firearm Prohibition and Right to Hearing Form” prescribed by the Department of Justice (CA Welfare and Institutions Code §8103(g)(2)(A). Similar to a person who has been held one time under a 5150 hold, the person may only request this hearing once within this five year period (CA Welfare and Institutions Code §8103(g)(3)).
Finally, the hearing follows the same or very similar procedural steps as those for the 5150 hold.
Declared Not Guilty by Reason of Insanity and Declared Mentally Incompetent to Stand Trial
There are two relevant sections of the California Welfare and Institutions Code relating to each of these determinations: CA Welfare and Institutions Code §8103(c)(1) and §8103(d)(1), respectively.
CA Welfare and Institutions Code §8103(c)(1) relates to Declared Not Guilty by Reason of Insanity and states the following:
(c) (1) A person who has been found, pursuant to Section 1026 of the Penal Code or the law of any other state or the United States, not guilty by reason of insanity of any crime other than those described in subdivision (b) shall not purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control, any firearm or any other deadly weapon unless the court of commitment has found the person to have recovered sanity, pursuant to Section 1026.2 of the Penal Code or the law of any other state or the United States.
Finally, Declared Mentally Incompetent to Stand Trial is explained in CA Welfare and Institutions Code §8103(d)(1) and states:
(d)(1) A person found by a court to be mentally incompetent to stand trial, pursuant to Section 1370 or 1370.1 of the Penal Code or the law of any other state or the United States, shall not purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control, any firearm or any other deadly weapon, unless there has been a finding with respect to the person of restoration to competence to stand trial by the committing court, pursuant to Section 1372 of the Penal Code or the law of any other state or the United States.
Both of these determinations, therefore, create a lifetime state ban on owning or purchasing a firearm unless the Court of commitment or committing Court finds that the person has recovered their sanity pursuant to CA Penal Code §1026.2 or a restoration to competence pursuant to CA Penal Code §1372.
Federal Lifetime Ban under 18 U.S.C. §922(g)(4) and Gun Rights
18 U.S. Code § 922(g) is a provision of U.S. federal law that forbids several categories of people to possess or receive any firearm or ammunition, which has been shipped or transported in interstate or foreign commerce. This ban applies to various individuals, but for our purposes of explaining mental health and gun rights, we will look only at how this code section applies to individuals subject to mental health related bans.
18 U.S.C. §922(g)(4) reads as follows:
It shall be unlawful for any person— who has been adjudicated as a mental defective or who has been committed to a mental institution; to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Section 478.11 of Title 27 of the Code of Federal Regulations (27 C.F.R. § 478.11) defines “committed to a mental institution” as “a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.”
So, how does this federal ban apply to the various state of California bans? While it is inconclusive, it is very likely that a 5150 hold does not meet the above definition, and therefore, does not trigger the lifetime federal ban under 18 U.S.C. §922(g)(4), since a 5150 is for observation only. This distinction is also what is intended by the “Notice and Acknowledgement of Receipt of California Welfare and Institutions Code Section 5331” typically provided on discharge, namely, that a hold for observation is not an adjudication of mental competence.
For 5250 holds, despite the remedy provided by California at the state level, federal courts have interpreted a 5250 hold pursuant to CA Welfare and Institutions Code §5250 as triggering the federal lifetime ban under 18 U.S.C. §922(g)(4) by stating that:
By its terms, detention under Section 5250 is involuntary. See Section 5250(c) (“The person has been advised of the need for, but has not been willing or able to accept, treatment on a voluntary basis“) (emphasis added). A Section 5250 detention is also, by its own terms, for intensive treatment of a mental illness. See Bragg v. Valdez, 111 Cal.App.4th 421, 426, 429-30 (2003).
See, In re Denial of Firearm by FBI Appeal Unit (2006).
Unfortunately, this means that even if you can successfully regain your firearm rights at the state level for a 5250 hold, you will still be banned at the federal level from ever owning a gun.
In addition, this federal ban also applies to determinations of both Declared Not Guilty by Reason of Insanity and Declared Mentally Incompetent to Stand Trial under CA Welfare and Institutions Code §§8103(c)(1) and (d)(1) since it is a determination by a California Court, which meets the definition of: “adjudicated as a mental defective.”
Finally, since 1992, Congress has prohibited the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) from expending appropriated funds to investigate or act upon applications for relief from federal firearms disabilities. This means that a person with a federal firearm ban currently has no form of legal relief available at the federal level to change it. Therefore, a federal ban will remain in place for life.
Conclusion
Lifeback Legal is a division of the Law Firm of Shea M. Randall, a trusted California Law Firm. We specialize in helping individuals get their life back with California criminal record expungements and federal licensing services. Our expert gun rights restoration attorneys are prepared to help you navigate mental health and gun rights by taking on the issues necessary to give you back the constitutional rights you deserve.
Before our law office can examine your 5150, 5250, or other mental health ban, we will require the following items:
- Copies of your medical records. Reach out to the institution(s) that you were held at to gather all your health and case records. Be sure that they include the Patient Notification of Firearm Prohibition BOF 4009C Form. Generally, facilities will purge their records after a set number of years, based on that facility’s protocols. If you are unable to obtain the medical records, we are unable to take on the case.
- A current copy of your CA DOJ Report. The CA DOJ Report will provide us a full scope of your criminal record. Although you may not have a criminal record, this will be tangible proof to show that. If you have a criminal record in a different state, then you may obtain an FBI Report.
- Proof of having pursued therapy and volunteering opportunities to demonstrate your reform and ensure there are Medical and Community Professionals willing to vouch for your good and levelheaded character. Again, as we understand that the situation may have been blown out of proportion or occurred long ago, it is integral to provide proof to the DA at the future hearing that there are solid professionals willing to vouch for your good character. We will provide you a Character Letter Guide, but for now, at least ensure you have a list of folks you are able to reach out to to seek the letters down the road. The first thing the DA will ask us at the hearing is if you are able to produce a letter from a licensed-medical professional vouching that you are not a harm to yourself or others and having showcased a treatment plan, for example, that has been satisfied. If this is unavailable, the court may assign you a therapist to be evaluated by. Without this letter, the likelihood of success decreases dramatically.
Finally, once you have obtained all of the above required documents, our office will begin the process of reviewing your case through our gun rights restoration case analysis. The analysis typically takes 1 to 2 business weeks to complete and costs $400. The cost may then be applied as a credit towards your eligible service. If you require a 5150 hearing, the cost ranges from $3500-$5000. After the analysis, should you decide not to move forward, then the cost of the analysis is retained for the attorney’s time to review the record.
To learn more about mental health and gun rights and the gun rights restoration process, click here. Our team can also be reached by filing out the contact form below.
* By clicking ‘submit’ you understand that this does not create an Attorney-Client relationship. While we do our best to respond to you quickly, we are under no obligation to take your case or provide any sort of response. We do not sell or share your information. Providing your basic information simply gives our law firm the opportunity to follow-up and engage in a conversation to best assist you.