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Criminal Defense Attorneys

The Right to Own or Buy a Firearm After a 5150 Hold?

If someone is hospitalized on a “5150 Hold” (Welfare & Institutions Code § 5150) in California after police take that person into custody because it is determined the individual is a danger to himself or others, he may not possess a firearm or any other deadly weapon for five years after being released (Welfare & Institutions Code § 8103(f)(1)). 

Our office receives quite a few calls from folks who were admitted under a 5150 Hold, often after a threat of suicide or a call by a girlfriend, boyfriend, spouse or other family member, leading law enforcement to rush to the scene to then bring the person in for a 5150 commitment.

When the person is discharged from the facility, the facility is required to notify the individual that he or she is “prohibited from owning, possessing, controlling, receiving, or purchasing a firearm for a period of five years” before or at the time of discharge from the facility (Welfare & Institutions Code § 8103(f)(1)). 

However, on or after January 1, 2020, if the individual has been admitted to a facility on a 5150 hold more than one time within a period of one year preceding the most recent admittance, the facility is required to notify the individual that he or she is “prohibited from owning, possessing, controlling, receiving, or purchasing any firearm for life.”  The form is titled “Patient Notification of Firearm Prohibition and Right to Hearing Form” and it is from the California Department of Justice.  Failure of the facility to provide notice, however, will not necessarily prevent prosecution of the individual for possessing firearms. 

Such individuals must also be notified of their right to request a hearing to restore their firearm rights.  The request can be made within the five-year period under Welfare & Institutions Code § 8103(f)(3).
 
If someone has a lifetime firearm ban due to two or more 5150 holds, that person can request the restoration of the right once every five years.
The procedures for restoring one’s firearm rights after a 5150 hold are governed by Welfare and Institutions Code § 8103(f)(4) – (9).
 
The individual subject to the ban must first request a hearing for restoration of his or her firearm rights.  The request should be filed in the superior court of his or her county of residence and request a hearing and an order that he or she may own, possess, control, receive, or purchase firearms.  The request should include an authorization for the release of the person’s mental health records, upon request, to the appropriate court, solely for use in the hearing.

In response, the clerk of the court shall set a hearing date, time and assign a judge for the hearing.  The clerk will then notify the person, the Department of Justice, and the district attorney.  The people of the State of California shall be the plaintiff in the proceeding and shall be represented by the district attorney. 

The district attorney may request or the judge may transfer the hearing to the county in which the person resided at the time of his or her detention, the county in which the person was detained, or the county in which the person was evaluated or treated. 

Within seven days after the request for a hearing, the Department of Justice shall file copies of the mental health reports of the individual with the superior 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.  Upon showing good cause, the district attorney shall be entitled to a continuance not to exceed 30 days after the district attorney was notified of the hearing date by the clerk of the court.  If additional continuances are granted, the total length of time for continuances shall not exceed 60 days, or 120 days total after the person seeking restoration of his firearm rights requests a hearing.

The judge, upon motion of the person subject to the firearm ban, should realize that confidential information is likely to be discussed during the hearing that would cause harm to the person.  If so, the judge shall conduct the hearing in camera with only the relevant parties present, unless the judge finds that the public interest would be better served by conducting the hearing in public. Notwithstanding any other law, declarations, police reports, including criminal history information, and any other material and relevant evidence that is not excluded under Section 352 of the Evidence Code shall be admissible at the hearing.

The People shall bear the burden of showing by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.  Welfare & Institutions Code § 8103(f)(6).

If the judge decides at the hearing that the People have not met their burden, the judge shall order that the person shall not be subject to the five-year prohibition or lifetime prohibition, as appropriate, on the ownership, control, receipt, possession, or purchase of firearms, 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.  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.

For more information about firearm rights, please click on the following articles:

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