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Criminal Defense Attorneys

When May Police Destroy Firearm Taken in 5150 Hold?

If a person is taken into custody on a 5150 hold, seen by a doctor and released six hours later when the doctor says he is not a danger to himself or others, can police nonetheless destroy the firearms seized from that person?

The answer may be surprising to many.  Under Welfare & Institutions Code § 8102, police may only confiscate the firearms of persons who are subject to Welfare & Institutions Code § 5150 and have had their mental state assessed or evaluated.  City of San Diego v. Kevin B. (2004) 118 Cal. App. 4th 933.  What if the doctor decides the person really is not a danger to others?  Is that still a 5150 hold?

Persons subject to a “5150 hold” should be taken to a doctor to be assessed, and, depending on the results of the assessment, admitted for further evaluation or released to out-patient treatment, or even without a recommendation for any treatment, if the medical professional, in his or her professional evaluation, so decides.

If the doctor determines that the person is not an immediate risk and the person is not admitted, the conditions of § 8102 are still satisfied and law enforcement can confiscate that person’s firearms.  Law enforcement cannot petition to confiscate the weapons of persons who were never detained and assessed.

It is against this legal background that the case of M.C. in the City of Folsom arose in July 2019.  Someone at a mental health provider office in Folsom called the Folsom Police Department, reporting that M.C., who was being seen at the office for “anger management” and who “gets agitated easily,” and “might be a danger to himself or others.”  M.C. came to the office that afternoon for an appointment he thought he had.  The office told him he did not have an appointment.  M.C. responded, “Well, I guess I will shoot myself in the head.”

Police then ran the background of M.C. and learned he had a permit to carry a concealed weapon and possessed about thirty registered firearms.
Police then went to the mental health provider and found M.C. in his car with a loaded firearm.

M.C. told the police that he was “upset because he thought he had an appointment today.”  He then was very cooperative with police and volunteered to let police search his car and go to his friend’s house to pick up the guns.

During the one hour detention of M.C., police learned that M.C.’s wife had called the police earlier because she thought he was cheating on her.
Police then took M.C. to see a doctor, who assessed M.C. and concluded that outpatient care “was the most appropriate and least restrictive option” for M.C.  The doctor commented that the clinic had “erred on the side of safety by calling the police.”  The doctor concluded that M.C. “is not an imminent danger to self or others at this time and does not meet the local criteria for involuntary admission.”  M.C. was immediately released thereafter.

Two months later, the City of Folsom and the Folsom Police Department filed a petition asking the trial court to authorize it to lawfully dispose of M.C.’s firearms, pursuant to § 8102.

Folsom argued to the judge in its petition that the doctor “assessed and documented valid concerns about M.C.’s mental health.”  It also included several declarations of police officers who described M.C. as acting odd when they came in contact with him.

M.C. opposed the destruction request because “there was no 5150 hold,” “section 8102 was not triggered,” and thus, his “right to possess firearms [was] fully intact.”

The trial court judge denied Folsom’s petition, explaining “Folsom ha[d] no authority under section 8102 to petition the court for an order authorizing it to destroy the confiscated firearms because [M.C.] was not placed on a 5150 hold.  Accordingly, the court lack[ed] the authority to consider any evidence Folsom was prepared to present at the hearing to show that returning the firearms to [M.C.] would likely endanger him or others.” 

The trial court said it relied upon Kevin B., supra, in its ruling.  The trial court understood that under Kevin B., “a trial court has no authority to conduct a forfeiture hearing under section 8102 unless [a person is] both assessed and evaluated during an involuntary hold in a mental health facility under section 5150.”  Since the initial assessment of M.C. “concluded that he . . . did not meet the criteria for involuntary admission,” M.C. was not placed on a 5150 hold or evaluated, as required for the forfeiture provisions of section 8102 to have been triggered.”

Folsom appealed to the Third Appellate District, arguing the trial court ignored the officer declarations and that the trial court judge misinterpreted Kevin B.

The Third Appellate District agreed with Folsom, but regarded the trial court ignoring the officer declarations as harmless error.  The Third District disagreed with the trial court’s interpretation of Kevin B., finding that M.C. had been evaluated while on a 5150 hold, albeit informal, so firearm forfeiture proceedings could be initiated by Folsom.

It then remanded the matter to the trial court, ordering that it consider “whether the circumstances leading to the section 5150 detention might occur again and whether possession or control of those confiscated weapons in such circumstances would pose a risk of danger to [M.C.] or to others,” citing City of San Diego v. Boggess (2013) 216 Cal. App. 4th 1494, 1500.

We present this summary of Folsom Police Department v. M.C. to the reader because it is a thorough analysis of how a city can destroy firearms after even a brief 5150 detention that was apparently an overreaction by a mental health office to a comment by a patient made in frustration, which is common.

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