California Welfare & Institutions Code § 8103 provides that once someone has been evaluated or taken into custody as being “a danger to himself, herself, or to others,” he may be barred from possessing guns for five years if the government “show[s] by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.” Yesterday’s People v. Jason K. (Cal. Ct. App.) upheld this provision, with a pretty thorough constitutional analysis; it concluded that the government didn’t have to prove dangerousness by clear and convincing evidence, or beyond a reasonable doubt.
Here’s one way of thinking about it: The proof beyond a reasonable doubt standard for criminal convictions is sometimes articulated as, “Better that 10 guilty men go free than 1 innocent man be imprisoned.” (See my brother’s n Guilty Men, 146 University of Pennsylvania Law Review 173 (1997).) The preponderance of the evidence standard in this case means, “Better that 1 dangerously mentally ill person get a gun than 1 non-dangerous person be disarmed — but just a little better, so that on the other hand it’s better that 9 non-dangerous people be disarmed than 10 dangerously mentally ill people get guns.” A clear and convincing evidence standard might be, “Better that 3 dangerously mentally ill people get a gun than 1 non-dangerous person be disarmed.” What do you think is the proper ratio?
On April 22, 2009, Jason’s wife returned home at about 9:00 p.m. and found Jason intoxicated and passed out on the floor. Twenty-six-year-old Jason had been caring for their two-year-old son, who was sleeping in his bedroom. Jason was the primary caretaker for the son; his wife was employed by the Navy as an active duty communications specialist and was scheduled to deploy the next month.
When Jason woke up, he and his wife began to argue. Jason attempted to leave the residence, but his wife tried to stop him, which resulted in an exchange of shoves between the two. After Jason pushed his wife out of the way, he immediately grabbed a loaded handgun, cocked it, and said he was going to kill himself. His wife restrained Jason, who eventually dropped the gun.
Jason then left the residence and checked himself into Balboa Hospital, and was taken by ambulance to Paradise Valley Hospital. Jason told medical personnel that he and his wife had not been communicating and the problem was getting worse, and he was also experiencing financial stress. Jason was calm and cooperative, but admitted feeling depressed. He denied he intended to commit suicide, and stated he grabbed the gun to get his wife’s attention. Although there were reports that he placed a shotgun in his mouth, he and his wife later denied this account. Jason said he had increased his use of alcohol, had been crying twice a week, used medical marijuana for back problems, and was having trouble sleeping. Jason also had abrasions on his hand from punching a wall. The hospital admitting form stated that Jason was “clearly frustrated & has shown a pattern of self-harming activity over past month to try to get wife to notice … .” Jason indicated he keeps numerous guns at his house in a safe. Jason’s wife told a social worker that Jason threatened to shoot himself with the handgun, but Jason later denied saying this.
Based on an evaluation, the admitting psychiatric resident found there was probable cause to believe that Jason was a danger to himself, and should be admitted for a 72-hour evaluation under section 5150. Although Jason and his family did not want him to remain in the hospital, a treating psychiatrist concluded that he must remain in the hospital for the evaluation.
Jason was discharged two days later on April 25. He was not given any medications, but was encouraged to follow up with referrals and an aftercare plan. He was diagnosed with “[m]ajor depressive affective disorder, single episode, severe, without psychotic behavior.” His prognosis was “[g]uarded due to chronic mental illness, chronic relapse, and chronic noncompliance.” Jason’s father told medical personnel that Jason keeps many of his father’s guns at Jason’s home, and that the father intended to remove all of the guns and return them to the father’s home in Arizona. The psychiatric evaluation report noted that Jason is “intelligent, verbal and educated.”
At the time of his discharge, Jason was advised of the law prohibiting him from possessing firearms for five years and his right to request a hearing to obtain relief from this prohibition. Jason requested a hearing, and a hearing was held on August 21, 2009.
At the outset of the hearing, the People submitted into evidence Jason’s confidential medical records and the police report. The court then provided Jason time to review these records, and asked whether the records were accurate. With the exception of denying a statement that the incident involved a shotgun and that he had put the gun into his mouth, Jason acknowledged the information in the medical records was essentially accurate. He emphasized, however, that he did not intend to kill himself with the gun. He said his sole purpose in threatening to use the loaded weapon was to get his wife’s attention, who had not been communicating with him. …
Jason [stated] that he realized he made an “extremely dumb” mistake, and that “a lot of good [has] come out of this,” including that he has started going to church again and seeing a therapist every other week for the past month. Jason additionally informed the court that he owns more than 20 guns. He said law enforcement officers took possession of two of these guns and his parents took the remaining guns to their home in Arizona. Jason said he wanted to use the guns to go hunting, and that he knew how to handle guns because he had collected them since he was 18 years old: “I have over two dozen of them. I’m just as dangerous with the razor I shave my face with in the morning as I am with … a gun.” …
After considering all of the evidence and arguments, the court concluded the People met their burden to show that return of the firearms to Jason would be likely to result in endangering himself or others. The court explained that although Jason appeared to be a responsible individual, he has substantial stress in his life and he had responded to this stress by grabbing a loaded gun. The court emphasized that although it accepted Jason’s representation that he did not intend to kill himself, the fact that Jason “went for the gun” during an emotional incident was the “tiebreaker” and supported a conclusion that it was likely Jason would not be safe with his firearms during the statutory five-year period. In so ruling, the court noted its conclusion might be different if there was a higher proof standard (“beyond a reasonable doubt” or “clear and convincing evidence”), but applying the preponderance of the evidence standard, the People met their burden….
A. Jason’s Challenge to the Statutory Proof Standard
Section 8103, subdivision (f)(6) provides that at the hearing at which a person seeks return of the firearms, 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.” Jason contends this preponderance of the evidence standard is constitutionally infirm, and the “clear and convincing evidence” standard should instead apply.
In support of this contention, Jason relies on the recent United States Supreme Court decisions recognizing an individual’s right to bear arms under the Second Amendment of the United States Constitution.
In Heller, the high court evaluated the meaning of the Second Amendment, and concluded the constitutional right to possess firearms was not limited to possession for military use and included an individual’s right to possess firearms in the home for self-defense. But the court stated that “[l]ike most rights, the right secured by the Second Amendment is not unlimited,” and specifically noted that “nothing in [its] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places ….” The court further explicitly recognized “the problem of handgun violence in this country,” and confirmed that the “Constitution leaves … a variety of tools for combating that problem ….”
In McDonald, the court held the Second Amendment right is applicable to the states through the Due Process Clause of the Fourteenth Amendment, but “repeat[ed] [its] assurances” that “the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose’ ” and that its holding “did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill ….’ ”
In his appellate briefing, Jason engages in a lengthy discussion of whether intermediate or strict scrutiny applies to evaluate a challenge to the constitutionality of a statute infringing on the Second Amendment’s right to bear arms, an issue left open in Heller. However, we need not reach this issue because Jason is not challenging the constitutionality of the statute that allows the state to temporarily restrict firearm use to an individual admitted to a facility under section 5150. Instead, he argues the United States Constitution mandates that the People be subject to a higher burden of proof than is set forth in section 8103, subdivision (f)(6). In analyzing this argument, we apply the tests developed to determine the appropriate proof standard when the government seeks to infringe upon an individual’s constitutional right.
B. Legal Principles Governing Required Standard of Proof
An individual has a constitutional right to procedural due process when the government deprives an individual of a liberty or property interest. One component of procedural due process is the standard of proof used to support the deprivation. The standard of proof must satisfy ” ‘the constitutional minimum of “fundamental fairness.” ‘ ” To determine whether a proof standard meets this constitutional minimum, the courts evaluate three factors: (1) the private interest affected by the proceeding; (2) the risk of an erroneous deprivation of the interest created by the state’s chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure.
In addition, the courts consider the purpose underlying the proof standard, which is to delineate ” ‘ “the degree of confidence our society thinks [a factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.” ‘ ” The required minimum standard reflects a “societal judgment about how the risk of error should be distributed between the litigants.” When the preponderance of the evidence standard of proof is used, the risk of an erroneous deprivation of the interest is shared “in roughly equal fashion” between the parties. The beyond a reasonable doubt standard is “designed to exclude as nearly as possible the likelihood of an erroneous judgment” and “imposes almost the entire risk of error upon [the government].” The clear and convincing evidence standard represents an intermediate standard that “reduce[s] the risk to the [individual] … by increasing the [government's] burden of proof.”
Under this constitutional framework, proof by a preponderance of the evidence generally suffices to satisfy due process in civil cases. However, when “the government seeks to take unusual coercive action … against an individual,” the clear and convincing evidence standard may be required. Courts have thus applied the clear and convincing evidence standard in civil cases “when necessary to protect important rights,”, such as when the proceedings involve ” ‘a significant deprivation of liberty’ ” or ” ‘stigma.’ ” (Santosky, supra, 455 U.S. at p. 756.) For example, courts have required the clear and convincing evidence standard in proceedings leading to the termination of parental rights (id. at pp 769-770; In re Angelia P. (1981) 28 Cal.3d 908, 922), involuntarily civil commitment (Addington v. Texas, supra, 441 U.S. at p. 425), deportation (Woodby v. Immigration & Naturalization Serv. (1966) 385 U.S. 276, 285), a conservator’s decision to withhold artificial nutrition and hydration (Wendland, supra, 26 Cal.4th at p. 524), and a conservator’s decision to authorize sterilization of a developmentally disabled conservatee (Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 168).
But the fact that a proceeding may result in a loss of an important constitutional right does not necessarily mean that the preponderance of the evidence standard violates due process. For example, in Jones v. United States (1983) 463 U.S. 354, the United States Supreme Court upheld a statute permitting the automatic civil commitment of a criminal defendant who had obtained a verdict of not guilty by reason of insanity by proving his mental illness in the criminal case by a preponderance of the evidence. The Jones court noted that the clear and convincing evidence standard was generally required to civilly commit a person because it was “inappropriate to ask the individual ‘to share equally with society the risk’ ” of an erroneous adjudication of mental illness. But the court found there was a diminished risk of error when the individual had affirmatively advanced and proven the mental illness as a defense in a criminal proceeding, and accordingly the preponderance of the evidence standard comported with due process for commitment of insanity acquittees.
C. Analysis
Applying the applicable legal principles, we conclude section 8103, subdivision (f)’s preponderance of the evidence standard preserves fundamental fairness and properly allocates the risk of an erroneous judgment pertaining to firearm use between the government and an individual who was hospitalized after a finding that he or she presented a danger to himself or others (§§ 5150, 5151).
First, with respect to the private interest element of the due process test, an individual’s right to possess firearms is of fundamental constitutional stature. However, this constitutional right is subject to the state’s traditional authority to regulate firearm use by individuals who have a mental illness. Moreover, the length of the threatened loss is a relevant factor in analyzing the nature of the private interest. Under section 8103, the deprivation of the right is lengthy, but temporary, lasting for five years. Further, the infringement concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties. The deprivation is thus not akin to the types of cases such as termination of parental rights, civil commitment, withholding of nutrition/hydration, forced sterilization, or deportation where a clear and convincing evidence standard is typically imposed. Additionally, although the loss of the right to possess firearms can impact an individual’s ability to defend himself or herself, the deprivation does not leave the individual exposed to danger without recourse to other defensive measures, such as installing home security devices and summoning the police.
Balanced against the individual’s temporary loss of the right to possess firearms is the state’s strong interest in protecting society from the potential misuse of firearms by a mentally unstable person. Section 8103 (and its counterpart section 8102 which permits confiscation of firearms) are preventative in design; the fundamental purpose is to protect “firearm owners and the public from the consequences of firearm possession by people whose mental state endangers themselves or others.” These protective statutes “limit the availability of handguns to persons with a history of mental disturbance … to protect those persons or others in the event their judgment or mental balance remains or again becomes impaired.”
Although the preponderance of the evidence standard requires the individual to share equally in the risk of an erroneous adjudication, this risk sharing is justified under circumstances where an individual exhibited a mental disorder sufficient to warrant hospitalization because of facts showing the individual may endanger himself or others. This includes situations, such as here, where the hospitalization occurred after the individual held a loaded gun and threatened to use the gun during an emotional argument while others were present and his two-year-old son slept in the next room. The statute places the burden on the government to show the individual would not be likely to use the weapons in a safe manner. (§ 8103, subd. (f)(6).) But if the government was required to satisfy this burden by clear and convincing evidence, this would increase the possibility that a person might be gravely injured or killed if the government failed to meet this rigorous proof burden. When the gravity of the potential consequences of allowing possession of guns by an individual with a history of a manifested mental disturbance is balanced against the temporary deprivation of access to these weapons, the balance weighs in favor of permitting proof by a preponderance of the evidence.
We conclude Section 8103, subdivision (f)(6)’s preponderance of the evidence standard comports with due process and did not unduly violate Jason’s constitutional rights.
cboldt says:
Stripping those charged with reckless driving of their driver’s license would save more lives.
October 8, 2010, 1:46 pmWould he be a felon if he flouted the order?
Andrew W says:
Take it out of the realm of guns and this gets even tougher. For example, in some states if a doctor notices symptoms of a seizure–not a proven seizure but just, say, a symptom as multivariate as loss of train of thought–that’s sufficient for a doctor to order the person not to drive for six months. That can be a much larger imposition than loss of a gun.
October 8, 2010, 2:26 pmloki13 says:
This is an interesting question. I think that it’s in cases like this that we can get the sharpest divide between those who believe in a gun rights, and those who believe that any attempt by the government to have any regulation about guns is tantamount to tyranny.
Based on the evidence, you have an individual who either is suffering from chronic mental illness or, at the least, severe situational mental illness. During this encounter, he admittedly used his gun in an unsafe manner. I think this is one of the examples (mental illness combined with using a firearm in an unsafe manner) when the government should step in and remove his firearm for a period of time. The question of how long the gun should be removed, as well as the standard of evidence (lower than a criminal conviction standard, undoubtedly), is up to the legislature to determine, but provided he is allowed to contest the finding (due process) there shouldn’t be a problem with this ruling.
I think that preponderance of the evidence is a fair standard, and was correctly applied in this case. I have never known any of the gun owners in my family to waive around their weapons in order to “get people to talk to them” and while it is certainly possible (even likely) that this is a mistake that was made, mistakes have consequences.
I think there’s a difference between so-called reasonable regulation masquerading as gun control (which should be rightfully struck down by the courts post-McDonald and Heller) as opposed to a law that seeks to keep weapons from people who have been shown to be a danger to themselves or others.
October 8, 2010, 2:27 pmPeter Gerdes says:
Seems to me that you can’t easily discretize the problem as one does with guilty/innocent. In terms of trials what matters is whether the person really did the thing of which he is accused so it’s really a binary matter. Either the person sent to jail did or didn’t commit the crime.
With mental illness it’s a whole different matter. You might have the same level of confidence in the claim that person D and person M have psychiatric conditions that will cause them to use guns in an unsafe or unlawful manner. However, if you are 49% confident that person D will fire his guns at imagined UFOs in the sky above his isolated cabin (unsafe and unlawful but the sparse population means that actual harm is unlikwly) and 49% confident that person M will use a gun to go on a murderous rampage and try to kill as many people as possible we care a great deal about not treating those two situations the same.
Indeed, I suspect that as a matter of actual fact the stated preponderance of the evidence standard is not actually used. Instead the evidence is likely weighted by the harm so that even a 20% certainty that someone will go on a spree killing will prompt the court to deny them their gun rights even when they wouldn’t do so for the unsafe and unlawful but low risk of harm deviant.
October 8, 2010, 2:28 pmHouston Lawyer says:
I don’t have a problem with the preponderance of the evidence standard when it comes to restricting someone’s rights. The restriction in this case is not permanent. You can lose all of your money in civil court based on this standard, which to most people would be just as important as the right to possess a firearm.
I would also argue that the facts supported by clear and convincing evidence that this man shouldn’t get possession of firearms. Suicide and murder/suicide constitute a significant part of firearms deaths.
October 8, 2010, 2:35 pmRhymes With Right says:
I still remain troubled by the notion that the government gets to suspend the exercise of a constitutional right at all.
What next — a determination that someone has “unhealthy religious beliefs” being used to prohibit them from attending church for a period of time until we are sure that they are not engaging in bad theology?
October 8, 2010, 2:36 pmNew Yorker says:
If there is even a remote chance that someone is mentally ill and is a danger to himself or others — especially others — he should not be allowed to have a gun. Period. All the arguments about how law-abiding citizens are responsible gun owners, etc., go right out the window when someone is not capable of obeying laws and doesn’t care about consequences. The 2nd Amendment cannot, cannot, cannot be read to be limitless. If it is, then you’re giving Chapman and Hinkley and Richard Reid a gun and saying God bless. (And if it’s truly limitless, you’re giving them Stinger missiles and grenades, too.)
October 8, 2010, 2:48 pmJay says:
Likely, yes. 18 USC 922(d)(4). Probably also under state law.
October 8, 2010, 2:50 pmSmooth, like a Rhapsody says:
You have a consitutional right to raise your child, but the state can remove your child (at least here) by a proof of preponderance; and parental rights can be totally terminated by clear and convincing evidence.
October 8, 2010, 2:50 pmterraformer says:
The problem here is anyone with mental health issues are automatically biased against in all walks of life, forget about with firearms issues. In the latter case, they may as well go beat their heads against the wall for it will be more productive than petitioning for judicial relief.
Despite my disgust for that bias, -and transitioning to a big picture view- cases with mental health issues are not going to be good cases to stake out scrutiny and limits of rights issues for 2A rights.
October 8, 2010, 2:51 pmBC says:
The worst part of the decision is the, “Enh, it’s only five years; not really that big a deal,” handwaving.
October 8, 2010, 2:59 pmJustin says:
To me, this is the key quote:
According to wikipedia, 17% of Americans will experience an episode of major depressive disorder (what this guy was diagnosed with) during their lifetimes. I get that the government has a strong interest in protecting society from misuse of firearms, but should the standard for mental instability be so low that it could apply to almost one in five people?
October 8, 2010, 3:03 pmTomHynes says:
Peter nails it:
“Indeed, I suspect that as a matter of actual fact the stated preponderance of the evidence standard is not actually used.”
Assume you are the bureaucrat making these decisions and handle 10 cases, letting them all have guns. Three of them go on murderous rampages, seven hunt responsibly and get their limits during quail season.
When the plaintiff’s lawyers and newspaper reporters call you, are you going to rely on the seven times you were right?
The bureaucrat automatically balances “loss of hunting for a few years” against “murderous rampages” and uses 90/10 instead of 50/50.
October 8, 2010, 3:04 pmRhymes With Right says:
But even then, the presumption is against such a termination in these procedures, and is certainly not automatic as in the case of suspending Second Amendment rights.
October 8, 2010, 3:05 pmAndrew J. Lazarus says:
The percentage who take out a gun and wave it around threatening suicide is much less.
October 8, 2010, 3:10 pmloki13 says:
Huh? Actually, the state can remove your child immediately (kind of like how they could remove his guns) and then they could keep the child removed after a hearing based on the preponderance of the evidence (called a shelter hearing in some jurisdictions)… which is pretty much exactly like this situation.
Did you have some other example in mind that had nothing to do with the post?
October 8, 2010, 3:14 pmpete the elder says:
There is a “remote” chance that anyone is mentally ill and is a danger to himself and others, including any random police officer or soldier. Thats why we need a better standard than “remote” like 1 in 10 or or 1 in 2 before we start depriving people of constitutional rights, than a “remote” chance of, for instance, 1 in 50 million. ( I am assuming the comment above was not a parody)
October 8, 2010, 3:16 pmRhymes With Right says:
But even then, the presumption in such cases is against (permanent, not temporary/emergency) removal and termination — the state must make a showing to do anything more than a temporary removal of the child and certainly before terminating parental rights. In the gun case above, the state makes a general rule and due process only happens if there is a request for a hearing.
October 8, 2010, 3:21 pmAJK says:
I’m a little uncomfortable that the burden of production appears to be on the individual who wants to keep his guns, rather than on the state trying to take them away, especially since it appears that you don’t get notified about that the restriction until after you’re discharged. I’m not sure if that actually amounts to a violation of due process, but I do find the implementation troubling. Other than that, I don’t have much problem with the principle behind the statute.
October 8, 2010, 3:31 pmloki13 says:
Yes, but this is a temporary deprivation. Now, admittedly, five years does not seem like a short time.
Second, you are incorrect about the presumptions. There is a presumption against *permanent* (TPR), which is why that is a clear and convincing standard. But it is just a preponderance standard for removal, just like this case.
Third, due process often only happens in the case where a person requests a hearing, even for constitutional rights. Children/parent is a little different (think about rights of children, etc.). But just pause and think about that for a second- you are entitled to due process (the process that is due); in many cases there is a procedure where the state will provide a hearing automatically to ensure this (think of involuntary commitment statutes); in other cases, you have to make the request.
October 8, 2010, 3:36 pmGarrett says:
A couple of thoughts:
If a person is a notable danger to themselves or others, why aren’t they under arrest/civil confinement?
As to this particular case, I think that two separate issues need to be addressed: is the person a danger to others, of just themselves? And how substantially?
I would argue that if someone is only a (potential) danger to themselves, then it should be based on ‘clear and convincing’ evidence. If the risk is to others, it should be based on a ‘preponderance of the evidence’.
The severity and risk should have an impact on the time (5 years shouldn’t be fixed, but maximum).
October 8, 2010, 3:49 pmIf a person is merely depressed with more than a twinge of melodrama, perhaps 6 months for an extended evaluation might be appropriate. If a person seems to be suffering from a much greater problem and is clearly volatile, then perhaps the 5 years is appropriate.
Donald Kilmer says:
I find the following interesting points in this case:
1. The gun-owner was pro-per in the trial court, but had court appointed counsel in the Court of Appeal. Seems the Appellate court found the “right to keep and bear arms” important enough for appointed counsel on appeal, but not for appointed counsel at trial. Why?
2. I agree with another poster. This guy’s actions would meet the “clear and convincing” standard — why didn’t the Court rule that way and moot the argument? There was some language in the opinion that the trial court said the result “might” be different with the higher burden of proof, but a Court of Appeal shouldn’t have to rely on speculation about what the trial court might do. The trial court should have made two findings: (a) no RKBA if preponderance, (b) RKBA restored if clear and convincing.
3. I am troubled that the court is trying to convert the right of self defense (with a gun) into a mere property right to have a gun.
4. I am also not sure that the “it’s only 5 years” argument works. The federal prohibition is for life if a court or other legally competent body makes a finding that you are a “danger to yourself or others” based on mental disease or defect. After that, you have to go to court again to get cleared to own guns under the federal statute. Under CA law, the right is automatically restored after 5 years even if you lose your WIC 8103 hearing; but you only get one hearing. So how does someone whose RKBA is restored by operation of law under CA law after 5 years, having lost your only WIC 8103 hearing, get RKBA restored under federal law? It is not a right without a remedy.
October 8, 2010, 3:55 pmJohn Herbison says:
Parental rights can be terminated on a showing of clear and convincing evidence. That makes me wonder. Are there gun owners, who are also parents, who would surrender their children sooner than they would surrender their guns.
After all, how many bumper stickers proclaim that the government will take my child when they pry it from my cold, dead arms?
October 8, 2010, 4:00 pmchuck hannah says:
This is all well and good, but since the federal law requiring record checks for PURCHASE of firearms, on the form which you must fill out, under penalty of perjury, requires you to report any adjudication of mental illness, provides PERMANENT LIFETIME disbarment from the ownership of firearms, I feel that intermediate scrutiny, at least, needs to be the standard. There is no appeal from this, as the Congress has refused to provide funding for the statutory appeal process for at least the last twenty years.
October 8, 2010, 4:09 pmMike P Wagner says:
If I understand the “balance of risk” reasoning, then “preponderance of evidence” looks like an appropriate standard.
It appears to me that risk of erroneously losing the right to own firearms is much less of a risk than losing liberty or life (“beyond a reasonable doubt”). An individual who loses the right to own a firearm is still free to walk around, engage in commerce, raise a family, and in general pursue happiness. The risk (or an erroneous judgment) to the individual when life or liberty is at stake is so high that the risk to society is trumped.
I would also argue that the risk of erroneously losing the right to own firearms is less of a risk than losing parental rights or being involuntarily committed (“clear and convincing evidence”). Though to be honest, involuntary commitment looks pretty problematic to a non-lawyer.
In the case of parental rights, I would argue that the risk to the individual is higher than the loss of property – what is lost cannot be restored. If I lose parental rights when my child is very young, a restoration of those rights at a later age only allows me to parent an older child.
Human beings seem fundamentally different to me from property (like guns). If I erroneously lose access to my Glock, and that right is restored, my Glock has presumably not changed, so I have the same Glock I had five years earlier.
So I would argue that the risk to the individual is higher with parental rights than property rights.
However, I still have the right to walk around, engage in commerce, etc. So it strikes me that the erroneous loss of parental right is less if a risk to the individual than the the loss of liberty or life.
In addition, the risk to society if an erroneous decisions is pretty high – it is physical and or mental harm to a member of that society (the child).
Overall, while the risk to society with regard to parental rights is pretty high, the individual is somewhere between that of the loss of liberty and the loss of property.
That makes the middle standard (“clear and convincing”) appear correct.
The most relaxed burden (“preponderance of evidence”) seems properly to apply to the loss of property. Property can be restored, in a way that being the father of your five year old son can never be restored. If there is an error, then your Glock can be restored to you immediately, and you have suffered a temporary harm. I guess that a firearm looks – to me – like just another piece of property. That seems to make the individual risk much lower.
The risk to society of an erroneous judgement with regard to possession of weapons is physical harm to the individual or someone else. So that risk still looks pretty high me.
I’d think that I’d argue that the loss of a firearm should have an even lower burden than the loss of other property – the risk to the individual is about the same as any other piece of property (it can be restored), and the risk to the society is higher than for other property.
The fly in the ointment is the the Second Amendment – even if it doesn’t apply directly in this case – seems to treat “arms” as a separate class if property (unlike houses or cars).
I don’t know quite how to evaluate that difference, but I think that the risk is temporary, and easily remediated – if the judgement is wrong, you don’t lose our life or liberty, or the ability to parent a child in formative years.
I think the standard looks more or less correct. I realize that I am assuming that “risk” is defined as “ability to be remediated” – and I have no clue if that’s a proper definition.
October 8, 2010, 4:19 pmAndrew J. Lazarus says:
I;m hardly an expert on this, but I would think that ‘adjudication’ implies something like an involuntary commitment (e.g. “5250″), not a mere diagnosis of mental illness.
October 8, 2010, 4:22 pmchuck hannah says:
Andrew J Lazarus: “I;m hardly an expert on this, but I would think that ‘adjudication’ implies something like an involuntary commitment (e.g. “5250”), not a mere diagnosis of mental illness.”
I feel the same way, but there has been use by BATF and various state licensing agencies to deny firearm ownership to veterans who have merely requested help with PTSD, and there are laws in the pipeline in several states requiring the VA to provide this information to the state agencies (and to the feds through the NCIC) for the specific purpose of denying this right to the aforementioned veterans.
This is less than conscionable to me, not to mention that it is also a violation of the doctor/patient confidentiality.
October 8, 2010, 4:35 pmTim says:
Is “shall not be infringed” not strong enough language for you?
October 8, 2010, 4:41 pmpayrollguy says:
This is actually the only assertion in the decision that concerns me. How does a security system or the ability to summon the police actually help you defend yourself?
It really bothers me when I see these type of statements. All they do is downplay the importance of being able to properly defend yourself.
October 8, 2010, 4:42 pmMike P Wagner says:
While I read the question as being about the standards, not the facts, I agree with your point.
I am less concerned in this case with the diagnosis than the acts of the individual. I have known a lot of people in my life who have suffered from a major depressive episode. None of them – as far a I know – pulled out a gun and started waving it around (apparently while drunk and high).
The actions that a person takes are important.
I am not sympathetic to the argument “since so many of us do y, it’s no fair to deprive someone of the ability to do x while doing y”.
For example, far more than 17% have been really really, drunk at one point or another in our lives. I would not accept the argument that since many of us have gotten drunk in our lives, we cannot deprive someone who drives while really drunk of the right to drive a car for 5 years.
So, to my mind, the fact that many of us have suffered from a major depressive episode in our lives does not imply that it’s unfair to deprive someone who waved around a gun while depressed of the right to wave around a gun.
Mike
October 8, 2010, 4:52 pmDonald Kilmer says:
Using a lesser means of self-defense in lieu of a gun was an argument that was specifically rejected in Heller. Look a guy who gets drunk, uses a gun to create drama in an argument with his wife, with a child in the house, and goes on to get diagnosed with depression is “clear and convincing” enough for me to deprive him of RKBA.
October 8, 2010, 5:00 pmMy question is what is so magical about 5 years? Why not allow hearings once every year until he gets a judge to clear him, hopefully with testimony from a mental health professional, or impose a 5 year waiting period if he loses three hearings in a row.
Current CA law only permits one hearing post-5150.
loki13 says:
See, this is the problem that I have (and this is just me) with many posters on these threads. Would it be acceptable for someone who told the Iranians our nuclear secrets that, dude, I shouldn’t be prosecuted because “Congress shall pass no law” is pretty strong language?
I’ve come a long way from being agnostic about gun rights to being (somewhat) pro-2d Am. I don’t happen to own a gun, but just about every member of my extended family owns one, and some are what others would consider “gun nuts” (such as a cousin who is inordinately found of the machine gun that pre-dates some ban or other). But I respect the rights of others, and I have found that the vast majority of gun owners are incredibly responsible. Just as I tolerate speech I don’t like, I tolerate (yes, tolerate) others having guns even if I choose not to have one since that is their right.
But what makes me re-think my acceptance is when I find people advocating for indefensible positions. Some of the worst examples of gun violence in our country have been committed by the mentally ill. And as for suicides… Anyway, I don’t think that the government should ever prohibit a law-abiding citizen from owning a gun, or make them jump through hoops to get one. But if someone has been found by legal process to be a danger to themselves or others due to mental disease or infirmity, I think that at a minimum their right to a weapon should be curtailed until such time as they can show that this is not an issue. I don’t think this is a bar- if someone has depression, or bi-polar disorder, but has had no major problems where they were a threat to themselves or others, then they should have them same rights as anyone else.
But someone who has *shown* that they were irresponsible with their weapon, and that they were a threat… well, that’s a concern for me. And it’s a concern for the responsible gun owners I know. I’m not sure what the disconnect is with some of the people I see posting. Would someone care to explain it?
October 8, 2010, 5:12 pmcboldt says:
I find the court’s justification of stripping a fundamental right by preponderance, as “okay” using the example of the fellow who sought a verdict of not-guilty by reason of insanity, an affirmative defense where the defendant aims to prove he is defective, to be cheesy.
October 8, 2010, 5:31 pmAnyway, in his shoes, I’d become more proficient with a sword, knives, bow/arrow, crossbow, and slingshot.
New Yorker says:
@Tim — Loki13 pretty much answered the question already, but — “shall not be infringed” is not strong enough. Those plain words mean that the truly insane have a constitutional right to arms, and if arms is not limited in any way (“shall not be infringed” contains no limiter for, say, small arms) then you are advocating that the truly insane be allowed to own howitzers, tanks, grenades, nuclear bombs, etc. Anyone who actually advocates that position, well, let’s just say that those folks shouldn’t own *any* arms, because they are the truly insane.
So there need to be limits on the 2nd, no matter what the literal words mean. The question — as Scalia himself observed in Heller — is where those limits are, and whether reasonable regulations can apply to the insane, felons, etc. Once the question is what reasonable regulations apply, I would say that pretty much anyone who poses some remote risk of intentional harm shouldn’t have a gun.
As to what is that risk … well, if “beyond a reasonable doubt” were, say, 95% (and I am of course aware of the large body of literature on the comparisons of these standards to percentages, but just assume this arguendo), I do not think that we should take the risk that 1 out of every 20 people who pose a risk to others should have a gun.
(Perhaps my view is warped by the fact that I see insane folks on the NYC subways weekly, and I would like to make it as hard as humanly possible for them to get guns. An armed subway would not be a polite subway; deterrence is irrelevant to the truly insane.)
October 8, 2010, 5:32 pmzippypinhead says:
Dumb question from a Right Coastie who can [generally] parse statutory language but is not familiar with the quirks of California law: Am I correct that the California standard under §5150 for involuntary psychiatric hold is not actually a true “involuntary commitment” adjudication as that term is used in most jurisdictions, but is more like a temporary emergency admission for evaluation? It can be invoked merely with a probable cause certification from any peace officer or medical professional, is only valid for 72 hours, and in order to hold a person longer there must be additional proceedings?
If I’m reading that correctly, California’s §8103(f)(1) 5-year prohibited person status at issue here is triggered a LOT more easily than prohibited person status in most other states, and on a far lesser showing (e.g, ’cause the cop who brings you to the hospital for evaluation signs a form saying he thinks you’re a danger!). Only if one challenges the initial certification, can one get a de novo hearing with the burden formally shifted to the state.
It’s also unclear to me whether or not a §5150 certification that leads to a §8103(f)(1) temporary firearms possession suspension would also cause one to enter Federal prohibited person status under 18 U.S.C. §922(g)(4), since that provision requires that one be “adjudicated” a mental defective or “committed” to a mental institution. But if you challenge the initial §5150 certification in court and lose, you definitely fall within (g)(4) – which is presumptively a LIFETIME Federal ban. And even if you don’t challenge the initial certification, would I be correct in guessing that California reports §5150′s to the Federal NICS system, so you would end up being denied if you tried to purchase a firearm from a FFL anywhere in the U.S. (and that California doesn’t do anything to get you out of NICS after the 5-year period expires)?
If I’m even partly right in my reading of these statutes, they set up a pretty ugly Catch-22. And may potentially raise some post-McDonald due process issues beyond just the burden of proof question? Probably best not to have your next nervous breakdown while in California, eh?
October 8, 2010, 5:46 pmDonald Kilmer says:
Here is the quote from SCOTUS case”
The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
[...]
The intermediate standard, which usually employs some combination of the words “clear,” “cogent,” “unequivocal” and “convincing,” is less commonly used, but nonetheless “is no stranger to the civil law.” Woodby v. INS, 385 U.S. 276, 285 (1966). See also C. McCormick, Evidence § 320 (1954); 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof. Similarly, this Court has used the “clear, unequivocal and convincing” standard of proof to protect particularly important individual interests in various civil cases. See, e. g., Woodby v. INS, supra, at 285 (deportation); Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159 (1943) (denaturalization).
Addington v. Texas, (1979) 441 U.S. 418, 423-424
I don’t see how this translates into EV’s digitized analysis of:
preponderance = x
clear and convincing = x + y
beyond reasonable doubt = x + y + z
October 8, 2010, 5:50 pmMack says:
Curious how there is no mention of the Americans with Disabilities Act.
It would seem that Title II would apply in this case.
October 8, 2010, 6:06 pmDr. T says:
Suicidal gestures are common. If a person makes a suicide gesture, should we remove a his guns, knives, razors, scissors, ropes, bathtubs, medicines, household cleaners, flammables, matches, or any other item or device that could be used in a suicide attempt? If not, then why do guns have a special cachet? A knife into the heart is equally effective, so is swallowing a handful of many types of pills. As others noted above, if a person is found to be at high risk for suicide, then he should be treated in a psychiatric ward until stable. Otherwise, he should not be restricted by the state.
October 8, 2010, 6:09 pmzippypinhead says:
See, this is the problem that I have (and this is not just me) with many posters on these threads: Some folks are entirely too willing to ignore the maxim “Do Not Feed The Trolls.” C’mon loki, you’re too smart to have to use a facially unreasonable anonymous blog comment snark as a straw man for questioning the substantive scope of a Constitutional Right. Unless you intend to accuse Justice Scalia of being an untethered judicial activist who makes up limitations on Constitutional rights out of whole cloth, the majority opinion in Heller establishes a pretty good framework for analysis that doesn’t necessarily lead to an outcome that will bother you.
[yes, I know the immediately preceding sentence will inevitably set somebody off on a diatribe, but DNFTT should apply to those screeds, too, IMHO]
October 8, 2010, 6:21 pmJohn Burgess says:
@Dr. T: Perhaps because bathtubs and razors do not have the likelihood of passing through walls into adjoining properties where they could kill innocent neighbors?
October 8, 2010, 6:34 pmMatthew Carberry says:
@ John Burgess – yet natural gas explosions (of a home asphyxiation attempt) or driving the wrong way into traffic or provoking the police into shooting one in a public place do put innocents at risk.
Why does the line stop at firearms?
October 8, 2010, 7:00 pmChris Travers says:
I’m having trouble parsing this. Maybe a lawyer could clarify it to me. It’s not the preponderance of the evidence part that has me confused, but rather the word “likely” inserted here. How much probability is “likely?” I ask because when trying to quantify actual costs on both sides of EV’s equations I get rather odd results.
If likely means “at least 50%” then we get “better two innocent people be deprived of the right to lawfully own a gun than one mentally unstable person harm himself or others with it.” If it means a foreseeable chance, or even an elevated probability, then it could mean that it’s acceptable to disarm lots of innocent people to get at a few mentally unstable ones.
Is “likely” a term of art here? What does it mean in this case? What’s the standard of likeliness?
October 8, 2010, 7:08 pmcboldt says:
– Is “likely” a term of art here? –
October 8, 2010, 7:44 pmI take the phrase, “not be likely” as the term of art. Your questions persist, just the same, and I think you answered it. It’s acceptable (maybe desirable) to disarm lots of innocent people to get at a few mentally unstable ones.
A generation or three from now, the medical profession may find “wants a gun” or “likes guns” to be reliable indicators of mental instability.
ChrisTS says:
A) No one is saying the line should stop there; this is a case about gun ownership. B) It is quite possible to live without a gun; it is not possible to live [normally, in our society] without heat, a way to cook food, etc.
October 8, 2010, 7:47 pmcboldt says:
Oh, “not be likely” is an absolute, or near certainty if expressed in probabilistic terms. “Would not use firearms in an unsafe or unlawful manner.” The “likely” is nothing more than a concession to the fact that it is impossible to perfectly predict the future, especially when it involves humans and free will.
October 8, 2010, 7:49 pmLucky says:
Had he been convicted of misdemeanor domestic violence for the “shoving match”–or had his wife taken out a temporary restraining order–he would be denied the ability to own a firearm permanently in CA. Also, note that all that is required in order to be detained under Section 5150 is a police officer or clinician certifying that one meets the criteria. In other words, this process can begin solely on the basis of an individual officer’s certification, though a court must get involved to restrict gun ownership, as in this case.
See Prof Volokh’s article linked in a prior related post:
October 8, 2010, 8:17 pmhttp://volokh.com/2010/01/11/eleventh-circuit-upholds-ban-on-gun-possession-by-misdemeants-convicted-of-domestic-violence/
John David Galt says:
This question should have been answered, with a high standard, when the Violence Against Women Act made it easy for a woman to have her ex’s guns taken away merely by saying “I’m afraid of him.”
It seems to me that taking away a right as fundamental as gun ownership ought to require a criminal conviction for unlawful use of force, not just “clear and convincing evidence” that he’s a “threat” (whatever that may mean) and certainly not just “I’m scared of him.” Those are not due process.
Either I’m innocent until proven guilty, or I’m not. And if I am, then government has no cause to take any of my rights away. Period. Any process that would do so is not due process, and pretending it’s “not a punishment” doesn’t change that fact.
October 8, 2010, 10:32 pmAssistant Village Idiot says:
Jason is my Mon-Fri job these past 30 years. I’ve known a coupla hundred Jasons, including waving the gun. Some info to inform the discussion as it’s unfolding:
In NH there’s an up-to-two-week evaluation period, contingent on a probable cause hearing in the first 72 hours. Only if we apply for a further involuntary commitment and the court grants it is the person barred from obtaining a firearm, but it’s a lifetime ban. (There’s all sorts of screwy complications to this which I will leave out.) There is no ban on ownership, though it is believed throughout the hospital that the Brady Bill covers this. It doesn’t.
Garrett thought 6 months, maybe even five years would be right. Congratulations. Your state’s mental health budget just quintupled, and these people just lost their jobs, houses, and families. The general public thinks this is an unusual scenario. It isn’t. The 3 day stay above would be typical for us also. We usually hold discharge until someone verifies that the guns are out of the house.
Future dangerousness is ridiculously hard to predict. Of my 200 Jasons, none has committed suicide or gone off and killed someone.* But there have been a half-dozen or so of the former, and one of the latter from other units during my 32 years here. Not very different from the general population, really. And yet, one does meet a fair number of folks which cause even a civil libertarian such as myself to think “that person should absolutely not have a gun.” Yet I know that substance abuse is the main driver of violence among my folks. Absent that, they are actually slightly less likely to commit violent crimes than the general public. It seems impossible while you are looking across the table at these guys, but the numbers are there. Or rather, they aren’t there. They have a lower violence rate than the general population when there’s no booze involved.
The standard of evidence question is interesting, because so much of the evidence depends on subjective evaluation: did Jason seem to be serious at the time? does he seem to be telling the truth now? does his reliability ebb and flow? how much ebb, how much flow, then?
This might be a thread-derailing tangent, but I think it would be of interest here: among those who have political motivations for their threats, there is a sharp divide in style between people of the left and right (and unsurprisingly, both of those gravitate to the extremes and are prone to conspiracy theories). The uber-libertarians and people of the right all say they are going to get a bunch of weapons, hole up somewhere, and dare the government to come after them. People of the left make more active threats to go out and shoot someone or blow something up. That’s in New Hampshire, and may not fully apply elsewhere – Oklahoma City would be an exception, for example – but my reading of the news these many years suggests this is a general pattern.
*Of my 3000 others, there have been a few suicides, though usually after multiple close attempts, and none right after leaving hospital.
October 8, 2010, 11:02 pmNo homicides.
Federal Farmer says:
How much damage could someone who poses a ‘remote risk of intentional harm’ do with a car? S/he could kill dozens. How many other things should that person be kept away from? How soon would that become so many that it’d be easier just to lock the person up?
The problem with what gun control freaks consider as ‘reasonable’ regulation is the sort of prior restraint we wouldn’t allow on other ‘unalienable’ rights. If someone has intent to commit ‘intentional harm’ on another, it is pretty hard to make sure all the pointy sticks are locked away.
October 9, 2010, 12:26 amValentino Rossi says:
In Illinois, if for any reason (even voluntarily) you are committed to a psych hospital (let’s say to overcome the fear of chemotherapy for your multiple cancers), you will have your FOID card revoked by the Illinois State Police for a period of five years, and there is nothing that you can be do about it.
October 9, 2010, 1:22 amJohn Herbison says:
Do you have children, Mr. Galt?
If you believe that gun rights are more important than parental rights (which can be terminated on a showing of clear and convincing evidence of parental unfitness), I certainly hope that you are childless.
October 9, 2010, 1:31 amRich Rostrom says:
…he may be barred from possessing guns for five years if the government “show[s] by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner.”
Does anyone else see the problem in the negative phrasing in the above?
Suppose a person is not likely to acquire a firearm. That would make him “not likely to use firearms” at all, and thus qualify him for the ban. Likewise if he wanted a firearm solely for home defense in a very low-crime area. Or as a collectible, never to be fired.
Shouldn’t the phrase say “be likely to use firearms in an unsafe or unlawful manner”?
October 9, 2010, 1:59 amB Jensen says:
So, if the man moves out of CA is the state obligated to return the two weapons of his that they seized?
October 9, 2010, 9:14 amLaura(southernxyl) says:
I’d love it if every other time I pick up the newspaper I’m not reading about a woman being murdered by her ex.
October 9, 2010, 9:19 amLaura(southernxyl) says:
Also, this:
When she deploys, he’s not the primary caretaker, he’s the only caretaker. Being the only caretaker of a two-year-old would seriously stress the most mentally stable person there is. I can hear somebody now mocking my concern with “what about the chiiiilllddren” but the 2-yr-old didn’t ask for this and SOMEBODY needs to consider him.
October 9, 2010, 9:25 amBarb's Monkey's Uncle says:
Just like the “eh, it’s my wife and child in the house, but I think I will handwave this gun around to get some attention”.
October 9, 2010, 10:26 amTim McDonald says:
I am a strong supporter of constitutional rights, including the 2nd amendment (which I believe to be 2nd for a reason, second only in importance to the first), but society as represented by the state does have the right to protect itself, and I find the facts as presented tend to be enough to make a determination that this guy has no business with a gun.
I own guns. Guns are tools. Dangerous tools. Anyone who grabs one to get attention during a domestic arguement should not have a gun. My daddy had taught me better by the time I was NINE YEARS OLD and started hunting. That said, the precedent is dangerous. WHO makes the determination, because I trust neither the psychotics er psychologists nor the courts to be unbiased towards gun owners.
October 9, 2010, 10:39 amDonald Kilmer says:
Somewhat off topic:
When arguing gun policy, do “children = Hitler” under a corallary of Godwins’s Law?
October 9, 2010, 10:44 amWarren Bonesteel says:
When people use government in order to bubble-wrapping the world, tell me what kind of freedom will remain?
October 9, 2010, 10:45 amLaura(southernxyl) says:
Donald, a child was present in this story and will be present whatever outcome is had. Should he not be mentioned? Or is he just window dressing for the real story, which is about a man and his guns? If his dad snaps and kills him, will you think “too bad” and flip the page on the newspaper?
October 9, 2010, 11:05 amdenton says:
As a person who does a lot of applied statistics in his daily work, I’m sure I could come up with a predictive model that gives the probability that a given person will unlawfully and unsafely use a firearm.
Lacking data at the moment, I would hazard the guess that the model would not come out looking anything like most people would expect.
It seems to me that the legislature and the court have simply assumed a “common sense” conclusion that the person in this case would use firearms improperly. Without proper analysis, this amounts to nothing more than, “You scare me, so I’m taking away your gun rights.” As is often said by instructors grading math exams: Show your work.
October 9, 2010, 11:08 amsetnaffa says:
What other Constitutional Rights can be withheld for years based on “a preponderance of the evidence?”
October 9, 2010, 11:10 amDonald Kilmer says:
You presume too much. Not that it matters, but I happen to be a lawyer who represents children on appointment of the Court. But thank you for making my point very nicely. Aren’t you and I now engaged in exactly the kind of gun/children discussion that is the corollary of Godwin’s Law?
October 9, 2010, 11:25 amDarrell says:
Are you seriously telling us that you can’t see the difference between a mentally ill person with an automatic rifle, and a mentally ill person attending a church service?
Holy God, Americans are weird.
October 9, 2010, 11:28 amDonald Kilmer says:
No rational person is arguing that a mentally ill person should have an automatic rifle, or ANY rifle for that matter. The argument is about the burden placed on the government to prove mental illness for the purpose of suspending (or infringing) a fundamental constitutional right. Go back and read the title of the thread.
October 9, 2010, 11:36 amLaura(southernxyl) says:
Donald, maybe you are being too cryptic for me, or maybe I’m to obtuse to get your subtle point.
Concern is expressed for the child in this story.
Your Godwin’s law comment seems to indicate that you think it is inappropriate for him to be brought up. Inevitable, and also irrelevant. Is that it? Or were you making some other point entirely?
October 9, 2010, 11:37 amAccidental Juror says:
1)I think denton’s comment is spot on.
2)I haven’t seen any mention of balancing the reason for possessing the gun. Tyranny can be prevented even with fairly severe restrictions on the mentally ill. Hunting, at least in the lower 48, tends to be a recreational activity, and thus due the same deference as bowling or watching tennis. Self defense, though, is a stickier issue.
I know of a case where an informant showed up to go through the witness protection wormhole with a gun, despite a prior felony conviction (passenger injured when he was driving drunk). Given the reasons he was entering the witness protection program, having a gun seemed like a pretty reasonable thing to me.
As Dilan Esper frequently points out, you have to look at gun rights as gun rights; analogies to freedom of speech or whatever only take you so far. Private property owners should be able to ban ukulele possession on a whim, but maybe shouldn’t be able to ban gun possession by someone being actively hunted by a stalker or gang.
It seems to me that you have to balance the threat to the individual if you prohibit possession against the threat to society if you don’t. In the case at hand, the announced reason for possession is to hunt, the behavior in question is far outside responsible gun ownership, and thus a temporary prohibition seems appropriate. If Mr. K was instead seeking to possess because of well founded fears for his life, perhaps not so much.
October 9, 2010, 11:38 amLaura(southernxyl) says:
I’d like to point out, that if you argue that purity of thought and procedure demand that this man be given his guns back, and it turns out that he shouldn’t have them, the likelihood that you will pay with your life is slim to none. The kid might, though. But go ahead and equate mentioning him with Godwin’s law.
October 9, 2010, 11:40 amSDN says:
If the Left didn’t have a long and convincing history (see Stalin) of using psychiatric “diagnoses” against their opponents, I might be less suspicious. As it is, this is one more reason for anyone to avoid seeking any sort of help.
October 9, 2010, 11:57 amDonald Kilmer says:
Who was it said “Never interrupt an opponent when they are making mistakes.” (Napolean?)
The point I am making is that the age of the potential victim is irrelevant. If the guy was mentally ill such that he can be deprived of his constitutional right to keep and bear arms, then so be it. I don’t care he lives alone or runs a children’s shelter.
You keep saying “child” likes the word holds some magical power that supports taking guns away from people.
Some people think the argument on gun policy is over when someone makes the argument: “If we save one child’s life,…blah, blah, blah.”
To me, that sounds like the same fallacy defined by Godwin’s Law.
October 9, 2010, 11:57 amdenton says:
If I can build a statistical demographic and psychographic model that will predict who is likely to use a firearm in an unsafe and unlawful manner (and I can, given the right data) I can also build a model that will predict who is likely to drive unsafely, who is likely to abuse their spouse, and who is likely to become a thief.
If those models exist, would we then be willing to have a society where such people were committed to prison or had basic rights or privileges suspended before the fact, just because the math predicted unwelcome behavior? In general, I think that is an exceptionally bad idea.
How much more frightening is it to have a society where such choices are made without the math, just based on “common sense” notions?
October 9, 2010, 11:58 amLaura(southernxyl) says:
And you don’t want “child” mentioned at all, even though there is a 2-year-old at the mercy of the man in the story. A 10-year-old could tell a teacher or a neighbor that his dad is drinking and waving a gun around. What the hell is a 2-year-old going to do?
But I’ll stop saying “child” now so you can talk about the only important issue here: JASON and WHEN CAN HE HAVE HIS GUNS BACK.
October 9, 2010, 12:06 pmVader says:
Picking a nit here, I know, but: Driving is not a constitutional right. Owning a gun is.
October 9, 2010, 12:09 pmDonald Kilmer says:
Why limit your scenario to a 2 year old who can’t tell a neighbor or teacher about irresponsible gun play? Why not include any non-verbal person? Then we can restrict guns in houses with adults who can’t speak, or the elderly who have dementia, or people who don’t speak the neighborhood language. Are you serious?
Jason K. appears to be a dufus who probably shouldn’t have guns. On the facts of his case, I think the government met the even higher burden of “clear and convincing” evidence; but to impose a mere preponderance standard of evidence as the rule for stripping people of a constitutional rights seems like a slipperly slope that undermines the rights of all.
At least that is what I thought was the topic of this thread.
October 9, 2010, 12:21 pmTeeJaw says:
The Court’s conclusion was a surprise after reading the analysis it gave before announcing it, suggesting that the conclusion was determined in advance and without any serious consideration of that analysis.
October 9, 2010, 12:23 pmLaura(southernxyl) says:
Why are you still talking about the two-year-old, Donald? Isn’t the only thing to be mentioned Jason, and his right to have his guns?
October 9, 2010, 12:24 pmDonald Kilmer says:
According to this ad — 1 in 6 adults suffer from mental illness. It is usually assumed that 50% of American households have a firearm. That means, based on a mere proponderance of evidence standard, one-third of all gun owners shouldn’t have firearms.
Next time you go hunting, or to the range, look left, then look right, if those shooters look sane, then go to the police station, do not collect $200, and turn in your guns.
October 9, 2010, 12:36 pmGene Hoffman says:
And what happens when the 2 year old’s dad can’t defend the 2 year old from a home invasion? Those who dislike gun rights keep their finger on the scale so that self defense and the defense of children doesn’t offset the risk/costs of firearms ownership.
Just so we are on the same page that these things happen, here are a couple from just San Diego recently:
http://www.10news.com/news/24782918/detail.html
http://www.10news.com/news/25222156/detail.html
http://www.cbs8.com/global/story.asp?s=13105438
http://www.nctimes.com/news/local/valley-center/article_58866c36-af29-55e9-bab2-871b294f768a.html
-Gene
October 9, 2010, 12:52 pmAndrew J. Lazarus says:
You do understand there is a difference between suffering from some mental illness, and suffering from a mental illness severe enough to warrant involuntary commitment? Only the latter affects gun rights.
October 9, 2010, 12:57 pmJohnnie Garner says:
I find all this wrangling about the burden of proof standards to not address a more fundamental point: If someone is a danger to himself or others, he can be dangerous in an untold number of ways, most of which do not involve firearms or motor vehicles. If he is truly dangerous, he will find a way to cause harm, if only by picking up a knife, using a box of matches, or even throwing rocks from overpasses. Any restriction of liberty must be supported by evidence, but such restrictions cannot be easily nuanced because human will for good or evil has an unlimited number of manifestations.
If he is dangerous, he should be institutionalized, because no one has the right to endanger another person. Taking this issue seriously requires a lot more diligence than simply concluding “He is probably dangerous” and then acting on some such “probability”. Such a statement is no more acceptable than saying “He is probably a criminal” and then acting on THAT “probability”. We can act to restrain those who have already committed crimes because, leaving punishment aside, we would be trying to properly restrain someone who has been found dangerous by the evidence. Such restraint must be comprehensive to be effective.
What can the government do if a person is deemed to be “probably a criminal”? It can investigate the issue by examining evidence with the burden of proof fully on the government to resolve the ambiguity of “probability”. Sometimes government may investigate based on “probable cause”. That is legitimate, so long as such investigation is not a fig leaf for some intentional harassment. The issue is no different if a person is judged “probably dangerous”. If the evidence supports the danger, he must be institutionalized, otherwise, he is to be fully left alone.
We see this issue in firearm restrictions for both convicted felons and mentally deficient persons. Since the actual premise of having a firearm is that an individual has the right of self-defense, to say that someone has no right to a firearm is tantamount to saying he has no right to self-defense. I say that the only person who has no right to self-defense is a convicted murderer facing his execution. Prisoners are rightfully bound by prison rules, again based on due process of evidence. Other than that, if life is the premise, then the immunities and privileges of the citizenry is expressed politically and socially as the right of self defense and its necessary tools, including firearms.
In other words, when discussing limiting freedom, I say the government must lock up or shut up. There is no viable “third way”. Might this require massive re-thinking about such issues? That is no doubt true. But if we understand that this is a burning moral issue for the individuals involved and an issue of law being unconstitutionally vague and leaving the barn door open to the Leviathan state, then we have no choice.
October 9, 2010, 12:59 pmDonald Kilmer says:
I see your point. So if my hypothetical “one in three” gun owners gets in an (non-violent) argument with a spouse or neighbor, and the police clear the contact with a trip to the psych ward because the officer discovers that one of them takes Prozac,… Then and only then can the government strip them of a constitutional right.
Now I feel better.
October 9, 2010, 1:11 pmDennis N says:
I’ve often commented that there should be a National Gun License and CCW Permit. The Voter Registration Card.
I can’t think of too many examples of a person to whom I’d deny one right, but not the other.
October 9, 2010, 1:28 pmDennis N says:
You’re getting very close to a definition of Assault with a Deadly Weapon. If a person in my presence was brandishing a weapon and demanding attention, my tactical hat would be on, and I would be considering escape or lethal counter force.
It’s hard to argue in that case that a lifetime ban on firearms would be proper. The mope is a dangerous felon, despite his mental situation, or perhaps because of it.
The case where a person was threatening suicide is slightly more problematic because he is not directly threatening anyone. But only slightly more problematic because of the ability of a firearm to be instantly turned into an offensive weapon. If I were in the presence of that person, I would still be thinking, and I think validly so, of either escape or lethal counterforce. So I wouldn’t qualm at a lifetime ban in this situation.
October 9, 2010, 1:47 pmDennis N says:
That pretty much rules out everyone. We all have a remote chance of flipping out. From a practical POV, how is “even a remote chance” legally determined? If a person has ever been to a shrink? If a person has ever been prescribed Zoloft by their GP? If a doctor certifies, on no basis whatsoever? If an antagonistic cop certifies? If an antagonistic ex-spouse certifies?
I was in the unhappy position of a vindictive ex-to-be trying the latter. Fortunately, we prevailed in court and no protective order was filed.
As an aside, it is attitudes like this that prevent many individuals from seeking psychological help in the case of distress. Most military and cops will not see a shrink under any circumstances, because it is a permanent disability on their record. They’ll suck it up and maybe eat their gun later. They’ll suck it up knowing the may eat their gun later (these people aren’t stupid – they know the risks), rather than commit professional suicide. Given the legal shenanigans of The Enemy, I know firearms owners who would do the same. Suffer and suck it up, because you can’t have that on your record.
Talk to your priest. Talk to your buddy. Talk to your bartender, but never ever see a shrink.
October 9, 2010, 1:59 pmMichael Brophy says:
I don’t believe he was adjudicated as mentally ill. He apparently was briefly held on a warrantless detention or the equivalent and released.
October 9, 2010, 2:18 pmwRitErsbLock says:
I live in Florida. My understanding of the conceal carry law is that any person who has been Baker Acted (FL’s law for locking someone away in a mental hospital for 72 hours if the person is deemed a danger to himself/others) cannot have a conceal carry permit.
Twelve years ago, I failed to commit suicide.
It irritates me to no end that I am unable to conceal carry because TWELVE YEARS AGO I made a bad decision at a low point in my life.
October 9, 2010, 4:59 pmLou Gots says:
A couple of comments allude to the chilling effect on the willingness of patients to accept treatment if mental health professionals will be denouncing them.
Obviously there should be a kind of informed consent addressing this issue, almost a Miranda warning, and it should be required by law. Time for an email to the NRA Institute for Legislastive Action.
October 9, 2010, 5:31 pmHerbM says:
Some 90% of murders are committed by those with a previous felony, documented gang membership, documented spouse abuse, or documented substance abuse so all of these categories of people should be locked up permanently, right?
Or:
Sexual offenders are nearly impossible to rehabilitate, the recidivism rate is high, so these (violent and offenders against children) should NEVER be released?
October 9, 2010, 5:54 pmwalter condley says:
If anyone’s still on this thread, I’d like to illustrate how ready a police officer can be to act on a profession of “fear” by a woman. I was once escorted out of the Boalt law library because a woman said she was afraid of me. I hadn’t spoken to her, looked at her, or even seen her. I was in the lower stacks, where it was cool on a rare 90-degree day, sitting against a bulkhead with my eyes closed, having just spent some time trying to digest an article in Tax Notes. The librarian concluded this was suspicious behavior, and the cops agreed.
October 9, 2010, 6:15 pmAndrew J. Lazarus says:
Why let the paranoia stop here? The police could just open fire and say he was attacking them! It does happen, every once in a long while. Try re-reading the threshold for a 5150 hold. And, BTW, police aren’t keen on making them up, because it’s a lot of work and doesn’t even clear a crime.
October 9, 2010, 6:53 pmMental commitment, disarmament, and standard of proof | GunBlogs.org says:
[...] a debate at the Volokh Conspiracy. Comments are currently closed. Enter your email address:Delivered by [...]
October 9, 2010, 6:59 pmGene Hoffman says:
That is not what happens in practice. Whenever there is no crime and the officer has decided he’s going to be a pain – and it does happen – then it’s a pretty decent outcome from the officer’s point of view to 5150 and make it the doc’s problem.
-Gene
October 9, 2010, 7:24 pmGlen says:
The crux of this court’s ruling is that the Second Amendment protects a second-class right. They contend that it is a property right and thus inferior to other liberty rights. McDonald specifically rejected this notion, instead finding the rights protected by the Second Amendment to be on an equal standing with other liberty rights that are critical to leading a life of autonomy, dignity, or political equality.
They then compounded this mistake by performing precisely the type of “interest balancing” test that the Supreme Court rejected in Heller by asserting that the appellant’s self-defense rights were not abrogated since he would still be able to install an alarm or summon (but not necessarily be defended by) the police.
Sadly, this misreading (or simply failure to read) either Heller or McDonald is all too typical of non-discretionary appellate courts that often contort the law to fit the facts. Indeed, as Don Kilmer noted, there was no reason for this court to consider whether the burden of proof was appropriate; they should have simply held that the evidence was sufficient under the current standard.
October 9, 2010, 8:05 pmRich says:
Well,so you take his guns away gunsbuthim to operate a motor vehicle capable of 120 mph ad hundreds of thousands of foot-pounds of kenetic energy. The vehicle is capable of killing himself, his passengers and pasengers in other vehicles. I say its about the histeria in some peoples minds regarding guns and not other just as dangerous items. You might want to limit him to less than a pint of gas a month. A gallon could destroy a house.
October 9, 2010, 9:02 pmDon Meaker says:
If you sneeze when walking out of a building into bright light you have brain damage. Think of all the kids who played football, boxed, or got hit in the head by a ball playing soccer. Brain damage, if you look closely enough is common, but would it would be rare to have it affect a person enough to strip the person of voting rights, driving a car, living alone with kitchen tools. Similar standard should be applied to guns as access to these other potentially dangerous tools.
And in the extremely unlikely event someone becomes homicidal, honest people should at least have the option to commonly carry guns so they have ability to defend themselves.
October 9, 2010, 9:43 pmA_Puckett says:
So some are claiming he is a threat to a two year old because he has a gun?
Seriously, the weakest, most puny adult can readily kill a two year old easily with bare hands. How it the presence or absence of a firearm going to change anything?
October 9, 2010, 10:35 pmLaura(southernxyl) says:
Don’t mention the kid. You’re godwinning.
October 9, 2010, 11:15 pmJerry in Detroit says:
As a former LEO, I support the least restrictive interpretation; i.e. convicted felons and those judged mentally deficient by a court of law. All others are merely padding the bureaucracy.
October 10, 2010, 10:26 amChris Travers says:
I wonder how much more likely a truly dangerous man is to shoot a 2 year old vs drown or stab one with, say, a paring knife. Are guns special in this circumstance compared to kitchen knives, sinks, bathtubs, toilets, and the like?
October 10, 2010, 1:40 pmwhit says:
if any officer mentally invol’d somebody because they take prozac, they would be sued and probably disciplined.
in 20yrs of police work, and participating in scores of such invol’s (i probably do at least 1 a week myself, and assist in others).
fwiw, there are certainly officers who themselves take prozac (and wellbutrin and…).
you CAN’T be serious.
October 10, 2010, 5:37 pmLaura(southernxyl) says:
Chris, here’s a hint. When the man had his episode, tantrum, whatever it was, did he threaten himself with a paring knife, a sink, a bathtub, or a toilet? Reading back over the story, what is it that you see mentioned? And can you remember ever reading about a murder/suicide situation where a man shot people including his own kids and then himself? Because I sure can.
October 10, 2010, 5:44 pmChris Travers says:
Yet I can also think of cases where parents killed their kids with kitchen knives, drowned them, beat them to death with hands and feet, etc. If the kid’s safety is the main concern and a danger can be proven there, the only option to address that is to take the kid out of that home.
Moreover, suppose instead, the guy threatened to put the kid in the car and drive off a bridge? Would be talking about taking the kid away? Or his driving license?
October 10, 2010, 6:12 pmLaura(southernxyl) says:
I’m cool with taking the kid away in this case. But it’s silly IMO to be bringing up paring knives and asking why not remove those when the guy specifically grabbed a loaded handgun in a moment of emotional stress. More than silly. If he’d been given his guns back, and subsequently shot the kid, I guess you’d be all “wow who saw that coming”.
October 10, 2010, 8:11 pmDoug says:
Laura, the point is, I believe, that the mere presence of a firearm did not equate to a threat to the 2 year old. Any unstable adult with murderous intent can easily kill a child without the use of a firearm.
And for New Yorker:
“(Perhaps my view is warped by the fact that I see insane folks on the NYC subways weekly, and I would like to make it as hard as humanly possible for them to get guns. An armed subway would not be a polite subway; deterrence is irrelevant to the truly insane.)”
There’s the critical disconnect again. IF YOU are law-abiding, then your possession of a gun will indeed help to ensure your safety.
October 11, 2010, 12:38 amLaura(southernxyl) says:
Doug, the mere presence of the firearm was not the problem. The man’s actions in picking up the loaded handgun and threatening to shoot himself with it with his sleeping 2-yr-old in the house was the problem.
Actually, they had me at the mother coming home and finding him passed out drunk on the floor with the kid in his sole care.
October 11, 2010, 8:20 amBurden of Proof in Mental Health Cases | Snowflakes in Hell says:
[...] Eugene Volokh covers a case in the California Court of Appeals. This case is a good example of the importance of picking your plaintiffs carefully. In this case, the courts are going to be looking for reasons why this guy shouldn’t be allowed to have a gun given the circumstances. I disagree with the courts ultimate conclusion: First, with respect to the private interest element of the due process test, an individual’s right to possess firearms is of fundamental constitutional stature. However, this constitutional right is subject to the state’s traditional authority to regulate firearm use by individuals who have a mental illness. Moreover, the length of the threatened loss is a relevant factor in analyzing the nature of the private interest. Under section 8103, the deprivation of the right is lengthy, but temporary, lasting for five years. Further, the infringement concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties. [...]
October 11, 2010, 2:16 pmMike says:
The case result is treating this as a property rights issue. The right to possess a gun is *not* about having fancy cool stuff in your closet (as much as gun nuts do enjoy that). It is about self defense.
If someone is dangerous and wants to go on a murderous rampage, they can do this easily with gasoline, with a car, with knives and rocks and poison. All of these items as as effective, or nearly as effective, as a gun at producing mayhem.
None of them are close to as effective at providing self defense.
There are similarly plenty of ways to commit suicide.
People kill themselves with guns because it is dramatic and “manly,” not because they couldn’t find a useful way to do it without them. Think about what he claimed he was trying to do. He probably could have pulled a knife and threatened himself the same way. Sticking his head in the oven and yelling wouldn’t have quite the same effect.
Why do people jump off of bridges? You’re pretty likely to die after the third or fourth story, you don’t need to be that dramatic. But suicidal people are almost by definition dramatic.
I actually agree that this guy probably should have had his guns removed temporarily – as well as quite a few other dangerous items from his house. But five years is an arbitrary time, and the standard of evidence used far too weak – it would seem that some recurring way to be certified “sane” would be a much better idea.
October 11, 2010, 3:58 pmChris Travers says:
So my point is though that the handgun is irrelevant really to the danger to the kid. Talking about helpless 2-year-olds is not unhelpful specifically because the gun is irrelevant to that specific threat.
The larger question is about whether he would be a danger to his wife or to others who might otherwise be able to defend themselves.
Again, my concerns about a decision like this is that “likely” is a remarkably vague term. In this case, it probably supports a ban, but what if the guy reached for a paring knife instead of a gun? Or threatened to put the kid in the car and drive into the river? Would you support taking away the gun in that case?
October 11, 2010, 4:32 pmLaura(southernxyl) says:
Given that he didn’t reach for a paring knife, etc., why are you even asking that question?
I think you are all about the hypotheticals and I am thinking about the real-life flesh-and-blood kid. As I said, when I got to the part about him passed out drunk on the floor with the kid in his care, my concern for his rights took a back seat. But I realize there are those who are all about a man and his guns. I’ve known folks like that. I’m not one, and I’m not going to be made into one.
October 12, 2010, 9:48 amLaura(southernxyl) says:
…Look, when somebody drives drunk, thereby demonstrating that he is a menace to other people in his car or on the road, his guns don’t get taken up, but his license gets restricted and possibly revoked. I don’t understand your lack of understanding of what happened here.
October 12, 2010, 9:50 amDonald Kilmer says:
At what point does the beaten dead horse become horse hamburger? I don’t know if they make Hamburger Helper for horse meat.
The last time I read the Second Amendment, it proteced the “people’s” right to keep and bear arms. So no, this is not about a man and his guns. Women have had the right to vote for a couple of years, and even before that the term “people” defined a broader class than “citizen.”
I’ve already stated elsewhere that Jason K. probably shouldn’t have guns. It’s probably prudent to look into his parenting skills if he has a substance abuse problem. But the legal issues raised by his case go beyond the lyrics of a Country and Western song.
October 12, 2010, 11:35 amLaura(southernxyl) says:
I guess when people quit asking me the same question over and over waiting for my response to change.
October 12, 2010, 11:41 amLoree Zephyr says:
Anything one man can imagine, other men can make real
October 21, 2010, 1:49 amMichael Chanowitz says:
California governor Arnold Schwarzenegger probably widened the ranks of marijuana users who think the status quo is well enough (and therefore didn’t hassle to vote) by affixing your signature to a bill last thirty days that reduced possession of your ounce or less of marijuana to the equivalent of a traffic ticket, having a maximum fine of $100. Previously offenders were arrested and left which includes a criminal record.
November 5, 2010, 11:14 am