What Burden of Proof Is Constitutionally Required for Denying Gun Rights to the Allegedly Dangerous and Mentally Infirm?

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.

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