Posted by Eugene Volokh:
The Right To Keep and Bear Arms and People Who Say They Feel Like Killing
Others and Themselves:
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238444660
From [1]People v. Joel O. (Cal. Ct. App. Mar. 24, 2009):
Joel O. appeals from an order precluding him from possessing
firearms based on a finding that he would not be likely to use them
in a safe and lawful manner. ([2]Welf. & Inst. Code, § 8103, subd.
(f).) He contends the preponderance of the evidence standard used
in section 8103, subdivision (f) to permit deprivation of the right
to possess firearms is unconstitutional, and that the clear and
convincing evidence standard should apply. We reject his argument
and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2007, Joel's family arranged an intervention with
Joel in the presence of several people, including his mother,
father, and an addiction intervention worker. During the
intervention, Joel (age 31) stated that he felt like raping and
killing women who reject him and that he often thinks about killing
himself or others. Joel owned several weapons. During the
intervention, the police were summoned. The police took Joel into
custody and confiscated his weapons, including several firearms.
([3]Show the rest for the opinion.)
Joel was transported to a mental hospital and admitted for evaluation
and treatment. Staff psychiatrists reported that he had "intermittent
suicidal ideation." About five years before, he had engaged in a near
suicide attempt with a gun until his friends called for help. Although
he had not voiced any "current homicidal ideation," there was concern
about his statements about "wanting to kill and rape women who reject
him" and his lack of "qualms about hurting other people." He had a
chronic history of alcohol and marijuana use. He was assessed as
having a moderate potential for harm given his "lack of insight,
various stressors, and the comorbidity of substances in the picture."
He was given medication and monitored.
On November 9, 2007, Joel told a hospital social worker that he was
angry at his family for the intervention and angry that his guns had
been confiscated. He stated that if he ever saw the counselor who
participated in the intervention he would "knock her down and beat the
shit out of that bitch ... [and] she better have a hand full of money
to pay [him] back or spread her legs for [him] so [he] could get what
[he] want[ed]."
On November 10, 2007, a staff psychiatrist reported that Joel had
"[n]o suicidal or homicidal ideation." However, he was "still voicing
adamant anger towards the intervention participants and the loss of
his firearms ..." and his "[i]nsight and judgment were poor in that he
felt as though his rights are being violated and his entitlement
towards his prior way of living and collection of weapons were not to
be disrupted based on his statements of wanting to shoot people and to
shoot himself." He was not interested in participating in a sobriety
program and believed he could stop using drugs and alcohol whenever he
wanted.
Joel was discharged from the hospital on November 14, 2007. The
discharging psychiatrist diagnosed him with "Adjustment Disorder with
a Mixed Disturbance of Emotion and Conduct" and "Polysubstance
Dependence." The psychiatrist reported that Joel denied current
suicidal or homicidal ideation or intent and that he had not displayed
self-injurious or assaultive behaviors during his hospitalization. The
psychiatrist concluded that his mental state had improved and he had
"no current potential for harm to self or others."
At the time of his discharge, Joel 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. He requested a
hearing, and a hearing was held on December 20, 2007. The People
submitted his medical records into evidence, and Joel testified on his
own behalf.
Joel testified that he had never violated any firearms laws; he had
always been safe and responsible with his guns; and he had stopped
drinking and smoking. He stated he wanted to possess firearms for
hunting, collectability, and defensive purposes. In his view, the
police could not protect him, and he was responsible for protecting
himself and people around him who could not protect themselves. He
acknowledged that his father currently had a restraining order against
him, and opined that his father had obtained it "just to make [his]
life hell." He believed the judge imposed the restraining order
because people think he has problems or because he disrespected her
(the female judge). He testified he had "a hard time respecting some
people"; he did not think the founding fathers thought women should be
judges; the country was "going down the tubes" and it was his duty to
make it better; and he did not have much respect for police officers.
When asked if he did not like women, Mexicans, or blacks in positions
of authority, Joel replied: "No, I believe in an old school belief
system and the Constitution that our forefathers of this country
believe in." When asked if he was frustrated that women, Mexicans, and
blacks are in positions of authority, he replied: "Sometimes. But my
problems [are] with people that get in my way and cause me problems."
Joel denied making statements during the intervention that he wanted
to kill and rape women who rejected him, and testified that he had
instead stated that "sometimes it feels like [he] might have to just
to get laid." He denied stating that he wanted to rape the
intervention counselor, and testified that he had instead stated that
because she had "a hand in ruining [his] life," he expected "some
money, compensation or sexual favors voluntarily." He claimed he would
never force himself on a woman because he did not want to go to
prison. He testified that "a few people owe [him] things for ruining
[his] life this year," in particular his father, who had offered to
pay for a treatment program which he viewed as a "rip-off" and a
"bunch of scam artists." He testified he wanted "some cash so [he
could] maybe go to Europe for a few months, maybe get over it."
The trial court found that the preponderance of the evidence showed
that Joel would not likely use a firearm in a safe and lawful manner,
and accordingly denied Joel's petition to be released from the
five-year prohibition on firearms possession.
DISCUSSION ...
To support his argument that the preponderance of the evidence
standard set forth in section 8103 is constitutionally infirm, Joel
relies on the United States Supreme Court's recent holding that an
individual has a constitutional right to possess firearms. The court
noted ... that this right was subject to restrictions by the
government, and that "nothing in [its] opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
... the mentally ill ...." ...
[The question before us is] what procedures must be followed to
determine whether a person who has been detained for a mental disorder
can be deprived of the right to possess firearms....
When the government deprives an individual of a liberty or property
interest, the individual has a constitutional right to procedural due
process. (Mathews v. Eldridge (1976) 424 U.S. 319, 332.) "'[D]ue
process is flexible and calls for such procedural protections as the
particular situation demands.'" 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."'" (Santosky v. Kramer (1982) 455 U.S. 745,
756, fn. 8.)
To determine whether a procedure satisfies due process, the courts
balance 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.
Regarding the procedural role of the standard of proof, Santosky
explains: "[T]he minimum standard of proof tolerated by the due
process requirement reflects not only the weight of the private and
public interests affected, but also 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."
In civil cases, proof by a preponderance of the evidence generally
suffices to satisfy due process. However, when in the civil case "the
government seeks to take unusual coercive action ... against an
individual," the clear and convincing evidence standard may be
required. This standard has been required when the civil proceedings
involve "'a significant deprivation of liberty'" or "'stigma.'" For
example, the clear and convincing evidence standard may be required in
cases involving termination of parental rights, involuntarily civil
commitment, deportation, or denaturalization.
On the other hand, there are circumstances where the preponderance of
the evidence standard satisfies due process even though the case
involves the loss of a constitutional right. 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. In contrast, there was less risk of error when the
individual has proven his or her mental illness in a criminal
proceeding, and accordingly the preponderance of the evidence standard
comported with due process for commitment of insanity acquittees.
When evaluating whether the private interest affected by the civil
proceeding requires a standard of proof higher than the preponderance
of the evidence standard, the courts consider "the nature of the
private interest threatened and the permanency of the threatened
loss." (Assuming arguendo the Second Amendment applies to the states,
under Heller an individual's right to possess certain firearms in the
home for defensive purposes is of constitutional stature. However,
under section 8103, the deprivation of this interest is temporary,
lasting for five years. Further, the loss concerns the loss of
property, and does not involve deprivation of physical liberty or
severance of familial ties. The deprivation is not akin to the types
of cases -� such as termination of parental rights, civil commitment,
or deportation �- where a clear and convincing evidence standard is
typically imposed. Moreover, although the loss of the right to possess
firearms can impact an individual's ability to defend him- 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 interest in protecting society from
the potential use of firearms by a mentally unstable person. This is
an exceedingly high interest which was explicitly recognized in
Heller. Although the preponderance of the evidence standard requires
the individual to share equally in the risk of an erroneous
adjudication, this is appropriate in a case involving possession of
firearms by an individual who has exhibited mental instability
sufficient to warrant hospitalization. If the government was required
to prove the unlikelihood of safe use by clear and convincing
evidence, this would increase the possibility that a person might be
gravely injured or killed if the government failed in its burden of
proof. Balancing the gravity of the potential consequences of a
mentally unstable person's possession of firearms against the
temporary deprivation of property, the balance tips in favor of
permitting proof by a preponderance of the evidence.
Section 8103's use of the preponderance of the evidence standard
comports with due process.
([4]Hide most of the case excerpt.)
References
1. http://www.courtinfo.ca.gov/opinions/nonpub/D052261.PDF
2. http://caag.state.ca.us/firearms/dwcl/8100.php
3. file://localhost/var/www/powerblogs/volokh/posts/1238444660.html
4. file://localhost/var/www/powerblogs/volokh/posts/1238444660.html
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