Metropolitan News-Enterprise


Thursday, June 13, 2013


Page 1


C.A. Upholds Law Allowing Confiscation of Guns From Mentally Ill




A state law allowing confiscation of firearms from the dangerous mentally ill, subject to judicial review, does not violate the Second Amendment, the Fourth District Court of Appeal has ruled.

Div. One affirmed a San Diego Superior Court judge’s order allowing San Diego police to destroy three handguns taken from the home of an elderly San Diego woman whom a county psychiatrist described as suicidal.

Justice Terry O’Rourke’s May 15 opinion was certified Tuesday for publication.

A police officer reported that he visited Esther Boggess’ home on the last day of 2011 after her niece contacted the Police Department and said Boggess had threatened to shoot herself. The then-72-year-old Boggess was despondent about her health, the niece said.

Says Guns ‘Put Away’

Boggess confirmed that she had made the remark, but said she had only been joking, and acknowledged she had the guns, but said they were “put away.” The officer concluded there was probable cause to consider Boggess mentally ill and a danger to herself or to others, permitting a 72-hour psychiatric hold under Welfare and Institutions Code Sec. 5150.

The examining psychiatrist concluded that the suicide threat was real, and that Boggess was in a depressive state, with anxieties about her health and economic condition. He opined that Boggess’s current potential for harm “could be high as the patient has few supports, multiple stresses, and lethal means” and admitted her to a psychiatric facility on an involuntary basis.

The police, meanwhile, impounded her guns and petitioned for approval to dispose of them under Welfare and Institutions Code Sec. 8102. The statute allows police to do that following a Sec. 5150 hold if the judge, following a hearing, finds that the person from whom the guns were seized is mentally ill and a danger to themselves or to others.

Claims She Was Joking

At the hearing, Boggess told Judge Frederick Maguire that while she did tell her niece she wanted to shoot herself, she did so in jest. She added that the weapons had belonged to her late husband and that she did not know how to load them.

Maguire, however, noted that Boggess had been “rambling” or “nonresponsive” in her answers to several of his questions, and said the police and psychiatric reports carried great weight. He found that the criteria had been met and ordered the weapons destroyed.

On appeal, Boggess acknowledged that a previous Second Amendment challenge to Sec. 8102 was rejected by the Court of Appeal. But that case, Rupf v. Yan (2000) 85 Cal.App.4th 411, was decided prior to two U.S. Supreme Court rulings finding that the Second Amendment creates individual rights to possess a firearm for defensive purposes.

Limits on Protection

O’Rourke acknowledged the high court cases, District of Columbia v. Heller (2008) 554 U.S. 570 and McDonald v. City of Chicago (2010) 130 S.Ct. 3020. But those cases “did not extend Second Amendment protections to persons whose firearms are seized because they were found to be a danger to themselves by reason of their mental health,” the justice wrote.

“To the contrary…both Heller and McDonald identified an expressly nonexclusive list of traditional limitations on the right to bear arms,” O’Rourke explained.

Rupf, he went on to say, remains valid for the proposition that the state may, as an exercise of its police power and as long as due process is afforded, keep guns away from the mentally unstable.

The case is City of San Diego v. Boggess, 13 S.O.S. 2959.


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