In California, a mental health hold under Welfare & Institutions code section 5150 triggers a 5-year firearms exclusion. We have helped several clients restore their firearms rights in this situation. The process involves requesting a hearing to have gun rights restored after 5150, pursuant to Welfare & Institutions code section 8103(f). We have been successful at restoring gun rights after 5150 holds in both Los Angeles and Orange County.
Requesting a Hearing to Have Gun Rights Restored After 5150
When a person is released from a 5150 hold, the authorities provide a form advising them that their gun rights are revoked and that they have the right to request a hearing. The person then has the right to request a hearing once within the 5-year period. It is important to consider the timing of the request for hearing. In some cases, it is best to request the hearing right away. In other situations, it may be better to wait. Waiting allows the person to complete treatment or fulfill other conditions that will set us up for success at the hearing.
The court has to calendar the hearing to have gun rights restored after 5150 within 60 days of the request for hearing. The court will then collect documents from the Department of Justice and from the facility where the hold took place.
The Hearing
At the hearing, the district attorney (DA) has the burden of proof by a preponderance of evidence that the person is likely to use firearms in an unsafe or unlawful manner. How the hearing progresses differs by county. It is helpful to have an experienced gun rights attorney by your side throughout the process.
L.A. County
In L.A. County, the court appoints a mental health expert to perform a new evaluation and give an opinion as to the person’s likelihood to use firearms in a safe and lawful manner. If that report is favorable, then the court is very likely to restore the person’s gun rights. If the report is not favorable, then we have an uphill battle to convince the court to restore the person’s gun rights.
Orange County
In Orange County, hearings to have gun rights restored after 5150 holds are less structured. The DA will introduce exhibits including the police reports from the event that triggered the 5150 hold, the records from the facility that evaluated the person, any other relevant documents. The person will then have to present evidence that they are not presently likely to use guns in an unsafe or unlawful manner. This may include an independent psych report, testimony from witnesses, or other documents.
In a recent Orange County case, we subpoenaed the medical director OC Health to testify at the hearing about what he saw on the day of the 5150 evaluation. He said that there was no diagnosis and no reason to admit the person.
At the end of the hearing, the judge makes a determination as to whether the DA has met their burden of proving by a preponderance of the evidence that the person is unlikely to use guns in an unsafe or unlawful manner. “Preponderance of the evidence” means “more likely than not” — it’s a balancing scale and they have to prove it by more than 50%.
Gun Rights Restored After 5150
When the judge finds in our favor, the person’s rights are restored. They can then own firearms without any further restrictions. However, a subsequent 5150 hold will trigger additional restrictions. The court transmits its findings to the Department of Justice within one business day. So, the person’s rights should be restored quickly.
Attorney Don Hammond is the founder of Criminal Defense Heroes, P.C. He has helped people get their gun rights restored after 5150 holds in both L.A. County and Orange County. Additionally, he has helped people overturn CCW license denials. If you have been subject to a 5150 hold and want to restore your gun rights, please call us at 323-529-3660!
