Filed 5/15/13 Certified for publication 6/11/13 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF SAN DIEGO et al., D061715
Plaintiffs and Respondents,
v. (Super. Ct. No. MCR 12-006)
ESTHER BOGGESS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Frederick
Maguire, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jan I. Goldsmith, City Attorney, Mary Jo Lanzafame, Assistant City Attorney,
Paige E. Folkman, Deputy City Attorney for Plaintiffs and Respondents. Appellant Esther Boggess appeals an order for the seizure and destruction of her
firearms following a petition filed under Welfare and Institutions Code1 section 8102
after her release from a facility at which she was detained for psychiatric evaluation
under section 5150. The court granted the petition, finding petitioners City of San Diego,
Chief of Police William Lansdowne, and the San Diego Police Department (collectively
City) demonstrated return of the firearms to Boggess would be likely to result in
endangering Boggess or others, and they should not be returned to her, but forfeited and
destroyed.
Boggess contends there was insufficient evidence to support the court's
determination that return of the firearms would be likely to pose a risk of harm to herself
or others. She also contends section 8102 is unconstitutional in light of two United States
Supreme Court cases, District of Columbia v. Heller (2008) 554 U.S. 570 (Heller) and
McDonald v. City of Chicago (2010) 561 U.S. ___ [130 S.Ct. 3020] (McDonald), as the
statute infringes on her fundamental Second and Fourteenth Amendment right to bear
arms. We reject these contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Police Response2
On December 31, 2011, San Diego Police Officer Stephanie Ott responded to a
report of a suicide threat made by then seventy-two-year-old Esther Boggess. A
1 All statutory references are to the Welfare and Institutions Code unless otherwise stated. 2 This portion of the factual background is taken from the declaration of the responding police officer. 2 concerned family member had called the San Diego Police Department after Boggess
said she wanted to "get it over with" and that she wanted to shoot herself with a gun but
was just missing the bullets.
When Officer Ott arrived at Boggess's apartment, she asked if there were any
firearms in the house and Boggess replied, "Yes, but it is put away right now." Officer
Ott called Boggess's niece, the family member who had called the police, to confirm her
concerns. The niece had been talking with her aunt on the phone earlier when she made
the statements concerning her desire to shoot herself. Boggess told her niece that she was
depressed about ailing health and stated, "What's the point of living, what else is gonna
happen now?" Boggess admitted to Officer Ott that she made that remark to her niece
over the phone. Boggess was detained and transported to the County of San Diego
Mental Health Services (CMH) for an evaluation. While driving to the hospital, Boggess
told Officer Ott that she was only joking when she made those statements and mumbled
several times, "What else is gonna happen now?" The officer found three handguns in
Boggess's closet and had them impounded.
Mental Health Evaluation
Upon arrival to CMH, Boggess received a psychosocial assessment, medication
evaluation, and crisis stabilization. She was evaluated by Alan Edwards, M.D., who
noted Boggess had expressed concerns about her failing health. She also stated that she
complained to her niece about her car being towed and the extremely high storage fee.
Boggess denied being suicidal or having any history of earlier suicide attempts or
psychiatric hospitalizations. On the day of her assessment, when asked about any
3 suicidal thoughts she told a nurse, "I'm Catholic—it goes against God's law." Dr.
Edwards noted Boggess was generally "dysphoric," (feeling unhappy or unwell, see
Merriam-Webster's Collegiate Dictionary (11th ed. 2006) p. 389) and diagnosed her with
depressive disorder with contributing psychosocial and environmental problems of
economic hardship and access to healthcare.
Dr. Edwards opined that Boggess's current potential for harm "could be high as the
patient has few supports, multiple stresses, and lethal means." After Dr. Edwards's
evaluation, he admitted Boggess to the emergency psychiatric unit on an involuntary
basis. He indicated that "[d]ischarge will be considered when the patient is no longer
suicidal, when adequate support system has been ascertained, and when reasonable
stresses have been dealt with."
A CMH client assignment & service record shows that Boggess was referred out
to Mesa Vista hospital because she required a higher level of medical care. Her legal
status at the time of discharge from CMH was marked as "5150"3 and it was noted that
she had previously had access to weapons. At the time of transfer Boggess was listed as
stable, but was transferred by ambulance because she posed a risk of harm to herself or
others.
3 Section 5150 states in part that "any person, as a result of mental disorder . . . upon probable cause [can] be taken . . . into custody and place[d] . . . in a facility designated by the county and approved by the State Department of Social Services as a facility for 72- hour treatment and evaluation." 4 The Section 8102 Hearing
Pursuant to section 8102, City filed a petition to retain and destroy the firearms
seized from Boggess. Boggess requested a hearing (§ 8102, subds. (e), (f)), at which the
trial court and parties reviewed her medical records. At the hearing, in response to
questions regarding the police report and the statements made to her niece over the
phone, Boggess explained that the guns belonged to her late husband; that she had not
touched them in six years and did not know how to put a bullet in them. She admitted
talking to her niece, who had called after she found out Boggess's car had been towed,
but Boggess stated she was "kidding" with her niece and the only thing she said was,
"With that money I'm going to spend, I don't think—why I am going to live?" Boggess
asserted her niece just "imagine[d]" that she was going to kill herself, and that her
religious beliefs precluded her from considering suicide.
During the hearing, City presented medical records and a police report to the
court. The court acknowledged that Boggess was under financial pressure and was
having medical problems at the time of the incident. It took note of the fact that Boggess
was involuntarily admitted for psychiatric evaluation stating, "Not everybody who
presents to CMH gets admitted. They admitted you." The court concluded that CMH
was concerned about Boggess's mental well-being, and rather than accepting Boggess's
explanations, the court relied on the medical opinion that she was a danger to herself.
Though the court accepted Boggess's representation that she was an educated dentist, it
found her answers to be "nonresponsive" and "rambling" and that the petitioners had
proved by a preponderance of the evidence that return of the firearms would be likely to
5 result in endangering Boggess or others. The court ordered the firearms seized be
forfeited and destroyed.
DISCUSSION
I. Overview of Section 8102
Section 8102 authorizes the seizure and possible forfeiture of weapons belonging
to persons detained for examination under section 5150 because of their mental
condition. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 416-417 (Rupf); People v. One
Ruger .22-Caliber Pistol (2000) 84 Cal.App.4th 310, 312.) Section 8102, subdivision (a)
provides in part: "Whenever a person, who has been detained or apprehended for
examination of his or her mental condition . . . is found to own, have in his or her
possession or under his or her control, any firearm whatsoever, or any other deadly
weapon, the firearm or other deadly weapon shall be confiscated by any law enforcement
agency or peace officer, who shall retain custody of the firearm or other deadly weapon."
At the time the weapons are seized, the agency must notify the person from whom the
weapon is seized of the procedure for the return of the confiscated firearms. (§ 8102,
subd. (b).) The law enforcement agency must make the firearms available for return
unless it timely files a petition to determine whether returning them "would be likely to
result in endangering the person or others, and . . . send[s] a notice advising the person of
his or her right to a hearing on this issue." (§ 8102, subds. (c), (d); Rupf, 85 Cal.App.4th
at p. 420.) Section 8102 thus "places the onus upon law enforcement to initiate the
forfeiture proceeding, and to bear the burden of proof on the issue of the danger presented
by return of the weapons." (Rupf, at p. 420, citing § 8102, subd. (c).)
6 "Section 8102 directly safeguards public health and safety by allowing law
enforcement officers to confiscate any firearm in the possession or control of a person
who is appropriately detained or apprehended for a mental examination. Keeping a
firearm away from a mentally unstable person is a reasonable exercise of the police
power. It is not unreasonable to conclude there is a significant risk that a mentally
unstable gun owner will harm himself or others with the weapon." (Rupf, supra, 85
Cal.App.4th at p. 423.)
II. The Court's Forfeiture Decision is Supported by Substantial Evidence
Boggess challenges the sufficiency of the evidence to support the trial court's
factual conclusion that she would not be likely to use firearms in a safe and lawful
manner. Comparing the circumstances of her case to those in People v. Keil (2008) 161
Cal.App.4th 34 and People v. Jason K. (2010) 188 Cal.App.4th 1545, she maintains the
sole evidence submitted by City was medical records of her three-hour hospitalization
and her niece's remarks, which she characterizes as a "misinterpretation." As Boggess
summarizes the evidence, she claims she "never threatened to shoot or harm herself or
others" and she points out she "steadfastly denied having threatened to harm herself" at
the hospital. Boggess also argues there was no evidence that she had ever used her
firearms in a dangerous way, nor was there evidence suggesting she had a prior history of
mental illness or a criminal record. Finally, Boggess states she was stable when
discharged from the hospital, and had only been diagnosed with depression "not
otherwise specified," which is not enough to show she would be unlikely to use her late
7 husband's firearms in a safe and lawful manner, or that their return to her would result in
danger to her or others.
We apply the substantial evidence standard of review. (People v. Jason K., supra,
188 Cal.App.4th at p. 1553; People v. Keil, supra, 161 Cal.App.4th at p. 38.) An order
authorizing the destruction of the weapons can only withstand appellate scrutiny if
"substantial evidence supports the court's determination that return of the firearms to
appellant would likely result in endangering appellant or other persons." (Rupf, supra, 85
Cal.App.4th at p. 428.) In determining whether a trial court's ruling is supported by
substantial evidence, the appellate court should view the whole record in the light most
favorable to the ruling, resolving all evidentiary conflicts and drawing all reasonable
inferences supporting the court's decision. (People v. Jason K., at p. 1553.) If the trial
court finds City has not met its burden of proof, the restriction is removed, and the person
shall be entitled to own, possess, control, receive or purchase firearms, unless another
legal restriction applies. (People v. Keil, at p. 38, citing § 8103, subd. (f)(1).)
Looking to City's evidence and all reasonable inferences favoring the superior
court's findings, we conclude the record contains substantial evidence to support the
granting of the petition and its finding that return of the firearms would endanger
Boggess or others. The mental health evaluation in the record indicates Boggess was
under significant stress regarding her health and financial matters. Contrary to Boggess's
characterization of the evidence as showing she never threatened to shoot herself, her
statements to her niece documented by Officer Ott—that Boggess was depressed about
her health and car being impounded, wanted to "get it over with," and was going to shoot
8 herself with a gun but was missing the bullets—plainly show otherwise. These
comments worried Boggess's niece enough to call the police. Further, Boggess was not
only presented to the CMH, but was admitted to the emergency psychiatric unit on an
involuntary basis for depression.
The medical records showed Boggess was diagnosed with "depressive disorder"
and a medical evaluation noted that she was "a woman with emerging stresses, some
limited coping skills, and fairly distant support system," with impaired insight and
judgment. The judge considered these factors in making the ultimate assessment of the
danger posed by Boggess. Boggess could have presented her own evidence of her
medical or mental health condition (see, e.g., Rupf, supra, 85 Cal.App.4th at p. 424
["Both the gun owner and the authorities have the opportunity to present evidence of the
gun owner's mental condition, including introduction of testimony by medical
professionals"]) but she instead chose to argue she was "kidding" and that her niece
misinterpreted her statements, a claim the trial court was entitled to disbelieve and reject.
Even if Boggess's statements triggering the December 31 incident were the result
of her niece's misunderstanding, the trial court was presented with police statements and
medical records persuading it that City's evidence met the preponderance standard.
Further, after hearing from Boggess, the court determined, implicitly if not expressly, that
the circumstances that lead to the section 5150 detention had not changed. "The court
may properly consider whether the circumstances leading to the section 5150 detention
might occur again and whether possession or control of those confiscated weapons in
9 such circumstance would pose a risk of danger to appellant or to others." (Rupf, supra,
85 Cal.App.4th at p. 424.)
We are not convinced by Boggess's comparison of her circumstances with those
individuals in People v. Keil, supra, 161 Cal.App.4th 34 and People v. Jason K, supra,
188 Cal.App.4th 1545. Substantial evidence review turns on whether the facts presented
in each case support the findings of the trial court. Looking to the specific facts of Keil
and Jason K. is unhelpful to our analysis. In sum, the medical reports, police
observations, statements from Boggess's niece, and Boggess's own conduct at the hearing
constitute substantial evidence to support the trial court's findings that return of the
firearms would be likely to result in endangering Boggess or others.
III. Section 8102 Does Not Violate the Second and Fourteenth Amendment Right
to Bear Arms.
Boggess contends, in light of Heller, supra, 554 U.S. 570 and McDonald., supra,
561 U.S. ___ [130 S.Ct. 3020], section 8102 is facially unconstitutional because it denies
her fundamental Second and Fourteenth Amendment right to bear arms "based on little or
scant proof." In so arguing, Boggess urges us to disregard Rupf, supra, 85 Cal.App.4th
411, in which the court held section 8102 was not facially invalid because it did not deny
an individual gun owner his or her substantive due process rights nor was it
unconstitutionally vague. (Rupf, at pp. 419-428.) Boggess argues Heller and McDonald
have invalidated the "collective rights" model of the Second Amendment applied in
10 Rupf,4 and that Heller and McDonald now confirm there is a fundamental and individual
constitutional right to bear arms.5 Although a defendant's failure to present an issue to
the trial court generally forfeits it on appeal, we exercise our discretion to consider the
issue to the extent it presents a pure question of law or involves undisputed facts. (See In
re Sheena K. (2007) 40 Cal.4th 875, 880-881, 887-888, fn. 7.)
We begin by recognizing the "strong presumption of the constitutionality of an act
of the Legislature." (Delaney v. Lowery (1944) 25 Cal.2d 561, 569.) " 'In considering
the constitutionality of a legislative act we presume its validity, resolving all doubts in
favor of the Act. Unless conflict with a provision of the state or federal Constitution is
clear and unquestionable, we must uphold the Act.' " (Amwest Sur. Ins. Co. v. Wilson
(1995) 11 Cal.4th 1243, 1252.) "[M]ere doubt by the judicial branch of the government
as to the validity of a statute will not afford a sufficient reason for a judicial declaration
4 The "collective rights" view interprets the Second Amendment right to bear arms as securing only the right of the states to have a well regulated militia, not a right of individuals. (Glenn Harlan Reynolds, A Critical Guide to the Second Amendment (1995) 62 Tenn. L.Rev. 461, 488-490; see Heller, supra, 554 U.S. at p. 579 [rejecting notion that Second Amendment may be exercised "only through participation in some corporate body" to maintain effective state militias].)
5 We note Boggess's arguments have several flawed premises. First, section 8102 does not eliminate a detainee's right to possess any and all firearms. Rather, as City points out, it implicates only the detainee's property right in the specific firearms confiscated by law enforcement. The statute is further limited to persons who are detained for examination of their mental condition, and those weapons that were in their custody and control at time of incident leading to their detention for a mental health evaluation. Second, section 8102 requires a preponderance standard of proof that return of firearms is likely to result in endangering Boggess or others, and thus Boggess's bare assertion that it is permits forfeiture of firearms on "little or scant proof of mental illness" is incorrect. 11 of its invalidity, but . . . statutes must be upheld as constitutional unless their invalidity
clearly, positively, and unmistakably appears." (People v. Superior Court of San
Bernardino County (1937) 10 Cal.2d 288, 298, italics added.) These principles govern a
challenge to the facial validity of a statute. (See, e.g., Calfarm Ins. Co. v. Deukmejian
(1989) 48 Cal.3d 805, 814-815 [applying presumption in challenge to facial
constitutionality of initiative.)
When confronted with a facial challenge to the constitutional validity of a statute,
the California Supreme Court has sometimes articulated differing standards. (Coffman
Specialties, Inc. v. Department of Transp. (2009) 176 Cal.App.4th 1135, 1145, citing
Guardianship of Ann S. (2009) 45 Cal.4th at 1110, 1126.) "Under the strictest test, the
statute must be upheld unless the party establishes the statute ' "inevitably pose[s] a
present total and fatal conflict with applicable constitutional prohibitions." ' [Citation.]
Under the more lenient standard, a party must establish the statute conflicts with
constitutional principles ' "in the generality or great majority of cases." ' [Citation.]
Under either test, the plaintiff has a heavy burden to show the statute is unconstitutional
in all or most cases, and ' "cannot prevail by suggesting that in some future hypothetical
situation constitutional problems may possibly arise as to the particular application of the
statute." ' " (Coffman Specialties, Inc., at p. 1145; see also Tobe v. City of Santa Ana
(1995) 9 Cal.4th 1069, 1084 [in a facial challenge, the court considers only the text of the
statute itself, not its application to the particular circumstances of an individual].) If a
statute is constitutional in its general and ordinary application, the statute is not facially
unconstitutional merely because "there might be some instances in which application of
12 the law might improperly impinge upon constitutional rights." (American Academy of
Pediatrics v. Lungren (1997) 16 Cal.4th 307, 347; see also Guardianship of Ann S.,
supra, 45 Cal.4th at p. 1132; People v. Yarbrough (2008) 169 Cal.App.4th 303, 311.)
The Second Amendment of the United States Constitution provides: "A well
regulated Militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed." (U.S. Const., 2nd Amend.) The laws at
issue in Heller and McDonald effectively banned the possession of handguns in the
home. (Heller, supra, 554 U.S. at p. 574; McDonald, supra, 561 U.S. at p. ___ [130
S.Ct. at p. 3026].) This court discussed the cases in Jason K.: "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. [Citation.] But the
court stated that '[l]ike most rights, the right secured by the Second Amendment is not
unlimited' [citation], 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 . . . .'
[Citation.] 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 . . . .' " (People v. Jason K., supra, 188 Cal.App.4th at p. 1555,
italics added.)
In McDonald, the court held the Second Amendment right is "fully applicable to
the States" through the Due Process Clause of the Fourteenth Amendment. (McDonald,
13 supra, 561 U.S. at p. ___ [130 S.Ct. at p. 3026] (plur. opn. of Alito, J.); id. at pp. 3058,
3088 (conc. opn. of Thomas, J.); see People v. Jason K., supra, 188 Cal.App.4th at p.
1555; People v. Delacy (2011) 192 Cal.App.4th 1481, 1487.) However, it expressly
"repeat[ed] [its] assurances" from Heller 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 . . . .' " (McDonald, supra, 561 U.S. at p. ___ [130 S.Ct. at p. 3047], quoting
Heller, supra, 554 U.S. at pp. 626-627.)
The holdings of Heller and McDonald address whether the Second Amendment
protects the right to possess a handgun in the home for self defense; they 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.6 To the contrary, as
indicated above, both Heller and McDonald identified an expressly nonexclusive list of
traditional limitations on the right to bear arms, characterizing them as "presumptively
lawful regulatory measures . . . ." (Heller, supra, 554 U.S. at p. 627, fn. 26; McDonald,
supra, 561 U.S. ___ [130 S.Ct. at p. 3047] (plur. opn. of Alito, J.); see People v. Delacy,
supra, 192 Cal.App.4th at p. 1487.) Section 8102, which prohibits a person detained
6 In Heller, the court indicated that, if confronted with a constitutional challenge to its nonexclusive list of presumptively lawful exceptions to the Second Amendment, there would "be time enough to expound upon the historical justifications for the exceptions [it] mentioned if and when those exceptions [came] before [it]." (Heller, supra, 554 U.S. at p. 635.)
14 under section 5150 from recovering their seized firearms upon proof by the seizing
agency that returning the weapon would be likely to result in endangering that person or
others, is such a regulatory measure. We reject that in Heller and McDonald the U.S.
Supreme Court categorically invalidated such laws, which are designed to keep firearms
out of the hands of a dangerous person.
Moreover, though Rupf relies on authorities predating and now abrogated by
Heller and McDonald,7 neither Heller or McDonald alter Rupf's recognition of the state
of California's "long . . . established" regulation of firearms as a "proper police function."
(Rupf, supra, 85 Cal.App.4th at p. 421, citing Galvan v. Superior Court of City and
County of San Francisco (1969) 70 Cal.2d 851, 866.) The Rupf court pointed to the
legitimacy of the ends sought to be accomplished by section 8102: "The exercise of the
police power to regulate firearms is clearly related to the public health, safety and
welfare. [Citation.] Respondent identifies the object of the statute as providing a means
whereby authorities can confiscate firearms in an emergency situation and may keep
firearms from mentally unstable persons. The legislative history of the statute expressly
7 In Heller, the court determined the treatment of the Second Amendment in Lewis v. United States (1980) 445 U.S. 55, 65-66 [Second Amendment guarantees no right to keep and bear a firearm that does not have some reasonable relationship to the preservation or efficiency of a well regulated militia]) to be "footnoted dictum . . . ." (Heller, supra, 554 U.S. at p. 625, fn. 25.) Rupf relied on Lewis v. United States for the proposition that " '[l]egislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties.' " (Rupf, supra, 85 Cal.App.4th at p. 421.) It also relied on Ninth Circuit and other federal authorities—now abrogated—holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. (Ibid., quoting Hickman v. Block (9th Cir. 1996) 81 F.3d 98, 101.) 15 recognizes the urgency and importance of such an objective . . . ." (Rupf, at p. 422.)
"Keeping a firearm away from a mentally unstable person is a reasonable exercise of the
police power. It is not unreasonable to conclude there is a significant risk that a mentally
unstable gun owner will harm [her]self or others with the weapon." (Rupf, at p. 423.)
We acknowledge Heller and McDonald's expansion of the right to own and bear
arms. (Heller, supra, 554 U.S. 570 at pp. 2797, 2827-2828, 2821-2822; McDonald,
supra, 561 U.S. ___ [130 S.Ct. at p. 3026] (plur. opn. of Alito, J.); id. at pp. ___, ___
[130 S.Ct. at pp. 3058, 3088] (conc. opn. of Thomas, J.).) However, neither holding
prohibits the government from regulating the possession of guns by persons proven to be
dangerous due to mental illness or suggests that those regulations are in direct conflict
with the Second Amendment. Subsequent decisions have affirmed that the state may
ensure that firearms are not in the hands of someone who may use them dangerously.
(See People v. Keil, supra, 161 Cal.App.4th 34; People v. Jason K., supra, 188
Cal.App.4th 1545.) Section 8102 has procedural devices and burdens set in place to
remedy constitutional deficiencies (see People v. One Ruger .22-Caliber Pistol, supra, 84
Cal.App.4th at pp. 313-314) and Heller and McDonald do not alter its validity.
For the foregoing reasons, we conclude persons whose firearms are seized and
forfeited under section 8102 fall outside the scope of the Second Amendment, Boggess
has not demonstrated the statute to be facially unconstitutional, and California may
therefore enforce the law to protect the health, safety and welfare of its citizens.
16 DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McDONALD, Acting P. J.
AARON, J.
17 Filed 6/11/13 COURT OF APPEAL, FOURTH APPELLATE DISTRICT
ESTHER BOGGESS, ORDER CERTIFYING OPINION FOR PUBLICATION Defendant and Appellant.
THE COURT:
The opinion filed May 15, 2013, is ordered certified for publication.
Copies to: All parties