Police Can Still Seize and Destroy Guns from Mentally Ill

By William Peacock, Esq. on June 13, 2013 | Last updated on March 21, 2019

Sometimes, life sucks. You know it. We all know it. From bills to sitting in traffic in [insert metropolitan area here], the day-to-day grind can wear down your soul. Tack on an extra stressor, such as your car being towed or a medical problem, and it can feel like it’s all too much to bear.

Or you might just need to vent.

Ester Boggess called her niece on December 31, 2011. By the end of the conversation, her niece was worried enough to contact the police. The officers arrived, assessed the situation, and put Boggess on a 72-hour psychiatric hold, otherwise known as a Sec. 5150. The officers also confiscated her late husband’s firearms and pursuant to Sec. 8102, sought to dispose of them.

The mental health experts that performed her evaluation found indicators of "nonspecific" depression and because of a high potential for harm (due to her few supports, multiple stresses, and lethal means available) involuntarily committed her to an institution for a short time.

Boggess admitted to making statements about shooting herself, but told the court that she spoke in jest, and beyond that, didn't even know how to load the weapons. The court found her answers in the hearing to be "rambling" and "nonresponsive."

The issues on appeal were: was there a reasonable basis for the lower court's determination and is Sec. 8120 constitutional, prior pre-Heller case precedent notwithstanding, in light of the Supreme Court's holdings in Heller and McDonald.

Boggess' initial challenge was to the sufficiency of the evidence backing the trial court's determination. She points out that her hospitalization only lasted three hours, and the only other evidence was her niece's "misinterpretations" of her statements.

On the one hand, we do have evidence of psychological issues, plus the court's in-person evaluation of her mental state. A cautious path is warranted.

On the other hand, they are taking the (likely valuable) property of someone, property which is constitutionally protected, and destroying it without compensation, all on the basis of what was apparently only a three-hour hospitalization? The court noted that she was "under significant stress regarding her health and financial matters," but these days, who isn't?

Either way, the appeals court, in a substantial evidence review, is going to show deference to the trial court's factual findings. The lower court hears the evidence and can evaluate the credibility of the testimony as it is presented. The appeals court has a cold record.

As for the Heller and McDonald rulings, those arguments fall flat once she has been determined to be mentally ill. Both opinions recognized that while the right to bear arms extends to the individual, reasonable restrictions remain valid. In Heller, the court noted that, "nothing in [this] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill..."

With the accorded deference to the trial court's finding of mental illness, Heller's holding is clear: suicidal people cannot have guns.

If you're struggling with suicidal thoughts, there are people there who want to help. Please contact the National Suicide Prevention Lifeline: 1-800-273-8255

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