City of San Diego v. Boggess

• Decision Date: 15 May 2013
• Docket Number: D061715
• Citation: 157 Cal.Rptr.3d 644,216 Cal.App.4th 1494
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF SAN DIEGO et al., Plaintiffs and Respondents, v. Esther BOGGESS, Defendant and Appellant.

216 Cal.App.4th 1494

157 Cal.Rptr.3d 644

CITY OF SAN DIEGO et al., Plaintiffs and Respondents,

v.Esther BOGGESS, Defendant and Appellant.

D061715

Court of Appeal, Fourth District, Division 1, California.

Filed May 15, 2013

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 247.

APPEAL from an order of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed.(Super. Ct. No. MCR 12–006).

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.

O'ROURKE, J.

Appellant Esther Boggess appeals an order for the seizure and destruction of her firearms following a petition filed under Welfare and Institutions Code ¹section 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, 128 S.Ct. 2783, 171 L.Ed.2d 637 (Heller ) and McDonald v. City of Chicago (2010) 561 U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894(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 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 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.

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 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, 102 Cal.Rptr.2d 157 (Rupf ); People v. One Ruger .22–Caliber Pistol (2000) 84 Cal.App.4th 310, 312, 100 Cal.Rptr.2d 780.) 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, 102 Cal.Rptr.2d 157.) 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, 102 Cal.Rptr.2d 157, citing § 8102, subd. (c).)

“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, 102 Cal.Rptr.2d 157.)

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, 73 Cal.Rptr.3d 600 and People v. Jason K. (2010) 188 Cal.App.4th 1545, 116 Cal.Rptr.3d 443, 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...