Police Fear Ruling on Gun Seizures : They Say It May Put Weapons Into Hands of Unstable

Law enforcement officials across California say a recent decision by a San Diego appellate court threatens the public’s safety by requiring police to release on demand weapons confiscated from people who appear mentally disturbed.

Authorities say the decision by the 4th District Court of Appeal could force them to give back impounded firearms and other weapons without first determining whether their owners--typically detained for psychological evaluations--are mentally fit.

If the January ruling withstands an appeal to the state Supreme Court, city attorneys from Chula Vista to Humbolt predict it will oblige police to rearm people who may pose a danger to themselves or the public at large.

‘Going to Hit Fan’

“If I’m required to give back all the weapons confiscated from these people without knowing whether they’re OK, then, to put it real blunt, it’s going to hit the fan one of these days,� San Diego Police Detective William Bird said. “It hasn’t happened yet, but we could see some crazy guy wiping out his family or a neighborhood.�

Despite such alarming forecasts, others say the court’s decision properly abolished a system that stigmatized the weapon owners and made it costly and time-consuming for them to retrieve their property.

“The thrust of the other side’s argument is that this is wreaking havoc up and down the state. I have a hard time believing that,� said San Diego attorney Christopher Larsen, who handled the case that prompted the appellate court decision. “For one thing, once a person is released there is nothing to keep him from going down to the gun store and buying new weapons.

“To say that we’re making the world safe by keeping these people’s guns is just ridiculous,� Larsen said.

State Statute

At issue is a section of the California Welfare and Institution Code requiring police officers who detain people believed to be mentally disturbed to confiscate any “deadly weapon� found in their possession. Under the statute, those who wish to retrieve their weapons must first obtain a Superior Court order certifying they do not pose a danger to themselves or others.

Estimates of how frequently such cases arise vary widely. In Los Angeles, weapons were seized under the statute from 330 people in 1988. San Diego and San Francisco authorities could not produce such statistics but said they field requests for the return of confiscated firearms several times each month. For small police departments, use of the law is rare.

In 1987, a nurse whose six guns and dagger were impounded challenged the constitutionality of the statute after La Mesa police refused to release her weapons, valued at $2,700. A Superior Court judge rejected Kathleen Bryte’s arguments, but in a seven-page decision issued Jan. 27, the Court of Appeal sided with her and declared the law unconstitutional.

In its published opinion, written by Justice Charles Froehlich, the court said the statute violates state and federal due-process rights and unfairly places the burden of retrieving the weapons on their owner.

The “requirement of affirmative action by the property owner, including the preparation of formal pleadings, the payment of a filing fee and subsequent participation in all the formal procedural devices of a Superior Court action must be deemed unreasonable,� Froehlich wrote. Justices Howard B. Wiener and Don R. Work joined in the decision.

Caused a Stir

Almost immediately, the opinion caused a stir. Police officers, in particular, suddenly became unsure of their rights in dealing with suicidal or seemingly deranged individuals. Would they be sued for confiscating weapons? If they failed to seize a firearm from someone who later committed a crime with it, would they be held liable?

“It left us in limbo,� San Jose City Atty. Joan Gallo said. “The way the decision was written left a real question of how we could proceed.�

Perhaps most disturbingly, some lawyers say the opinion restricts officers’ freedom to disarm individuals who appear suicidal or threatening. In Los Angeles, the city attorney’s office concluded that police may no longer obtain warrants to search the homes of mentally disturbed detainees and confiscate caches of weapons sometimes found there.

“The whole purpose of this law is to anticipate problems--to try to take action before a tragedy occurs,� said Los Angeles Police Detective Walter Decuir, who heads the department’s mental evaluation unit. “Most of these people are not dangerous and just need help. But I can list countless examples of where we’ve had a guy who was threatening to blow away a police officer or his psychiatrist once he got out of the mental clinic.�

Previously, “we’d go to his house and take his semi-automatic weapons, hand grenades or whatever and hold them for safekeeping,� Decuir said. Now, “I know of no way to get those guns.�

In San Francisco, Deputy Dist. Atty. Donald Sanchez echoed such concerns. Police, he said, will “now have to use a subterfuge or do something very creative if they want to seize guns from some psychotic who might want to shoot up a schoolyard.�

Larsen dismissed such musings as exaggerations and said other statutes give police wide latitude to confiscate firearms from those believed to be mentally ill. And the appellate court, in a modification of its decision, expressed support for lawful seizures and noted that several other applicable laws are useful in such circumstances.

Still, even if authorities find a legal way to confiscate a firearm, both sides agree that police must now relinquish it on demand without requiring proof that its owner can operate it safely.

As Chula Vista City Atty. Thomas Harron put it, the decision means “some of the most unbalanced people in the community, who have threatened to take irrational action with guns, will be reunited with their guns.�

San Francisco Deputy City Atty. Buck Delventhal, noting the escalating public concern over weapons in the wake of a gunman’s slaying of five children in a Stockton schoolyard in January, agreed.

“I can understand why courts are zealous in the protection of the individual rights of people detained against their will because they allegedly are incompetent to handle their own affairs,� he said. “But I’m reluctant to concede that a person under these circumstances ought to be able to leave jail or a mental facility with weapon in hand. I think the court has lost sight of common sense.�

Appealed the Decision

Earlier this month, city officials in La Mesa appealed the decision to the California Supreme Court. Already, they have marshaled widespread support for their cause.

The legal advocacy committee of the League of California Cities--containing representatives from San Diego, San Francisco, Los Angeles, Chula Vista and San Jose--recently agreed to file briefs supporting La Mesa’s appeal.

On March 8, the state attorney general’s office sent a letter to the high court, attacking the decision and urging a reversal. San Francisco Dist. Atty. Arlo Smith went a step further. In a letter to Chief Justice Malcolm Lucas, Smith asked the court to decertify the opinion--stripping it of any value as a precedent.

“The immediate danger to an arresting officer when prohibited from seizing guns from a detainee cannot be overemphasized,� Smith wrote. “The long-term effect of returning weapons to the class of people affected . . . could be very grave.�

In his petition to the state Supreme Court, La Mesa attorney Michael Jordan argues that the statute, by requiring a Superior Court order for recovery of the weapons, contains an “implied right to a hearing� and thus does not violate due process.

He also argues that “the degree of impairment� of a person’s rights under the law “is limited when balanced with the legitimate public interest in the protection against the danger of an armed person.�

But Larsen maintains that, although police have a right to disarm people they view as a threat, they may not hold those weapons indefinitely once that danger is proved false or has passed. Bryte’s case, he argues, is a classic example of the abuse possible under the law.

At the time she was detained, Bryte was staying in a La Mesa hotel near Grossmont Hospital, where she had been treated for a back injury that has left her disabled. A registered nurse from Imperial County, she was also under psychiatric care to help her deal with the injury.

On July 23, 1986, police summoned to Bryte’s room found her bleeding from a cut on the back. Believing the wound was self-inflicted and that she was a danger to herself, officers took her to Grossmont Hospital for a mental evaluation. She was released by doctors 30 minutes later.

May Turn to Legislature

When Bryte asked for her weapons back, police refused, insisting she needed a court order.

“The presumption ought to be that, if I own something, I’m entitled to have it,� Larsen said. “It shouldn’t be up to me to prove that I’m OK, any more than it’s not up to me to prove I’m not a criminal. . . . That’s not the way they told me the world worked when I was in law school.�

Kathleen Bryte, who now lives in Idaho, agreed.

“It immediately places the burden on the innocent party,� she said. “I wasn’t allowed any type of inexpensive means of recovering my property, that was the whole issue. It’s not that I’m not concerned about gun control and the safety of other people. I have two young children myself.�

If the high court declines to hear the case or allows the decision to stand, law enforcement officials say they will turn to the Legislature. Sheryl Patterson, staff attorney for the California League of Cities, said discussions already are under way with Assembly members whose existing, weapons-related bills might be amended to remedy the new gap in the law.

“What we’re talking about is a procedure that gives the seizing agencies the burden of proving why they should hold on to the weapons,� Los Angeles Deputy City Atty. Linda Lefkowitz said.

Both Larsen and Bryte, who did not object to the initial seizure of her weapons, say they favor that step. But police say one problem with such a system is the confidentiality privilege between doctor and patient, which could impede efforts to evaluate a person’s mental state.

“A patient’s psychiatric history is confidential, so if we hold a hearing, we would be at a handicap in terms of determining whether getting the weapons back is best for the individual and society,� Los Angeles Detective Decuir said.

As they await a final verdict, police around the state are responding to the court decision in different ways.

In San Francisco, Sgt. Mike Seybold said the department “is trying to ignore it� and “really hoping� the appeal succeeds. Los Angeles police have begun relinquishing weapons on request. But, if the demand comes from a person whose background raises a red flag, the city attorney will seek Superior Court permission to keep the weapons, Lefkowitz said.

San Diego Detective Bird, who controls the department’s impounded guns, said that, although he will not require a court order from those who want their weapons back, he will ask for a psychiatrist’s letter giving a patient clearance to handle a firearm.

“We’re sort of in quasi-limbo until the appeal is decided, so I’m going to make sure this person is safe before turning anything over to him,� said Bird, who acknowledges that his policy conflicts with the court decision. “We’ve got enough crazy people out there running around with guns already,� he said.