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City of San Diego v. Boggess

California Court of Appeals, Fourth District, First Division

May 15, 2013

CITY OF SAN DIEGO et al., Plaintiffs and Respondents,
ESTHER BOGGESS, Defendant and Appellant.

Certified for publication 6/11/13

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

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 Code[1] 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.


Police Response[2]

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 ...

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