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Pervez v. Bacerra

United States District Court, E.D. California

June 27, 2019

SHAFAK PERVEZ, Plaintiff,
v.
XAVIER BECERRA, in his official capacity; BRENT E. ORICK, in his official capacity; CALIFORNIA DEPARTMENT OF JUSTICE; COUNTY OF SACRAMENTO, Defendants.

          ORDER

         Plaintiff Shafak Pervez brings this action based on 42 U.S.C. § 1983 against defendants Xavier Becerra, in his official capacity as the Attorney General of California, Brent E. Orick, in his official capacity as the acting Chief of the California Department of Justice Bureau of Firearms, the California Department of Justice (“DOJ”) and Sacramento County. Plaintiff alleges the DOJ erroneously reported to the National Instant Criminal Background Check System (“NICS”) that plaintiff was adjudicated mentally defective or committed to a mental institution under California Welfare & Institutions Code section 5250, thus subjecting her to a lifetime firearm ban. First Am. Compl. (“FAC”) ¶ 1, ECF No. 5. Defendants Becerra, Orick and the DOJ (collectively, “state defendants”) move to dismiss plaintiff's First Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Mot., ECF No. 12, at 1. The court held a hearing on the matter on April 19, 2019. As explained below, the court GRANTS the motion.

         I. BACKGROUND

         A. The Relevant Statutory Scheme

         The California Lanterman-Petris-Short Act, Cal. Welf. & Inst. Code § 5000 et seq., established a statutory scheme providing for the involuntary civil commitment of people with mental health disorders. See Id. § 5001. Section 5150 provides for a person, upon a finding of probable cause, to be placed in an involuntary seventy-two-hour hold in a psychiatric facility for evaluation and treatment when that person is determined to be a danger to herself or others, or is gravely disabled, because of a mental health disorder. Id. § 5150. Under section 5250(a), a person detained for seventy-two hours under section 5150 may be detained for up to fourteen additional days if the staff of the facility evaluates the person's condition and finds the person “is, as a result of a mental disorder . . ., a danger to others, or to himself or herself, or gravely disabled.” Section 5150(i)(1) requires the treating facility to notify the committed person of the right to an attorney and a hearing before a judge if the facility decides to hold the committed person longer than seventy-two hours.

         California Welfare & Institutions Code section 8103(g)(1) bars a person certified for intensive treatment under section 5250 from owning, possessing, controlling, receiving or purchasing, or attempting to own, possess, control, receive or purchase, any firearm for five years after the person's release from a mental health facility. A person committed under section 5250, however, may request a hearing to lift the prohibition, and may own, possess, control, receive or purchase any firearm if a court finds the State of California has not shown by a preponderance of the evidence that the person would not be likely to use firearms in a safe and lawful manner. Id. § 8103(g)(1), (4). Although section 8103 on its face provides for only a five-year firearm prohibition on persons subject to a section 5250 hold, it creates in effect a lifetime firearm prohibition under federal law because of section 5250's procedural safeguards and DOJ reporting requirements. See 18 U.S.C. § 922(g)(4) (imposing a lifetime firearm ban on any person “who has been adjudicated as a mental defective” or “committed to a mental institution”).

         B. Factual Allegations

         Plaintiff alleges that in 2000 she voluntarily checked herself into a hospital in Sacramento County, California, to receive treatment for depression. FAC ¶ 18, ECF No. 5. On September 29, 2000, after plaintiff's admission to the hospital, the Sacramento County Mental Health Treatment Center informed the DOJ it had placed a California Welfare & Institutions Code section 5250 hold on plaintiff. Id. ¶ 62.

         According to her amended complaint, plaintiff never received notice of the section 5250 hold, never turned down any treatment, completed her treatment without incident, and went on to be a productive, law-abiding citizen. Id. ¶¶ 19-23. Plaintiff also alleges she never received notice of her rights to a probable cause hearing and to petition a court for habeas corpus relief, in violation of California law. Id. ¶¶ 21-22.

         In 2017, plaintiff attempted to purchase a firearm in Nevada and failed a firearms background check. Id. ¶¶ 24-27. Plaintiff later received a letter from the Records, Communications and Compliance Division of the Nevada Department of Public Safety informing her she was prohibited from purchasing a firearm under 18 U.S.C. § 922(g)(4) because she had been adjudicated mentally defective or involuntarily committed to a mental institution. Id. ¶¶ 26- 27. Plaintiff claims the disqualifying information originated with the DOJ. Id. ¶ 27.

         Plaintiff filed a NICS appeal, which was denied by the U.S. Department of Justice, then requested information from the DOJ regarding the reasons for her disqualification from purchasing a firearm and whether she had a section 5250 hold in her records. Id. ¶¶ 28-62. After plaintiff filed this action, she alleges the DOJ provided her with records showing the Sacramento County Mental Health Treatment Center reported the section 5250 hold to the DOJ. Id. ¶ 62. Plaintiff alleges she then requested the relevant medical records from the Sacramento County Mental Health Treatment Center, but the Center informed her it had purged her mental health records in 2010. Id. ¶¶ 63-64.

         C. Procedural History

         Plaintiff filed this action on October 17, 2018, against defendants Becerra and Orick in their official capacities, and against the DOJ and Sacramento County. ECF No. 1. On November 14, 2018, plaintiff filed the operative First Amended Complaint, asserting violations of her Second and Fourteenth Amendment rights under 42 U.S.C. § 1983. ECF No. 5. Plaintiff seeks a writ of mandate ordering defendants to erase, amend or remove all records indicating plaintiff was adjudicated mentally defective or had been committed to a mental institution; she seeks injunctive relief prohibiting defendants from maintaining, reporting or sharing any record providing plaintiff has been adjudicated as mentally defective, committed to a mental institution, or subject to a section 5250 hold. Id. at 13. In addition to the above-listed relief, plaintiff seeks damages and an order mandating the DOJ and County defendants to create new policies and procedures to better maintain records relating to the reporting of a firearm prohibition and to efficiently and promptly respond to citizens' requests for information relating to records of a firearm prohibition stemming from a mental health facility or provider. Id. at 1, 13.

         Defendants Becerra, Orick and the DOJ moved to dismiss the First Amended Complaint on February 8, 2019. ECF No. 12. Plaintiff filed her opposition on February 22, 2019, ECF No. 16, and defendants filed their reply on April 12, 2019, ECF No. 18.

         II. L ...


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