United States District Court, E.D. California
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.
The Relevant Statutory Scheme
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.
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
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.
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.
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.
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.
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.
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.