Amendments to Welfare & Institutions Code Section 8102 Change Petition and Disposition Procedure

by Best Best & Krieger LLP

Overview: Welfare and Institutions Code section 8102 requires a law enforcement agency to confiscate all firearms or other deadly weapons owned or controlled by someone who has been placed on a mental health hold under Welfare and Institutions Code section 5150. Recent amendments make important changes to the petition and disposition procedure.

Upon release of a person placed on a mental health hold, the law enforcement agency has 30 days to petition the court for a hearing to determine whether the return of a firearm or other deadly weapon would likely endanger the person or others. Additionally, the law enforcement agency must inform the person that he or she has 30 days to respond to confirm his or her desire for a hearing, and that failure to respond will result in a default order forfeiting the weapons. Alternatively, if the person requests a hearing, and after the hearing the court determines that returning the weapons would likely endanger the detained individual or others, the agency may request an order forfeiting the deadly weapons and allowing the agency to dispose of them.

The 2013 amendments to Welfare and Institutions Code section 8102 include:

  • Under new subsections (e), (g) and (h): in the event of either an entry of a default order or after the court determines that the return of the weapon would likely endanger the detained person or others, the law enforcement agency is required to hold the weapon(s) for 180 days from the date of entry of default or grant of the petition, pursuant to Penal Code section 33875. Previously, Section 8102 was silent as to the amount of time the agency was required to hold the weapons before disposing of them.
  • During the 180-day hold period, where the person is prohibited from possessing the weapons, they may contact the law enforcement agency to facilitate the sale or transfer of the weapon(s) to a licensed dealer pursuant to Penal Code section 33870 – which prevents the destruction of the weapon(s).
  • Upon confiscation, the peace officer or law enforcement agency is now required to provide notice to the detained person of the procedure for the return of the weapon(s), ANDmust also notify the individual of the procedure for sale, transfer or destruction of the firearm or other deadly weapon which has been confiscated.

Training Points:

  • Default orders and orders following grant of a petition should be updated to include a 180-day hold clause, during which time the person may contact the agency for a transfer or sale pursuant to Penal Code section 33870 to prevent the destruction of the weapon(s). Department policies and procedures should also be updated to reflect this change.
  • Receipts/Notices of Rights with respect to confiscated firearms should be amended to comply with Section 8102 to notify the individual of the procedure for sale, transfer or destruction of the firearm or other deadly weapon which has been confiscated.
  • Agencies should consider development and dissemination of training materials to inform all personnel of these important changes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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