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Mental Health and Firearm Rights

Luke Matthew Martin, MBA, JD, Staff Attorney

The state of California has witnessed an alarming number of mass shootings in recent years, leaving us heartbroken for those affected. CAMFT has received questions from members regarding their legal obligations when treating clients who may be a danger to others and are in possession of firearms. This article examines mental health providers’ responsibilities under federal and state law and the potential impacts on their clients.

Duty to Protect Victims

When a therapist assesses that a client poses a danger to themselves or others, the  therapist should review both their obligation under the Tarasoff ruling and their responsibilities under California Civil Code § 43.92 to avoid liability. While these obligations are often viewed as synonymous, they have slight but important differences.

Tarasoff v. Regents of the University of California (17 Cal.3d 425 [1976])

In Tarasoff, the Supreme Court held that when “a patient poses a serious danger of  violence to others, [the psychotherapist] bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.” Under this ruling, when a therapist has assessed, via their training, education, and experience, that a client presents a serious danger of violence to another, they must take actions to discharge this duty. This may require the therapist to “take one or more various steps, depending on the nature of the case. Thus, it may call for [the therapist] to warn the intended victim or others likely to apprise the victim of that danger, to notify the police or to take whatever other steps are reasonably necessary under the circumstances (emphasis added).”1

California Civil Code § 43.92

In 1985, the California legislature codified the Tarasoff rule in California Civil Code §43.92. The law stipulates that a psychotherapist will not be held financially liable, nor will there be a cause of action against them, for failing to protect against a patient’s threatened violent behavior or for not predicting such behavior unless “the patient has communicated to the therapist a serious threat of physical violence against a reasonably identifiable victim or victims.”2 Furthermore, the law protects psychotherapists from liability if they fulfill their duty to protect by taking reasonable steps to inform the potential victim(s) of the threat and alerting law enforcement agencies.

Differences Between Tarasoff and California Civil Code § 43.92 Obligations

Even though the state law codifies Tarasoff, there are differences in the duties that arise from each. The first difference involves when the obligation to protect is triggered. Under Tarasoff, it’s when the therapist makes a “determination” that the client may pose harm to a third party. Under the Civil Code, it’s only triggered when the client communicates to the therapist a “serious threat of physical violence.”

The second difference involves the intended victim(s). Under Tarasoff, when a client makes a threat of violence against any “intended victim(s),” the therapist’s obligation is triggered. The Civil Code only applies to “reasonably identified victims.” Thus, Tarasoff requires the therapist to protect a much broader population while the Civil Code limits that obligation to only those intended victims they can identify.

The final and most significant difference is the therapist’s ability to discharge their duty to protect.

Under Tarasoff, this duty can be satisfied in various ways, including by notifying the intended victim, contacting law enforcement, or taking whatever steps the therapist considers appropriate, such as hospitalizing the client (e.g., via a 5150 evaluation). Under the Civil Code, the therapist only satisfies the duty to protect by communicating the threat to the victim(s) and to a law enforcement agency.

Since each fact pattern is unique, the therapist may have an obligation under Tarasoff but not under the Civil Code, or vice versa. It’s also possible that the fact pattern requires the therapist to act under both. The chart below outlines these obligations.

Any CAMFT therapist seeking further assistance with this should not hesitate to contact

CAMFT’s legal hotline: 858-292-2638. “The Tarasoff Two-Step,” published in the September/October 2012 issue of The Therapist (updated in 2022), contains additional helpful information.

Duty to Report Serious Threats of Violence

The duty to protect and the duty to report serious threats go hand in hand yet trigger different obligations for the therapist. Two distinct laws found in the California Welfare and Institutions Code—§ 8100(b) and § 8105(c)—govern these obligations.

Under Welfare and Institutions Code § 8105(c), “[a] licensed psychotherapist shall report to a local law enforcement agency, within 24 hours … the identity of a person subject to the prohibition specified by subdivision (b) of Section 8100.” Under Welfare and Institutions Code § 8100(b), if a client communicates to a licensed psychotherapist “a serious threat of physical violence against a reasonably identifiable victim or victims,” that client “shall not have in his or her possession or under his or her custody or control, or purchase or receive, or attempt to purchase or receive, any firearms whatsoever or any other deadly weapon for a period of five years.”

Taken together, these codes mean that when the therapist has assessed, via their training, education, and experience, that the client is reasonably likely to act on their threat against an identifiable victim, the therapist must notify local law enforcement within 24 hours. As a result, the client may lose their legal right to possess a firearm for five years starting from the date the therapist’s report was made.

For further information, see “Your Duty to Report Serious Threats of Violence,” published

in the January/February 2015 issue of The Therapist (updated in 2022).

Restricting Access to Firearms

Because of Mental Illness—

State Level

While the Second Amendment of the US Constitution “protects the right of the people to keep and bear arms,” laws on both the federal and the state level prohibit several categories of people from purchasing, possessing, and using firearms. One of the most common reasons that an individual has this right restricted is mental health.

The Welfare and Institutions Code restricts access to firearms if a person “has been admitted to a facility and is receiving inpatient treatment and, in the opinion of the attending health professional who is primarily responsible for the patient’s treatment of a mental disorder, is a danger to self or others, as specified by Section 5150, 5250, or 5300, even though the patient has consented to that treatment.”3 Individuals subject to these evaluations are not allowed to possess firearms during their evaluations and may be subject to a five-year or lifetime ban following the conclusion of their evaluations.

5150 Evaluation

The 5150 evaluation gets its name from the section of the Welfare and Institutions Code that allows for an adult experiencing a mental health crisis to be involuntarily detained for psychiatric hospitalization when evaluated to be gravely disabled or a danger to themselves or others. An individual on a 5150 can be involuntarily held in a psychiatric hospital or mental health facility for up to 72 hours while clinicians determine if additional time is needed.

A person can be held involuntarily in a psychiatric facility only if they meet at least one of the following criteria:

1. They’re a danger to others.

2. They’re a danger to themselves (not limited to suicidal behavior).

3. They’re gravely disabled (i.e., unable to take care of food, clothing, shelter, personal safety, or necessary medical care).4

Per the Welfare and Institutions Code, a person who has been taken into custody on a 5150 evaluation “because that person is a danger to himself, herself, or to others … shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of five years after the person is released from the facility.”5 An individual “taken into custody, assessed, and admitted … one or more times within a period of one year preceding the most recent admittance, shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm for the remainder of his or her life.”6 Individuals in these situations can file an appeal, and upon a successful hearing their right to firearms may be restored.

5250 Hold

The 5250 hold gets its name from the section of the Welfare and Institutions Code that allows for an adult being held on a 5150 evaluation to have their involuntary 72-hour treatment hold extended to 14 days. Per the Welfare and Institutions Code, a person who has been certified for intensive treatment under Section 5250 “shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm for a period of five years.”7 While no state restrictions ban possession for life pursuant to multiple 5250 evaluations in a year, there are federal restrictions that may result in a lifetime ban.

Declared Not Guilty by Reason of Insanity/Declared Mentally Incompetent to Stand Trial

A person who has been found not guilty by reason of insanity for certain crimes “shall not purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control, any firearm or any other deadly weapon unless the court of commitment has found the person to have recovered sanity.”8 A person who has been “found by a court to be mentally incompetent to stand trial… shall not purchase or receive, or attempt to purchase or receive, or have in his or her possession, custody, or control, any firearm or any other deadly weapon, unless there has been a finding with respect to the person of restoration to competence to stand trial by the committing court.”9 Simply put, in either scenario the individual is restricted from accessing or possessing firearms until a court believes they are competent again.

Restricting Access to Firearms

Because of Mental Illness—

Federal Level

Under federal law, certain individuals can be banned from possessing firearms for life.10 The foundational law on this topic states, “It shall be unlawful for any person who has been adjudicated as a mental defective or …committed to a mental institution” to possess any firearm or ammunition.11

Application of Federal Law to 5150

Evaluations

According to federal law, a person has been adjudicated as a “mental defective” when there is a “determination by a court, board, commission, or other lawful authority that …as a result of marked subnormal intelligence, or mental illness [the person] is a danger to himself or to others; or lacks the mental capacity to contract or manage his own affairs”; there is “a finding of insanity by a court in a criminal case”; or they are “found incompetent to stand trial or found not guilty by reason of lack of mental responsibility.”12

In a 5150 evaluation, it’s the care team that observes the person to assess if they meet the criteria for involuntary hospitalization, not a court, board, commission, or other lawful authority. As such, a person undergoing a 5150 evaluation cannot be considered a mental defective under federal law who is subject to a lifetime ban.

Application of Federal Law to 5250

Evaluations

For the federal lifetime ban to be applicable, the individual must be adjudicated as a “mental defective.” Unlike a 5150 evaluation, which only involves observation, a 5250 entails an involuntary 14-day commitment.13 Once committed for the additional 14-day period, that person has the right to seek a judicial determination as to whether there is probable cause to detain them for intensive treatment.14 The involuntary commitment invokes the federal lifetime ban, an interpretation confirmed by the California Department of Justice’s Division of Law Enforcement: Federal law prohibits a person who has been certified under California Welfare and Institutions Code 5250 from possessing firearms for life.15

The Therapist Learns That a Client Who Is Subject to a Firearm Ban Possesses a Firearm

The therapeutic relationship between client and therapist requires confidentiality. Therapist-client privilege gives the client the right to prevent the therapist from disclosing confidential information.16 There are broad exceptions to this right, including when the therapist has “reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.”17

However, there is no exception that permits a therapist to report an individual who is unlawfully in possession of a firearm. Since illegal possession of a gun alone does not allow the therapist to breach confidentiality, it’s imperative that the therapist familiarize themselves with the duty to protect so they understand when disclosure is permitted.

Conclusion

The convergence of mental health and firearm rights presents California MFTs with both

ethical and legal challenges. Therapists must navigate the delicate balance between their duty to protect potential victims and their responsibility to uphold client confidentiality. As our communities continue to grapple with the impact of mass shootings, it’s crucial that therapists remain vigilant in assessing risks and take appropriate action when a client poses a potential threat.

Luke Matthew Martin, MBA, JD, is a staff attorney for CAMFT. Luke is available to answer member calls regarding legal, ethical, and licensure issues.

 

Endnotes

1 Tarasoff v. Regents of the University of California (17 Cal.3d 425 [1976]).

2 California Civil Code § 43.92.

3 Welfare and Institutions Code § 8100(a).

4 See SB 43: https://www.dhcs.ca.gov/provgovpart/Documents/SB-43-FAQs.pdf.

5 California Welfare and Institutions Code § 8103(f)(1)(A).

6 California Welfare and Institutions Code § 8103(f)(1)(B).

7 California Welfare and Institutions Code § 8103(g)(1)(i).

8 California Welfare and Institutions Code § 8103(c)(1).

9 California Welfare and Institutions Code § 8103(d)(1).

10 18 U.S.C. § 922(g)(4).

11 Id.

12 27 CFR 478.11.

13 Bragg v. Valdez, 111 Cal.App.4th 421, 426, 429-30 (2003).

14 Welfare and Institutions Code § 5254.

15 California Department of Justice, Division of Law Enforcement, Mental Health Reporting Requirements: https://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/infobuls/2007BF-04.pdf.

16 Evidence Code § 1014.

17 Evidence Code § 1024.

This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice, and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations, and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.