The Question of Gun Ownership

It was perfectly legal for Jay Rivas Hernandez to buy a gun, and that’s exactly what he did.

Hernandez, 29, believed the Cali drug cartel and Mexican Mafia were after him, and that a camera was attached to his face so his tormentors could track his movements.

He thought he had been raped in his sleep. He believed his mind had been erased, and that “they” were sending him messages from the president on a computer screen. He called the FBI, CIA and White House seeking help.

On March 18, 1995, Hernandez told Sacramento County sheriff’s deputies he was being chased. When he pointed toward his pursuer, no one was there. Deputies took him to the Sacramento Mental Health Treatment Center, where he was confined on a 72-hour psychiatric hold for observation--one of 60,000 Californians placed on such holds each year.

“Records from that admission,” a court-appointed psychologist wrote later, “indicated that he was paranoid, delusional and hallucinating. The opinion given at that time was this was merely a drug-induced psychosis, a conclusion which in historical perspective appears to have been a less than adequate description.”

On Aug. 21, 1998, Hernandez, fed up with his perceived tormentors, walked into a gun shop in his hometown here and bought a semiautomatic .45-caliber Remington handgun. Two days before Christmas, Hernandez went to a nearby warehouse where he had worked as a temporary employee and shot and killed worker Rudy Barron, 58, a man he barely knew.

For years California law barred people from owning guns for a five-year period after they had been placed on 72-hour mental health watches.

But on Feb. 7, 1997, Sacramento County Superior Court Judge Cecily Bond ruled that the state violated due process rights by not providing such people with court hearings before denying them guns. The woman who sued was a San Francisco bus driver who was denied the right to buy a handgun because she had been detained on such a hold overnight, then released.

“The mere fact that you are held doesn’t mean you are mentally ill,” said San Francisco lawyer Dana Drenkowski, who represented the bus driver. “It’s an accusation. That’s all it is. Whenever the state wants to take away your rights, it bears the burden. It has to prove that there is some reason for denying you.”

Then-Atty. Gen. Dan Lungren chose not to appeal or push for legislation to remedy the situation.

With Lungren unwilling to act, the state Department of Justice, which checks the background of people before they are permitted to buy handguns from licensed gun dealers, purged its mental health database of the names of all people who had been held on 72-hour watches--247,800 of them.

The Justice Department ceased its practice of denying guns to such people in August 1997, a year before Hernandez bought his weapon.

Lungren’s successor, Atty. Gen. Bill Lockyer, has a different view.

“These are lethal weapons, and in the hands of persons who are a danger to themselves or others, they become that much more deadly,” Lockyer spokesman Nathan Barankin said.

Lockyer pressed for legislation, AB 1587 by Assemblyman Jack Scott (D-Altadena). It effectively reinstates the five-year waiting period and grants people the right to court hearings if they have been held for 72 hours and want to buy a gun. Gov. Gray Davis signed it into law on Sept. 28, but it won’t take full effect until December.

Lockyer also is trying to retrieve the quarter-million names that were purged from the Department of Justice database.

Gun owner groups didn’t try to kill the legislation. But some patients rights activists opposed it, contending that a 72-hour hold, without some additional proof of mental incompetence, shouldn’t preclude individuals’ rights.

“I don’t think you can single out on a blanket basis one group,” said attorney Jim Preis of the Mental Health Advocacy Service, a legal aid group in Los Angeles. “You need to make the determination that they cannot responsibly handle a gun.”

In the Barron killing, Yolo County Superior Court Commissioner Charles Van Court found Hernandez not guilty by reason of insanity. Hernandez is housed at Napa State Hospital, in a ward behind razor wire. He is receiving treatment for the first time in his life and is becoming more lucid.

Barron’s brother, Rafael, speaking at Hernandez’s court hearing, understood that Hernandez is mentally ill.

“I don’t hate him, or nothing. It just hurts. He destroys us at Christmas,” he said.

It’s not known how many people like Hernandez have purchased handguns since August 1997. Based on experience, however, Deputy Atty. Gen. Timothy Rieger estimates that roughly 900 people bought guns who otherwise would have been refused because they had been placed on 72-hour holds.

“It’s scary,” Rieger said.

Whether the new law solves anything remains to be seen. Drenkowski predicts it will be found unconstitutional too. If it is, nothing will prohibit people who have been on psychiatric holds from purchasing weapons.

“Civil liberties,” Drenkowski said, “come with a price.”