Scott Marks 3 p.m., Oct. 19
Goldsmith grabs guns of allegedly suicidal dentist in 2nd Amendment appeal
California's 4th District appellate court holds that allegations of suicidal tendencies trump San Diego woman's constitutional right to bear arms.
Chalk up a victory for San Diego GOP city attorney Jan Goldsmith, not in his long-running power war with Democratic Mayor Bob Filner, but instead over an allegedly suicidal dentist, who - citing her constitutional right to bear arms - had battled the city to recover three handguns seized from her closet by San Diego police.
The end of the latest chapter in Goldsmith's skirmish over the 2nd Amendment came this Tuesday, when the California appellate court certified for publication its ruling in the case of City of San Diego versus Esther Boggess:
On December 31, 2011, San Diego Police Officer Stephanie Ott responded to a report of a suicide threat made by then seventy-two-year-old Esther Boggess.
A concerned family member had called the San Diego Police Department after Boggess said she wanted to "get it over with" and that she wanted to shoot herself with a gun but was just missing the bullets
When Officer Ott arrived at Boggess's apartment, she asked if there were any firearms in the house and Boggess replied, "Yes, but it is put away right now." Officer Ott called Boggess's niece, the family member who had called the police, to confirm her concerns.
The niece had been talking with her aunt on the phone earlier when she made the statements concerning her desire to shoot herself. Boggess told her niece that she was depressed about ailing health and stated, "What's the point of living, what else is gonna happen now?"
Ott impounded three handguns she discovered during a closet search and then hauled Boggess off to county Mental Health Services for evaluation.
While driving to the hospital, Boggess told Officer Ott that she was only joking when she made those statements and mumbled several times, "What else is gonna happen now?"
She was evaluated by Alan Edwards, M.D., who noted Boggess had expressed concerns about her failing health. She also stated that she complained to her niece about her car being towed and the extremely high storage fee.
Boggess denied being suicidal or having any history of earlier suicide attempts or psychiatric hospitalizations.
The pyschiatrist thought otherwise.
After Dr. Edwards's evaluation, he admitted Boggess to the emergency psychiatric unit on an involuntary basis. He indicated that "[d]ischarge will be considered when the patient is no longer suicidal, when adequate support system has been ascertained, and when reasonable stresses have been dealt with."
After the incident, the city moved to seize the guns and have them destroyed. A hearing was held before Superior Court Judge Frederick Maguire, during which Boggess represented herself.
At the hearing, in response to questions regarding the police report and the statements made to her niece over the phone, Boggess explained that the guns belonged to her late husband; that she had not touched them in six years and did not know how to put a bullet in them.
She admitted talking to her niece, who had called after she found out Boggess's car had been towed, but Boggess stated she was "kidding" with her niece and the only thing she said was, "With that money I'm going to spend, I don't think—why I am going to live?"
Boggess asserted her niece just "imagine[d]" that she was going to kill herself, and that her religious beliefs precluded her from considering suicide.
Maguire sided with the city:
Though the court accepted Boggess's representation that she was an educated dentist, it found her answers to be "nonresponsive" and "rambling" and that the petitioners had proved by a preponderance of the evidence that return of the firearms would be likely to result in endangering Boggess or others.
The court ordered the firearms seized be forfeited and destroyed.
Boggess appealed, but the three 4th district appeals court judges hearing the case found against her.
Said the court:
The Second Amendment of the United States Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
But the judges added that the nation's laws don't prohibit "the government from regulating the possession of guns by persons proven to be dangerous due to mental illness or suggests that those regulations are in direct conflict with the Second Amendment."
The medical records showed Boggess was diagnosed with "depressive disorder" and a medical evaluation noted that she was "a woman with emerging stresses, some limited coping skills, and fairly distant support system," with impaired insight and judgment.
Boggess could have presented her own evidence of her medical or mental health condition ... but she instead chose to argue she was "kidding" and that her niece misinterpreted her statements, a claim the trial court was entitled to disbelieve and reject.
Superior Court Judge Maguire made headlines in April when he ruled that a San Diego police officer convicted of drunk driving did not have to do time in custody, as reported by NBC San Diego.
In his ruling, Judge Maguire said he didn’t order the defendant to serve time in jail because that would result in his termination from the San Diego Police Department. The crime did not warrant the detective losing his job the judge told the court.
Contacted by phone this afternoon, a spokeswoman for Boggess’s lawyer said that no further appeal was planned.
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