On February 2, a Fifth Circuit panel ruled in United States v. Rahimi, striking down the federal law prohibiting gun possession by anyone subject to a domestic violence restraining order issued after notice and a court hearing.  A district judge in Texas previously held 18 U.S.C. § 922(g)(8) unconstitutional in November, in a decision we covered here, as did a district judge in Kentucky the same day that Rahimi was issued; at least one other district court has upheld the prohibition as “consistent with the longstanding and historical prohibition on the possession of firearms by felons.”  The decision in Rahimi is currently the sole published circuit court opinion applying Bruen, after the Third Circuit’s panel decision in Range v. Attorney General, upholding the felon prohibitor, was vacated for rehearing ­en banc last month.

[NOTE: On March 2, the Fifth Circuit panel withdrew its prior opinion and filed a revised opinion, which reaches the same result regarding the constitutionality of 922(g)(8).]

A different Fifth Circuit panel initially rejected Rahimi’s challenge to 922(g)(8) in an unpublished per curiam decision issued on June 8, 2022, about two weeks before Bruen was decided.  The earlier decision merely noted that the Second Amendment claim was foreclosed by binding Fifth Circuit precedent upholding 922(g)(8) under the hybrid test rejected by Bruen (Jake covered that decision in United States v. McGinnis here).  After Bruen, the Fifth Circuit ordered that the prior panel decision be withdrawn, the parties filed additional briefs addressing the impact of Bruen, and the case was re-argued before a new panel.

The new decision was written by Judge Cory Wilson, who was appointed to the Fifth Circuit in 2020.  Writing for a unanimous panel, Judge Wilson first summarized the facts.  The defendant-appellant “was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after [his] alleged assault of his ex-girlfriend.”  Rahimi proceeded to become “involved in five shootings in and around Arlington, Texas,” including multiple road-rage incidents in which he discharged a weapon.  Police identified him as a suspect and searched his home, and he was charged with possessing weapons while subject to the protective order in violation of federal law.

The opinion next addressed the government’s argument that the Second Amendment only applies to “law abiding, responsible citizens.”  The decision largely endorses Justice Barrett’s dissent in Kanter v. Barr, opining that the Second Amendment right extends initially to all members of the “political community” (quoting Heller) and that the references to “law-abiding,” “responsible,” and “ordinary” citizens in Heller and Bruen “do[] not add an implied gloss that constricts the Second Amendment’s reach.”  Judge Wilson also noted that, as Justice Barrett has observed, “the deprivation [of a right normally] occurs because of state action.”  Finally, the opinion asked whether “speeders” or “[p]olitical nonconformists” could be stripped of their Second Amendment rights entirely under a “law-abiding-only” theory.

The opinion then summarized and applied Bruen’s historical-tradition test.  At the “plain text” step, Judge Wilson held that “possession of a pistol and a rifle easily falls within the purview of the Second Amendment.”  Next, he turned to the central question of “whether § 922(g)(8) falls within th[e nation’s] historical tradition, or outside of it,” which requires an evaluation of whether proposed analogues imposed “comparable burdens” and were “comparatively justified,” when contrasted to the modern law.  The decision considered, and rejected in turn, three potential categories of historical analogues offered by the government: “(1) English and American laws (and sundry unadopted proposals to modify the Second Amendment) providing for disarmament of ‘dangerous’ people, (2) English and American ‘going armed’ laws, and (3) colonial and early state surety laws.”

First, laws that disarmed those considered dangerous at the time were either too old (as with the English Militia Act of 1662), were primarily focused on preventing rebellions or maintaining the social order rather than ensuring public safety, “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims,” or were minority proposals in state ratifying conventions that were ultimately not adopted.  Second, the early colonial successors of the Statute of Northampton that criminalized “going armed to terrify the King’s subjects” (or some variation thereof) generally did not require guns to be forfeited as a penalty, were aimed only at “curbing terroristic or riotous behavior,” and disarmed individuals only after a full criminal (not civil) proceeding.  Third, the opinion observed that surety statutes were “closer to being ‘relevantly similar’ to § 922(g)(8)” because they were similarly based on an individualized assessment of dangerousness and “required only a civil proceeding, not a criminal conviction.”  However, Judge Wilson ultimately found that surety laws did not comparably burden the right to carry because they only required posting of a bond, and not gun forfeiture.  Therefore, the panel struck down 922(g)(8) as unconstitutional, while observing that any consideration of the law’s “salutary policy goals” is now foreclosed by Bruen.

Judge James Ho wrote a separate concurrence in which he asserted that “the Second Amendment has too often been denigrated as ‘a second-class right’” and said he was “pleased to concur” in a decision that “dutifully follows the framework recently set forth in N.Y. State Rifle.”  The thrust of the concurrence was, seemingly, to emphasize that existing criminal statutes (including laws that criminalize threatening behavior) are sufficient to address the potential use of guns in domestic violence, in Judge Ho’s view—this view could have major consequences for extreme risk protection, or “red flag,” laws, which are similarly issued after a civil, not a criminal, proceeding.

A major theme of both the decision and the concurrence seems to be the distinction between disarming someone based solely on a civil proceeding versus disarming convicted felons and misdemeanants and detaining dangerous criminals pre-trial. (The earlier district court decision in United States v. Quiroz, which Jake covered here, similarly emphasized that those under indictment can still vote, but convicted felons cannot).  The panel opinion noted that “[t]he distinction between a criminal and civil proceeding is important because criminal proceedings have afforded the accused substantial protections throughout our Nation’s history,” and that 922(g)(8) disarms individuals “subject merely to civil process.”  Judge Ho’s concurrence heavily implies that the U.S. never contravenes any constitutional right without criminal process: “when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime.”

But the Supreme Court has long held that states may utilize a “clear and convincing” standard for involuntary civil commitment proceedings.  That’s a slightly higher evidentiary bar than the one used at Rahimi’s restraining order hearing (most likely, preponderance of the evidence), but the deprivation (commitment of the individual to an institution) is also certainly more severe.  Consider also that those indicted for a criminal offense are often detained pre-trial based on a showing by “preponderance of the evidence” that they pose a flight risk.  It’s clear that our nation has historically allowed significant restraints on even more basic rights without “the fundamental protections that our Constitution affords to those accused of a crime.”

The restraining order in Rahimi’s case was effective for two years from the date of issue, and it appears to be a permanent protective order—which are issued in Texas after notice and a hearing, and which require the family court to find that “(1) family violence has occurred; and (2) family violence is likely to occur in the future.”  There may be legitimate concerns about ex parte temporary restraining orders, which normally use a lower evidentiary standard and, of course, are issued without prior notice to the accused; and some states do prohibit those subject to ex parte TROs from possessing firearms.  A disgruntled fan infamously obtained such an order against David Letterman in 2005, despite having no evidence to support her allegations, although reliable empirical data on the use and misuse of ex parte TROs is elusive (for one perspective, see this 2014 law review article).  But 922(g)(8) does not cover orders issued without notice and a hearing, and the family judge in Rahimi’s case conducted a hearing, weighed the evidence, and issued a restraining order for the maximum time permitted by state law without special additional factual findings.

I’m really not sure what to make of the panel’s choice to distinguish colonial-era “dangerousness” laws because those laws “disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims.”  That’s certainly a difference between the potential historical analogue and 922(g)(8), but it’s hard to see why the difference should hold any legal significance.  The panel’s approach here suggests that the federal government would be on more solid ground if took a less-tailored approach to the problem—then, the modern law would work in a similar way to the potential historical analogue.  Say, for example, that domestic violence is most likely to occur among young, low-income people in densely-populated areas.  If the federal government decided to prohibit all individuals below a certain age and income level who live in a densely-populated area from possessing a firearm, with the stated goal of reducing gun-involved domestic violence, under the analysis in Rahimi that law is seemingly more likely to survive a Second Amendment challenge post-Bruen than 922(g)(8).  The “individualized” piece of 922(g)(8)—the fact that the law only disarms those individuals against whom a protective order is entered after notice and a civil hearing—makes the law constitutionally suspect, in the panel’s view, because it is non-analogous to historical laws that were less targeted.

I don’t think the panel actually intends to endorse a less-individualized approach to dealing with the problem along the lines described above.  But it’s hard to read the decision in a way that doesn’t shackle modern legislators to historical regulatory choices nearly absolutely.  If historical legislatures didn’t conceive of a certain regulation, a modern legislature can’t enact that regulation.  And, if historical legislatures regulated in a way that, today, we accept sweeps far too broadly or was based on improper stereotypes, modern legislatures are also powerless to address similar problems in a more-tailored or individualized way.  That would be a truly odd result.  In this vein, Rahimi quotes extensively from Bruen but notably omits the majority’s observation that “cases implicating unprecedented societal concerns . . . may require a more nuanced approach,” and any discussion of whether modern concern for preventing domestic violence is “unprecedented” or what it means to conduct a “more nuanced” inquiry.

Finally, Bruen emphasized that may-issue licensing was on the books in only a small number of states—that fact clearly held some relevance for the majority, but how it actually factors into the analysis of Second Amendment claims going forward is unclear.  It’s notable, however, that Justice Kavanaugh and Chief Justice Roberts—two key votes in the event that this case (or a similar challenge) goes up to the Supreme Court in the coming years—devoted substantial space in their Bruen concurrence to the following points:  (1) that New York’s approach was an outlier in terms of the prevailing nationwide approach to concealed-carry licensing, and (2) that their decision to join the majority turned to some degree on the fact that New York gave “unchanneled discretion [to] licensing officials.”  By one count, 28 states currently prohibit those subject to a domestic violence restraining order issued after notice and a hearing from possessing firearms, and another 15 states authorize such an individual to be disarmed if certain additional conditions are met.  There’s clearly no discretion involved here—an individual either is, or is not, subject to a disqualifying order. source

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Fifth Circuit Strikes Down Domestic-Violence Prohibitor in United States v. Rahimi June 2023

CHANGES TO GUN LAWS ARE A-BRUEN: SOLIDIFYING THE SECOND AMENDMENT IN THE FIFTH CIRCUIT

After his suspected involvement in five shootings in a Dallas, Texas suburb, police found multiple weapons in Zackey Rahimi’s residence. But, Rahimi was prohibited from owning those weapons because he was subjected to a civil protective order restraining him from contact with his ex-girlfriend and their child. As such, Rahimi was indicted and pled guilty to “possessing a firearm while under a domestic violence restraining order[,] in violation of 18 U.S.C. § 922(g)(8).”

On appeal, Rahimi challenged the constitutionality of § 922(g)(8). Though the initial Fifth Circuit panel held that his argument was foreclosed by its prior case law, the United States Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen forced the prior panel to withdraw its opinion and reconsider the case. In the second hearing conducted by a new panel, Rahimi argued twofold: first, that Bruen altered Fifth Circuit precedent foreclosing his argument, and second, that § 922(g)(8) was unconstitutional under Bruen.

To the first point, the Fifth Circuit held that Bruen requires the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” thereby rejecting means-end scrutiny and fundamentally transforming constitutional analysis surrounding the Second Amendment.

Substantively, the Fifth Circuit first recognized that Rahimi is still entitled to Second Amendment protection despite his criminality, reasoning that the Second Amendment cannot be treated differently than other individual rights (and in that vein, cannot be limited). Because the court found that Rahimi possessed the right to own a gun like every other American, § 922(g)(8)’s constraint could only stand if the government proved the regulation’s consistency with “relevantly similar” purpose and procedure for historical practice regulating firearms. Specifically, Rahimi’s right to own a gun would be forfeited if “his conduct ran afoul of a ‘lawful regulatory measure.’”

Ultimately, the court held that no relevantly similar historical regulations existed to justify § 922(g)(8)’s prohibition on the possession of firearms for the goal of protecting a person from domestic gun abuse by a “credible threat.” The court reasoned that despite facial similarities to past practices regulating on the basis of “dangerousness,” historical regulations generally disarmed dangerous classes, not specific individuals. Therefore, the Fifth Circuit held that § 922(g)(8) is outside the scope of firearm regulations traditionally consistent with the Second Amendment.

The Fifth Circuit’s decision ultimately strengthens the Second Amendment while leaving a legal void for public safety initiatives specifically related to domestic violence. While the court noted that the statute serves a “laudable policy goal,” its focus on historical context promises to continue to change the perspective on gun laws post-Bruen. Given its impact on federal law, Attorney General Merrick Garland has indicated that the Supreme Court is likely to take up review, which opens the door for needed clarity on a fundamental constitutional issue. source

United States v. Rahimi, 59 F.4th 163 (5th Cir. 2023)

5th Circuit Court Rejects Concept of Progress and Arms Domestic Abusers

The current Supreme Court’s precedent locks the law (but not our guns!) away in the past forever.

Zackey Rahimi

Rahimi is accused of being involved in five shootings in the Arlington area from December 2020 to January 2021.

Police said he fired multiple shots with an AR-15 rifle at the home of a person where he’d sold narcotics on Dec. 1. The next day, he was in a car accident, and police say he shot at the other driver. Rahimi allegedly fled the scene and came back a second time to shoot at the other driver’s car.

He was accused of shooting at a constable’s car Dec. 22 and firing multiple shots into the air at a Whataburger after his friend’s credit card was declined on Jan. 7.

Arlington police officers served a warrant at Rahimi’s home. They reported finding a .45-caliber pistol, .308-caliber rifle, pistol and rifle magazines, ammunition and about $20,000 in cash. Police said they also found a copy of a protective order against Rahimi in the home from February 2020. Rahimi was accused of assaulting the mother of his child.

Protective orders must fulfill three requirements for federal charges to be filed under the Violence Against Women Act: The person must be notified of a hearing and have the opportunity to respond. The order also must forbid harassing, stalking or threatening an intimate partner or their child and have proof of a credible threat.

Federal prosecutors determined that Rahimi’s case met all the requirements, and he was indicted by a federal grand jury in the Northern District of Texas. The charge is punishable by up to ten years in prison.

Rahimi moved to dismiss the indictment, arguing that the domestic violence law violated his Second Amendment rights. A federal district court denied that motion noting that the 5^th Circuit upheld that law in a 2021 case. The 5^th Circuit affirmed that decision, so Rahimi then pleaded guilty. He was sentenced to 73 months imprisonment followed by three years of supervised release.

The Supreme Court released a ruling that prompted the 5^th Circuit to revisit its decision. The lower court ended up reversing its previous ruling and vacated Rahimi’s conviction.

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees,” the ruling said.

A new legal framework

The 5^th Circuit looked at the Rahimi case again after a 2022 ruling from the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen. The Supreme Court ruled in that case that gun regulations need historical precedent from when the constitution was written.

Eric Ruben, an assistant professor at Southern Methodist University’s Dedman School of Law, said courts are having to look back centuries to find legal precedent.

“The modern-day court — addressing a modern-day law, addressing modern-day problems — has to find a historical analog from the late 1700s or maybe into the 1800s before it can uphold the modern law,” Ruben said.

Ruben testified at a Senate committee hearing after Bruen about gun safety. He said courts are bringing in historians to help interpret gun laws.

Ruben said Bruen’s framework is unprecedented. He said there’s “no other areas of constitutional rights” law that requires courts to draw analogies to 18th and 19th century laws as the sole way to prove constitutionality.

He also said the Supreme Court’s ruling lacks clarity because courts have applied the same laws from history in different ways. Both the 3^rd and 8^th Circuit Courts of Appeals ruled in previous cases that there was historic precedent for the current federal law because of a history of disarming dangerous people.

The government cited some of those same laws in its legal arguments in the Rahimi case. The 5^th Circuit ruled that those laws weren’t enough of a clear historic precedent to allow for disarming people who are subject to protective orders.

“They disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims,” the court said.

The Department of Justice raised these diverging rulings on the same historic laws in its petition to the Supreme Court. The justice department wants the court to take up the Rahimi case and uphold the law, overturning the 5^th Circuit’s ruling. source

Appeals court strikes down gun ban for people with domestic violence restraining orders

An appeals court panel on Thursday struck down a federal law banning people who have domestic violence restraining orders from possessing firearms.

The 5th Circuit three-judge panel, all nominated by Republican presidents, ruled that the law was no longer constitutional under the Supreme Court’s landmark expansion of Second Amendment rights last summer.

The Supreme Court justices ruled in the June New York State Rifle & Pistol Association v. Bruen decision that firearm regulations must be consistent with the nation’s historical tradition, and that lower courts could no longer weigh the societal benefits of the policies.

That shift proved fatal for the law, which was upheld previously and prohibited those under domestic violence court orders from possessing firearms.

Zackey Rahimi, who previously pled guilty to charges under the provision, appealed his conviction after the high court’s decision.

“Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated,” Judge Cory Wilson, a nominee of former President Trump, wrote.

Wilson and the other two judges, appointed by Trump and former President Reagan, pushed back on the Justice Department’s array of examples attempting to show a historical analogue for the law.

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history and tradition of the Second Amendment, that statute is consitutional,” Attorney General Merrick Garland said in a statement. “Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

The panel also rejected arguments that Rahimi was not entitled to Second Amendment protections because he was neither responsible nor law-abiding.

The challenge arose after Rahimi was found in possession of firearms while under a restraining order for allegedly assaulting his ex-girlfriend.“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” Wilson wrote.

The ruling marks one of the first major circuit court decisions after the Bruen ruling, which has shifted the landscape for legal battles over firearms.

Gun control and gun rights advocates are battling in the courts over new laws that ban firearms in so-called sensitive locations, pose restrictions for obtaining permits and increase liability for gun manufacturers.

Legal Analysis: Firearms and Protection Orders in US v Rahimi

On February 2, 2023, the Fifth Circuit Court of Appeals issued a decision causing alarm nationwide among advocates for survivors of domestic violence. U.S. v. Rahimi, No. 21-11001 (5^th Cir. 2023). To be clear, the Fifth Circuit Court of Appeals does not set precedent applicable to interpreting federal law outside its own jurisdiction covering Texas, Mississippi, and Louisiana. In other words, the decision does not govern how Minnesota applies law. However, the decision represents how one federal judicial circuit withdrew its own prior analysis of relevant law after a recent U.S. Supreme Court decision. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022); see also Rahimi at 2. The decision reinforces the Minnesota Elder Justice Center’s mission to mobilize communities to prevent and alleviate abuse, as well as its value of openhearted collaboration.

The Fifth Circuit Court of Appeals decision finds unconstitutional a federal law prohibiting individuals subject to restraining order from possession firearms. Rahimi at 2. The decision’s reasoning emphasizes the need for collaboration and engagement from both the criminal justice system and community-based organizations in addressing the needs of individuals experiencing domestic violence at any age. See Rahimi at 21. The court correctly identifies the court proceedings for restraining orders as civil. A civil proceeding is one initiated by individuals or non-governmental entities. A civil proceeding contrasts with a criminal proceeding, which is initiated by a governmental entity on behalf of the public it serves. The Fifth Circuit Court of Appeals considered a law prohibiting firearm possession by individuals subject to restraining orders as unconstitutional because, without the procedural rights accorded in criminal law, the law is an “outlier that our ancestors would have never accepted.” Id. at 22, quoting Bruen at 21. A concurring opinion reminds readers that criminal law allows for “the incarceration of those who criminally threaten, but have not (yet) committed, violence.” Rahimi at 24. For example, law enforcement and prosecutors’ offices may engage in violence prevention on charges of terroristic threats. In closing its decision, the panel of judges prioritized a token of praise for the federal law deemed unconstitutional, identifying that it “embodies salutary policy goals to protect vulnerable people in our society.” Rahimi at 22. Nonetheless, the decision is a source of pain, anger, and uncertainty among those leaning on civil remedies for protecting individuals for whom criminal remedies have not seemed sufficiently expedient or effective.

The Minnesota Elder Justice Center will continue to include harassment restraining orders and order for protection among the remedies suggested and offered to individuals who contact us for help alleviating abuse. Meanwhile, we take seriously the Fifth Circuit Court of Appeal interpretation that makes collaboration with our partners in law enforcement and prosecutors’ offices indispensable in restricting firearm access from individuals presenting provable threat to the safety and security of vulnerable and older adults.

By Laura Orr, Staff Attorney

Minnesota Elder Justice Center

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