Federal law prohibiting possession of a firearm if subject to Protection from Abuse Order struck down by 5th circuit

[phillygirl]

Federal appeals court strikes down domestic violence gun law

Specifically, the court ruled that the federal law was an “outlier that our ancestors would never have accepted” — borrowing a quote from the Bruen decision.








The decision came from a three-judge panel consisting of Judges Cory Wilson, James Ho and Edith Jones. Wilson and Ho were nominated by former Republican President Donald Trump, while Jones was nominated by former Republican President Ronald Reagan. | Joe Raedle/Getty Images
By Associated Press
02/02/2023 11:07 PM EST

A federal appeals court ruled Thursday that the government can’t stop people who have domestic violence restraining orders against them from owning guns — the latest domino to fall after the U.S. Supreme Court’s conservative majority set new standards for reviewing the nation’s gun laws.
Police in Texas found a rifle and a pistol at the home of a man who was the subject of a civil protective order that banned him from harassing, stalking or threatening his ex-girlfriend and their child. The order also banned him from having guns.

A federal grand jury indicted the man, who pled guilty. He later challenged his indictment, arguing the law that prevented him from owning a gun was unconstitutional. At first, a federal appeals court ruled against him, saying that it was more important for society to keep guns out of the hands of people accused of domestic violence than it was to protect a person’s individual right to own a gun.







But then last year, the U.S. Supreme Court issued a new ruling in a case known as New York State Rifle & Pistol Association v. Bruen. That case set new standards for interpreting the Second Amendment by saying the government had to justify gun control laws by showing they are “consistent with the Nation’s historical tradition of firearm regulation.
The appeals court withdrew its original decision and on Thursday decided to vacate the man’s conviction and ruled the federal law banning people subject to domestic violence restraining orders from owning guns was unconstitutional.
Specifically, the court ruled that the federal law was an “outlier that our ancestors would never have accepted” — borrowing a quote from the Bruen decision.
The decision came from a three-judge panel consisting of Judges Cory Wilson, James Ho and Edith Jones. Wilson and Ho were nominated by former Republican President Donald Trump, while Jones was nominated by former Republican President Ronald Reagan.
The U.S. Justice Department Thursday night issued the following statement from Attorney General Merrick B. Garland following the decision: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”
Thursday’s ruling overturned the federal law and is not likely to impact similar state laws, including one in California. Still, California Gov. Gavin Newsom, a Democrat, called the judges who issued the ruling “zealots” who are “hellbent on a deranged vision of guns for all, leaving government powerless to protect its people.”

[Celeste Chalfonte]

On an emotional level, this feels wrong. OTOH, I'm sure we've all seen situations where a false accusation resulted in a TRO, and full adjudication later found no actual DV.

In addition, people who are going to violate a DVRO aren't likely to obey gun laws, either, and we've all seen that an abuser bent on further hurting or killing the victim will find a way, with or without a gun. The only DV victim I have personally known who was killed by her abuser while he was subject to a DVRO was killed with an ordinary kitchen knife.

The real question here is why we do not adequately enforce the law, instead of passing more toothless laws. Loss of freedom is more effective than loss of a weapon; a weapon can be replaced. If someone is a convicted abuser, lock that person up. Don't plead down, don't wave paper at him; lock him up. And make false charges of abuse, for the purpose of gaining advantage in a civil lawsuit, a felony.

[phillygirl]

I think this article by a colleague is interesting.
NY State Rifle Case “Recoils” to Re-Arm Domestic Abusers

By Mark Ashton on February 3, 2023

In a decision published on February 2, 2023 the Fifth Circuit U.S. Court of Appeals has ruled that a federal law barring domestic abusers from possessing guns while protection from abuse orders are in effect violates the 2^nd Amendment to the Constitution.
Congress made it unlawful for a person to possess a firearm where there was an adjudication restraining that person from harassing, stalking, or threatening an intimate partner or a child of the intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. There needed to be a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibit the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or who has been convicted in any court of a misdemeanor crime of domestic violence. 18 U.S.C. 922 (g)(8)
Pennsylvania passed its own companion statute in 2005 in 23 Pa.C.S. 6108.3. Other states have similar legislation.
The 5^th Circuit case involved a Texas defendant who had been arrested for five incidents where he fired shots in the course of a drug deal, a car accident, an encounter with a constable and while at a restaurant in late 2020 and early 2021. When police searched his home they found weapons which should have been surrendered in February, 2020 when the defendant became subject to a protection from abuse order involving a girlfriend.
A federal grand jury indicted Zackey Rahimi for the federal weapons violation under 18 U.S.C. 922(g)(8). The defendant asserted that the federal statute was illegal but acknowledged that under an earlier 5^th Circuit case, U.S. v. McGinnis, 956 F.3d 747 (2020), the trial court was bound by precedent to convict him. Once convicted, he launched his own appeal to the 5^th Circuit asking that court to revisit the McGinnis ruling. Now he also had the Supreme Court’s June, 2022 ruling in New York State Rifle and Pistol Assn., Inc. v. Bruen. 142 S. Ct. 2111
In Bruen the Supreme Court found that “the [G]overnment must 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.” Id.at 2127. In the course of its explication, the Court expressly repudiated the circuit courts’ means-ends scrutiny — the second step embodied in cases…” like U.S. v. McGinnis.
The crux of the Government’s position was that gun ownership and possession is intended to extend no further than “ordinary law-abiding citizens” and that the defendant’s conduct with his girlfriend took him outside that protection. The defendant asserted that the 2^nd amendment is to be broadly construed to encompass “the people” as the language of the amendment states and that there is no limitation on the term “the people.” The Circuit Court appears to acknowledge the power of Courts to remove firearms as part of a state action but finds that a civil action seeking protection from domestic violence does not qualify as state action, per se. The Court finds the distinction between removing weapons as part of a criminal matter and the same right in a civil matter to be important. Moreover, a reading of the Bruen case indicates that there must be a historical basis for limiting firearm possession and clearly, domestic abuse was not so recognized as a gun removing mandate at the time the Second Amendment was adopted. The Court notes that while there had been firearm regulations barring certain classes of individuals from possessing weapons of that kind before the Revolution, the efforts by legislators from Pennsylvania and Massachusetts to put limiting language on the Second Amendment were not included when all states voted to adopt the Bill of Rights.
In a lengthy analysis of 17^th and 18^th century firearm regulations on both sides of the Atlantic, the Circuit Court acknowledges that there were surety laws requiring gunowners charged with offenses to post a bond in order to keep their weapons while awaiting trial, but the Court opines that the current federal law has no surety provision. The guns are simply taken when the abuse order is executed and when that is done in a civil context the due process protections due “the people” are violated. The conviction was vacated.
The implications of this are big. Within the 5^th Circuit (Louisiana, Mississippi, and Texas) any gun owner who has had his weapons taken under a civil abuse order where there is no corresponding criminal case would seem to have the right to take a copy of U.S. v. Rahimi to his local constabulary and demand his guns back. The federal decision appears to effectively vacate the state court orders which are derived from the federal statute.

[Celeste Chalfonte]

So tell me if I've misunderstood this. The state had no less than 4 opportunities to convict this scumbag of an actual gun crime. What did they do, plead it down to disturbing the peace? If convicted of even one, I would think they had ample basis for taking all his weapons (not that it was likely to actually make anyone safer, but at least it would've been something). Having failed to do that, they then confiscated his guns on a civil basis.

Sounds to me like a serious failure to enforce the law.

[phillygirl]

So tell me if I've misunderstood this. The state had no less than 4 opportunities to convict this scumbag of an actual gun crime. What did they do, plead it down to disturbing the peace? If convicted of even one, I would think they had ample basis for taking all his weapons (not that it was likely to actually make anyone safer, but at least it would've been something). Having failed to do that, they then confiscated his guns on a civil basis.

Sounds to me like a serious failure to enforce the law.

No, I don't think you've misunderstood it at all and I think that is what troubled the justices. Taking the guns away due to a civil order, versus having a criminal trial (or plea agreement) that could have easily passed muster under the law, was the death knell on this. This will have tremendous implications in many of my cases (well, my partners' cases, as I've decided that for the most part I'm too old to be in that court anymore as I've served my time and I hate it!).

[scott]

Couldn't any restraining order also include instructions from the Judge to not possess any weapons and still be Constitutional - which means this Federal law was unnecessary in the first place?

My arrest for child abuse included removing access to any firearms, which was satisfied by Mel saying she changed the combination on the gun safe and I was only at home during the day under her supervision (I slept at a rental down the street).

[phillygirl]

Couldn't any restraining order also include instructions from the Judge to not possess any weapons and still be Constitutional - which means this Federal law was unnecessary in the first place?

My arrest for child abuse included removing access to any firearms, which was satisfied by Mel saying she changed the combination on the gun safe and I was only at home during the day under her supervision (I slept at a rental down the street).

Possibly, although I’ve not read the opinion closely enough and it seems that perhaps it needs to be shown tgat this particular defendant is enough of a threat tgat his guns need to be taken; rather than what happens now which is a blanket nobody with a PFA gets to have a gun. It may also be a distinction regarding what the federal government may do versus what the state can do. I’ve been down the road of fighting to get guns back. In my county it’s not easy, even when the petitioner doesn’t follow through with a final PFA order. In one case I even waited six months, waited for the divorce to be over, and got the ex wife’s agreement in writing in two separate documents and yet the DA wanted a six month waiting period while he did a criminal record check, I showed up in court with a certification from the sheriffs office tgat my guy had no criminal record in the last 25 years. It took the sheriffs office 48 hours to get that to me. The judge denied the request for delay and gave my guy his guns back. But he shouldn’t have had to go through all of that when his wife just wanted a week with him out of the house so she could clear it out.

[scott]

Possibly, although I’ve not read the opinion closely enough and it seems that perhaps it needs to be shown tgat this particular defendant is enough of a threat tgat his guns need to be taken; rather than what happens now which is a blanket nobody with a PFA gets to have a gun. It may also be a distinction regarding what the federal government may do versus what the state can do. I’ve been down the road of fighting to get guns back. In my county it’s not easy, even when the petitioner doesn’t follow through with a final PFA order. In one case I even waited six months, waited for the divorce to be over, and got the ex wife’s agreement in writing in two separate documents and yet the DA wanted a six month waiting period while he did a criminal record check, I showed up in court with a certification from the sheriffs office tgat my guy had no criminal record in the last 25 years. It took the sheriffs office 48 hours to get that to me. The judge denied the request for delay and gave my guy his guns back. But he shouldn’t have had to go through all of that when his wife just wanted a week with him out of the house so she could clear it out.

That's the problem with most gun restrictions these days, the are only enforced against those already willing to comply and they are rarely enforced against those who won't comply anyway.

I left a pistol at my son's apartment. He's 20. He's not allowed to own a pistol and he doesn't own this one (really, he doesn't - I spent $600 on it and just didn't have the time to go through the process to check it on my return flight to Texas). I do plan to keep a gun at his place so I have a carry weapon when I'm in Florida. This is all legal. Then if he needs to use it to protect himself in his apartment that is something to be litigated later - after he shoots whomever has broken into the residence (hopefully "alot" as Sheriff Grady Judd warns). Better to be judged by 12 than carried by 6. In Florida one is not allowed to purchase a handgun under 21. One is allowed to possess one - well more accurately no law bars someone between 18 and 21 from possessing one.

But to be safe, I told him to not take it out of the apartment unless he's going to shoot it on private property and to make sure it's unloaded, in the trunk, and the ammo is in the glove box. Why? Because he's not "underprivileged" which means any gun charge against him would stick except in extenuating circumstances.

So much for making us safer

[Celeste Chalfonte]

That's the problem with most gun restrictions these days, the are only enforced against those already willing to comply and they are rarely enforced against those who won't comply anyway.

I left a pistol at my son's apartment. He's 20. He's not allowed to own a pistol and he doesn't own this one (really, he doesn't - I spent $600 on it and just didn't have the time to go through the process to check it on my return flight to Texas). I do plan to keep a gun at his place so I have a carry weapon when I'm in Florida. This is all legal. Then if he needs to use it to protect himself in his apartment that is something to be litigated later - after he shoots whomever has broken into the residence (hopefully "alot" as Sheriff Grady Judd warns). Better to be judged by 12 than carried by 6. In Florida one is not allowed to purchase a handgun under 21. One is allowed to possess one - well more accurately no law bars someone between 18 and 21 from possessing one.

But to be safe, I told him to not take it out of the apartment unless he's going to shoot it on private property and to make sure it's unloaded, in the trunk, and the ammo is in the glove box. Why? Because he's not "underprivileged" which means any gun charge against him would stick except in extenuating circumstances.

So much for making us safer

I assume you obtained a Florida non-resident permit when you moved? I'm planning to get one, because with a Florida permit, you can pretty much drive across the southern US legally carrying all the way.

https://www.usconcealedcarry.com/res...#recRestricted

Be careful and check the specific restrictions. Some states honor Florida resident permits but not the non-resident permit. I'll check my study materials; there are like 3 or 4 states that, if you have their non-resident permit, will get you carry rights in like 35+ states total, which isn't bad. Nobody's permit is good in NY or MD.

[scott]

I assume you obtained a Florida non-resident permit when you moved? I'm planning to get one, because with a Florida permit, you can pretty much drive across the southern US legally carrying all the way.

https://www.usconcealedcarry.com/res...#recRestricted

Be careful and check the specific restrictions. Some states honor Florida resident permits but not the non-resident permit. I'll check my study materials; there are like 3 or 4 states that, if you have their non-resident permit, will get you carry rights in like 35+ states total, which isn't bad. Nobody's permit is good in NY or MD.

Still legally a Florida resident. I have a residence there, my driver's license is there, I'm still registered to vote there, and I've met all requirements of time spent there. My Florida CCL is still valid. So far so good.

This year I'll change my residency to Texas so I'll have to figure out the particulars, so thanks for the links.