Lost Gun Rights Because of a Civil Protective Order? Supreme Court to Decide Constitutionality
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The question of whether people subject to certain kinds of civil protective orders can be federally prohibited from possessing firearms will be argued before the Supreme Court this Friday, November 7th.
As part of the Violent Crime Control and Law Enforcement Act of 1994, Congress made it a federal crime for individuals subject to certain domestic-violence protective orders from possessing a firearm. The maximum penalty for violating that law—codified at 18 U.S.C. §992(g)(8)—was initially 10 years imprisonment. Congress later increased that maximum penalty to 15 years.
Triggering Section 992(g)(8) requires three steps. First, a court must have issued a protective order after notice and a hearing in which the defendant had an opportunity to participate. Second, the order must forbid the defendant from harassing, stalking, or threatening an “intimate partner,” the partner’s child, or the defendant’s child. Third, the order must either include a finding that the defendant poses a “credible threat” to the physical safety of the partner or child; or explicitly prohibit the threatened, attempted, or actual use of physical force against the partner or child.
In February 2020—after Zackey Rahimi physically assaulted his girlfriend, threatened to take away their shared child, and discharged a firearm at a witness to the altercation—a Texas state court issued Rahimi a Section 992(g)(8) qualifying protective order that explicitly prohibited him from possessing a firearm. Soon after, Rahimi defied the order. In May 2020, Police arrested him for approaching the home where the mother of his child lived. In November 2020, he threatened another woman with a gun, leading Texas to charge him with aggravated assault with a deadly weapon.
Rahimi then participated in a series of five shootings. He fired an AR-15 rifle into a house, shot at drivers following two different driving altercations, fired a gun into the air with children present, and fired multiple shots into the air after a fast-food restaurant declined his friend’s credit card. Upon identifying Rahimi as a suspect in those shootings, police obtained a search warrant for his house where they found a pistol, a rifle, ammunition, and a copy of the protective order.
A federal grand jury in the Northern District of Texas indicted Rahimi for violating Section 992(g)(8). He moved to dismiss the indictment, arguing the statute facially violates the Second Amendment. After the District Court denied the motion, Rahimi pleaded guilty and was sentenced to 5 years, 3 months imprisonment. He then appealed to the U.S. Court of Appeals for the Fifth Circuit.
A panel of Fifth Circuit judges initially affirmed the District Court decision denying Rahimi’s motion to dismiss. But then, after the Supreme Court in 2022 issued a landmark Second Amendment decision in NYSRPA v. Bruen, the panel withdrew its initial opinion and ultimately reversed the District Court decision.
The Fifth Circuit panel held that Section 922(g)(8) on its face violates the Second Amendment. In light of Bruen, the Fifth Circuit panel reasoned that—though Rahimi was “hardly a model citizen”— he was an “ordinary, law-abiding citizen” for Second Amendment purposes and could not be stripped of his right to possess a firearm absent a felony conviction.
Upon petition from the Department of Justice, the Supreme Court accepted the case for review, ordered full briefing of the legal issue, and scheduled oral argument for November 7, 2023. FEDagent will report on the Supreme Court’s decision in this case when it issues.
The Supreme Court filings in this case, United States v. Rahimi, are available here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-915.html.
For over forty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.
