Earlier this summer, the Supreme Court granted certiorari in United States v. Rahimi, in which the Fifth Circuit invalidated the federal ban on those subject to certain domestic violence restraining orders (or DVROs) possessing firearms for the duration of the order. We previously covered the Fifth Circuit’s decision here and here. On August 14, the government filed its opening merits brief with the Supreme Court; the case will be argued and decided during the October 2023 Term.
18 U.S.C. § 922(g)(8) bars gun possession by those subject to DVROs which, among other requirements, were “issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate” (emphasis added). Perhaps surprisingly, given the attention to Rahimi in both legal and mainstream media, the answer to one basic factual question about the case remains elusive: did a “hearing” take place prior to the Texas family court judge entering the DVRO that barred Rahimi from possessing firearms under federal law? The answer depends on what one means by “hearing.”
At first glance, the question seems easily resolved by reference to the relevant statutory language. The use of the conjunctive (issued after a hearing, and with notice and an opportunity to participate) seems to settle the issue: there must be both a hearing and an opportunity to participate in that hearing. Otherwise, Rahimi would not even be subject to the DVRO ban he is challenging—and to which all parties appear to agree he is subject.
But not so fast. While the Fifth Circuit’s revised opinion in the case quotes the statutory language in full, the panel also writes that “it bears emphasis that the order at issue here was entered by agreement, in a civil proceeding, after Rahimi apparently waived hearing (the order states no formal hearing was held, and no record was created)” (emphasis added). As far as the Fifth Circuit is concerned, then, it seems that there was no hearing but that the opportunity for a hearing (though ultimately waived) was sufficient to bring Rahimi within the scope of (g)(8), despite the statute seemingly requiring both a hearing and an opportunity to be heard at said hearing.
Consulting the district court docket in the case (which is likely what the Fifth Circuit did, given its reference to “the order”) doesn’t shed much clarity on the question. The government’s criminal complaint begins with a sworn statement by a special agent that Rahimi knew he was subject to a DVRO “that was issued after a hearing of which he received actual notice, and at which he had an opportunity to participate,” largely mirroring the statutory language (emphasis added). However, the complaint attaches (at page 5) a copy of the “Agreed Protective Order” which states that, while Rahimi appeared in person before a family court judge on February 5, 2020, “[a] hearing was not held before Associate Judge Beth Poulos, 324th District Court” (emphasis added). But the order goes on to say that “[t]he Court finds that Respondent received actual and reasonable notice of the hearing and had an opportunity to participate and to be heard consistent with the right to due process,” and ends with Rahimi’s signed acknowledgment that he “received a copy of this protective order in open court at the close of the hearing in this matter” (emphases added). Thus, the protective order seems to confusingly assert both that no hearing was held and that there was a hearing. The government’s opening brief at the Supreme Court relies on the underlying protective order to argue that the DVRO was issued after “a hearing in which Rahimi participated.”
As it turns out, there is Fifth Circuit precedent that deals with this precise question: when does a court proceeding constitute a “hearing” within the meaning of 922(g)(8)? In a 2003 decision in United States v. Banks, the court explained that “Banks appeared in court and consented to an agreed temporary protective order.” After a subsequent explosion at a trailer home owned by Banks’ ex-girlfriend, police searched Banks’ residence, found both firearms and evidence implicating him in the explosion, and charged him with five separate violations of 922(g)(8) as well as other firearms violations. In other words, this seems to be the exact same factual scenario as in Rahimi: the individual was present at a court proceeding and agreed that a protective order should be entered against him, but without proposing modifications, presenting evidence, calling witnesses, and so on. Banks moved to dismiss the 922(g)(8) charges, arguing that the proceeding in which his DVRO was entered did not constitute a “hearing” within the meaning of (g)(8)—and the district court agreed, reading past cases “to require a hearing where evidence is presented and witnesses are called, so that an uncontested order could not be the basis of a § 922(g)(8) prosecution.”
The Fifth Circuit reversed, holding (emphases added):
The hearing requirement contained in § 922(g)(8)(A) was met in this case. Banks had “actual notice” and “an opportunity to participate,” as 18 U.S.C. § 922(g)(8)(A) requires, and the only reason that evidence (in addition to [the defendant’s ex-girlfriend’s] verified statement of abuse) was not introduced is because Banks consented to the agreed protective order. . . . Though neither the Assistant District Attorney nor defense counsel put on live testimony, there was evidence before the court supporting issuance of the protective order, in the form of [the defendant’s ex-girlfriend’s] statement of abuse. This statement was verified under oath and attached to the application for the temporary protective order. . . . [T]he hearing in this case was “set for a particular time and place and the defendant . . . received notice of that and thereafter the hearing [was] held at that time and place.” Banks thus received a “hearing.”
The panel specifically declined to hold “that an agreed order can never be the basis for an 18 U.S.C. § 922(g)(8) prosecution.” Banks distinguished the Fifth Circuit’s 2002 decision in United States v. Spruill, which held that an assistant district attorney’s oral explanation of the terms of an agreed protective order to an illiterate respondent outside of a formal court proceeding and without a judge present did not qualify as a “hearing” under 922(g)(8). Notably, the Banks court concluded by observing that, “[w]ere we to hold that an agreed order could never be the basis for a § 922(g)(8) prosecution, a defendant with all the protections that the statute contemplates could simply consent to an agreed order to escape a later federal prosecution.”
As with Rahimi, because Banks was present before a family court judge and had the opportunity to participate in the proceeding, a “hearing” was held within the meaning of the statute. To the Fifth Circuit, the fact that Banks did not put on evidence or contest the proposed terms of the DVRO did not change the conclusion that the “hearing” requirement was met. As the Seventh Circuit explained in a 1998 decision:
An opportunity to respond is afforded when a party has “the opportunity to present reasons, either in person or in writing, why proposed action should not be taken. . . .” Wilson was afforded this opportunity at the hearing. . . . [T]he protective order was explained to Wilson and he was asked if he could live by those terms. While Wilson indicated that he could and the order was entered, he could also have told the judge that he disagreed with the order and given his reasons therefor.
While the law is not settled and many circuits have not addressed this specific definitional issue under (g)(8), other circuits to reach the question have similarly concluded that consented-to protective orders entered in proceedings similar to Rahimi’s qualify as “hearings” under (g)(8). Decisions going the other way, such as Spruill and the Second Circuit’s 2020 decision in United States v. Bramer (where the underlying DVRO was issued informally during an arraignment proceeding and “there [was] no indication that Bramer agreed to or objected to its entry”), appear to turn on unique facts not present in Rahimi.
In light of these prior cases (including binding circuit precedent), it’s interesting that the Fifth Circuit’s opinion in Rahimi so heavily suggests that there was no “hearing” in the underlying DVRO case—by saying that Rahimi “waived hearing.” To me, that is highly misleading at best. A hearing did take place under the Banks standard, and it is far more accurate to say that Rahimi “waived the opportunity to participate in the hearing that was held in the matter.” One might think that the Rahimi panel would have observed binding precedent that agreed protective orders constitute hearings within the meaning of 922(g)(8) as a general matter—or, at least, been more careful in choosing language that is not a legal term of art in this context.
Moreover, as Banks observes, it would be a perverse result if the proceeding in which Rahimi’s protective order was issued did not qualify as a “hearing” within the federal statute as a definitional matter. In that case, a DVRO respondent could ensure he was not subject to a future federal prosecution under (g)(8) merely by choosing to consent to the proposed protective order without any objection. The same logic applies to actual participation in the hearing: a respondent can’t be forced to raise objections and could simply decline to actively participate, knowing that this would potentially bring the proceedings outside the scope of (g)(8). I doubt that the “hearing” issue will be a major point of contention in Rahimi. It is a threshold question of statutory interpretation rather than a Second Amendment question, Rahimi does not challenge his conviction on that basis, and Rahimi also does not bring a due process challenge. But, given commentary focusing on due process and Judge Ho’s concurrence—which seems to conflate ex parte and notice-and-hearing DVROs—I think it’s fair to wonder about the panel majority’s choice of words and its failure to note the Banks decision as binding precedent.
 Thank you to Gavin Barrett for excellent legal research that is the basis for this post.