This guest post does not necessarily represent the views of the Duke Center for Firearms Law.
On November 7, 2023, the Supreme Court will hear argument in United States v. Rahimi, addressing the Second Amendment constitutionality of 18 U.S.C. § 922(g)(8) — the federal firearm ban that covers persons subject to disqualifying protection orders. Andrew’s August 30 post discussed whether the hearing underlying the protection order at issue in Rahimi met the statutory definition of a “hearing” as construed by Fifth Circuit precedent. Based on my experience as an Assistant United States Attorney and as the National Domestic Violence Coordinator for the U.S. Attorney community, and on practice and case law, this issue is, in fact, more well-settled than the post suggests. (I am also currently a consultant for the Battered Women’s Justice Project.)
Section 922(g)(8), among other things, requires that the predicate protection order be issued “after a hearing of which such person received actual notice, and at which such person had an opportunity to participate….” It remains undisputed that Rahimi appeared in a Tarrant County, Texas courtroom on February 5, 2020 after receiving actual notice of a protection order hearing being sought by his intimate partner and mother of his child. Despite the availability of Judge Beth Poulos, Rahimi did not request an evidentiary hearing and instead agreed to the entry of a two-year protection order that not only prohibited him from possessing firearms, but also found that he posed a credible threat of family violence and explicitly prohibited him from committing further family violence. These facts, when evaluated under governing case law, establish that the requirements of 922(g)(8) were met.
The facts underlying issuance of each protection order are critical. If, like Rahimi, the defendant appears (which will be the result of “actual notice”) and agrees to an order – without availing himself of the opportunity for a hearing – Section 922(g)(8)(A) is satisfied. No other court facing the facts at issue in Rahimi has held otherwise. For example, the Ninth Circuit held that “the statute does not require that evidence actually have been offered or witnesses called.” The Fifth, Seventh, and Eighth Circuits, as well as a number of district courts, have similarly held that the opportunity to respond to a proposed order constitutes a “hearing” and that there is no requirement that the respondent dispute the underlying facts or present evidence. As one district court recently noted, the “opportunity” only requires a “proceeding during which a defendant could have objected to the entry of the order or otherwise engaged with the court as to the merits of the restraining order.”
Indeed, to hold otherwise would create an absurd incentive as Andrew’s prior post notes. As the Fifth Circuit observed in Banks, “a defendant with all the protections that the statute contemplates could simply consent to an agreed order to escape a later federal prosecution.” This conclusion that, as a matter of settled law, Rahimi’s agreed upon order satisfies 922(g)(8)(A) also comports with common sense. Otherwise, a defendant would be able to sidestep the proscriptions of (g)(8) either by consenting to an agreed-upon order (as Rahimi did) or by failing to appear at all. This would be inconsistent with the intent or reach of 922(g)(8) to disarm persons found by a court to present a credible threat to the physical safety of an intimate partner.
The merits brief submitted by Rahimi attempts to deflect from this settled law by arguing that the protection order disqualifying language is essentially boilerplate, encompassing a broad range of family violence that would not be indicative of present or future harm. This attempt is misguided. The fact that courts, like Tarrant County District Court, now incorporate the predicate language of (g)(8) does not diminish the purpose of the language to capture those who pose a present or future danger. The Court was free – as it did – to cross out language that was inapplicable and to tailor the order to address the specific needs identified by the victim.
Rahimi also challenges the reliability of a respondent’s agreement to a protection order by alleging that (1) respondents are coerced into agreed-upon orders to avoid imposition of attorney’s fees, and (2) the “statute provides no way to distinguish between orders motivated by fear, mutual combat, or tactical advantage.” These general points, left unsubstantiated, are irrelevant in Rahimi’s case. The order against Rahimi and the facts underlying the order demonstrate that he had notice and an opportunity to be heard and that his alleged conduct more than demonstrated his dangerousness. Even if most orders are agreed upon, this does not demonstrate coercion or any other adverse conclusion. Rahimi was alleged to have committed brutal family violence and he chose to avoid a hearing. This speaks more to the strength of the case against him than to the coercive nature of the proceedings. It certainly does not demonstrate a facial infirmity under a Second Amendment challenge.