The Supreme Court will hear oral argument in United States v. Rahimi, its first post-Bruen Second Amendment case, on November 7. This post will consider an issue raised in the respondent’s merits brief filed with the Supreme Court on September 27: whether and when necessity is a defense to a charge of possessing a firearm while under a qualifying domestic violence restraining order. Rahimi’s brief argues that any necessity exception to 922(g)(8), and to other federal status-based firearm prohibitions in Section 922(g), is largely meaningless in practice because
[t]he Government even prosecutes prohibited persons who briefly possess someone else’s gun in self-defense. Courts routinely reject self-defense, defense-of-others, and necessity defenses, and they exclude evidence that a prohibited person had a credible fear of imminent violence because it is “irrelevant” and “would only inspire jury nullification.”
This is an important piece of the respondent’s argument, as the brief repeatedly emphasizes the broad scope of 922(g)(8). For this proposition, Rahimi relies on a recent Fifth Circuit decision dealing with the felon prohibitor. In that case, United States v. Penn, a convicted felon was involved in a violent confrontation, his aunt handed him a gun, and he exchanged fire before being stopped by a police officer. The defendant then ran from the police, escaped, and discarded the gun; he was arrested one month later and charged with possessing a firearm as a convicted felon (among other offenses). The defendant argued that he was entitled to a justification, or necessity, defense to the felon-in-possession charge because he needed the gun to defend himself.
The district court refused to instruct the jury on a necessity defense because “Penn failed to present sufficient evidence that he possessed the gun no longer than absolutely necessary,” and the Fifth Circuit affirmed. The Fifth Circuit placed particular emphasis on the fact that Penn “passed up several chances to give up the gun[,] . . . chose not to pull over and explain the situation to [the pursuing officer, and] . . . also chose not to leave the gun at the scene of the wreck [but rather] threw it into a field where it would be harder for police to find.” The panel noted that a justification or necessity defense to a felon in possession charge is construed “very narrowly” and that the defense is only available in the “rarest of occasions”—for example:
In addition to possessing the gun in response to a real necessity and with no readily available alternative, courts require that a prohibited possessor not continue to possess a firearm after the emergency has subsided or attempt to hide their conduct from law enforcement. In other words, “the defendant [must] get rid of the firearm as soon as a safe opportunity arises.”
Of course, 922(g)(8) does not impose any limitation on an individual’s ability to defend himself with a weapon other than a firearm. As Eric Ruben has described, survey data on weapons possessed for self-defense cast substantial doubt on Heller’s assertion that handguns are the weapon most commonly chosen by Americans to defend themselves. Data indicate that many Americans prefer to (and do) carry weapons such as mace, pepper spray, and knives rather than guns—and 922(g)(8) places no restriction on a DVRO respondent’s ability to possess and carry such weapons and use them in self-defense when reasonably necessary.
The framing of the Penn decision in Rahimi’s brief is quite broad in other ways. For one, the key issue in Penn was not whether the defendant there was justified in using a firearm to protect himself from imminent harm in the abstract—rather, the question was whether the defendant maintained possession of the gun for too long after any necessity had subsided and failed to come clean to the officers in pursuit. The Fifth Circuit appeared to assume that the gun was discharged in a proper exercise of self-defense, but found that evidence of “a credible fear of imminent violence” was irrelevant only because another necessary element of the defense (giving up the gun as soon as practicable) was not present. Second, the rule that a necessity defense is only available when the defendant ceases any lawful conduct as soon as the necessity dissipates and it is safe to do so is not unique to gun regulation. For example, the Supreme Court has affirmed the rejection of a duress defense to prison escape based on unsafe prison conditions when the defendants failed to introduce “evidence that they attempted to surrender or engaged in equivalent conduct once they had freed themselves from the conditions they described.” The Court specifically held that a defendant seeking to invoke such a defense “must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.”
It may be especially important to construe the necessity defense narrowly in the context of an individual subject to a domestic violence restraining order. One can imagine that a likely scenario where the defense may be invoked is a future incident of domestic violence involving a different intimate partner (one study, for example, found that 17% of domestic violence offenders who remained in a certain geographic area were re-arrested for another domestic violence offense within three years). Rahimi himself is suspected of using a firearm to threaten a different woman after the entry of the restraining order triggered by his alleged assault of his ex-girlfriend. In such a situation, the DVRO respondent might invoke necessity based on alleged violent or threatening conduct by the intimate partner. Given the reasons for the initial status-based gun prohibition, it makes sense to construe the defense narrowly and set a high evidentiary bar in such a situation.
However, one can also imagine cases where a firearm is used by a prohibited possessor under duress in a legitimate exercise of self-defense, but where the individual continues to possess the gun due to perceived ongoing danger or simply forgets to discard or surrender the weapon. Penn is not the best supporting case for Rahimi—the defendant there not only did not surrender the gun, but led the police on an extensive automobile and foot chase. But, to the extent the failure to surrender a firearm is due to legitimate safety concerns or a focus on self-preservation, it makes little sense to reject the defense outright based solely on timing. One option may be for courts to tailor the legal test to the conduct that is the basis for the possession ban. For example, an individual with prior convictions for violent crimes or an individual who is subject to a restraining order based on past domestic violence might bear a higher burden of demonstrating that the necessity defense should apply (because that individual has a history of provoking violent confrontations). By contrast, an unlawful drug user, a felon convicted of only nonviolent crimes, or an unauthorized immigrant would have a comparably lesser burden to open the door to a necessity defense.