Rahimi and Federal Domestic Violence Prosecutions

This guest post does not necessarily represent the views of the Duke Center for Firearms Law.

While I applaud and celebrate the Rahimi decision upholding the federal ban on firearm possession by persons subject to domestic violence restraining orders, the narrow decision discussed only the facial challenge to the prong of 922(g)(8) that the Court found readily sustainable under the Second Amendment. This resulted in a missed opportunity to provide clarity and guidance not only to lower courts, but also to prosecutors, domestic violence survivors, and advocates struggling to understand the case’s legal consequences. It is the Rahimi Court’s lack of focus on domestic violence ramifications that trigger this post. 

Zackey Rahimi is the poster child for a domestic abuser who poses violent firearm threats to his victims, their children, and the community at large. In the face of this obviously dangerous person, the Court refined Bruen and held that disarming Rahimi conformed with Founding-Era “principles” preventing firearm possession by people who pose threats of violence to others. Chief Justice Roberts, writing for the 8-1 majority, stated: 

Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition. 

What was less clear was the fate of other equally important domestic violence firearm laws, including the other prong of 922(g)(8) and the domestic violence misdemeanor prohibition in 922(g)(9).  These laws will have to be litigated piecemeal before we have a true picture of the contours of Bruen’s historical test in the domestic violence area. The Rahimi analysis does, however, provide reason to believe these other provisions will pass constitutional muster since all rest on preventing physical harm against an intimate partner.

Section 922(g)(8) prohibits possession of a firearm or ammunition by a person subject to a court order issued after actual notice and an opportunity to participate that includes either (i) a finding that the respondent poses a credible threat to physical safety (the “credible threat” prong) or (ii) an explicit prohibition against use of force reasonably expected to cause bodily injury (the “explicit prohibition” prong.) 

The Rahimi prosecution was based on Rahimi’s possession of a firearm while he was subject to a Texas protection order that actually satisfied both prongs of 922(g)(8)—finding that Rahimi was a credible threat and barring future use of force. The Court only addressed the “credible threat” prohibitor because that prong satisfied its refined Bruen analysis. Left unresolved was whether the second prong of 922(g)(8) – the explicit prohibition prong – similarly comports with history and Founding-Era principles. The Court justified the narrowness of its ruling in Rahimi by observing that the case didn’t present a challenge to the physical force prohibitor. However, the same reasoning and historical comparisons apply to both “credible threat” findings as well as “physical force” prohibitions. The majority observed that, “[t]aken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” 

Shouldn’t this same rationale similarly apply to the explicit prohibition prong? As the government noted in its cert petition in Rahimi, “in adopting the [explicit prohibition prong,] . . . Congress reasonably concluded that courts would specifically prohibit the use, attempted use, or threatened use of force only if evidence credited by the court reflected a real threat or danger of injury to the protected party.” Thus, the explicit prohibition prong will also satisfy the “clear threat of physical violence” requiring disarmament outlined in Rahimi. Common sense also dictates that an explicit prohibition on use of force expected to result in physical injury is only necessary when a person presents with violent behavior that needs to be restrained. Accordingly, both 922(g)(8) prongs address persons who pose physical danger to their intimate partners and requiring court intervention. A reasonable expectation is that post-Rahimi courts will view both 922(g)(8) prongs under this same lens.

The opportunity to determine the constitutionality of the explicit prohibition prong may present itself in United States v. Perez-Gallan, a case where the defendant was prosecuted under the explicit prohibition prong based on conditions of release issued in connection with an assault charge. The district court in Perez-Gallan interpreted Bruen narrowly and dismissed the indictment after failing to uncover sufficient historical evidence to support disarming domestic abusers. On appeal, the Fifth Circuit affirmed the dismissal in an unpublished decision based on its reasoning in Rahimi. The Supreme Court held the cert petition pending Rahimi and, on July 2, remanded Perez-Gallan for reconsideration in light of Rahimi. Since the district court rejected the surety and historical arguments now accepted by the Rahimi majority, the GVR should result in reversal (but the adamance of the district court opinion leaves this an open question).

Also left unaddressed in Rahimi was the harmful concurrence by Judge Ho below undercutting the importance of civil protection orders in keeping domestic violence victims safe.  He diminished not only the family court judges who issue protection orders, but also domestic violence victims, when he wrote that “[s]cholars and judges have expressed alarm that civil protective orders are often misused as a tactical device in divorce proceedings – and issued without any actual threat of danger.” While Chief Justice Roberts obliquely dismissed the “hypothetical faults” raised by Judge Ho as sounding more like an unraised Due Process claim and “slaying a strawman,” the Court missed an opportunity to lay these false claims to rest and to reinforce the importance not only of protection orders in keeping victims safe but also in separating abusers from their firearms.

As a side note, none of the justices relied on Bruen’s opening for a “more nuanced” approach to societal problems unforeseen by the Founders. Instead, they assumed domestic violence was a societal concern in the Founding Era addressed in principle by surety and affray laws. But the societal response to domestic violence and society’s understanding of the devastating consequences to families and communities have evolved considerably since 1791. The Court missed an opportunity to recognize these advancements and clarify Bruen. Justice Sotomayor’s concurrence in Rahimi did address the dangers of firearm possession to domestic violence victims but used that frame to argue for a return to pre-Bruen analysis that included deference to legislative judgement instead of arguing for a “more nuanced” approach. “History has a role to play in Second Amendment analysis,” she wrote, “but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy.”

So where does this leave federal prosecutors and DV survivors and advocates going forward? They are left to celebrate briefly the narrowing of Bruen to allow for certain prosecutions under 922(g)(8), proceed under the presumption that the “explicit prohibition” prong will also satisfy the Second Amendment, and then await future piece meal litigation to evaluate whether the Rahimi analysis will also uphold 922(g)(9)’s ban on firearm/ammunition possession by persons convicted of domestic violence misdemeanors.  Since the Court has on three separate occasions affirmed  922(g)(9) convictions (albeit not in cases raising a Second Amendment challenge) after careful analysis and reiterated that “(f)irearms and domestic strife are a potentially deadly combination nationwide”, it is hard to see the Court retreating from its commitment to keeping firearms out of the hands of domestic abusers. The Rahimi analysis upholding a firearm prohibition that prevents “individuals who threaten physical harm to others from misusing firearms” should apply equally to domestic violence misdemeanants who have not just threatened harm, but have also been convicted of using physical force.  It remains an open question whether the permanent nature of this prohibition, the minimal force required under 922(g)(9), or the changed composition of the Court might lead to a different outcome.