From KERA News:
Guns can be deadly in domestic violence situations — that’s why federal and state laws prohibit people with protective orders against them from having firearms. But those laws could be overturned because of a 5th Circuit Court of Appeals ruling.
The Violence Against Women Act is a federal law that says in part that people with a domestic violence protective order against them can’t have firearms if certain conditions are met. The 5th Circuit Court ruled that section of the law is unconstitutional in United States v. Zackey Rahimi in February because of a Supreme Court ruling.
That particular section of the law is now unenforceable in Texas, Louisiana and Mississippi, the states under the 5th Circuit’s jurisdiction.
There are still state laws in Texas and Louisiana that similar to the federal law, so the few existing programs in Texas that collect and store firearms from people under protective orders can continue for now. But advocates and legal experts say the 5thCircuit decision could encourage challenges to state law as well.
What happens next is unclear. The Rahimi case could end up in the Supreme Court, and the state laws could also be challenged. Domestic violence advocates warn that overturning protective order laws related to firearms would lead to an increase in violence and deaths — the presence of a firearm increases a woman’s risk of being killed as much as 500%, according to a report from the Texas Council on Family Violence.
Mikisha Hooper is the coordinated community response manager for the Texas Council on Family Violence. She said the Rahimi ruling creates confusion.
“One of the challenges is that it creates uncertainty about right now,” Hooper said. “What will the ultimate outcome of this issue around prohibitions for domestic violence protective orders be?”
Rahimi is accused of being involved in five shootings in the Arlington area from December 2020 to January 2021.
Police said he fired multiple shots with an AR-15 rifle at the home of a person where he’d sold narcotics on Dec. 1. The next day, he was in a car accident, and police say he shot at the other driver. Rahimi allegedly fled the scene and came back a second time to shoot at the other driver’s car.
He was accused of shooting at a constable’s car Dec. 22 and firing multiple shots into the air at a Whataburger after his friend’s credit card was declined on Jan. 7.
Arlington police officers served a warrant at Rahimi’s home. They reported finding a .45-caliber pistol, .308-caliber rifle, pistol and rifle magazines, ammunition and about $20,000 in cash. Police said they also found a copy of a protective order against Rahimi in the home from February 2020. Rahimi was accused of assaulting the mother of his child.
Protective orders must fulfill three requirements for federal charges to be filed under the Violence Against Women Act: The person must be notified of a hearing and have the opportunity to respond. The order also must forbid harassing, stalking or threatening an intimate partner or their child and have proof of a credible threat.
Federal prosecutors determined that Rahimi’s case met all the requirements, and he was indicted by a federal grand jury in the Northern District of Texas. The charge is punishable by up to ten years in prison.
Rahimi moved to dismiss the indictment, arguing that the domestic violence law violated his Second Amendment rights. A federal district court denied that motion noting that the 5th Circuit upheld that law in a 2021 case. The 5th Circuit affirmed that decision, so Rahimi then pleaded guilty. He was sentenced to 73 months imprisonment followed by three years of supervised release.
The Supreme Court released a ruling that prompted the 5th Circuit to revisit its decision. The lower court ended up reversing its previous ruling and vacated Rahimi’s conviction.
“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees,” the ruling said.
A new legal framework
The 5th Circuit looked at the Rahimi case again after a 2022 ruling from the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen. The Supreme Court ruled in that case that gun regulations need historical precedent from when the constitution was written.
Eric Ruben, an assistant professor at Southern Methodist University’s Dedman School of Law, said courts are having to look back centuries to find legal precedent.
“The modern-day court — addressing a modern-day law, addressing modern-day problems — has to find a historical analog from the late 1700s or maybe into the 1800s before it can uphold the modern law,” Ruben said.
Ruben testified at a Senate committee hearing after Bruen about gun safety. He said courts are bringing in historians to help interpret gun laws.
Ruben said Bruen’s framework is unprecedented. He said there’s “no other areas of constitutional rights” law that requires courts to draw analogies to 18th and 19th century laws as the sole way to prove constitutionality.
He also said the Supreme Court’s ruling lacks clarity because courts have applied the same laws from history in different ways. Both the 3rd and 8th Circuit Courts of Appeals ruled in previous cases that there was historic precedent for the current federal law because of a history of disarming dangerous people.
The government cited some of those same laws in its legal arguments in the Rahimi case. The 5th Circuit ruled that those laws weren’t enough of a clear historic precedent to allow for disarming people who are subject to protective orders.
“They disarmed people by class or group, not after individualized findings of ‘credible threats’ to identified potential victims,” the court said.
The Department of Justice raised these diverging rulings on the same historic laws in its petition to the Supreme Court. The justice department wants the court to take up the Rahimi case and uphold the law, overturning the 5th Circuit’s ruling.
The section of the federal law that the 5th Circuit ruled is unconstitutional is still enforceable outside of Texas, Louisiana and Mississippi. State laws in Texas and Louisiana similar to the federal law haven’t been overturned yet. Mississippi doesn’t have a similar law.
Aaron Setliff, an El Paso County assistant attorney, said the Texas law could be overturned using similar arguments as the Rahimi case. That hasn’t happened yet, so El Paso County is still collecting and storing firearms from people who have protective orders against them.
“It may be expanded,” he said. “It may be, but at this point, it has not been. So we’re sort of plodding along.”
Not many counties in Texas retrieve and store firearms for people under protective orders. The Texas Council on Family Violence wrote in an email to KERA that there are firearm transfer programs at varying levels of development in Dallas County, El Paso County, Fort Bend County, Bexar County, Galveston County, Hidalgo County, Travis County and potentially Williamson County. There’s also a procedure that’s being developed in Grayson County that’s in early development.
Harris County also has a program that was established in its protective order court in 2019. A representative from the sheriff’s office said the program has been on hold since January while stakeholders negotiate the status of the program with the court’s newly elected judge.
The lack of a procedure to collect and store guns means a lot of people with protective orders against them in Texas end up keeping their guns like Rahimi — and now they can’t be charged with breaking the federal law for doing that.
Ruben said the firearm transfer programs in Texas could be at risk because of the Rahimi ruling.
“That be very significant to the extent that these programs are effective at protecting domestic violence victims,” he said.
The ruling will hold until the Supreme Court decides to rule on it. The court is expected to announce its decision sometime this spring. Ruben said oral arguments would be sometime in the fall if the court chooses to hear the case.
Kathryn Jacob, the president and CEO of SafeHaven, the family violence center for Tarrant County, said there will be an increase in the severity of violence in the meantime.
“At least we had the legal system behind us. Now they don’t even have that,” Jacob said. “It’s just a matter of time before someone who is a subject of a protective order and owns a gun kills their partner.”