Only 'Dangerous Individuals' Lose Their Gun Rights Because of Protective Orders, the Government Says
Solicitor General Elizabeth Prelogar falsely claims a federal gun ban "requires individualized findings of dangerousness."
The government can disarm "dangerous individuals" without violating the Second Amendment, U.S. Solicitor General Elizabeth Prelogar told the Supreme Court on Tuesday. J. Matthew Wright, the lawyer arguing the other side of United States v. Rahimi, agreed with that general principle. But he did not agree that the federal law Prelogar was defending, which criminalizes gun possession by people who are subject to domestic violence restraining orders, fits within that tradition.
Neither did the U.S. Court of Appeals for the 5th Circuit, which last February ruled that the law, 18 USC 922(g)(8), was not "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen. Writing for a unanimous panel, 5th Circuit Judge Cory T. Wilson noted that Section 922(g)(8) "works to disarm not only individuals who are threats to other individuals but also every party to a domestic proceeding (think: divorce court) who, with no history of violence whatever, becomes subject to a domestic restraining order that contains boilerplate language" meeting the law's criteria.
Judge James C. Ho amplified that point in his concurring opinion. Ho said protective orders are "often used as a tactical device in divorce proceedings," "are granted to virtually all who apply," are "a tempting target for abuse," and in some cases have been used to disarm the victims of domestic violence, leaving them "in greater danger than before."
During oral arguments on Tuesday, Prelogar suggested these problems are figments of Ho's imagination. She claimed that Section 922(g)(8), which makes gun possession a felony punishable by up to 15 years in prison, "requires individualized findings of dangerousness." But that is clearly not true.
To trigger the loss of Second Amendment rights under this provision, a restraining order must be preceded by a hearing of which the respondent "received actual notice." That order must prohibit "harassing, stalking, or threatening," along with "other conduct that would place an intimate partner in reasonable fear of bodily injury," and it can include a finding that the respondent poses "a credible threat," which fits Prelogar's description. But such a finding is not necessary as long as the order "explicitly prohibits the use, attempted use, or threatened use of physical force."
Because the first option "requires a judicial finding of dangerousness, it does not infringe the Second Amendment," gun policy scholar David Kopel argues in a brief opposing the government's position. But the second option "does not require such a finding," he says, so it "is an infringement."
Wilson described language regarding the use of force as "boilerplate" commonly included in divorce-related restraining orders that can be readily obtained even when the respondent has "no history of violence whatever." In response to that criticism, Prelogar said judges are supposed to use such language only when it is justified by the facts of the case.
"A judge who's considering a request for a protective order wouldn't have a basis in law to enter that…prohibition on the use of physical force unless the judge thought the force was sufficiently likely to materialize," Prelogar told the justices. Critics like Wilson, Ho, and Wright, she said, are "basically trying to suggest or insinuate that these state courts are nevertheless entering protective orders that are not justified by the facts and the law, and that just flies in the face of the presumption of regularity that this Court applies in this context."
Is that "presumption of regularity" justified? As evidence that it is, Prelogar noted that family courts in Tarrant County, Texas, where this case originated, approved 289 of 522 applications for protective orders between July 1, 2021, and June 30, 2022. She said those numbers, which indicate that judges rejected more than two-fifths of the applications, "don't bear out the assertions that family courts are just reflexively entering these kinds of protective orders."
As you might suspect, those numbers from one county in one state for one year do not tell the whole story. In New York City, the Bronx Defenders Union (BDU) and the National Association of Criminal Defense Lawyers (NACDL) report in their brief supporting the challenge to Section 922(g)(8), "judges issue orders of protection without any finding of dangerousness or violence and without affording the accused any due process." The targets of those orders have no "meaningful opportunity to contest the underlying allegations." In short, the brief says, "the Government's claim that the orders of protection target solely dangerous abusers is completely contradicted by the daily reality in New York's courts."
When criminal defendants face allegations of domestic abuse, the BDU and the NACDL say, "orders of protection are issued as a matter of course in every case," typically "within seconds of appearances being entered on the record." Every order "requires the accused to not assault, harass, or commit any crimes against the complainant," thereby meeting the requirements of Section 922(g)(8). Yet the orders are based on "mere hearsay allegations, without any findings of violence" and "without any admissible evidence of abuse."
The BDU and the NACDL say "the near-automatic issuance of orders of protection
is prevalent in family court as well." Hearings usually are "protracted over a period of days, weeks, or sometimes months," featuring "snippets of testimony in the fifteen-minute calendar slot designated for the appearance before the matter is repeatedly adjourned." Judges "are permitted to consider hearsay and typically accept and rely on documents with multiple layers of hearsay in them." When "a person is requesting a restraining order, the courts typically grant the request at the end of the hearing."
In a brief on behalf of two gun rights groups, California lawyer Chuck Michel also highlights due process concerns about protective orders. He says respondents "rarely" have "enough time" to "fully prepare for a critically important hearing that can result in the loss of significant freedoms." Respondents "are not entitled to discovery, a jury, or free counsel." And "while petitioners bear the burden of proof at the evidentiary hearing, they generally need only show, by a preponderance of the evidence, that the respondent has committed or might commit an act of domestic violence." Arizona's standard is even weaker: "reasonable cause to believe."
Whatever the official standard of proof, judges may be inclined to err on what they view as the side of caution. "They are human, after all, and no one wants to be tomorrow's headline should tragedy strike," Michel writes. He illustrates that point with a divorce case in which a New Jersey judge issued a protective order based on nothing more than "the unrepresented parties' conflicting accounts of the alleged abuse." The judge told the husband:
If I have to make a mistake, I have to make a mistake in favor of safety. Do you understand that? Because let me tell you something right now. Aside from the fact that I'm a judge, I'm a human being. And if I make a mistake that's going to hurt somebody, I'll never forgive myself….Although I don't think you intentionally did anything to harm anybody…I have no problem entering the order…not because you are a bad guy, [but] because it's the right thing to do.
Exactly how often that sort of thing happens is a matter of dispute. But as a brief submitted by Georgetown University political economist William English notes, there is reason to think it happens more often than Prelogar is willing to admit.
"The problem is that protective orders can be obtained under false or trivial pretenses, and there are systematic pressures to do so for strategic purposes within romantic and marital disputes," English writes. "This phenomenon has been described in detail in ethnographic research. Although documenting its prevalence at scale is methodologically challenging, a number of studies using different methods have found evidence that unsubstantiated protective orders are sought and obtained at high rates."
A 2014 study found that "threats to make false accusations are common in situations where women perpetrate violence against men." Nearly three-quarters of "men who experienced female-perpetrated violence reported that their partner threatened to make false accusations." A 2003 study of Canadian cases found that allegations of partner abuse were false or unsubstantiated a quarter of the time. "In a more in-depth study of subjects referred from family courts in San Francisco Bay Area counties," English notes, "50% of the domestic violence accusations against mothers and 25% against fathers were found to be unsubstantiated."
English also cites a 2020 national survey in which 8 percent of respondents said they had been "falsely accused of domestic violence, child abuse, sexual assault, or other forms of abuse," while 17 percent said they had known "someone falsely accused of domestic violence in particular." Even if some of the respondents were lying or mistaken, these results suggest that millions of Americans have faced false domestic abuse allegations. That group surely overlaps, to at least some extent, with the 2 million or so Americans who, according to English's estimate, are disqualified from gun ownership under Section 922(g)(8) at any given time.
Given the risk of false allegations, the question of whether judges tend to rubber-stamp protective orders is clearly relevant to the issue of whether such orders prove people are dangerous enough to lose their Second Amendment rights. The problem with Section 922(g)(8), Wright told the justices, is that it bootstraps a process in which little seems to be at stake for the respondent (an order forbidding conduct that is already illegal or at least unethical) into a justification for depriving him of a constitutional right. "What we have is a proceeding that's designed to adjudicate small rights or no rights at all," Wright said. "And then, based on the results of that proceeding…we take very consequential actions that go against an individual's fundamental right to keep arms."
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Suddenly, all citizens were deemed dangerous.
“Suddenly, all citizens were deemed dangerous.”
Well yeah man, airline pilots come to mind… In the Air Force, they were trusted to fly with nuclear weapons! Now, they’re not allowed to carry handguns on themselves, to protect themselves in the cockpit!!! WTF, power pigs?!?! A little BALANCE here, please, power pigs?
+100000. Precisely what blanket gun-control is saying.
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Here, from the Rahimi case joint appendix, pages 2 and 3
Click to access 20230814194956129_u.s.-v.-rahimi-j.a.pdf
are the court’s findings in Mr. Rahimi’s domestic violence case (third paragraph, allcaps by me, corresponds to 18 U.S.C. § 922(g)(8)(C)(i); fifth paragraph, allcaps by me, corresponds to 18 U.S.C. § 922(g)(8)(C)(ii); victim’s name redacted by me):
The Court finds that family violence has occurred and is likely to occur again in the future and that the following orders are in the best interest of Applicant and other members of the family or household who are affected by this suit.
The Court finds that Zackey Rahimi, Respondent, has committed family violence. The Court finds that a protective order for the protection of [the victim] should be entered pursuant to Chapter 85, Texas Family Code.
THE COURT FINDS THAT RESPONDENT REPRESENTS A CREDIBLE THREAT TO THE PHYSICAL SAFETY OF THE APPLICANT OR OTHER MEMBERS OF THE FAMILY OR HOUSEHOLD WHO ARE AFFECTED BY THIS SUIT.
The Court finds that Zackey Rahimi, Respondent, has agreed to this order pursuant to § 85.005 of the Texas Family Code. The Court finds that a protective order for the protection of [the victim] should be entered pursuant to Chapter 85, Texas Family Code.
THE COURT FINDS THAT THE TERMS OF THIS ORDER EXPLICITLY PROHIBIT THE USE, ATTEMPTED USE, OR THREATENED USE OF PHYSICAL FORCE AGAINST APPLICANT THAT WOULD REASONABLY BE EXPECTED TO CAUSE BODILY INJURY.
I think the third paragraph is an individualized finding of dangerousness, and justifies the Solicitor General’s statement.
There are some problems with subsection (C)(ii) and the fifth paragraph, but the Solicitor General’s suggestion seems to be that orders of this sort won’t be issued without an implicit finding of dangerousness. That suggestion might be right, or it might be wrong, but accusing the Solicitor General of lying goes a bit far.
Rahimi is just an awful test case. He did ADMIT to the PO. He is facing related criminal charges arising from actually discharging a firearm in the domestic incident that underlies his PO. His attorney was solely focused on the constitutionality of the federal felony conviction and did not legally attack the state court PO. A better test case would be some model citizen whose wife exaggerates certain “threats” he made, who challenges the PO at an evidentiary hearing, who has no prior indicia of dangerousness, and still gets Brady DQ’ed, as he very probably would in most state courts. This could start to strip the automatic/federally preempted Brady DQ from the issuance of a PO after a hearing. Give state court judges some discretion and require them to truly make a finding of dangerousness that is not just presumed from very broad and Petitioner-slanted definitions of DV. It should be possible for a court to say, alright, you can’t have contact with her but I’m not stripping you of your constitutional right to bear arms. But it isn’t. Because the Feds have federally required all POs that issue to current or former intimate partners after notice and hearing to include Brady DQ. Rahimi isn’t going to get to the root of that problem because Rahimi’s sole attack is on the unconstitutionality of sending him to prison for having a firearm in his home under federal code, and sure it pays lip service to the sham of due process that does occur in state courts. But Rahimi AGREED to his PO. It’d be like accepting a plea and then attacking the sufficiency of the evidence in a criminal context. Not the right test case for the core problem.
That a finding occurred in this case does not mean that it generally requires a specific finding.
As evidenced by the entire rest of the article. So calling her a goddamned lying whore seems appropriate, except for the fact that whores provide a useful service that people willingly pay for, and I shouldn’t sully their reputation by comparing them to her.
To MAGA Republicans and the Mises Caucus, the whole point of the Second Amendment is to make sure Robert Dear and the Army of God have plenty of guns and ammo to use against Planned Parenthood clinics (and obstructionist cops). Play the Dave Smith interview with Nick the night of the Mises Anschluss–where that soi disant “an-capper” spells it out in detail. The Libertarian Defense Caucus are the ones who argue 2A means Nixon Republicans cannot again disarm us to aid communist dictators. (https://bit.ly/3Tm8cu6)
Mises Anschluss has been replaced by Missus Anschlut, these days, who is AKA Spermy Daniels… Take a NUMBER, Dude, and get in LINE, man!!!! Der TrumpfenFuhrer will allow ye “access”, when ye have PAID YER DUES and done yer time, man!!! Be PATIENT, and PAY YE UP!!!!
https://www.thedailybeast.com/mypillow-guy-mike-lindell-punts-timeline-for-trump-retaking-power-as-august-conspiracy-theories-get-wackier
MyPillow Guy Punts Timeline for Trump Retaking Power as Conspiracy Theories Get Wackier
https://www.salon.com/2021/08/22/mike-lindell-still-in-trumps-good-graces-has-new-prediction-reinstatement-by-new-years/
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Woops–this just in. As of today the MAGA-von Mises Caucasians suddenly believe the purpose of the Second Amendment is to riot at the Ohio Statehouse, overturn the election, and install a proper Christian National Socialist government there to make sure women are forced to perform “our duty to The Party.” A new plank will demand weapons arming Hamas to prevent slacker women from escaping into Israel.
I don’t understand this case. Yes restraining orders can be abused but in this specific instance, he has a well documented history of violence.
So why are we litigating hypothetical abuses of the system that are not before this court?
I don’t understand this case. Yes restraining orders can be abused but in this specific instance, he has a well documented history of violence.
So why are we litigating hypothetical abuses of the system that are not before this court?
Because Rahimi is a facial challenge of 18 U.S.C. § 922(g)(8), not an as-applied one.
True, it was couched as a facial challenge and not an as-applied one, but his attorney at oral arguments quickly pivoted to and conceded almost everything except, well it is unconstitutional to charge him with a felony for having a firearm in his home. Which, he arguably had to do, because his client AGREED to the PO, did clearly have numerous indicia of dangerousness that weren’t isolated to one woman’s exaggerated and unproven claims. The point remains that it was a poor test case. Show these justices some middle aged guy with zero record and zero indicia of dangerousness other than some one-sided allegations; a man who challenged the evidence; and a man who was Brady DQ’ed just because the purported verbal “threats” he made or because something she characterizes as DV but is not actual violence or firearm discharging, and you’d have had at least 5 of them fuming that THAT guy was Brady DQ’ed automatically by federal code with zero discretion for a state court judge to both issue a PO and not disarm the guy.
I am a little confused by this case as well. Many including the conservative justices noted that Mr. Rahimi has a history of violence. A fact his lawyer seemed to want to avoid. Why take this case to SCOTUS rather than a case of an individual who has the same restraining order but no history of violence. It seems like a poor case to try to win.
Mr. Rahimi didn’t decide to take the case to the Supreme Court. He and his lawyers decided to appeal his criminal conviction to the Fifth Circuit, and the Fifth Circuit decision in Mr. Rahimi’s favor was outrageous enough that the Government very quickly applied for Supreme Court review and its petition was granted. Blame, or credit, for this bad facts case getting to the Supreme Court so fast rests with the judges on the Fifth Circuit panel.
I don’t know the particulars of this case, but I do know that court cases that go to SCOTUS cost money. Did Mr. Rahimi pay for this or was he helped? As you noted he appealed to the Fifth Circuit and maybe the decision to move a poor case was made there and funded by someone else.
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A subset of women make outrageous and false claims, up to and including accusing their husbands of sexual abuse of their children, in divorce proceedings. Making a few false claims to get TROs and to invoke red-flag laws is not going to bother them at all.
Where there is no due process, there is going to be abuse; and the solicitor is apparently just fine with that.
Is it just me, or is our government overreaching a lot more these days?
“J. Matthew Wright, the lawyer arguing the other side of United States v. Rahimi, agreed with that general principle.”
Both wrong.
If you are not incarcerated, you have all of your natural rights guaranteed by the US Constitution.
the dangerous person in the room might be the U.S. Solicitor General
Who else lost all their firearms in a boating accident?
Snowmobile accident. Went back in Spring and they were all gone.
It’s not just restraining orders. When that law was passed a typical felon was someone like John Dillinger. Today a typical felon is someone like Martha Stewart.
Sullum, why come no ‘wallz r clozin’ in!’ stories on Joe and Hunter Biden?
Because it’s just a congressional subpoena, nothing that has any actual force or consequence.
That didn’t stop *multiple* Sullum articles every time Trump got a subpoena.
Yeah, but Sullum has a major Trump fetish, so that’s why he got all hot and bothered all of those times.
J. Matthew Wright, the lawyer arguing the other side of United States v. Rahimi, agreed with that general principle.
Counsellor Wright should perhaps bring up some evidence of such a thing being ‘consistent with this Nation’s historical tradition of firearm regulation’ then.
Because the only laws we have on the books for disarming ‘dangerous’ people are newly created ‘red-flag’ laws and racist laws that disarmed whole classes of people based on ethnicity.
This is, I think, a pernicious problem with 2nd amendment litigation – the lawyers doing this stuff aren’t gun people. They’re not even particularly into gun rights. So they agree with stances like the above even though that’s . . . just not true.
Guns are dangerous. Guns are for killing people. We don’t have a tradition of disarming dangerous people (if only because its all too easy to call someone ‘dangerous’ without regard to reality in order to justify oppressing them).
He just seemed to concede anything which wasn’t directly on point with his clients circumstances, which, in the context of a facial challenge, is nutso. In an as-applied challenge, that makes perfect sense. He was laser-focused on the consequence of the felony conviction for simply having a gun in his home. I guess it makes some sense that he didn’t attack the state court process since his client both agreed to the PO and wasn’t the best test case. But that’s the whole point. The problem is the guys who get F’ed in state court PO who would be much better test cases are overwhelmingly unlikely to end up federally prosecuted, either because they abide by the Brady DQ or they are just a lot smarter about their “violations” of it than was Rahimi.
Guns are NOT for killing people.
Guns are tools designed to fire projectiles at a high velocity in the direction aimed.
Some 8 billion rounds of ammunition are fired in the US every year. Almost none (about 0.0005%) of those bullets hurt anyone. The most common use of guns, by far is putting holes in pieces of paper. This is by such a huge margin that one might think it was what they were actually made for, given the tiny tiny fraction of times they are used for violence.
Some 100 million Americans own some 400 million firearms, and virtually zero of them will be used to kill someone, ever.
Sorry buddy – guns are for killing people. Not for hunting. Not for target practice. Not for sport.
That’s the core element of self-defense. That’s the right we are fighting to preserve.
To say ‘well, akchewallly, most bullets are used for target shooting’ just leaves you open for the anti-gun side to say ‘well then, you don’t need a gun for self-defense, do you?’
Common use cases are a thing too though and they can change. Self-defense is a big one, mostly achieved by deterrence of potential offenders, sometimes by killing them. Obviously they must be suitable to kill to do that.
But millions of folks buy guns (say, .22lr handguns) these days exclusively thinking of taking them to the range, not even thinking about killing someone in self-defense with them. Such guns are to self-defense what bicycles are to transport. By denying those other use cases, you are helping anti-gunners, too.
https://www.statista.com/statistics/195325/murder-victims-in-the-us-by-weapon-used/
Is there a point, Lester?
The vast majority of those murders were committed by people who were already prohibited from having the handgun they used.
Since the prohibitions don’t achieve the result desired, there’s no excuse for infringing on people’s rights.
I think we need a gun exchange program. You bring in a super dangerous handgun that is for sure going to kill someone and exchange it for a much safer long gun of your choice. High capacity magazine included as a bonus.
“The vast majority of those murders were committed by people who were already prohibited from having the handgun they used.”
You have hit on a major problem and one that in my opinion there is little interest in resolving. The transition of firearms from person legally entitled to have them to people not entitled to them. The only way to resolve this is some method of tracking, I suggest a title on each gun, but this is rejected. So, I am not sure there is an answer. There is no way to keep guns from people not entitled to them, without creating impediments, not stopping just impediments, for people who can have guns.
How about when people who are prohibited from possessing a firearm are subsequently arrested for possessing a firearm, they go to prison. Like, say, Richmond’s Project Exile? Of course, putting people in prison is racist.
How is a title going to help track anything? Criminals passing around stolen guns will not run to the ATF to register their new firearm with a title. At best, it might help return a firearm to someone from whom it was stolen.
Of course, when the government wants to start confiscating firearms, a title search would be the place to start.
Well, title’s are rejected because a title doesn’t stop a theft – and most crime guns are stolen. And it doesn’t even stop guns from being transferred sans title – and you don’t need a clear title to shoot someone.
With that, unless you recover the gun – which you rarely do without also recovering the criminal – then you don’t have a gun, a serial number, or a title, to trace in the first place.
Beyond that, NICS is the only program the moves the needle as far as keeping guns out of the hands of criminals – but ‘universal background checks’ as designed by the anti-gun crowd are a setup for a universal registry and that’s a no-go right out the gate.
There are ways to do UBC’s that don’t require schlepping down to the FFL and registering your guns – but anti-gunners don’t want that. They want the registry.
And even then, even with 100% compliance by the law abiding, theft’s will happen and criminals will transfer guns among themselves in violation of the law.
Or just make their own. It’s not that bloody complex.
Do you think that when people steal cars they take the title to the car too?
Are you actually completely fucking retarded? No wait, don’t answer, I actually already know the answer to that.
The vast majority of guns used in crimes were STOLEN, or purchased from criminals that broke the law when the purchased the gun. NO tracking would even slightly reduce any of that.
I mean, the point I get from that chart is that rifles are way less dangerous than fists.
Or, of course, Fist, but everyone here knew that already. Man is an unstoppable commenting machine.
Are we supposed to trust crazy eyes?
While the Judge “being human” may come into play, don’t forget that in most places “Judge” is an elected position. Politics and the desire for re-election comes into play. At this time, there is no downside to granting an Order. There is a major political downside to NOT granting one. If a Protective Order is NOT granted and something happens to the person who is requesting the Order, it is guaranteed that it will be used politically against the Judge who didn’t grant the Order. This is pretty much the same for “Red Flag” Orders as well.
When I was in college, one of my classmates was a former Police Officer. Leaving reason’s bias against the police behind, his reason for being in school was that his ex-Wife’s Attorney advised that she get a Protective Order against him to solidify her position in their divorce. When requesting the Order she stated that he had drawn his service weapon against her. Later investigation showed that the date that she stated it happened, he was out of town for training. He tried to fight the Order, but, the Judge, the DA and his Union didn’t want the political fallout. They also didn’t want the fallout for prosecuting the Ex for perjuring herself. They used the “we don’t want women to be afraid to come forward” argument. With the Order in place, he couldn’t work as a Police Officer, so he went back to school to train for a new career.
If someone is dangerous enough to lose their rights, they are too dangerous to freely move about in public.
I don’t trust anyone wanting to take away the rights of “dangerous” people to determine who is dangerous.