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The Supreme Court is taking up a case challenging the use of a Texas state “red flag” by federal prosecutors to deny someone their 2nd Amendment right to keep and bear arms and to jail them for unlawful possession of guns. The reporting on this case may likely ignore the actual legal challenge. Instead, it will be characterized as: “Putting spouses and significant others (mostly women) at risk by ruling ‘red flag’ laws unconstitutional vs. upholding a violation to a fundamental right of self-defense without due process of law.”
The case is United States v Zackey Rahimi. Mr. Rahimi was accused of domestic violence by an ex-girlfriend and she sought a civil protective order (CPO) from a Texas state court. A preliminary CPO was issued and a hearing set for no more than two weeks later. Then, after service of notice at least 48 hours prior to the hearing, Mr. Rahimi could appear to challenge the order.
Mr. Rahimi appeared on the day of his hearing without a lawyer (which is typical in most of these cases). As is also typical, the prosecutor in the case offered Mr. Rahimi to avoid a hearing, and an assessment of costs that can range between $500-$7,000, by agreeing to an order of protection the prosecutor had prepared. Rahimi agreed. The brief filed by Rahimi’s lawyers in the appellate case includes the following:
The prosecutor prepared the order. … As in many other Tarrant County CPOs, the prosecutor added boilerplate “findings” that bore no significance under Texas family law: that Mr. Rahimi “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,” and “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.” … Those same findings appear in most Tarrant County CPOs…. Yet they are absent from the statewide form CPO approved by the Texas Supreme Court.
[edited to make the paragraph more easily read]
The significance of this paragraph I will cover in a moment.
Nearly a year later, Mr Rahimi’s residence was searched during an investigation for something unrelated to domestic abuse. That residence was not shared with the ex-girlfriend, who lived some distance away. A .45 caliber pistol and a .308 caliber rifle were found during the search and there is no dispute that these weapons were possessed by Mr. Rahimi. But because of the Texas state protective order, Mr. Rahimi was indicted by a federal grand jury of violating 18 USC 922 (g)(8), which provides:
18 U.S. Code § 922 – Unlawful acts
(g) It shall be unlawful for any person—
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. [emphasis added]
Of course, “interstate commerce” is the fig leaf for federalizing what would otherwise be solely a state matter.
Mr. Rahimi pleaded guilty to the charged offense and then challenged the constitutionality of the federal statute under which he was convicted. What is under review by the US Supreme Court is not whether any state law can constitutionally limit access to guns based on domestic abuse laws, but whether the federal government can bootstrap any state “red flag” law into a federal conviction.
The first problem with state “red flag” laws is that, like the color red, they come in many shades. I don’t know of anyone who wants someone suffering from active paranoia schizophrenic delusions to have a loaded gun in their hands. But not everyone with a mental condition is dangerous, particularly when controlled by medication. So status alone, is insufficient to deprive one of a fundamental civil liberty.
The federal form filled out when purchasing a gun through a Federal Firearms License holder asks whether the prospective buyer has been adjudicated as mentally defective or committed to a mental institution? In both instances, the answer is “no” unless there has been a third-party determination — a court, board, commission, or other lawful authority — that you are mentally defective (i.e., subpar intelligence or mental condition unable to make judgments to manage your own affairs, and comprehend the consequences of one’s actions) or requiring involuntary commitment to a mental institution. It does not include commitment for observation or voluntary commitment. In other words, there needs to be observed conduct that one is dangerous to oneself or others, and a factual finding that that conduct meets legal tests for restricting your liberty.
Do all state “red flag” laws meet these tests? Some may, but others do not. The initial question is: has the person being denied a fundamental right received due process of law? The case under review by the US Supreme Court started with an ex parte proceeding, one in which the accused is not present and is incapable of challenging or presenting evidence in defense.
This is typical of requests for protective orders in domestic abuse cases. An aggrieved spouse or significant other applies to the court to obtain an order of protection keeping the alleged abuser physically away from them. A judge or magistrate hears the accusation and supporting evidence and decides whether it is sufficient to grant the preliminary order. The period of time in which the preliminary order is in effect before the accused can have a hearing to challenge the order may be a matter of a few days. But in some states, the “red flag” laws permit the accused to be disarmed immediately. And even if the order is withdrawn subsequent to the hearing, it may take a little while before the accused is given back their armament(s).
The federal statute, at least, requires a hearing in which the accused can confront the evidence supporting the preliminary order. So, any state laws that permit disarming the subject of a protective order based on ex parte hearings alone would not subject that person to federal jeopardy for possessing a firearm. And, in fact, one issue in the Rahimi case is whether an unrepresented person subject to a protective order who agreed to an order without hearing is in federal jeopardy for possessing a firearm. But the claim in the appeal is much larger — that the federal government cannot make a federal crime to possess a firearm simply because one is the subject of a state-issued protective order. If the federal government cannot, that doesn’t mean it’s “open season” on accusers and the public. The state can still fashion laws that make possession unlawful as long as the individual denied the right to possess and bear arms is provided their day in court with effective representation.
Will the Court rule the 18 USC 922 (g)(8) unconstitutional? Maybe. The appellant and the Fifth Circuit majority have made a good case. Will that put spouses and significant others (mostly women) at greater risk? I tend to doubt that. First, because the Court, if it upholds the Fifth Circuit decision, does not invalidate all state “red flag” laws. The Court may clarify rules that place some state laws in jeopardy, but those laws will need to be challenged individually. Second, because there is a sad history of the effectiveness of these laws in preventing a determined abuser from harming their target of rage. And invalidating the federal statute alone simply means that an abuser who lives in a different state from the target will not be disarmed in that other state, or failing that, put into federal prison.
Will ruling 18 USC 922(g)(8) unconstitutional result in more people having access to guns who are dangerous? Yes, and it will result in more people having access to guns who are not dangerous. Unless we want to embrace a State like that in Minority Report where persons are jailed based on a determination that they want to commit a crime, we must accept the risks that individual freedom brings.Published in