United States vs. Zackey Rahimi: domestic violence restraining orders

[Tom Servo]

Mr. Rahimi was convicted with possession of a firearm by a person under a restraining order. He contested the constitutionality of it, and the 5th Circuit ruled in his favor.

This has been fast-tracked to the Supreme Court, and it looks like they're going to hear it next session. The petition is here.

At issue is whether or not the prohibition under 18 U.S.C. 922(g)(8) stands up in light of the Bruen decision.

It's worth mentioning that Mr. Rahimi is, um, not a sympathetic plaintiff. He beat up his girlfriend, threatened to shoot her and a bystander, shot at someone in a road-rage incident, and fired a gun in a Whataburger when his credit card was declined.

The media is going to have a field day with this one, but it's an important question. It also bears mention that this will not affect people convicted of domestic violence. It only addresses whether the government can prohibit gun ownership for those under restraining orders.

 

[44 AMP]

doesn't appear to be a good guy. Certainly not the poster child I would pick by choice. That being said, and accepting the press will hammer his past behavior hard, what he did is not the point.

The point is, no matter what he is accused of, or suspected of, he has not been CONVICTED of a disqualifying offense. And that's the point.

This isn't actually a matter of gun rights, or at least I don't think the court will look at it that way. It is a matter or correct legal procedure and process, as viewed by the current SCOTUS, and they have shown a fairly consistent approach to everything they've ruled on, no matter past practices or how much actually doing what the law requires and NOT doing what it doesn't allow for upsets the numerous talking heads for various factions.

From my simple (and possibly myopic) point of view, I think the ruling will be rapid and clear. The law provides for suspension of rights AFTER CONVICTION, not before. I think (and hope) that's the way the court will look at the matter, and the way they will rule.

Of course, lots of people won't like that....but if it were up to me to respond to that, I'd say, if you don't like the law, then either get the law changed, or actually charge people and get convictions before stripping them of their rights, even temporarily...

You don't get to have it both ways. Nor, should you, IMHO.

 

[MTT TL]

The problems with domestic abusers is that they are extremely prone to re-offend, and they often do so while awaiting court on their current charges. They are also quite likely to threaten and harass their victims to get them to either drop charges or recant witness statements while they are awaiting court.

IMO if the person is dangerous enough that are a serious threat to the victim they should be held without bail and have their hearings expedited. Taking their guns away does nothing since obtaining another weapon (gun, car, knife, hammer etc) is a simple matter and likely to antagonize the offender. Keeping them locked up makes it much more likely they will be unable to cause more harm to the victim.

 

[Aguila Blanca]

I clearly remember two cases in my state in which men who were in the midst of divorce proceedings and had restraining orders in force nonetheless managed to obtain firearms and kill their soon-to-be ex-wives.

One of them was a state cop ...

The purported efficacy of protective orders is a myth.

 

[44 AMP]

IF someone is enough of a credible threat to justify prohibiting or even seizing firearms (in the interest of public safety), prior to being convicted of any disqualifying offense, HOW is it reasonable, or responsible to allow them their freedom (and their bank account) so they may go out and obtain other items, including firearms, to commit harm with???

Isn't a restraining order, alone, simply nothing but a paper CYA for the legal system?

perhaps they should have a form letter of apology something like this...

"we're sorry (insert name here) you were a victim of domestic violence after you warned us you were at risk, but we did issue a paper ordering them not to harm you...."

To me, if you petition a court for protection, and they issue a paper order, and do nothing else, and then say you are protected, that is a lie.

This is not the same thing as the police failing to protect an individual, not even remotely, as I see it.

 

[MTT TL]

Restraining orders in a marriage are relatively new in our legal system. They are not well adhered to. Most studies show they get violated 40-70% of the time with even worse abuse occurring about 20% of the time. Many studies conclude that they are either useless or can even have detrimental effects. Some studies have shown that in some counties more than 90% of orders are never even served.

Isn't a restraining order, alone, simply nothing but a paper CYA for the legal system?

In Castle Rock v. Gonzales SCOTUS determined that the city and police could not be held liable even for not enforcing a restraining order. This is pretty significant as cities will go along way to avoid liability. I wonder of that case were in front of the courts today if the answer would be the same given how many cases of police law suits have gone these past few years.

Honestly, I don't think anyone believes a restraining order will work.

 

[44 AMP]

Honestly, I don't think anyone believes a restraining order will work.

Oh, they absolutely do "work" as justification for arrest, AFTER they have been violated. What they do not do, is prevent anyone who has violence as their intent from committing violence. No paper does, or can do that.

 

[44 AMP]

Just read another hit piece under the guise of "rational" discussion... I was trying to be (somewhat) open minded, until I read this...

the same Supreme Court that includes one judge credibly accused of sexual assault, another with a history of sexual harassment, and a third whose Pentecostal religion holds that women are to obey the demands and orders of men—to decide.

The author hammers on the point that "domestic abusers shouldn't be allowed to have guns", which, of course is something tough to argue against and appear compassionate, but which ignores (I believe intentionally) two major points. First is, NO ONE is advocating for domestic abusers having guns. NO ONE.

The second point is actually the legal issue in the Rahimi case. Its not whether or not domestic abusers have guns, its about the proper procedure of government, and whether or not certain laws have been/ were written improperly or are being taken too far.

The Rahimi case will be another test of the Lautenberg act, and whether or not the current court will uphold it as previously done, or rule against it or part of it.

Since passage in 1996, the Lautenberg act lowered the bar for suspending or removing an enumerated Constitutional right from felonly conviction down to misdemeanor conviction, and even further, all the way down to denial of rights due to an accusation , which is what restraining orders are based on. Not a trial, not a conviction, not much in the way of due process, either.

Just a claim of risk, credible enough on the surface for the Judge to believe possible, and payment of the court fee gets a restraining order.

There is another point to consider, something else never to be mentioned in the op-ed pieces against even hearing the case, and that is simply the way the legal system treated Rahimi.

And that is, despite the numerous things he did that should have gotten him convicted of offences making him legally a prohibited person, he never was.

He's currently in prison, not for domestic violence, not for threatening people with a gun, not for shooting at people (and missing) or shooting into the air when he gets upset, but for violating a court order prohibiting him from having a gun when he had never been convicted of any crime disqualifying him from having a gun, despite apparently ample evidence that he actually did perform disqualifying acts, he wasn't convicted of doing them.

As I see it, the fundamental principle here is essentially "innocent until proven guilty". Even the worst of the bad actors have all the rights everyone has, UNTIL convicted. Failure of the legal system (most often due to the decisions of the people in it) to prosecute people is a failure of the system, not the underlying ideals.

All laws are passed with "the best of intentions" but they say the road to hell is also paved with that, so.....draw your own conclusions.

 

[Metal god]

I think this is an interesting case . A lot of people think it’s a hard case for SCOTUS and maybe devastating to the pro second amendment crowd. The fact that Mr. Rahimi has/had shown quite clearly he was a danger to him self and other do to his own past actions with a firearm . This would seem like a pretty easy case as far as the ruling goes . I believe there is plenty of precedent of the government prohibiting people from all sorts of things when said person has shown a clear propensity of violence to even keep them behind bars until the trials is over . Keeping someone restrained/detained against there will seems like a much bigger violation of ones rights then prohibiting then from possessing a firearm .

The concern I have is the wording in the ruling and wiggle room that may be with in said wording . One big one would be defining a danger to others . Since silence is violence now , if the ruling is poorly written there could be all kinds of abuses just waiting to happen. It has the potential to solidify red flag laws everywhere. Or completely dismantle the argument for them.

 

[44 AMP]

The fact that Mr. Rahimi has/had shown quite clearly he was a danger to him self and other do to his own past actions with a firearm .

Was he?? Did he demonstrate that he was to the satisfaction of the legal system?? Since he wasn't arrested, it seems not.

I believe there is plenty of precedent of the government prohibiting people from all sorts of things when said person has shown a clear propensity of violence to even keep them behind bars until the trials is over . Keeping someone restrained/detained against their will seems like a much bigger violation of ones rights then prohibiting them from possessing a firearm .

Sure, there is plenty of precedent, and there is a legal process in place to deal with dangerous people. We call it "due process" and its rules and steps must be followed correctly.

part of this concept includes having standards, determining what actions may be taken, and when. Police are allowed to hold someone against their will for a specific period of time (I think its 72hrs), but after that, they must either arrest the person (for something) or release them.

So, if the local prosecutor doesn't file charges, no matter how much bad behavior scared people, if there are no charges there can be no conviction, and so no law has been officially broken.

As I see it, because the local govt did not charge, try or convict Rahimi for the wrong things he did, then as far as those things (and his obvious behavior) are irrelevant. Why he only wound up with a restraining order, which he violated, is not the relevant question.

The question for the high court is (as I see it) does the govt have the constitutional authority to issue a restraining order that prohibits firearm possession to someone who has not been convicted of a disqualifying offense?

At the Federal level it was the 1996 Lautenberg amendment that prohibited firearms possession to those under a restraining order.

SCOTUS has reorganized the judicial review process required for gun control laws. SO, I believe the argument being made is "under current review process and criteria, did the govt exceed its authority by restraining firearm possession without a conviction of a disqualifying offense?

Rahimi by the accounts of his behavior I've read is not a good guy, but he's not in jail for being a bad guy, he's in jail for having a gun when a restraining order forbid it.

This one will be ...interesting....

 

[Metal god]

So, if the local prosecutor doesn't file charges, no matter how much bad behavior scared people, if there are no charges there can be no conviction, and so no law has been officially broken.

Im not sure you see my point . Ok no charges but what happens when one is arrested , charged and held without bail ? There has been no conviction so how do they have a right to hold you ? I believe it’s because they believe you did something so bad you don’t deserve to be free in public .

Ok lets say you were arrested or detained for firing your gun at another person . That usually comes with all kinds of legal documentation like police reports , witness statements etc that are now part of an official record documenting your behavior. Now lets say you have several of those instances, are you saying because you were not convicted of a crime they don’t show your overall propensity to violence and mayhem ?

I still think this is an easy case to rule on . I’m not saying without a conviction you can prohibit for life . Just like a 72hr hold . If you have shown and it has been documented that you are dangerous and or reckless with firearms . The court can prohibit you from possessing them until your “current” case involving violence is resolved.

Now that’s where the wording of the ruling becomes my concern.

 

[zukiphile]

Im not sure you see my point . Ok no charges but what happens when one is arrested , charged and held without bail ? There has been no conviction so how do they have a right to hold you ?

Because there has been a bail hearing in which you are concluded to be a flight risk or are dangerous and your right to post bail and be released has been denied.

I believe it’s because they believe you did something so bad you don’t deserve to be free in public .

Punishment isn't a valid basis for denying the bail right.

I still think this is an easy case to rule on . I’m not saying without a conviction you can prohibit for life . Just like a 72hr hold . If you have shown and it has been documented that you are dangerous and or reckless with firearms . The court can prohibit you from possessing them until your “current” case involving violence is resolved.

If you are presumed innocent, you shouldn't have your rights suspended pending government "resolution". Police don't resolve cases, but they do arrest and charge people without any rational basis every day, so the fact of an arrest can't be proof that you engaged in any of the conduct for which you were said to be arrested.

You don't want to have any of your rights subject to their discretion. I don't want the federal government to use something short of an adjudication to trim a right.

 

[Metal god]

Ok so you have a bail hearing bla bla bla

Now you have hearing to prohibit gun ownership bla bla bla

What’s the difference? Im not advocating for what I’m saying , I’m just saying, the United States has a long history of restricting, prohibiting persons from doing any number of things well before any proof being established or convictions .

Maybe I missed it , was the hearing/court order prohibiting the defendant secret, and he was never informed ?

 

[44 AMP]

I’m just saying, the United States has a long history of restricting, prohibiting persons from doing any number of things well before any proof being established or convictions .

yes, indeed we do. And, like the interment camps for US citizens of Japanese, or suspected Japanese ancestry in WWII, when a court gets to rule on the matter, it almost invariably finds the Govt acted in error.

Such a ruling may come fairly quickly (the best and most hoped for outcome) but sometimes the final ruling doesn't happen for decades or more and compensation (if any) goes to the victim's descendants, if any.

We have a long history of our govts, from local up to Federal doing that kind of thing. And they get away with it, until a court rules they can't, because they didn't properly follow their own rules.

Other side of the coin is, important, even vital evidence of criminal activity or intent being excluded from admission in court, because the govt (usually police) didn't follow all the rules when they obtained the evidence.

That is something often used in the various crime drama TV shows, I'm sure you've seen at least one, where "fruit of the poisoned tree" is used to exclude some key fact or item, and while the specifics of the shows are fictional, and not always accurate, the principle is real and is used.

It does upset folks when a criminal goes free "on a technicality", but that is our govt following its rules as written. We don't get to pick and choose which rules we follow when. Doing that is not equal treatment under the law, and while it does happen, its not supposed to, and is the result of flawed law enforcement, not the law itself.

Consider that laws (and regulations) are somewhat similar to spaghetti noodles. As made, and in the box they are all straight, firm, simple, and easily followed from one end to the other.

Then they get cooked. This is criminal justice /legal system making them soft, bending them, twisting them together and then finally serving them all mixed together on a plate, and usually mostly covered with some kind of sauce that makes following each noodle from beginning to end difficult if not essentially impossible. (I use noodles as an example because I like them better than worms, but the idea is the same, mixed up twisted together and in a specific confined configuration, you can't trace individual worms while they are in the can.)

 

[zukiphile]

Ok so you have a bail hearing bla bla bla

Now you have hearing to prohibit gun ownership bla bla bla

The "bla bla bla" part covers a lot of ground. Is there a right to a jury involved? Is the order denying rights appealable yet? Is the court required to make a finding beyond a reasonable doubt before issuing a restraining order, or does there only need to be "some evidence"?

Maybe I missed it , was the hearing/court order prohibiting the defendant secret, and he was never informed ?

Those are good questions too. Was Rahimi present at the hearing that resulted in the order?

 

[44 AMP]

The law works in mysterious ways, its wonders to perform...or so it seems.

No idea what actually happened in the Rahimi restraining order matter, other than the order was issued...

My understanding is, that when someone seeks a restraining order against you, you are SUPPOSED to be notified, so that you have the opportunity to present your side to court, but it is not required you be there, and the order can (and normally will) be issued if you don't show up.

Note the similarities and differences between the restraining order and
"red flag" orders of protection. Red Flag orders do not have to inform you in advance, you are not required to be present (possibly not allowed to be) and after the guns are taken, you get informed of a hearing sometime in the next YEAR to attend to argue for the return of your property.

NEITHER ONE requires PROOF or a conviction of criminal activity.

Accusation alone was enough for the judges of Salem to hang "witches" (after a "fair" trial, of course. Seems like that still enough for some judges today to act, without the fuss and bother of a trial....all for the public good, of course.....

 

[zukiphile]

My understanding is, that when someone seeks a restraining order against you, you are SUPPOSED to be notified, so that you have the opportunity to present your side to court, but it is not required you be there, and the order can (and normally will) be issued if you don't show up.

Sometimes there is a hearing. Some restraining orders just issue because a divorce complaint is filed.

Note the similarities and differences between the restraining order and
"red flag" orders of protection. Red Flag orders do not have to inform you in advance, you are not required to be present (possibly not allowed to be) and after the guns are taken, you get informed of a hearing sometime in the next YEAR to attend to argue for the return of your property.

Typically, there's a hearing of which a respondent receives notice within a few weeks of the confiscation. At that hearing, the question isn't whether you committed a crime and the state doesn't carry the same burden it does in a real criminal trial.

NEITHER ONE requires PROOF or a conviction of criminal activity.

You've a great diversity of procedures amongst states and the circumstances that might lead to a court issuing a restraining order involving "domestic violence", which might cover everything from a shove or a slap to broken bones and hospitalization.

The people typically involved aren't held in high esteem for the behavior of which they are accused, and it's politically easy to disadvantage them by creating a legal disability into which they fall with no criminal conviction.

FWIW, someone can be a contemptible wife beater and still have need of a firearm for valid purposes.

 

[Aguila Blanca]

Im not sure you see my point . Ok no charges but what happens when one is arrested , charged and held without bail ?

Do you see what you wrote?

"no charges" ... BUT "arrested, CHARGED, and held ..."

Take your pick -- charges, or no charges. You can't have both in the same case.

 

[MTT TL]

In order for a restraining order to be enforced it must first be served. Service of the order varies by state but is most often accomplished by a deputy through the sheriff's office.

 

[Metal god]

Take your pick -- charges, or no charges. You can't have both in the same case.

I don’t understand what you mean , likely because you didn’t understand what I said . You can’t cut and paste that sentence with out the context of the rest of the paragraph which you took it from . I was responding to something very specific to what 44 said about never being convicted of a crime . I was pointing out one is often deprived of ones rights well before any convictions .