United States vs. Zackey Rahimi: domestic violence restraining orders

[44 AMP]

Even if Rahimi had agreed with the state that he wouldn't contact his girlfriend or possess weapons, that doesn't get to whether the federal government can effectively erase one of his basic rights over such an agreement.

I'm not sure the principle you are espousing actually holds. There is a LONG history of "effectively erasing basic rights" during military service. You sign a contract with the govt, agreeing to that. Draftees (which no longer exist) might have an argument about being compelled, but volunteers do not. One literally, signs away numerous fundamental civil rights for the duration of your service. Particularly ALL your rights under the civilian justice system. You have specific rights under the UCMJ, but they are NOT the same as those of the civil system.

If you and Metal god signed an agreement to never vote, and become indentured servants, we'd still have all sorts of constitutional problems with it.

If Metal God and I enter into any agreement, we do so as private citizens, so it is not a case of govt vs citizen and no claim of govt violating any rights due to an agreement between private parties would be valid.

IF the agreement stipulated violation of existing law, that would be a matter for govt to be involved it, in its role of enforcing law. And that would be entirely dependent on the specific details of the private agreement. IF the agreement is of such a nature that it could constitute conspiracy to commit a crime, then the govt would have grounds for prosecution under the conspiracy laws. Whether or not it would be successful depends on the specifics of the case.

Here's a point to consider, about "agreeing" to a restraining order, the person who accepts the order, agrees to abide by its requirements. They may feel they have no other choice, they may SAY there was no other choice, but there is ALWAYS another choice.

It is actually simple, but the other choice is to refuse to accept the order and require the govt to go through the entire due process procedure. Arrest, prosecution, trial by jury, etc.

If you lose, the result is often much less desirable (such as conviction and jail time) than accepting the restraining order with all its restrictions, but that is not the same as having NO other choice.

 

[zukiphile]

I'm not sure the principle you are espousing actually holds. There is a LONG history of "effectively erasing basic rights" during military service. You sign a contract with the govt, agreeing to that. Draftees (which no longer exist) might have an argument about being compelled, but volunteers do not. One literally, signs away numerous fundamental civil rights for the duration of your service. Particularly ALL your rights under the civilian justice system. You have specific rights under the UCMJ, but they are NOT the same as those of the civil system.

Emphasis added. I think the bolded is instructive on this point; it's a feature of military service that members lack civil rights, not how they entered that service.

If Metal God and I enter into any agreement, we do so as private citizens, so it is not a case of govt vs citizen and no claim of govt violating any rights due to an agreement between private parties would be valid.

IF the agreement stipulated violation of existing law, that would be a matter for govt to be involved it, in its role of enforcing law. And that would be entirely dependent on the specific details of the private agreement.

Emphasis added. If you and Metal god entered an agreement for you to sell yourself into slavery, that agreement might be between the two of you, but we'd have a problem with it because of the COTUS.

Here's a point to consider, about "agreeing" to a restraining order, the person who accepts the order, agrees to abide by its requirements. They may feel they have no other choice, they may SAY there was no other choice, but there is ALWAYS another choice.

There are a lot of ideas that surround contracts that are a poor fit for quasi-criminal procedure. In plain vanilla contract matters, the contract is construed against the party that drafts it, you are bound by the terms even if you didn't read the contract, and even if you read the terms if you were under duress.

Rahimi doesn't dispute that he violated the CPO. It appears that he objected to consecutive sentencing for the state possession charge and then the federal possession charge, the trial court having found that they weren't related enough to be the same crime. (I understand from criminal friends that a court can't sentence a lesser included offense and the larger offense and add the sentences together.)

In Rahimi's facts, he didn't agree with the federal government on the terms of the CPO, but it's a violation of federal law with which he is charged and sentenced.

 

[Metal god]

So now I’m a slave owner …. Well that went south pretty fast , lmao

I agree with Zuk

Isn’t one easy way to get out of any contract is to have it found unconstitutional? It almost sounds like you guys are saying as long as the two parties agree there is no possibility of legal conflict? That just doesn’t sound right . Maybe I need to hear your argument worded differently to understand it .

 

[44 AMP]

If you and Metal god entered an agreement for you to sell yourself into slavery, that agreement might be between the two of you, but we'd have a problem with it because of the COTUS.

Actually, I doubt the Constitution would matter, as my wife of 43 years has always had strong objections to any one else "owning me".

 

[zukiphile]

At this point, I'm like the guy in Shawshank Redemption who wouldn't know what to do with freedom.

It almost sounds like you guys are saying as long as the two parties agree there is no possibility of legal conflict?

The way I see the drift of 44's point, Rahimi is estopped from arguing against conviction for possession because of his prior contact with the state and the resulting CPO. Estoppel is the idea that that you can't have one position in one place and another contrary position in another place.

The details of Rahimi's criminal record aren't flattering to him. You might conclude that an unattractive party is less likely to prevail, but I wonder if this might work for him. He is staying locked up even if he wins. The questions he raises is so narrow that it wouldn't risk vindication or excuse of his underlying poor behavior if the court were to find the federal code under which he was prosecuted unconstitutional.

On other words, one wouldn't feel estopped by hoping someone like him is punished when he argues that he shouldn't be punished for something beyond the power of Congress.

 

[Metal god]

I get most of that but the very thing he agreed to “ forfeiture of the right to keep and bear arms “ as it relates to a restraining order, has been found to be unconstitutional at this time . How can the agreement of the premise in a contract be valid after the premise itself is found to be unconstitutional ?

 

[zukiphile]

I get most of that but the very thing he agreed to “ forfeiture of the right to keep and bear arms “ as it relates to a restraining order, has been found to be unconstitutional at this time . How can the agreement of the premise in a contract be valid after the premise itself is found to be unconstitutional ?

It's useful to think of the two facets of his possession as two separate cases.

1. In an individualized hearing, a court finds that Rahimi specifically should not possess a firearm. (That Rahimi may have also consented to the terms is a distraction, imo).

2. In a piece of legislation, Congress decides that people who aren't felons and haven't been convicted of any crime can't possess arms.

1 may involve due process and can be part of a conventional individual order supported by evidence about Rahimi. 2 is a denial of a fundamental right to a class of people who are competent and have not been convicted of a felony.

 

[44 AMP]

Originally Posted by Metal god
I get most of that but the very thing he agreed to “ forfeiture of the right to keep and bear arms “ as it relates to a restraining order, has been found to be unconstitutional at this time .

Ok, I'm confused, am probably missing something, WHERE has it been found unconstitutional at this time? Is that in the 5th circuit ruling? and is that what is being challenged so this goes to the Supreme Court??

And if so, what part is unconstitutional? the imposed forfeiture? An agreed to forfeiture? Both??

some clarification would be helpful...

 

[zukiphile]

Is that in the 5th circuit ruling?

Yes, the finding of unconstitutionality is. The court's opinion includes,

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable polic ygoal. The question is whether 18 U.S.C. §922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

That doesn't mean the CPO is unconstitutional though. The validity of the CPO is not contested.

 

[natman]

Ok, I'm confused, am probably missing something, WHERE has it been found unconstitutional at this time? Is that in the 5th circuit ruling? and is that what is being challenged so this goes to the Supreme Court??

And if so, what part is unconstitutional? the imposed forfeiture? An agreed to forfeiture? Both??

some clarification would be helpful...

US v Rahimi, Fifth Circuit Court of Appeals, page 7

....the Government’s argument fails because (1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles.

 

[44 AMP]

Thank you for the link. I have read it, I believe I understand its reasoning, and I agree with it.

After seeing yet another internet "opinion piece" about this case (this one with USA Today's byline) I note they are very consistent in only referring to this case as "allowing domestic abusers to have guns". Which, I think is inaccurate, and not what this case is actually about.

Please correct me if I am in error (and do point out where and how), but as I understand it, the issue of felons/prohibited persons being denied the right to arms is NOT what is under consideration at this time.

What is being ruled on is the authority of the govt to strip the right to arms from someone via a civil order. (not a criminal conviction) And, that under the review framework required by the Bruen ruling, the govt does not have that authority.

That was what the 5th circuit ruled, that ruling is being challenged, so its now going to the Supreme Court. Does that sound about right??

 

[Metal god]

Correct, and the 5th circuit determined under Bruen there is no text or tradition allowing such an order . I originally thought the gun violations were before the restraining order which would have shown mr Rahimi to be a danger to pretty much everyone and there is tradition of the government restricting your right under those circumstances . Since you (44) pointed out the actual time line which I failed to do . It gets a bit more complicated now that we/I know the restraining order came first .

This is why I asked if he was released . I’m sure the statute of limitations have not ran out on his other gun violations. Therefore, even if the restraining order aspect of this was found to be unconstitutional, and he be ordered released on those grounds. He could immediately be re-arrested for discharging his gun, five different times in public for what appears to be no reasonable reason. He’s far from out of the woods, but this may be huge for restraining orders and red flag laws moving forward for sure .

 

[Metal god]

I’m adding a second separate thought here . Ok lets say there is no tradition of restricting one second amendment rights do to domestic violence . Can and or should the courts look at all traditions at that time . Good or bad and weigh accordingly?

One would be , very little openly gay relationships and no gay marriage so domestic violence back during the ratification would almost always be the male abusing the female . No not always but my next point may address that aspect

Second , what were women’s right like back then ? If a woman went into the local sheriffs office and said my husband hit me several times last night for burning the dinner . What would a sheriff or local district attorney do about that ? I don’t know the history of women’s rights but would guess they would do very little if they could do anything legally at all .

So now that brings up a similar question like banning blacks from owning firearms and claiming those laws show a tradition of the government banning guns but in the opposite direction. How can you claim there is no tradition of of restricting firearms from domestic abusers when it was likely not a thing and more ok then not to abuse your wife legally back then .

We have since evolved as a society and no longer tolerate any domestic violence. Therefore is it really appropriate to only look at the time of ratification up to the 14th Amendment as it relates to women being abused and asking LEO or the courts to do something about it ? Maybe in these types of cases we should look from the time period when woman had 100% equal rights and maybe 50 or 60 years after that to see what may be a tradition ???

IDK this is a brand new thought and I’m still working it out in my head . At minimum does that sound like a reasonable argument for the government to raise ?

 

[zukiphile]

After seeing yet another internet "opinion piece" about this case (this one with USA Today's byline) I note they are very consistent in only referring to this case as "allowing domestic abusers to have guns". Which, I think is inaccurate, and not what this case is actually about.

Popular press are as often an impediment to understanding these things more than an aid.

Please correct me if I am in error (and do point out where and how), but as I understand it, the issue of felons/prohibited persons being denied the right to arms is NOT what is under consideration at this time.

Except in as much as a prohibited person would include someone subject to a DV restraining order that functions like a weird skin tag on what had previously been considered a prohibited category.

What is being ruled on is the authority of the govt to strip the right to arms from someone via a civil order. (not a criminal conviction)

Yes, but in a very specific way only, through the federal code. This isn't about the right of the state court to issue the CPO/TRO (permissible) on which a federal charge can rest (impermissible).

And, that under the review framework required by the Bruen ruling, the govt does not have that authority.

Right.

 

[44 AMP]

Except in as much as a prohibited person would include someone subject to a DV restraining order that functions like a weird skin tag on what had previously been considered a prohibited category.

Not quite sure what you mean. A restraining order on a prohibited person wouldn't need a "no firearms" clause at all, since the prohibited person is already barred from possessing firearms. Just seems like department of redundancy department....

 

[MTT TL]

Please correct me if I am in error (and do point out where and how), but as I understand it, the issue of felons/prohibited persons being denied the right to arms is NOT what is under consideration at this time.

Keep in mind that state laws vary WIDELY. Merely being a felon doesn't make one prohibited by state law in a number of states. While a prohibited person is still prohibited, a felon in my state is allowed to own and use firearms unless they committed specific violent felonies, drug trafficking or DV. As we require no permit he can even carry concealed.

So if a court order were issued in my state it would include that regardless of criminal history.

 

[44 AMP]

One of many things muddying the waters here is that both state law, and Federal law are involved to a degree.

Lautenberg makes someone under a restraining order a prohibited person, on the federal level, for the duration of the order. If I recall correctly, the Fed law does not require a firearm prohibition in the state issued restraining order it is a blanket rule covering all restraining orders.

The point (or at least one of the points) I hope SCOTUS will rule on is if the Fed govt has the Constitutional authority to do that. They have been doing it since Lautenberg passed in 96, but the amount of time, be it 5, 20 or 80 years is not the relevant matter. The point is, the legal argument is being made that they did something they should not have done.

We will have to see which points of law the court chooses to rule on, and what their ruling is.

Additionally, I know state laws vary widely, but that is also irrelevant to this case. The matter being contested happened in Texas, so, in THIS case, only Texas laws and Federal laws are to be considered.