U.S v. Rahimi Expert: Domestic violence victims deserve to be protected

“The prohibition on firearms possession by those subject to civil protective orders filled an important gap for victims of domestic violence,” according to University of Georgia Wilson Family Justice Clinic Director Christine M. Scartz. “Persons convicted of felonies and misdemeanor crimes of domestic violence are prohibited from the possession of firearms; however, for many victims, civil protective orders are the only court recognition of the dangerousness of their abusers. Victims deserve to be protected regardless of whether the criminal justice system is involved in and responsive to the violence in their lives.”

Scartz added: “As the U.S. Supreme Court is changing the processes by which our nation determines constitutionality, history is gaining an outsized influence over who we can protect with our laws even as society continues to change and evolve. The government must have the ability to protect people from newly-recognized threats and cannot limit itself only to regulations that could have been in place when violence against women, Black people, indigenous peoples and others was not against the law.”

University of Georgia School of Law Clinical Associate Professor Christine M. Scartz, who also directs the Jane W. Wilson Family Justice Clinic, is available for further commentary at [email protected].

Photo caption: Christine M. Scartz, University of Georgia School of Law Clinical Associate Professor & Jane W. Wilson Family Justice Clinic Director

Additional information regarding U.S. v. Rahimi provided by Scartz.

Note: The U.S. Supreme Court is scheduled to hear oral arguments in this case on 11/7/23.

Please describe the case.

In 2020, a domestic violence protective order was issued against Zackey Rahimi by a Texas state court to protect his former girlfriend after Rahimi physically assaulted her in public and threatened to shoot her if she reported the incident. He subsequently threatened a second woman with a gun and was charged with assault with a deadly weapon. Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7,  Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant. Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Rahimi admitted to possessing a rifle and a pistol after the same were found at his home. Rahimi was convicted in federal district court of unlawful firearm possession while subject to a domestic violence protective order under 18 USC 922(g). The U.S. District Court upheld the constitutionality of the statute and it was affirmed by a U.S. Court of Appeals for the 5th Circuit panel. While Rahimi’s petition for rehearing was pending, N.Y. Rifle & Pistol Association, Inc. v. Bruen was decided by the U.S. Supreme Court and, using its holding, the 5th Circuit vacated Rahimi’s conviction.

What are the primary issues in U.S. v. Rahimi?

There is only one question in this case: whether a federal law that prohibits the possession of firearms by persons subject to domestic violence restraining orders (18 U.S.C. 922(g)(8)) violates the Second Amendment on its face. 

How have the decisions of U.S. v. McGinnis and New York State Rifle & Pistol Association, Inc. v. Bruen impacted U.S. v. Rahimi?

After the McGinnis decision upheld the constitutionality of the firearms proscription for those subject to civil protective orders, the Bruen case opened the door for demonstrably violent persons to once again challenge the proscriptions on their possession of their chosen tools of violence. As the U.S. Supreme Court is changing the processes by which our nation determines constitutionality, history is gaining an outsized influence over who we can protect with our laws even as society continues to change and evolve.

What key arguments do you expect to be made from each side?

For the U.S.:

• Prohibiting domestic abusers from possessing firearms continues our nation’s historical tradition of disarming persons deemed to pose a danger to others.
• Second Amendment rights are properly limited to law-abiding, responsible citizens.
• The government must have the ability to protect people from newly-recognized threats and cannot limit itself only to regulations that could have been in place when violence against women, Black people, indigenous peoples, and others was not against the law.

For Rahimi:

• There were no laws explicit or even sufficiently analogous to 18 U.S.C. 922(g) in the early history of the United States; therefore, it is unconstitutional.

What are the possible impacts of the case?

Academically, the decision could clarify how courts should apply the Bruen standard to gun laws going forward. Legislators would have clear guidance when they are making important decisions on whether to support or oppose proposed firearms regulation legislation. 

Practically speaking, it is neither hysterical nor hyperbolic to say that if the U.S. Supreme Court rules in favor of Rahimi, more victims of domestic violence will die at the hands of their abusers than when we prioritized public safety over gun ownership rights. Common accepted statistics show that about 70 women in America are shot and killed each month by a current or former intimate partner. The presence of a firearm in a domestic violence situation increases the risk of a homicide by as much as 500%. Studies also show that there is a 16% reduction in domestic violence homicides when firearm relinquishment procedures are implemented in protective order cases.

Not only will victims of domestic violence die, but their children, families, and friends will die as secondary victims in many intimate partner homicides. Not only will those connected to victims die, but law enforcement officers and innocent bystanders will also die in greater numbers than they have in the past several decades when 18 USC 922(g)(8) was in effect.

The prohibition on firearms possession by those subject to civil protective orders filled an important gap for victims of domestic violence. Persons convicted of felonies and misdemeanor crimes of domestic violence are prohibited from the possession of firearms; however, for many victims, civil protective orders are the only court recognition of the dangerousness of their abusers. It is a long road from a 911 call to a conviction, and that road has many off-ramps that can preclude a qualifying conviction. Victims deserve to be protected regardless of whether the criminal justice system is involved in and responsive to the violence in their lives.

This case matters not only to victims, but it matters to society and its continuing loss of support for the legitimacy of the Supreme Court. A bradyunited.org survey shows that 78% of Americans, including 75% of Republicans, support laws that prohibit gun possession by those convicted of domestic violence crimes. A decision in favor of Rahimi would further erode the confidence Americans have in the highest tribunal in the country to understand and reflect our values.

Anticipated ruling/outcome.

I am not optimistic that the U.S. Supreme Court will overturn the 5th Circuit as this Supreme Court has shown its willingness to elevate its interpretation of jurisprudence over supporting people’s lived experiences and elected officials’ thoughtfully crafted legislation. If I am happily proven wrong, however, it will probably be because Justices Gorsuch and Coney Barrett join with the liberal minority.