A federal appeals court just found the law stripping gun rights from those with a different kind of domestic violence restraining order than the one already considered by the Supreme Court is still lawful.
Last Thursday, the Tenth Circuit Court of Appeals sided with the government in a challenge against the second kind of restraining order that can lead to disarmament under federal law. The unanimous three-judge panel agreed the underlying law was constitutional on its face. It argued the Supreme Court’s reasoning for upholding the other type of restraining order in 2024’s US v. Rahimi applied just as well to the orders at issue in this case.
“As in Rahimi, Defendants utterly fail in that endeavor because the orders issued in their very own cases are constitutionally sufficient,” Judge Harris Hartz wrote for the majority in US v. Gordon. “Utah courts ordered both Defendants not to possess firearms; and a Utah court can issue such an order only if it finds that ‘the respondent’s use or possession of a weapon may pose a serious threat of harm to the petitioner.'”
The decision expands on the Supreme Court’s Rahimi precedent. It could serve as a potential vehicle for the High Court to affirm that any domestic violence restraining orders can justifiably result in disarmament. The court could also take the opportunity to draw a distinction between the two different types that qualify under federal gun law.
The plaintiffs in the case, which combined two lower court challenges, tried to take the latter track. They argued their restraining orders were issued under section (C)(ii) instead of the section (C)(i) orders at issue in Rahimi. They said the fact that (C)(ii) doesn’t require a specific finding that the person subject to the order is a threat to the person requesting it makes it substantially different from the orders at issue in Rahimi and, therefore, unconstitutional.
None of the three judges, who included George H. W. Bush, George W. Bush, and Joe Biden appointees, bought that argument.
“This difference, however, is of no constitutional import, at least on a facial challenge,” Judge Hartz wrote. “Rahimi allows a court to disarm a ‘threatening individual’ if it makes a judicial determination that the ‘individual poses a clear threat of physical violence to another.’ (C)(i) satisfies this requirement through an express finding. (C)(ii) ‘establishes the same point by reasonable inference from the fact that a defendant is subject to [an order prohibiting such behavior].'”
Hartz went on to argue Rahimi doesn’t require judges to spell out that somebody is dangerous for restraining orders to be constitutional under the Second Amendment.
“The reasoning in Rahimi does not turn on the particular form that the judicial determination of dangerousness takes,” he wrote. “Nor have Defendants pointed us to any historical surety statute cited in Rahimi or Bruen mandating that a judicial determination of dangerousness be memorialized in writing. We see no reason to impose an explicit-written-finding requirement here, particularly when the inference of a finding is so strong. A (C)(ii) order cannot be issued on a judicial whim.”
He went on to explain that Utah requires a judge to find “‘domestic violence or abuse has occurred’ or that ‘there is a substantial likelihood [that] domestic violence or abuse will occur'” in order to issue a protective order. Further, he noted the orders in question require a finding of dangerousness in order to be used for disarmament.
“[I]n particular, an order, such as the orders entered against Defendants, can ‘prohibit the respondent from purchasing, using, or possessing a firearm or other weapon specified by the court’ only if the court ‘find[s] that the respondent’s use or possession of a weapon may pose a serious threat of harm to the petitioner,'” Judge Hartz wrote.
He admitted there were some circumstances where non-violent acts, such as digital harassment or voyeurism, could result in a domestic violence restraining order. He left open the possibility that somebody could be unlawfully disarmed in those cases. However, he said that doesn’t undermine the determination that there were plenty of circumstances–including the ones the plaintiffs themselves were involved with–where the law is viable.
“Perhaps there could be a domestic-violence protective order in Utah that satisfied (C)(ii) but was not based on implicit findings that could satisfy (C)(i) (although we do not see how that could be the case with a proper order restricting possession of firearms, as in the orders at issue here),” he wrote. “But Defendants cannot prevail on a facial challenge by invoking possible outliers that ‘might raise constitutional concerns.'”
