Supreme Court ruling on domestic violence gun restriction law could narrow victims' options

Nov. 6—When a recent client working with attorney Meg Alexander obtained a protective order against someone the client said abused her, the person turned over their firearms to law enforcement, as the order required.

Alexander provides legal services to people coming to Heartly House, a Frederick County organization that serves victims of domestic violence, child abuse, sexual assault and human trafficking.

One day, when the client woke up after the firearms were surrendered, she told Alexander she found bullet casings on her front steps.

"[It was] to send a message, almost," Alexander said. "Imagine if that person had a gun instead of just the bullets."

On Tuesday, the U.S. Supreme Court will hear arguments in a case, U.S. v. Rahimi, that challenges a federal law prohibiting people subject to domestic violence restraining orders from possessing firearms.

Zackey Rahimi, a Texas man, was the subject of a protective order beginning in February 2020 after he allegedly assaulted his ex-girlfriend. The order explicitly prohibited Rahimi from possessing a firearm.

Officers from the Arlington Police Department in Texas identified Rahimi as a suspect in multiple local shootings in December 2020 and January 2021, obtained a search warrant for his home and found a pistol and rifle. He was convicted under the federal law prohibiting a person subject to a domestic violence restraining order from having a gun.

The U.S. 5th Circuit Court of Appeals overturned the law in its ruling and vacated Rahimi's conviction.

The U.S. Supreme Court will decide whether to uphold a decision in U.S. v. Rahimi — which may result in declaring the federal law under which Rahimi was convicted as unconstitutional.

There could be repercussions across the country for victims of domestic violence and their legal options for protection, domestic violence victim advocates and attorneys say.

Frederick County State's Attorney Charlie Smith said New York State Rifle and Pistol Association Inc. v. Bruen, a 2022 Supreme Court case, "fundamentally changed our analysis of laws that implicate the Second Amendment."

The Supreme Court ruled 6-3 that New York's law requiring individuals to prove "proper cause" to obtain a license to carry concealed firearms was unconstitutional. The ruling struck down the law and extended a person's right to carry a handgun for self-defense outside their home.

Rahimi was convicted prior to the Bruen ruling. The case is being revisited in light of the Bruen decision.

"The Rahimi decision basically said you can't treat the Second Amendment rights differently than other individually held constitutional rights," Smith said. "You can't take someone's freedom for religion away through a civil process, you can't take someone's freedom of speech away or freedom of the press away ... even if the ends is a very important one."

He said if the Supreme Court upholds the Rahimi decision, there will be "widespread negative impact" on victims of domestic violence. Smith is also the president of the National District Attorneys Association, which he said declined to comment on how the Supreme Court should rule.

MARYLAND ACTIONS

In Maryland, the two main legal actions individuals can pursue to protect themselves from their abusers are domestic violence protective orders and extreme risk protective orders, according to Smith.

Individuals can obtain domestic violence protective orders in court. A judge can grant different forms of relief in the orders based on victims' circumstances.

These conditions may include ordering the abuser to stop abusing or threatening the victim, to not contact the victim and stay out of their homes, to leave the home if the victim and abuser are married, and to surrender any firearm to law enforcement.

Temporary protective orders can last up to six months. Final protective orders can last up to one year.

In Frederick County in 2021, 406 final domestic protective orders were granted. In 2022, 418 orders were granted.

Almost all of the protective orders granted both years — 404 in 2021 and 417 in 2022 — included surrendering firearms, according to data in monthly domestic violence reports from the Maryland Judiciary's website.

Smith said the majority of alleged abusers who are subject to protective orders that mandate surrendering firearms have weapons. However, there are also cases in which that relief is ordered, but no firearms are found in that individual's possession.

Alexander said the obligation to surrender firearms as part of protective orders is "not a permanent injunction against gun ownership."

Mark Pennak, the president of Maryland Shall Issue, a group promoting gun owners' rights, told The Baltimore Sun: "The line has to be that there's a well-supported factual record that the person is, in fact, dangerous."

Depending on which way the Supreme Court decides, Alexander said, it's possible that courts could no longer order that firearms be surrendered as a form of relief.

"Without this cooling-down period that protective orders provide, you do see an increase in violence," she said. "Intimate partner violence in general, it's about a power dynamic. ... To add a gun into that sort of dynamic or struggle, it's really adding fuel to a fire."

In 2021, 58 people died in Maryland due to intimate partner domestic violence, according to the Maryland Network Against Domestic Violence. Out of those 58 deaths, 44 involved a gun.

Alexander said more criminal charges might be filed against abusers if protective orders can no longer require abusers to turn over their firearms.

"Responsible, law-abiding citizens — their right to possess a gun is well-entrenched in our laws," Alexander said. "By its very nature, a protective order implies irresponsibility towards another person's life."

Many states, including Maryland, have so-called "red flag" laws that prevent individuals shown to be a threat to themselves and others from purchasing or possessing firearms.

Maryland's "red flag" law, first enacted in 2018, comes in the form of extreme risk protective orders (ERPO), which can temporarily prohibit people from owning or buying firearms.

An ERPO also lets the court refer someone for an emergency evaluation due to a mental disorder, according to the Maryland Judiciary website.

A temporary ERPO can last up to six months. A final ERPO can last up to a year.

In 2022, a total of 25 ERPO cases were filed in Frederick County and 19 temporary ERPOs were granted, according to data from the Maryland Judiciary. Those numbers were about the same the previous year.

Smith said he doesn't think the Supreme Court upholding the Rahimi decision will mean the end of enacting ERPOs.

"I do think that what will happen is we will have to go back and take a look at our red flag laws and make sure that there's sufficient safeguards in there that will withstand [legal challenges]," he said.