Women Fought the Law, and the Law Won

November 2, 2023

(A note: Family violence takes many forms.  In the context of orders of protection and guns, it usually takes the form of a male partner abusing a female partner. For the sake of conciseness, I use “men” and “women” in this piece, but I don’t intend to exclude other types of family violence involving, for example, LBGTQ+ family members or violence in other family relationships, like parents against children, etc.)

Next week, the Supreme Court will hear arguments in United States v. Zackey Rahimi, which presents a narrow question with big implications: Whether 18 U.S.C Section 922(g)(8) is unconstitutional in light of the Court’s 2022 holding in New York Pistol v. Bruen.

There’s been quite a bit of confusing reporting on this case, so I think it’s worth being clear what is and is not at stake.

The law at issue is a federal law—18 U.S.C Section 922(g)(8) — that makes it a crime, punishable by up to 10 years in prison, for people subject to civil or criminal protective orders to possess firearms.

An important note: law enforcement officers are not subject to this law. That’s right. The Law Enforcement Baronial Class has ensured that even if a cop is subject to a protective order, he can keep his work-related firearms. (While this is not in the statute itself, federal agencies have said the general exemption in Section 925(a)(1) applies to law enforcement officers and members of the military.)  So, stories like this and this and this will keep happening, no matter what the Court does.

So, who DOES the law apply to?  Zackey Rahimi is an Afghani immigrant and grew up very poor. The media has delighted in focusing on his criminal record (which isn’t actually his criminal record because he’s not been convicted of any of these crimes) and how he’s a “poster child” for firearm restrictions. To me, he shows the abject failure of the criminal legal system. Rahimi is now 23 and currently facing almost a dozen criminal charges – but has not yet been convicted of these charges – in Texas state court.

The conduct underlying those charges stretches back to December of 2019. Rahimi (then 19) assaulted his girlfriend (also the mother of his child) and opened fire on a bystander who tried to intervene. Over a month later, a court issued a protective order to keep Rahimi away from his partner. It stipulated a bunch of conditions, including restrictions on his firearm ownership, and it prevented him from seeing his son.

This set Rahimi off. He was angry that he couldn’t see his kid, which is so incredibly common in family violence situations. It was not until March that Rahimi was arrested for the December assault, and prosecutors charged him with three misdemeanors. Over the next year, Rahimi was arrested multiple times, posting bail each time. At least one of those arrests was for violating the protective order; others allegedly involved shooting at people. At no point during that year did anyone think to seize his firearms or look to see if he had any. In Texas, anyone over 18 who has not been convicted of a felony can purchase any firearm without licensing or training. It’s not clear how Rahimi obtained his firearms, but it was probably legal.

In January 2021, when Rahimi allegedly fired his assault rifle in the air outside a Whataburger after his friend’s payment card was declined, city police searched Rahimi’s home and found two firearms. They referred the case to the feds, who filed the criminal complaint at issue here. (Federal courts don’t use money bail, so there was the added bonus that Rahimi would be stuck in jail.) Rahimi pled guilty, and a judge sentenced him in September 2021 to 73 months in prison. Now, at the time, he had not been convicted of any crimes except an old marijuana possession charge. So, his lawyer appealed the sentence, arguing that the prosecutor gave too much weight to crimes for which Rahimi had not yet been convicted.

Most of us know the rest. The 5^th Circuit in its wisdom decided to throw the criminal charge out completely by holding that the federal criminal statute violated Rahimi’s Second Amendment Rights. Thus, the case ended up at SCOTUS.

I’ve worked in family court and dealt with all sorts of protective orders. One of the more common types is a “stay-away” order, which is an order from a judge or magistrate saying that individuals cannot be near each other (usually, within a certain number of feet). These orders, I will say, are generally signed and issued without any type of evidentiary hearing and are common in cases where violence has been alleged. They are intended to be a temporary stop-gap. In my experience (and in some places according to the law), judges simply issue these orders against both parties.

Of course, orders are pieces of paper and only go into effect if someone complains that the other person violated the order. I worked in New York City, and firearm possession wasn’t really an issue because most people couldn’t get firearm licenses. And, while you might be asked to temporarily surrender your firearms in some situations, these temporary orders expire. The protective order at issue in Rahimi (and the only ones subject to 922((g)(8) prosecutions) is slightly different to the extent that there was a hearing before a judge in which both sides presented evidence, although it seems that Rahimi did not contest the protective order.

The one thing I will say is that family court is generally horrible. It’s unorganized. Most people don’t have attorneys and they don’t understand the law and what is required. These sorts of systemic issues, which I have never seen anyone address, do create a sense of disorder in a system that is supposed to protect children and families.

The Fifth Circuit was plainly waiting for a case to start demolishing the few ways America regulates firearms. The majority opinion holds, in essence, that the government’s use of a civil restraining order to justify criminalizing Rahimi’s firearm possession went against the holding in Bruen:

Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “non-law-abiding” people —however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?

No discussion of the case is complete without noting Judge James Ho’s edgelord concurrence in which he generates the maximalist interpretation of how to deal with domestic violence – eternal incapacitation:

Those who commit violence, including domestic violence, shouldn’t just be disarmed—they  should  be  detained,  prosecuted,  convicted,  and incarcerated.  And that’s exactly why we have a criminal justice system—to punish criminals and disable them from engaging in further crimes.

And, Ho goes further (because he can) and argues that civil protective orders are just a version of “women lie.”

Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger.

The thing is, the main way we regulate firearms is through criminal penalties. Gun lobbyists, 5^th Circuit Judges, and a lot of journalists have done a good job forgetting that at the heart of the case is a 23-year-old (21 at the time of his sentencing) spending over five years in prison. Rahimi is clear in his sentencing that he doesn’t even want his firearms. And his defense counsel made some on-the-nose comments:

Rahimi’s counsel during his sentencing hearing

Domestic violence kills a lot of people every year. In many states, it’s the primary type of homicide. It is the primary cause of death for pregnant women, more so than birth and pregnancy itself. In fact, it’s so common it doesn’t make headlines that often even though at least two-thirds of mass shootings are preceded by domestic violence. And it’s showing no signs of abatement.

But the 2A movement and its misogynistic cultural impulses minimize the real violence against women, continuing to “both sides” the issue and insist the issue is “private.” In their amicus brief, the National Rifle Association gave a history of domestic violence law (thanks, guys) in which they frame protective orders as “peace bonds,” which are meant to restore harmony. (They have not been to Family Court.) From the brief:

[A peace bond] is how domestic violence was historically addressed and is the closest thing to a dead ringer to modern protective orders.

At the same time, police and prosecutors have done little to create a system that actually protects families from violence. As an expert said, “There isn’t a mechanism to ensure that someone who is under [a protective] order is dispossessed of their firearms.” While many have pointed to Rahimi as an example of a dangerous person, you could also read his history as the failure of the criminal legal system to protect his partner and child. Repeated arrests and incarceration didn’t work. The protective order didn’t work. The only solution, applied repeatedly, was incarceration.

The police could have removed Rahimi’s weapons without charging him, which would have kept the case out of the Supreme Court. Police also never searched Rahimi’s home for firearms in the year between the protective order and the January 2021 arrest—it took shooting around a business (and a Whataburger at that), rather than a woman and child, to get the cops to do anything. And, as Rahimi’s defense attorney pointed out above, the federal prosecution’s goal was to keep Rahimi in prison, not disarm him. Their view of gun violence was wholly carceral.

There was no need for this case to exist, and no need for the Fifth Circuit to use it as their opportunity to push the idea of an unlimited Second Amendment. I am very concerned the Supreme Court will use the opportunity to strike down the law and possibly open the door to federal courts across the country going nuts eliminating firearm regulations.

Here's the root of the problem: Laws are only as good as the people enforcing them. America has chosen to regulate through policing and prosecution. And the police are never going to help end domestic violence. We need to move beyond looking to criminal prosecution and prisons to help both victims of domestic violence and victims of gun violence. We should be able to disarm people if they are threatening others, especially in cases of family violence. We need fewer guns altogether.

But also, the federal prosecutor here isn’t a hero. The police and prosecutors just wanted to put Rahimi in prison and used every instrument in their power. They were not that worried about Rahimi’s ex-girlfriend; in fact, the prosecutors focused on Rahimi’s more recent violence and said very little about the protective order and the reason for it in the first place.

The people enforcing firearm removal orders are cops. Cops who, under law, are not required to do anything ever at all. Cops who aren’t even subject to this law. Cops who also abuse and kill their partners. In rural areas, these cops are sheriff deputies, who are definitely more likely to disregard what women say.

I write a lot about the sheriffs who resist any and all gun regulations–at least as they are applied to white men–and they are also involved in the Rahimi case. The Western States Sheriff Association – whose mission statement includes “a firm stance on protecting this right and ensuring that no person, legally entitled to possess a firearm, realizes any pressure from laws inconsistent with the Constitution” –signed onto an amicus brief in which it echoed Ho’s concurrence:

Judge Ho, in his concurrence below, demonstrated that the use of DVROs as tactical devices in divorce and custody cases often results in non-violent individuals having their Second Amendment rights taken away by § 922(g)(8). When mutual restraining orders are used in such cases, a highly perverse result may occur: an innocent, nonviolent person may abide by the order and therefore be disarmed, leaving a violent person who disregards the order free to prey on her.

[Insert-head-in-hands gif here]

We don’t have data on how often these sheriffs fail to investigate family violence nor how often they ignore calls to remove firearms at the request of family members. But I will say that over the past two years, I have increasingly heard that vengeful women “abuse” the criminal legal system just to enact revenge on men. This is a recycled “men’s rights” argument, but one impossible to ignore given the growing misogyny in the country at large.

At a recent “constitutional sheriff” event, I got into a discussion with Barry County Sheriff Dar Leaf – a superfan of Richard Mack and “constitutional sheriff” by his own definition – about domestic violence, which is probably the most common crime in a county with pretty low crime. Leaf, as the sheriff, sets the policy for his department in how they deal with incidents of domestic violence. And, in talking to him, the issue was not that he didn’t respond to the calls nor that he didn’t “believe women.” Rather, the issue was a deeper and more troublesome underlying misogyny that rings of far-right Oath Keepers but also, I think, is indicative of how the criminal law treats family violence more generally.

He told me that, in his view, family violence was a “private” matter and, most often, best resolved by separating the feuding couple. In one case, he took the man aside and offered him a cigarette, which calmed him down “It's gonna go in my police report that you were awesome,” he said he told the suspect who had been engaged in a “big old tussle” with his female partner. (The man was arrested because there was a “boot print” on the woman’s back as a result of their “tussle.”)

While he acknowledged that there was “real” domestic violence–those victims, as with instances of “real” rape, were all dead or seriously injured, of course–he thought that most cases simply did not warrant disarmament. 

“It's a family thing. No, we don't need to bring in the courts. You got control of it. So that's what I try and teach my guys, that we don't always have to bring the courts,” he explained. “A lot of times it’s a jealous crime.”

Lest you think that Leaf is just being decarceral, he went on to tell me about a woman who had reported what, in his view, was a false rape claim. What happened to the women, I asked, after he finished his heroic story about clearing a man’s name.

“I arrested her,” he said between mouthfuls of BBQ. “She committed a felony. She was not walking out.”