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October 5, 2023
Notable defender amicus briefs submitted in support of Second Amendment claims in Rahimi
This week brought the final submission of the main merits and amicus briefs in the Supreme Court for the case of US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization. In this post a couple of year ago, I flagged this notable amicus brief filed by various defender offices in support of expanding Second Amendment rights in Bruen. Looking over the recent amicus filings, I noticed at least three different defense submission on behalf of the defendant in Rahimi. A quick scan of some of these briefs reveals a number of notable passages, and I thought the very start of this brief from some California public defender groups highlighted some of the dimensions of this latest notable high-profile Second Amendment litigation:
The State of California aggressively criminalizes the possession of firearms. We have seen that this disproportionately affects people of color, particularly Black people. Since New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), we have litigated hundreds of motions seeking to bring California’s expansive gun regulations in line with the Second Amendment. And we have found the difference between punishment and freedom often depends on how our courts interpret “law-abiding responsible citizens.” We have also seen our clients in California face criminal prosecution for violating civil disarmament orders that sweep far beyond domestic violence.
As to the particular statute at issue in this case, 18 U.S.C. Section 922(g)(8), we acknowledge the need to protect people from domestic violence. Many of our clients are themselves victims of domestic violence. But we also have first-hand experience fighting the rote issuance of civil protective orders that deny our clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.
A few prior related posts:
- New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
- Fifth Circuit panel declares unconstitutional federal prohibition on firearm possession for someone subject to domestic violence restraining order
- Some early commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
- Some more commentary on SCOTUS Second Amendment review of federal gun prohibition in Rahimi
October 5, 2023 at 05:37 PM | Permalink
Comments
Criminal defense attorneys in general, and public defenders in particular, are paying close attention to the Rahimi case. The Court could very well strike down the Federal statute and a subsequent case could render all laws the prohibit convicted felons from possessing a firearm. That in turn can lead to lower prison sentences and a reduction in the prison population.
Posted by: Anon | Oct 5, 2023 10:44:20 PM
Criminal defense attorneys are also probably happy to illustrate the reality of orders of protection. Prestige public interest orgs have painted these orders as carefully issued against only the most dangerous people. Anyone with any experience in a state or local trial court knows that is laughable. These orders are issued as a matter of routine, without any evidence beyond a hearsay accusation, and even against people who are themselves DV victims. Their issuance is ministerial, not substantive.
Posted by: AnonToo | Oct 6, 2023 8:39:33 AM
There are undoubtedly some trial courts that err on the side of caution by issuing orders of protection. But I closely follow every appellate decision in my state, and the appellate courts in my state tend to go the other way of requiring strong proof before they will uphold an order of protection.
From the opening paragraphs of these briefs, they seem to be written to let the authors vent rather than focusing on what matters to the majority of the Supreme Court.
Posted by: tmm | Oct 6, 2023 10:48:45 AM
I’m not sure which state you are in, but I personally have handled thousands of protective order applications in multiple states across the Northeast, and I can count on one hand the number of times prosecutors have presented any evidence beyond their say-so. In these states, that isn’t the result of trial judges being overly cautious—the process itself is not adjudicative and does not involve any fact-finding. I encourage you to read the NACDL brief, which illustrates the point powerfully about New York.
This should be important to the justices. Even if one accepts a historical tradition of criminalizing possession by dangerous people, the mere issuance of a state court order of protection is a poor substitute for an individualized finding of that. 922(g)(8) does not require that the predicate order have been based on any such factual finding.
Posted by: AnonToo | Oct 7, 2023 10:57:26 AM
In my state, prosecutors have little role in orders of protection. Our victim advocates may recommend that an order of protection be obtained, but that's it. The person seeking the order of protection is required to verify their application under oath for an ex parte order, and the full order is only issued after an evidentiary hearing in which the respondent has the opportunity to cross-examine the petitioner. From what you are describing, New York has a due process problem, not a Second Amendment problem.
Posted by: tmm | Oct 9, 2023 4:37:17 PM
Should the federal statute require the process of determining dangerousness that you describe--a full evidentiary hearing with the opportunity to cross-examine--I agree that would be constitutional and consistent with the nation's historical tradition in disarming people who are demonstrated to be dangerous. That is not what 922(g)(8) requires, though. It only requires notice and an opportunity to be heard.
Posted by: AnonToo | Nov 7, 2023 9:20:43 AM
