Amicus Curiae Brief — United States, Petitioner v. Zackey Rahimi
Supreme Court briefOct 3, 2023
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No. 22-915
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------UNITED STATES OF AMERICA,
Petitioner,
v.
ZACKEY RAHIMI,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE
ALAMEDA COUNTY PUBLIC DEFENDERS AND
CALIFORNIA PUBLIC DEFENDERS ASSOCIATION
IN SUPPORT OF RESPONDENT
---------------------------------♦--------------------------------BRENDON D. WOODS
KATHLEEN GUNERATNE
CHARLES M. DENTON
ALAMEDA COUNTY
PUBLIC DEFENDERS
1401 Lakeside Dr., Suite 400
Oakland, CA 94612
LISA MCGUIRE
CALIFORNIA PUBLIC
DEFENDERS ASSOCIATION
10324 Placer Lane
Sacramento, CA 95827
JOSHI VALENTINE*
ALAMEDA COUNTY
PUBLIC DEFENDERS
1401 Lakeside Dr., Suite 400
Oakland, CA 94612
(510) 268-7486
Joshi.valentine@acgov.org
*Counsel of Record
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS .......................................
i
TABLE OF AUTHORITIES ..................................
iii
INTEREST OF AMICI CURIAE ...........................
1
SUMMARY OF ARGUMENT ...............................
2
ARGUMENT ........................................................
6
I.
Because the Second Amendment Belongs
to All Americans, One Does Not Have to
First Qualify as a “Law-Abiding Responsible Citizen” in Order to Seek its Protections ...........................................................
6
A. The Phrase “The People” Unambiguously Refers to All Members of the Political Community, Not an Unspecified
Subset ..................................................
7
B. Justice Barrett’s Dissent in Kanter v.
Barr ..................................................... 10
C. California Courts Have Used the Government’s Position to Short Circuit
Bruen’s Second Amendment Analysis..... 11
D. The Government’s Argument Will Produce Aberrant and Idiosyncratic Results
That Will Reduce Public Confidence in
the Judicial System ................................ 12
ii
TABLE OF CONTENTS—Continued
Page
II.
Disarming Citizens Based on Civil Protective Orders Lacks a Limiting Principle:
California Is Proof that Disarmament Orders May Extend Beyond the Domestic
Violence Context to Any Private Civil Dispute Where a Judge Finds a Threat or
Danger ....................................................... 16
A. California Law Is Broader Than Section 922(g)(8) in Terms of the Nature
and Quality of Protective Order Disarmament ............................................ 19
B. California Law Is Broader Than Section 922(g)(8) Because it Expands the
Definition of a Domestic Relationship
and the Qualifying Conduct ................ 22
C. California Civil Protective Orders Prescribe Mandatory Disarmament Far
Beyond Domestic Violence Scenarios,
Including Private Disputes Between
Neighbors, Employees, Students and
Elder Dependents and Caregivers, Including on an Ex-Parte Basis .............. 26
D. In Practice, California Restraining
Order Hearings Lack Core Procedural
Protections ........................................... 30
CONCLUSION..................................................... 35
iii
TABLE OF AUTHORITIES
Page
CASES
District of Columbia v. Heller,
554 U.S. 570 (2008) ........................ 2, 7-11, 13, 21, 34
Duronslet v. Kamps,
203 Cal.App.4th 717 (2012) ....................................32
Elrod v. Burns,
427 U.S. 347 (1976) .................................................29
Fried v. Garland,
640 F.Supp.3d 1252 (N.D. Fla. 2022) ......................14
Holt v. Hobbs,
574 U.S. 352 (2015) .................................................12
In re D.L.,
93 Cal.App.5th 144 (2023) .................................. 6, 11
In re Marriage of Davila & Mejia,
29 Cal.App.5th 220 (2018) ......................................23
Kaiser Found. Hosps. v. Wilson,
201 Cal.App.4th 550 (2011) .............................. 32, 33
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) ....................................10
McDonald v. City of Chicago, Ill.,
561 U.S. 742 (2010) ...................................................9
New York State Rifle & Pistol Ass’n v. Bruen,
142 S. Ct. 2111 (2022) .................. 1, 2, 6, 8-12, 16, 29
Offutt v. United States,
348 U.S. 11 (1954) ...................................................16
People v. Alexander,
91 Cal.App.5th 469 (2023) .................................. 6, 11
iv
TABLE OF AUTHORITIES—Continued
Page
People v. Ceja,
2023 WL 5602746
(Cal. Ct. App., Aug. 30, 2023) .............................. 6, 11
People v. Odell,
92 Cal.App.5th 307 (2023) .................................. 6, 11
Range v. Attorney General United States
of America,
69 F.4th 96 (3d Cir. 2023) .............................. 9, 13, 15
San Diego Police Dep’t v. Geoffrey S.,
86 Cal.App.5th 550 (2022) ................................ 32, 33
Shuttlesworth v. Birmingham,
394 U.S. 147 (1969) .................................................13
Turner v. Safley,
482 U.S. 78 (1987) ...................................................13
U.S. v. Skoien,
614 F.3d 638 (7th Cir. 2010) ................................ 8, 11
United States v. Bullock,
2023 WL 4232309 (S.D. Miss., June 28, 2023) .......15
United States v. Combs,
2023 WL 1466614 (E.D. Ky., Feb. 2, 2023) ................9
United States v. Garcia,
2023 WL 2596689 (9th Cir., Jan. 26, 2023) ..............6
United States v. Goins,
2022 WL 17836677 (E.D. Ky., Dec. 21, 2022) .........12
United States v. Jackson,
622 F.Supp.3d 1063 (W.D. Okla., Aug. 19, 2022) .......12
v
TABLE OF AUTHORITIES—Continued
Page
United States v. Le,
2023 WL 3016297 (S.D. Iowa, Apr. 11, 2023)............9
United States v. Perez-Gallan,
640 F.Supp.3d 697 (W.D. Tex. 2022),
aff ’d, No. 22-51019, 2023 WL 4932111
(5th Cir. Aug. 2, 2023) ....................................... 13, 15
United States v. Perez-Garcia,
628 F.Supp.3d 1046 (S.D. Cal. 2022) ............ 6, 11, 14
United States v. Quiroz,
629 F.Supp.3d 511 (W.D. Tex. 2022) .......................12
United States v. Rahimi,
61 F.4th 443 (5th Cir. 2023) ................................ 2, 34
United States v. Rowson,
No. 22 CR. 310 (PAE), 2023 WL 431037
(S.D.N.Y. Jan. 26, 2023) ...........................................13
United States v. Serrano,
2023 WL 2297447 (S.D. Cal., Jan. 17, 2023) ...... 6, 11
United States v. Silvers,
2023 WL 3232605 (W.D. Ky., May 3, 2023) ...............9
United States v. Sitladeen,
64 F.4th 978 (8th Cir. 2023) .............................. 11, 12
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) ...................................................7
Williams v. Pennsylvania,
579 U.S. 1 (2016) .....................................................16
Williams-Yulee v. Florida Bar,
575 U.S. 433 (2015) ........................................... 15, 16
vi
TABLE OF AUTHORITIES—Continued
Page
CONSTITUTIONAL PROVISIONS
U.S. CONST. Amend. II............ 1-12, 14-20, 29-32, 34, 35
STATUTES
18 U.S.C. § 922(g) ........................................................17
18 U.S.C. § 922(g)(1) ...................................................15
18 U.S.C. § 922(g)(8) ..... 1-3, 5, 17, 19, 22, 25, 26, 28, 30
18 U.S.C. § 922(g)(9) ...................................................10
A.B. 1591 .....................................................................21
Cal. Civ. Proc. Code § 527.6 ................ 18, 20, 26, 28, 30
Cal. Civ. Proc. Code § 527.6(d) ...................................27
Cal. Civ. Proc. Code § 527.6(f ) ........................ 23, 28, 31
Cal. Civ. Proc. Code § 527.6(j)(1) ................................29
Cal. Civ. Proc. Code § 527.6(i) .....................................32
Cal. Civ. Proc. Code § 527.6(p)(1) ...............................28
Cal. Civ. Proc. Code § 527.6(p)(2) ...............................28
Cal. Civ. Proc. Code § 527.6(u)(1)-(3) ..........................27
Cal. Civ. Proc. Code § 527.8 ...................... 18, 20, 26, 28
Cal. Civ. Proc. Code § 527.8(a) ....................................27
Cal. Civ. Proc. Code § 527.8(e) ....................................27
Cal. Civ. Proc. Code § 527.8(g) ....................................28
Cal. Civ. Proc. Code § 527.8(k)(1) ...............................29
Cal. Civ. Proc. Code § 527.8(p)(2) ...............................28
vii
TABLE OF AUTHORITIES—Continued
Page
Cal. Civ. Proc. Code § 527.8(s)(1)-(3) ..........................27
Cal. Civ. Proc. Code § 527.85 .................... 18, 20, 26, 28
Cal. Civ. Proc. Code § 527.85(g) ..................................28
Cal. Civ. Proc. Code § 527.85(p)(1) .............................28
Cal. Civ. Proc. Code § 527.85(p)(2) .............................28
Cal. Civ. Proc. Code § 527.85(s)(1)-(3) ........................27
Cal. Civ. Proc. Code § 527.9 ........................................28
Cal. Civ. Proc. Code § 527.9(f ) .............................. 28, 29
Cal. Fam. Code § 6209 ................................................23
Cal. Fam. Code § 6211 .......................................... 18, 23
Cal. Fam. Code § 6218 ................................................20
Cal. Fam. Code § 6250(d) ............................................31
Cal. Fam. Code § 6256(a)-(b) ......................................31
Cal. Fam. Code § 6300 ................................................17
Cal. Fam. Code § 6304 ................................................23
Cal. Fam. Code § 6305 ................................................34
Cal. Fam. Code § 6320 ................................................18
Cal. Fam. Code § 6320(a) ...................................... 24, 25
Cal. Fam. Code § 6320(c) ............................................24
Cal. Fam. Code § 6320(c)(1) ........................................25
Cal. Fam. Code § 6345(a) ............................................23
Cal. Fam. Code § 6389 ................................................27
Cal. Fam. Code § 6389(a) ............................................25
viii
TABLE OF AUTHORITIES—Continued
Page
Cal. Fam. Code § 6389(c)(2)(A) ...................................25
Cal. Fam. Code § 6389(h)............................................28
Cal. Penal Code §§ 136.2 and 646.91 ................... 19, 20
Cal. Penal Code §§ 136.2(a)(1)(G)(ii)(I)-(II),
136.2(c)(2)(d)(1)-(3) ..................................................20
Cal. Penal Code § 646.91(g) ........................................31
Cal. Penal Code § 12021 .............................................20
Cal. Penal Code § 13700(b) .........................................24
Cal. Penal Code § 18100 et seq. ..................................26
Cal. Penal Code § 18125 .............................................31
Cal. Penal Code § 18150(b)(1) ....................................26
Cal. Penal Code § 18195 .............................................32
Cal. Penal Code § 29825 .............................................25
Cal. Penal Code § 29825(b) ................................... 19, 28
Cal. Welf. & Inst. Code § 15610.07 .............................27
Cal. Welf. & Inst. Code § 15657.03 ............ 18, 20, 26-28
Cal. Welf. & Inst. Code § 15657.03(f ) .........................28
Cal. Welf. & Inst. Code § 15657.03(i) .........................29
Cal. Welf. & Inst. Code § 15657.03(n)(1) ....................28
Cal. Welf. & Inst. Code § 15657.03(n)(2) ....................28
Cal. Welf. & Inst. Code § 15657.03(u)(1)-(3) ..............28
Cal. Welf. & Inst. Code § 15657.03(u)(4) ....................28
ix
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
Adam Winkler, Racist Gun Laws and
the Second Amendment,
135 Harv. L. Rev. F. 537 (2022) ...............................21
Cynthia Deitle Leonardatos, California’s
Attempts to Disarm the Black Panthers,
36 San Diego L. Rev. 947 (1999) .............................21
DV-100, Request for Domestic Violence
Restraining Order, Judicial Council
of California (Jan. 1, 2023),
https://www.courts.ca.gov/documents/dv100.pdf .......17
DV-110, Temporary Restraining Order,
Judicial Council of California (Jan. 1, 2023),
https://www.courts.ca.gov/documents/dv110.pdf ..........22
Joann Sahl, Can We Forgive Those Who Batter?
Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases,
100 Marq. L. Rev. 527 (2016) ..................................34
Peter Slocum, Biting the D.V. Bullet: Are
Domestic-Violence Restraining Orders
Trampling on Second Amendment Rights?,
40 Seton Hall L. Rev. 639 (2010) ...................... 31, 34
Stephen Hallbrook, The Founders’ Second
Amendment: Origins of the Right to Bear
Arms (2d 2019) ..........................................................8
1
INTEREST OF AMICI CURIAE1
The Alameda County Public Defenders represent
thousands of clients annually. With a population of
1.67 million, Alameda County is the seventh most populous county in California. Our office is committed to
fighting the mass incarceration and criminalization of
our clients.
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
1
No party has authored this brief in whole or in part, and no
one other than amici and its counsel have paid for the preparation
or submission of this brief.
2
clients their Second Amendment rights and lead to unjust, unequal criminal prosecutions.
The California Public Defenders Association
(“CPDA”) is the largest organization of criminal defense attorneys in the State of California. CPDA’s
4000-plus members include thousands of public defenders and defense attorneys who represent clients
across the state, many of whom are accused of firearm
violations, including unlawful possession of firearms.
CPDA members have been actively litigating Second
Amendment issues since the Court decided District
of Columbia v. Heller, 554 U.S. 570 (2008) and Bruen.
CPDA has a strong interest in ensuring their clients’
Second Amendment rights are protected.
For these reasons, the proper resolution of this
case is a matter of significant interest to the Alameda
County Public Defenders, CPDA and our clients.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
In Section 922(g)(8), Congress criminalized the
possession of firearms by individuals subject to certain
domestic violence restraining orders. Based on the
Court’s decision in Bruen, the Fifth Circuit correctly
held that Section 922(g)(8) violates the Second Amendment. See United States v. Rahimi, 61 F.4th 443, 448
(5th Cir. 2023). To try to save the statute, the government makes two arguments that would encroach upon
Second Amendment rights far beyond the context of
Section 922(g)(8). First, the government defends the
3
law by invoking a sweeping power to restrict Second
Amendment rights to anyone not deemed “a law-abiding,
responsible citizen.” Br. of the United States at 7-15
(“U.S. Br.”). Second, the government argues that Section 922(g)(8) has strict requirements, in common with
restrictions throughout the United States, that confirm its constitutionality. U.S. Br. at 27-34. Both arguments are contrary to the Court’s jurisprudence, and
the lived experience of our clients.
There is no litmus test for Second Amendment
rights that requires a threshold showing of being a
member of a “law-abiding, responsible” citizenry. None
can be found in the Court’s jurisprudence. Nor would
such test have a workable limiting principle. Many of
our clients are acquitted, exonerated, or have their
cases dismissed or diverted. They are no less deserving
of the Constitution’s protections than anyone else. Like
the First and the Fourth Amendment, the Second
Amendment operates to protect members of our political community from the government. Its protection
should not turn on the caprice of a judge.
A second problem with the government’s position
is that it conflates a finding of dangerousness with issuance of a domestic violence protective order, and
then claims that is sufficient to deprive people of Second Amendment rights. See U.S. Br. at 7. This is not a
path that the Court should embark on. Indeed, California provides a cautionary tale on the perils of adopting the government’s position. In California, people
are routinely criminally prosecuted for conduct far
broader than what Section 922(g)(8) proscribes. In the
4
restraining order context, California has expanded the
definition of a domestic relationship beyond intimate
partner to include former cohabitants and relatives, including siblings and grandparents. Domestic abuse is
not just physical; it also encompasses breaches of the
peace. For example, domestic violence could include
someone annoyingly sending a barrage of text messages seeking to reunite with an ex-partner.
Moreover, the California legislature has imposed a
mandatory disarmament regime that spans far beyond
domestic violence protective orders to include protective orders to prevent workplace harassment, quell
disputes between neighbors, protect students at secondary campuses and regulate elder abuse. All these
orders have inconsistent and ambiguous definitions of
abuse. They operate to ban the possession of firearms
regardless of whether used for hunting, protection,
self-defense or in one’s home. These statutes deprive
an individual of their Second Amendment rights while
they are subject to the order, and they criminalize violation of the civil protective order, punishable by up to
one year’s incarceration. This is true even if a firearm
was not used in the conduct leading to the protective
order. Disarmament orders in California are routinely
issued, and extended, on an ex-parte basis. Even permanent restraining order hearings lack key procedural
protections.
We represent clients who are criminally charged
under these expansive protective order laws. Their prosecutions confirm the nearly limitless reach of this disarmament scheme, all on the theory that individuals
5
subject to these protective orders pose an unreasonable risk to public safety. A person subject to any of
these orders cannot defend themselves against an
armed intruder in their own home.
If the Court were to endorse the government’s
novel view that protective orders can be a basis to
deem a citizen dangerous and strip their Second
Amendment rights, California’s experience has shown
that this would lead to widespread disarmament after
issuance of protective orders in mundane, everyday
private disputes: workplace harassment orders, secondary school protective orders, and elder abuse protective orders.
California’s expansive protective order disarmament regime cannot be reconciled with our nation’s
history or the Court’s Second Amendment teachings.
But the government’s argument would pave the way
for widespread adoption of California’s model as there
is no principled distinction between Section 922(g)(8)
and California’s myriad protective orders. We urge the
Court to affirm.
---------------------------------♦---------------------------------
6
ARGUMENT
I.
Because the Second Amendment Belongs
to All Americans, One Does Not Have to
First Qualify as a “Law-Abiding Responsible Citizen” in Order to Seek its Protections.
California courts have interpreted Bruen to mean
that the Second Amendment protects only “law-abiding,
responsible citizens” and that only “law-abiding responsible citizens” can raise a Second Amendment challenge. People v. Alexander, 91 Cal.App.5th 469, 478-80
(2023). See also People v. Odell, 92 Cal.App.5th 307, 309
(2023); In re D.L., 93 Cal.App.5th 144, 165-66 (2023)
(petn. for review pending); People v. Ceja, 2023 WL
5602746, at *3 (Cal. Ct. App., Aug. 30, 2023) (petn. for
review pending); United States v. Serrano, 2023 WL
2297447, at *10-11 (S.D. Cal., Jan. 17, 2023); United
States v. Perez-Garcia, 628 F.Supp.3d 1046, 1052-54
(S.D. Cal. 2022), aff ’d sub nom.; United States v. Garcia, 2023 WL 2596689 (9th Cir., Jan. 26, 2023).
In its petition for certiorari, the government likewise claims that “the right to keep and bear arms belongs only to ‘law-abiding, responsible citizens.’ ” Pet.
for a Writ of Cert. at 10. Its merits brief argues that
“[m]any aspects of Second Amendment doctrine rest
upon the premise that the Amendment protects only
law-abiding responsible citizens.” U.S. Br. at 12. If the
Court adopts this interpretation, the trial courts in
which we practice every day will inevitably say that
defendants must prove that they are “law-abiding”
and “responsible” before they can raise a Second
7
Amendment claim. This will be fatal to their success
and the Second Amendment. The government’s argument is inconsistent with the Court’s precedent and
unwise as a matter of policy.
A. The Phrase “The People” Unambiguously Refers to All Members of the Political Community, Not an Unspecified
Subset.
The Second Amendment states that “[a] well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms,
shall not be infringed.” U.S. Const. Amend. II (italics
added).
In Heller, the Court ruled that the Second Amendment created an individual right to possess a firearm
in one’s home for self-defense. 554 U.S. at 635. In reaching this decision, Justice Scalia noted that “in all six
other provisions of the Constitution that mention ‘the
people,’ the term unambiguously refers to all members
of the political community, not an unspecified subset.”
Id. at 580.
Borrowing a quote from United States v. VerdugoUrquidez, 494 U.S. 259, 265 (1990), he explained:
“ ‘[T]he people’ seems to have been a term of
art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’
protected by the Fourth Amendment, and by
the First and Second Amendments, and to
whom rights and powers are reserved in the
8
Ninth and Tenth Amendments, refers to a
class of persons who are part of a national
community or who have otherwise developed
sufficient connection with this country to be
considered part of that community.”2
Heller, 554 U.S. at 580 (italics added).
Justice Stevens pointed out that, under this definition, “even felons (and presumably irresponsible
citizens as well) may invoke the protections of those
constitutional provisions.” Id. at 644 (Stevens, J., dissenting) (italics added).
In Bruen, the Court extended Heller and ruled
that the Second Amendment grants “the people” the
right to bear arms for self-defense in public. 142 S. Ct.
at 2122. The Court proclaimed that this right is entitled to the same majesty and “unqualified command”
as the rest of the Bill of Rights. Id. at 2126.
Although the Court used the phrase “law-abiding,
responsible citizens” throughout its opinion, it never
suggested that it was narrowing Heller’s definition of
the “the people.” And since “the criminal histories of
the plaintiffs . . . were not at issue . . . the[ ] references
2
The historical evidence supports this. It suggests that the
Founders were aware of England’s Declaration of Rights—which
limited the right to bear arms—and other narrower interpretations of the right to bear arms that were in circulation before the
Bill of Rights was codified. See Stephen Hallbrook, The Founders’
Second Amendment: Origins of the Right to Bear Arms, 194, 205,
251, 310, 312 (2d 2019). But none of those versions ultimately
made the cut. See U.S. v. Skoien, 614 F.3d 638, 648 (7th Cir. 2010)
(Sykes, J., dissenting).
9
to ‘law-abiding, responsible citizens’ were dicta.” Range
v. Attorney General United States of America, 69 F.4th
96, 101 (3d Cir. 2023). See also id. at 101 (explaining
that the references to “law-abiding, responsible citizens” in Heller and McDonald v. City of Chicago, Ill.,
561 U.S. 742 (2010) were also dicta); United States v.
Combs, 2023 WL 1466614, at *3 (E.D. Ky., Feb. 2, 2023).
Most federal courts have either avoided or rejected
the government’s argument that Second Amendment
protections apply only to “law-abiding, responsible citizens.” See United States v. Le, 2023 WL 3016297 at *4
(S.D. Iowa, Apr. 11, 2023) (“Of the courts to have decided the issue directly, most appear to have concluded
that ‘the people’ in the Second Amendment refers to all
citizens, and thus any citizen who possesses a firearm
of a type in common use has satisfied Bruen’s first
step.”); United States v. Silvers, 2023 WL 3232605, at
*6 (W.D. Ky., May 3, 2023) (“The overwhelming and
consistent sway of precedent runs in the opposite direction” of the “Government’s ‘law-abiding citizen’ argument . . . ”).
Range is illustrative. 69 F.4th 96. There, the Third
Circuit ruled that “despite his [felony] conviction,
[Range] remains among ‘the people’ protected by the
Second Amendment.” Id. at 98. The Third Circuit
noted that Heller concluded that “ ‘the people’ as used
throughout the Constitution ‘unambiguously refers to
all members of the political community, not an unspecified subset.’ ” Id. at 101 “So the Second Amendment
right, Heller said, presumptively ‘belongs to all Americans.’ ” Id. (italics added).
10
B. Justice Barrett’s Dissent in Kanter v.
Barr.
While sitting as a judge on the Seventh Circuit,
Justice Barrett addressed the government’s position in
Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019), abrogated
by Bruen, 142 S.Ct. 2111. After pointing out that its
“ ‘scope of the right’ approach is at odds with Heller itself,” she explained that the problem with denying
Second Amendment protection to certain groups of
people—as opposed to “certain weapons or activities”—
is that “a person could be in one day and out the next.”
Id. at 452-53 (Barrett, J., dissenting).
To illustrate the point, Justice Barrett used as an
example a law similar to Section 922(g)(9). If such a
law disqualified a person convicted of misdemeanor domestic violence “from possessing a gun for a period of
ten years following release from prison,” and—as the
government now suggests—the “justification for the
initial deprivation is that the person falls outside the
protection of the Second Amendment”—that person
would never have standing to challenge any law—even
a patently unconstitutional one—under the Second
Amendment. Id. at 452. This would be true “[d]espite
the legislative judgment that such a person could
safely possess a gun after ten years” because “[i]f domestic violence misdemeanants are out, they’re out.”
Id.
11
C. California Courts Have Used the Government’s Position to Short Circuit
Bruen’s Second Amendment Analysis.
Justice Barrett’s analysis foreshadowed the problem we now face. California courts are using the government’s “scope of the right” argument to short circuit
the standard of review the Court laid out in Bruen. See
Serrano, 2023 WL 2297447, at *10-11; Perez-Garcia, 628
F.Supp.3d at 1052-54; Alexander, 91 Cal.App.5th at
478-80; Odell, 92 Cal.App.5th at 309; In re D.L., 93
Cal.App.5th at 165-66; Ceja, 2023 WL 5602746, at *3.
These courts have ruled that if a defendant cannot
satisfy a judge at the outset that they are “law-abiding
responsible citizens,” the court can find that the “plain
text of the Second Amendment does not cover their individual conduct, thereby bypassing the “legal heavy
lifting,”3 necessary to determine whether the regulation “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 142 S.Ct. at 2129-30
(italics added).
In our view, it would be a mistake for the Court to
endorse this transparent attempt to circumvent its
own holding. Heller and Bruen stand for the principle
that the Second Amendment confers an “individual”
right that “belongs to all Americans.” Heller, 554 U.S.
at 580-81.
Bruen instructs that the government has the
power to “disable the exercise of [that] right,” United
3
Skoien, 614 F.3d at 646 (Sykes, J., dissenting).
12
States v. Sitladeen, 64 F.4th 978, 986 (8th Cir. 2023),
but only if the individual’s conduct is not covered by
the Second Amendment’s plain text or the regulation
is consistent with our historical tradition. Bruen, 142
S.Ct. at 2129-30 (italics added).
If the Court meant what it said, the first step of
this analysis looks only at the individual’s conduct—
not their “classification” or “status.” See Sitladeen, 64
F.4th at 987; United States v. Jackson, 622 F.Supp.3d
1063, 1066 (W.D. Okla., Aug. 19, 2022). It is not until
the second step that the court looks to history to see if
there is a valid basis for disabling the individual’s Second Amendment rights. See United States v. Quiroz,
629 F.Supp.3d 511, 516 (W.D. Tex. 2022); United States
v. Goins, 2022 WL 17836677, *7 (E.D. Ky., Dec. 21,
2022).
If this analysis is indeed correct, the government’s
concentration upon “law-abiding” and “responsible”
citizens will often be a factor in the second step of the
Bruen inquiry. But it cannot be used to disqualify defendants before they even get to the first step.
D. The Government’s Argument Will Produce Aberrant and Idiosyncratic Results
That Will Reduce Public Confidence in
the Judicial System.
In practice, the government’s position will produce
anomalous and inconsistent results. The Court has
long held that even convicted felons retain rights under the First and Fourth Amendments. See Holt v.
13
Hobbs, 574 U.S. 352 (2015); Turner v. Safley, 482 U.S.
78 (1987); United States v. Rowson, No. 22 CR. 310
(PAE), 2023 WL 431037, at *15-19 (S.D.N.Y. Jan. 26,
2023) (and cases cited therein). And as Heller pointed
out, the phrase “the people . . . unambiguously refers
to all members of the political community, not an unspecified subset” in all six of the constitutional provisions that mention it. 554 U.S. at 580. If the meaning
of the phrase does not vary from amendment to amendment—as history and Heller suggest—restricting its
meaning to “law-abiding” and “responsible” citizens
would not only endanger other constitutional protections but also produce absurd results. See Range, 69
F.4th at 102; United States v. Perez-Gallan, 640
F.Supp.3d 697, 708 (W.D. Tex. 2022), aff ’d, No. 2251019, 2023 WL 4932111 (5th Cir. Aug. 2, 2023).
For example, in Shuttlesworth v. City of Birmingham, 394 U.S. 147, 159 (1969), the Court reversed a
civil rights leader’s conviction for leading a peaceful
march that was in direct violation of Birmingham’s
parading statute. It concluded that the “may issue”
permit ordinance in effect at the time violated the
First Amendment. Id. Under the rule proposed by the
government in this case, Pastor Shuttlesworth could
never have brought that challenge. Having violated
Birmingham’s ordinance, he was no longer a “lawabiding” citizen. See Range, 53 F.4th at 273 (“ ‘Those
whose criminal records evince disrespect for the law
are outside the community of law-abiding citizens entitled to keep and bear arms[.]’ ”).
14
A criminal defendant could likewise be barred
from seeking to suppress evidence under the Fourth
Amendment if the court determined that his arrest
and indictment rendered him either non-law-abiding
or irresponsible. See Perez-Garcia, 628 F.Supp.3d at
1053-54 (“As a person who has been charged with a
crime based on a finding of probable cause, [defendant]
would not be considered a ‘law-abiding’ or responsible
citizen, so he is outside the plain text of the Second
Amendment.”).
Even in states that have legalized the drug, a
person who admitted using marijuana would, according to the government, be barred from raising First,
Second or Fourth Amendment challenges because the
use of marijuana remains a federal crime. See Fried v.
Garland, 640 F.Supp.3d 1252 (N.D. Fla. 2022). So, too,
would a senior citizen who committed a crime when
they were eighteen years old.
The terms “law-abiding” and “responsible” also
defy clear and workable definitions. U.S. Br. at 12.
While there may be consensus on the nucleus of “lawabiding” (we can probably all agree that Charles Manson was not “law-abiding”), the boundaries of that term
depend upon individual moral values, which change
over time, and are impossible to clearly draw. As the
Third Circuit pointed out, the phrase is as expansive
as it is vague. “Who are ‘law-abiding’ citizens in this
context? Does it exclude those who have committed
summary offenses or petty misdemeanors, which typically result in a ticket and a small fine? No. We are
confident that the Supreme Court’s references to ‘lawabiding, responsible citizens’ do not mean that every
15
American who gets a traffic ticket is no longer among
‘the people’ protected by the Second Amendment.”
Range, 69 F.4th at 102. See also Perez-Gallan, 640
F.Supp.3d at 708.
“Responsibility” is an even more slippery concept.
The debate over what it means to be personally “responsible” has not only divided generations and political parties, but parents and children as well.
For those of us on the front lines of the criminal
legal system, a rule that leaves Second Amendment
protections to the mercy of such mercurial principles
will almost certainly result in chaos and inconsistency.
While judges struggle to define “law-abiding” and “responsible,” lawyers on both sides will forum shop for
the judge who comes up with the definition that best
suits their purpose. In the end, some defendants will
be barred from raising a Second Amendment claim for
marching in a protest or smoking marijuana while others will be allowed to bring a challenge despite their
prior convictions. See United States v. Bullock, 2023
WL 4232309 (S.D. Miss., June 28, 2023) (finding 18
U.S.C. Section 922(g)(1) unconstitutional as applied to
defendant with a 1992 conviction for aggravated assault and manslaughter).
The fate of these defendants will be determined
not by a uniform rule of law, but by the moral code of
the judge who heard their case. This disparity in results not only raises serious due process concerns, it
strikes at the core of our legal system—the appearance
of objectivity of the decision maker. Williams-Yulee v.
16
Florida Bar, 575 U.S. 433, 433 (2015) (“Public perception of judicial integrity is . . . ‘a state interest of the
highest order.’ ”); Williams v. Pennsylvania, 579 U.S. 1,
16 (2016) (“Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law
itself.”); Offutt v. United States, 348 U.S. 11, 13 (1954)
(“Justice must satisfy the appearance of justice.”).
Limiting access to the Second Amendment to only
those who can satisfy the judge’s personal definition of
“law-abiding, responsible citizens” will not only produce uneven and perverse results, it will also reduce
confidence in the judicial system.
II.
Disarming Citizens Based on Civil Protective Orders Lacks a Limiting Principle:
California Is Proof that Disarmament Orders May Extend Beyond the Domestic
Violence Context to Any Private Civil Dispute Where a Judge Finds a Threat or
Danger.
The government claims that disarming citizens
based on a domestic violence protective order complies
with the Second Amendment. We believe it is unconstitutional and fails the Court’s two-part test in Bruen.
We represent many clients who are victims of domestic
violence, and we are sensitive to the need to protect
such victims. But there is no historical precedent for
disarming individuals after issuance of domestic violence restraining orders. And there is certainly no history or tradition in this country of using civil protective
17
orders as a proxy to determine who can be disarmed as
“violent.”
California has far surpassed the federal government in its Second Amendment disarmament due to
civil protective orders. We believe that California’s experience demonstrates the fundamental problem with
the government’s position: it lacks a limiting principle.
We have a unique vantage point on this problem, having routinely seen such orders issued based on conduct
that does not amount to physical violence; and after
hearings based on meager evidence that lacks sufficient procedural safeguards. California’s experience
provides a cautionary tale on the perils of expanding a
civil protective order disarmament scheme—at the expense of cherished constitutional rights.
Like Section 922(g)(8), California criminalizes possession of firearms after issuance of a civil Domestic
Violence Restraining Order (“DVRO”). See Cal. Fam.
Code §§ 6300 et seq. (West, Westlaw through Ch. 1 of
2023-24 1st Ex. Sess., and urgency legislation through
Ch. 211 of 2023 Reg. Sess.). A DVRO is not triggered
by a criminal conviction, but by an individual petitioner submitting a form to the court alleging domestic
violence. See DV-100, Request for Domestic Violence Restraining Order, Judicial Council of California (Jan. 1,
2023), https://www.courts.ca.gov/documents/dv100.pdf
(“DV-100”).
California’s DVRO proscribes a far greater range
of conduct than that proscribed by Section 922(g). First,
our definition of a domestic relationship encompasses
18
more than intimate partners: a DVRO can be issued
against nearly anyone who could be considered related
by blood or marriage, or who one currently or previously cohabitated with, including co-parents. See id. at
2; Fam. § 6211. Second, our definition of domestic violence is far broader and includes a broad range of nonviolent behavior, including “disturbing the peace.” See
Fam. § 6320. This means that an individual can be the
subject of a DVRO without ever assaulting or battering
an intimate partner.
Restraining orders in California have proliferated
far beyond the domestic violence context: judges routinely issue such orders to restrain neighbors, co-workers,
students, and elder caregivers from contacting protected parties. For example, Civil Anti-Harassment Restraining Orders, a legal mechanism for private
dispute resolution, provide another path for private individuals to use the courts to take away the Second
Amendment rights of other citizens. See Cal. Civ. Proc.
Code § 527.6 (West, Westlaw through Ch. 1 of 2023-24
1st Ex. Sess., and urgency legislation through Ch. 211
of 2023 Reg. Sess.). California’s expansive list of protective orders also includes workplace restraining orders and orders restraining caregivers and students.
Id. at §§ 527.8 and 527.85; Cal. Welf. & Inst. Code
§ 15657.03 (West, Westlaw through Ch. 1 of 2023-24
1st Ex. Sess., and urgency legislation through Ch. 211
of 2023 Reg. Sess.). Protective orders issued under
these statutes all trigger firearm bans even if a firearm
played no role in the alleged incident. These orders
may be issued on a temporary basis and are often
19
extended ex-parte. Even when the restrained party is
present, procedural infirmities abound.
If the Court accepts the government’s defense of
Section 922(g)(8), and its requirement that an individual must first qualify as a “law-abiding” before deemed
eligible for constitutional protection, this will open the
door to an extension of a Second Amendment disarmament scheme far beyond domestic violence. The government’s argument would mean that all states could
regulate the disarmament of their citizens as aggressively as California, with no principled distinction between domestic violence protective orders and other
ordinary civil protective orders.
A. California Law Is Broader Than Section 922(g)(8) in Terms of the Nature
And Quality Of Protective Order Disarmament.
Unlike Section 922(g)8), which regulates firearm
possession after issuance of permanent domestic violence restraining orders, California Penal Code Section
29825(b) criminalizes an individual unlawfully possesses a firearm in violation of any of the following
civil4 restraining orders—be they temporary, ex-parte,
or permanent orders:
4
In addition, Section 29825(b) provides for criminal penalties for violation of criminal protective orders under California
Penal Code Sections 136.2 and 646.91. Pre-trial criminal protective orders are issued in every domestic violence case we have
20
•
Domestic Violence Restraining Orders, Fam.
§ 6218;
•
Civil Harassment Restraining Orders, Civ.
Proc. § 527.6;
•
Workplace Harassment Restraining Orders,
id. at § 527.8;
•
Protective Orders on Behalf of Postsecondary
School Students, id. at § 527.85;
•
Elder or Dependent Adult Protective Orders,
Welf. & Inst. § 15657.03.
(West, Westlaw through Ch. 1 of 2023-24 1st Ex. Sess.,
and urgency legislation through Ch. 211 of 2023 Reg.
Sess.).
Section 29825(b) is not historically rooted. As recently as 1987, California Penal Code Section 12021,
the predecessor statute to Section 29825(b), made no
mention of a prohibition on firearms for people subject
to court orders. See Law of 1987, Cal. Penal. Code
§ 12021 (repeal operative 2012 and reenacted without
substantive changes as Penal § 29825(b)).
Section 29825(b) provides for disarmament based
on a host of different civil restraining orders. None requires a criminal conviction. Instead, by dint of the issuance of a civil protective order, a person loses their
constitutional right to defend themself in their home
against an armed intruder and can be prosecuted and
seen, and result in disarmament prior to conviction. Penal
§§ 136.2(a)(1)(G)(ii)(I)-(II), 136.2(c)(2)(d)(1)-(3).
21
jailed for the crime. Such a prohibition does not comport with our country’s history and tradition of gun
regulation. Cf. Heller, 554 U.S. at 628 (identifying the
home as the place “where the need for defense of self,
family, and property is most acute”).
For our clients, these are not hypothetical concerns. We represent one client who was arrested in his
home after police were called for a noise disturbance.
Our client, a Black man, and his fiancé were home.
Although police made no arrests for the disturbance,
they arrested him under Section 29825(b) for possessing a firearm in his own home. An underlying restraining order prevented our client from contacting
his grandmother, with whom he had previously lived.
Our client no longer resided with his grandmother, nor
was she present when police responded to his new residence. But state law criminalized our client’s ability
to defend himself against an armed intruder in his own
home. He now faces incarceration. Given disparities
in police enforcement, Section 29825(b) operates to
undermine the rights of Black individuals to defend
themselves in their homes. See Adam Winkler, Racist
Gun Laws and the Second Amendment, 135 Harv. L.
Rev. F. 537, 544-45 (2022).5
5
California’s gun regulation has discriminatory origins. Before 1967, open carry of loaded firearms was legal and common in
California. California enacted laws barring open carry in large
part to disarm the Black Panthers. Cynthia Deitle Leonardatos,
California’s Attempts to Disarm the Black Panthers, 36 San Diego
L. Rev. 947, 969 (1999); see 1967 A.B. 1591 (Penal § 12031).
22
B. California Law Is Broader Than Section 922(g)(8) Because it Expands the
Definition of a Domestic Relationship
and the Qualifying Conduct.
Section 922(g)(8) criminalizes firearm possession
after issuance of noticed domestic violence restraining orders and defines domestic violence as violence
against intimate partners. Our state analog, Section
29825(b), also criminalizes gun possession after the issuance of a civil domestic violence restraining order.
But in contrast to its federal counterpart, California’s
domestic violence protective orders enjoin a broad array of domestic and familial relationships—including non-intimate partners—as well as a broad array of
non-violent behavior.
A DVRO is not triggered by a criminal conviction,
but by an individual petitioner submitting forms to a
court alleging domestic violence and requesting a restraining order. See DV-100 at 2. Generally, a petitioner
also submits a form requesting a Temporary Restraining Order (“TRO”) until the official DVRO hearing
can take place. See DV-110, Temporary Restraining
Order, Judicial Council of California (Jan. 1, 2023),
https://www.courts.ca.gov/documents/dv110.pdf (“DV-110”).
To secure a TRO, a petitioner need only provide a
declaration that shows “reasonable proof ” of “harassment” and that “great or irreparable harm would result to the petitioner.” Civ. Proc. § 527.6(d). A TRO may
be issued without notice to the respondent. Id. If a
court issues a TRO, the respondent will be ordered
23
entirely disarmed until the official DVRO hearing
takes place—which by statute is supposed to occur
within 21 to 25 days but in practice can be continued
for far longer. See DV-110 at 2; Civ. Proc. § 527.6(f ).
Thus, by a mere few forms, a respondent may be denied
their arms without hearing for a period of 25 days and
beyond.
When the DVRO hearing does finally take place, a
court will issue a DVRO if it finds “a showing of past
abuse by a preponderance of the evidence.” In re Marriage of Davila & Mejia, 29 Cal.App.5th 220, 226
(2018), as modified (Nov. 19, 2018). The respondent will
then be prohibited from possessing forearms for the
duration of the DVRO, Fam. § 6304—which typically
last five years, but on renewal can be re-issued permanently. Fam. § 6345(a). The respondent must provide
the court with a receipt demonstrating proof that all
weapons have been relinquished. Fam. § 6304. Thus, a
respondent may be permanently denied arms based on
the issuance of a civil restraining order.
California has dramatically expanded the definition of a domestic relationship for the purpose of securing a DVRO. California Family Code Section 6211
provides that “domestic violence” is “abuse” perpetrated
against, inter alia: (a) a spouse or former spouse; (b) a
cohabitant or former cohabitant, as defined in Section
6209; (c) a person with whom the respondent is having
or has had a dating or engagement relationship. . . .
(f ) any other person related by consanguinity or affinity within the second degree. In practice, courts have
interpreted this to include relationships as removed as
24
grandparents, a child’s spouse, or step-grandchildren.
See DV-100 at 2.
Added into law in 1993, Family Code Section 6209
defines a “cohabitant” as a person who regularly resides in the household. A “former cohabitant” is a person who formerly regularly resided in the household.
Id. There is no minimum requirement regarding the
length of relationship or cohabitation. See id. A related
definition is found in California Penal Code Section
13700(b), which also allows for a cohabitant or former
cohabitant to file a petition for a protective order.6
The qualifying conduct is likewise extensive.
While the Penal Code, § 13700(b), defines domestic violence as causing bodily injury or placing another person in reasonable apprehension of imminent serious
bodily injury to himself or herself, or another, the Family Code provides an alternative, sweeping definition
that can equally be the basis of a protective order. The
breadth of domestic abuse under the Family Code includes “. . . . disturbing the peace of the other party,” defined as conduct that, based on the totality of the
circumstances, “destroys the mental or emotional calm
of the other party.” Fam. §§ 6320(a), (c) (emphasis
added). The definition is unmoored to any physical
violence and can include conduct such as “coercive
6
For purposes of this subdivision, “cohabitant” means two
unrelated adult persons living together for a substantial period of
time. Penal § 13700(b). Factors establishing cohabitation include
the nature and length of the relationship, joint ownership of property and shared expenses, among other things. Id.
25
control,” which itself includes “isolating the other
party from friends.” Id. at § 6320(c)(1).
It is difficult to imagine what sort of conduct would
not qualify as domestic abuse under this definition.
And upon a finding that the restrained party “destroy[ed] the mental . . . calm” of the petitioning party,
a court can issue an order that triggers mandatory disarmament and immediate surrender of firearms, for all
purposes. See id. at §§ 6320(a); 6389(a). A person whom
a court has ordered disarmed is ordered to immediately relinquish their weapons and file a “receipt
showing the firearm was surrendered to a local law enforcement agency or sold to a licensed gun dealer.” Id.
at § 6389(c)(2)(A). “Failure to timely file a receipt shall
constitute a violation of the protective order.” Id. This
may also be grounds for a criminal prosecution under
Section 29825.
The government’s defense of Section 922(g)(8)
should give the Court pause. If it applies to domestic
violence, it applies to California’s expansive disarmament laws as well.
26
C. California Civil Protective Orders Prescribe Mandatory Disarmament Far
Beyond Domestic Violence Scenarios,
Including Private Disputes Between
Neighbors, Employees, Students and
Elder Dependents and Caregivers; Including on an Ex-Parte Basis.
Like its federal counterpart, Section 29825 criminalizes firearm possession after issuance of a domestic
violence restraining order. Cf. 18 U.S.C. § 922(g)(8), Penal § 29825. But unlike Section 922(g)(8), which is limited to domestic violence against intimate partners,
California disarms individuals subject to the following
civil restraining orders:7
•
Civil Harassment Restraining Orders, Civ.
Proc. § 527.6;
•
Workplace Harassment Restraining Orders,
id. at § 527.8;
•
Protective Orders on Behalf of Postsecondary
School Students, id. at § 527.85;
•
Elder or Dependent Adult Protective Orders,
Welf. & Inst. § 15657.03.
These orders generally require some showing of
harassment, or reasonable cause to believe that the
order will prevent future abuse, but they do not
7
California also has gun violence restraining orders, commonly called “red flag laws,” which allow people such as police
and family members to petition for the disarmament of citizens. Penal § 18100 et seq. These may be issued ex-parte. Penal
§ 18150(b)(1). These, too, raise a host of constitutional problems.
27
necessarily require physical violence. The showing
varies by order. For example, in the context of Civil
Harassment Restraining Orders—which typically apply where petitioners do not have domestic or legal
relationships with respondents—a TRO may be issued
where a court finds “reasonable proof of harassment of
the petitioner by the respondent, and that great or
irreparable harm would result to the petitioner.” Civ.
Proc. § 527.6(d) (emphasis added). The same “reasonable proof ” standard applies where an employer seeks a
protective order on behalf of their employee. See id. at
§§ 527.8(e), 527.8(a). When a school employee at a
postsecondary educational institution believes that a
student has suffered a credible threat of violence, and
that “great or irreparable harm” would result, that
employee may seek a restraining order. See id. at
§ 527.85(e). Where an elder or dependent adult has been
abused, they, or someone acting in their stead, may seek
a protective order. Abuse includes treatment resulting
in mental suffering, and mental abuse is grounds for
disarmament. See Welf. & Inst. §§ 15610.07, 15657.03.
Like domestic violence restraining orders, these civil
protective orders generally provide for mandatory disarmament. If a judge issues a protective order, regardless of whether a firearm was used in the commission
of the conduct giving rise to the order, and regardless
of whether the conduct occurred in the home, workplace or school setting, the restrained party shall surrender any firearms. See Fam. § 6389, Civ. Proc. Code
§§ 527.6(u)(1)-(3), 527.8(s)(1)-(3), 527.85(s)(1)-(3); Welf.
28
& Inst. § 15657.03(u)(1)-(3).8 And this ban extends to
prevent a restrained party from possessing firearms,
even in the home for self-defense against an armed intruder. See Civ. Proc. § 527.9 (providing for the relinquishment of firearms by the subjects of restraining
orders pursuant to Civ. Proc. §§ 527.6, 527.8, 527.85,
and Welf. & Inst. § 15657.03). If a person fails to immediately surrender their firearms, and they know of the
order, they can be criminally punished and jailed. Penal § 29825(b).
Unlike 922(g)(8), these statutes disarm individuals upon the issuance of ex-parte temporary restraining orders. An ex-parte TRO under these statutes is
effective for 21 days before a hearing is required—
which can be extended to 25 days with good cause.
See Civ. Proc. § 527.6(f ), 527.8(g), 527.85(g); Welf. &
Inst. § 15657.03(f ). Moreover, a petitioner may continue the hearing with good cause, and a court may
also continue the hearing on its own motion. See Civ.
Proc. § 527.6(p)(1), 527.8(p)(1), 527.85(p)(1); Welf. &
Inst. § 15657.03(n)(1). The TRO remains in effect
during the continuance, and with it disarmament.
See Civ. Proc. §§ 527.6(p)(2), 527.8(p)(2), 527.85(p)(2);
8
There is a limited exemption to disarmament in the Family
Code, mainly for peace officers, and only after a psychological examination and if they cannot be reassigned. Fam. Code § 6389(h).
Elder or Dependent Adult Protective Orders exempt disarmament where the finding of abuse was made solely based on “financial abuse.” Welf. & Inst. § 15657.03(u)(4). And in some other
contexts, a court may make a special finding that a firearm is necessary as a condition of respondent’s continued employment. Civ.
Proc. Code § 527.9(f ).
29
Welf. & Inst. § 15657.03(n)(2). Given the availability of
continuances, and the reality of congested courtrooms,
there appears to be no meaningful limit on the length
of time a petitioner may strip an individual’s Second
Amendment rights without a hearing. A neighbor can
go into court and, upon an ex-parte showing of harassment and claim of irreparable harm, disarm his neighbor for 21 days, or longer, without that person being
afforded an opportunity to respond.
The Court held long ago that deprivation of First
Amendment rights, even for a minimal period, “unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 374 (1976). Given the Court’s command that the Second Amendment must be afforded
the same majesty as the First, ex-parte disarmament
based on civil restraining orders is of dubious constitutionality. See Bruen, 142 S.Ct. at 2130, 2156.
Permanent restraining orders may be issued after
notice and a hearing. See, e.g., Civ. Proc. § 527.6(j)(1)
(entry of permanent order may last up to five years);
id. at 527.8(k)(1) (entry of permanent order may last
up to three years). This is significant because private
citizens can use permanent restraining order hearings
to deprive others of their Second Amendment right to
self-defense for up to half a decade in some cases. And
in the case of elder or dependent cases, the order may
last indefinitely. Welf. & Inst. § 15657.03(i) (providing
entry of a permanent order, after notice and hearing,
for up to five years, and renewed “either for five years
or permanently, without a showing of any further
abuse since the issuance of the original order . . . ”).
30
California has already started sliding down the
slippery slope of disarming individuals well beyond the
confines of Section 922(g)(8). It provides ex-parte and
permanent disarmament for ordinary, garden-variety
civil disputes, including ones where no physical violence occurred. As a canary in the coal mine, we do not
believe the Constitution is served by the government’s
argument, which would ratify, if not expand, this regime.
D. In Practice, California Restraining Order Hearings Lack Core Procedural Protections.
If restraining orders are a constitutionally sound
way to deny someone their Second Amendment rights,
as the government submits, they should at least be
procedurally fair proceedings. They are not.
We represent people criminally charged with possessing firearms in violations of civil restraining orders. We also occasionally represent people in civil
restraining order hearings. We are familiar with how
these hearings occur. Despite the gravity of the rights
at stake, in practice, basic due process is often missing
from these hearings.
As discussed, nearly all of California’s disarmament schemes can be issued ex-parte. See, e.g., Civ. Proc.
§ 527.6 (permitting issuance of temporary protective
31
order for twenty-one to twenty-five days).9 As commentators have pointed out, “[i]n the majority of jurisdictions, these statutes permit the judge to enter an
emergency protective order ex-parte the very same
day without the defendant even being aware that proceedings are happening.” Peter Slocum, Biting the
D.V. Bullet: Are Domestic-Violence Restraining Orders
Trampling on Second Amendment Rights?, 40 Seton
Hall L. Rev. 639, 644 (2010). Many of these statutes
permit a court to re-issue the order past its statutory
maximum duration if the petitioner requests continued protection. See Penal § 646.91(c)(4)(A) (allowing
the petitioner to seek an order for continued protection). And, at the expiration of an emergency protective order, the protected party can apply for an ex-parte
temporary restraining order that can last up to 21
days. See Civ. Proc. § 527.6(f ); Penal § 18125.
In theory, these hearings should be occurring
promptly. In practice, they are not. Courts are overburdened, respondents are not timely served, and resources are limited. Continuances are the norm and
hearings are the exception. For example, we represent
one person in a gun violence restraining order hearing
where there have already been three continuances for
witness availability and court congestion. The ex-parte
order—originally issued for 21 days—will have deprived our client of his Second Amendment rights for
over six months before he has a full opportunity to
9
Ex-parte emergency protective orders only last for approximately seven days. Fam. at §§ 6250(d); 6256(a)-(b); Penal
§ 646.91(g).
32
defend himself against the government’s accusations.
Penal § 18195.
In a recent survey of civil restraining order proceedings in Alameda County, we saw few respondents
represented by counsel, as they are not entitled to a
pro bono lawyer. Respondents are sometimes absent often because they were unaware of any hearing. In
many cases, this is due to the petitioner’s failure to
serve notice, resulting in routine re-issuance of TROs.
In some other cases, respondents were allegedly served
but failed to appear, and permanent orders may be issued as default judgments. Of course, a respondent’s
absence might not be willful. This could be because
they are incarcerated—unbeknownst to anyone—and
were not transported to a civil court proceeding.
When hearings do occur, there are few procedural
guardrails. Hearsay is generally admissible in protective order hearings. See, e.g., Civ. Proc. § 527.6(i); see
also San Diego Police Dep’t v. Geoffrey S., 86
Cal.App.5th 550, 558 (2022), review denied (Mar. 22,
2023) (holding that hearsay evidence is admissible at
hearings for gun violence restraining orders); Kaiser
Found. Hosps. v. Wilson, 201 Cal.App.4th 550, 552
(2011) (holding that hearsay evidence is admissible at
hearings for workplace violence restraining orders);
Duronslet v. Kamps, 203 Cal.App.4th 717, 728 (2012)
(holding that hearsay evidence is admissible at hearings for civil harassment restraining orders).
As a result, courts have stripped Second Amendment rights based on patently unreliable evidence that
33
would never pass muster in an ordinary civil or criminal hearing. For example, in San Diego Police Department v. Geoffrey S., a California appellate court
affirmed issuance of a Gun Violence Restraining Order
based on hearsay descriptions of the defendant’s Facebook posts—the posts themselves were never admitted
into evidence. 86 Cal.App.5th at 552, 564-65. That
court also considered the hearsay statements of several individuals who had expressed concerns about the
defendant, reasoning, “none of [them] had any evident
reason to lie.” Id. at p. 566. It’s unclear how that court
was able to glean the motivations of the declarants
without the benefit of their testimony.
Similarly, in, Kaiser Foundation Hospitals v. Wilson, a California Court of Appeal affirmed issuance of
a work violence restraining order based on the affidavits and testimony of two individuals who recounted a
series of troubling incidents, even though “it [was] not
clear whether [they] witnessed any or all of these incidents, or, if not, how [they] obtained [their] knowledge
of these incidents.” 201 Cal.App.4th at 553-54.
But there is a bigger problem with these orders,
one of judicial incentives. There is almost no incentive
to deny a petitioner a restraining order. As one commentator observed, trial judges are often personally
invested in being overly cautious. After all, should they
grant an unwarranted restraining order, the worst
that will happen is an appeal. If, “on the other hand,
the judge denies a restraining order and the plaintiff
is killed or injured the very next day, sour publicity and
an enraged community may very well ensure that the
34
jurist’s career will be both unpleasant and short.” Slocum, Biting the D.V. Bullet, 40 Seton Hall L. Rev. at 667.
This incentive structure pervades all civil protective orders in California. Our state even permits
issuance of mutual restraining orders with certain
findings. Fam. § 6305. As Judge Ho suggested in his
concurrence in Rahimi, requests for mutual restraining orders challenge the very idea that one party needs
protection from another. 61 F.4th at 466-67 (Ho, J.,
concurring). We have observed firsthand how mutual
restraining orders are prone to manipulation and
weaponization of a very important process, not to mention disarming the victim of domestic violence.
And dismissals of restraining orders are cautiously issued, even at the request of the petitioning
party. See Joann Sahl, Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences
of Civil Domestic Violence Cases, 100 Marq. L. Rev. 527,
545 (2016). Even having these orders on one’s record
can prevent the restrained party from getting a job,
obtaining a professional license, or getting admitted to
an academic institution. Id. at 529-32.
Domestic violence protective orders that mandate
disarmament may reflect popular policy choices. But
popularity has never been a factor in Second Amendment analysis. Like the First Amendment, which permits the “expression of extremely unpopular and
wrongheaded views,” the Second Amendment “is the
very product of an interest balancing by the people.”
Heller, 554 U.S. at 570, 635 (italics in original). It
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protects us all against a well-intentioned but constitutionally misguided popular majority.
The Framers never intended for complete disarmament after issuance of civil protective orders,
whether for domestic violence, workplace harassment,
elder abuse, or any other number of private disputes.
But if the government’s argument is taken seriously—
the Second Amendment limited to “law-abiding” citizens and domestic violence protective orders deemed a
sufficient finding of dangerousness to disarm individuals—states will only further encroach upon the Second
Amendment. And they will have California’s expansive
disarmament scheme as a ready blueprint.
---------------------------------♦---------------------------------
CONCLUSION
We urge affirmance of the judgment of the court
of appeals.
Respectfully submitted,
BRENDON D. WOODS
KATHLEEN GUNERATNE
CHARLES M. DENTON
ALAMEDA COUNTY
PUBLIC DEFENDERS
1401 Lakeside Dr., Suite 400
Oakland, CA 94612
LISA MCGUIRE
CALIFORNIA PUBLIC
DEFENDERS ASSOCIATION
10324 Placer Lane
Sacramento, CA 95827
JOSHI VALENTINE*
ALAMEDA COUNTY
PUBLIC DEFENDERS
1401 Lakeside Dr., Suite 400
Oakland, CA 94612
(510) 268-7486
Joshi.valentine@acgov.org
*Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.