The implications of U.S. v. Rahimi for California's Domestic Violence Prevention Act: A first look

On June 21, 2024, the U.S. Supreme Court ruled in an eight-to-one decision (Thomas, J. dissenting) that a federal law prohibiting individuals subject to domestic violence restraining orders (DVRO) from possessing firearms is consistent with the Second Amendment. The majority opinion, authored by Chief Justice John G. Roberts, explains that "[o]ur tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others." (United States v. Rahimi (2024) 2024 DJDAR 5442, 5448 [144 S.Ct. 1889, 1902].) The decision validates numerous state domestic violence prevention laws prohibiting individuals found to have committed abuse, from possessing or obtaining firearms.

The case came before the U.S. Supreme Court after Zachary Rahimi was convicted of, among other crimes, violating 18 U.S.C. § 922(g)(8), a federal statute that prohibited Mr. Rahimi from possessing firearms because the DVRO against him "include[d] a finding that he poses 'a credible threat to the physical safety' of a protected person." (Rahimi, supra, 144 S. Ct. at p. 1898.) In 2019, during an argument, Mr. Rahimi grabbed his girlfriend's wrist, dragged her to his car, and shoved her in the vehicle, causing her to strike her head against the dashboard. (Id. at p. 1894-1895.) When Mr. Rahimi noticed that a bystander was watching, he retrieved a gun from under the passenger seat. (Id. at p. 1895.) His girlfriend, who was also the mother of their young child, took the opportunity to escape and run away. (Ibid.) Although the record was unclear about whom he was aiming, Mr. Rahimi fired his gun. (Ibid.) He then called his girlfriend and threatened that "he would shoot her if she reported the incident." (Ibid.) Mr. Rahimi's girlfriend then successfully sought a restraining order against him. (Ibid.) The state court in Tarrant County, Texas found that Rahimi "had committed 'family violence'" and that "Rahimi posed a 'credible threat' to the 'physical safety'" of his girlfriend and her child. (Ibid.) The state court prohibited Mr. Rahimi from threatening his girlfriend for two years, forbade him from contacting her, except to discuss their child, and suspended his gun license for two years. (Ibid.)

Mr. Rahimi violated the DVRO and illegally used firearms, endangering the lives of others. He approached the protected person's residence and began contacting her through social media accounts. (Rahimi, supra, 144 S. Ct. at p. 1895.) Mr. Rahimi threatened a different woman with a firearm and was charged with aggravated assault with a deadly weapon. (Ibid.) While unlawfully dealing drugs, he shot into the home of one of his customers. (Ibid.) After he got into a car accident, he shot at the other car. (Ibid.) In another road rage incident, he fired his gun several times toward a truck and a nearby car. (Ibid.) Mr. Rahimi also pulled a gun and shot into the air after a restaurant declined his friend's credit card. (Ibid.) After these multiple instances where Mr. Rahimi threatened others and fired a gun in public, the police obtained a warrant to search his home and discovered a pistol, a rifle, and ammunition, along with a copy of the restraining order. (Ibid.)

 Mr. Rahimi was then "indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8)." (Rahimi, supra, 144 S.Ct. at p. 1895.) He filed a motion to dismiss the indictment, arguing that Section 922(g)(8) on its face violates his Second Amendment right to keep and bear arms. (Id. at p. 1896.) The U.S. District Court denied the motion to dismiss, and Mr. Rahimi pleaded guilty. (Ibid.) While the case was on appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 2117. In Bruen, the U.S. Supreme Court declared that when a firearm regulation is challenged under the Second Amendment, the Government must show the restriction "is consistent with the Nation's historical tradition of firearm regulation." (Id. at p. 24.) The Fifth Circuit Court of Appeals - although initially rejecting his Second Amendment challenge - ultimately held that Section 922(g)(8) did not fit within our tradition of firearm regulation. (Rahimi, supra, 144 S. Ct. at p. 1896.)

The U.S. Supreme Court granted certiorari and reversed the Fifth Circuit Court of Appeal's decision, holding that "when a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may - consistent with the Second Amendment - be banned from possessing firearms while the order is in effect." (Rahimi, supra, 144 S. Ct. at p. 1896.) The High Court emphasized that, while "the right to keep and bear arms is among the 'fundamental rights necessary to our system of ordered liberty," "'[l]ike most rights' . . . 'the right secured by the Second Amendment is not unlimited." (Id. at p. 1897.) It reaffirmed the standard pronounced in Bruen: courts are to consider whether the challenged regulation is "'relevantly similar' to laws that our tradition is understood to permit, 'applying faithfully the balance struck by the founding generation to modern circumstances.'"  (Id. at p. 1898 [citing Bruen, supra, 597 U.S. at p. 29].) The Supreme Court then explained that "[f]rom the earliest days of the common law [in England], firearm regulations have included provisions barring people from misusing weapons to harm or menace others."  (Id. at p. 1899.) And although, state constitutions and the Second Amendment had largely eliminated governmental authority to disarm political opponents by the time of our country's founding, "regulations targeting individuals who physically threatened others persisted." (Ibid.) Writing for the majority, Chief Justice Roberts cited two types of historic laws that limited access to firearms: surety laws and "going armed" laws. (Id. at p. 1899-1900.) The Chief Justice described how, by the 1700s, surety laws, known as a form of "preventative justice," "could be invoked to prevent all forms of violence, including spousal abuse" and "the misuse of firearms." (Ibid.) He referred to a 1795 Massachusetts law, and nine other jurisdictions, that authorized justices of the peace to arrest all who "go armed offensively and require of the offender to find sureties for his keeping the peace." (Id. at p. 1900.) Additionally, the Chief Justice detailed "going armed" laws in at least four states that prohibited "riding or going armed, with dangerous or unusual weapons, to terrify the good people of the land."  (Id. at p. 1901.) Chief Justice Roberts concluded that these laws together "confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed." (Id. at p. 1901.)

The U.S. Supreme Court held that Section 922(g)(8) does not conflict with the Second Amendment because, like the surety and "going armed" laws, it applies to individuals found to threaten the physical safety of another. (Rahimi, supra, 144 S. Ct. at p. 1901.) Section 922(g)(8) does not restrict possession of firearms by the public generally, but instead applies "only once a court has found that the defendant 'represents a credible threat to the physical safety' of another," matching the surety and "going armed" laws. (Id. at p. 1901-1902.) Like the surety bonds, which were of limited duration, Section 922(g)(8) only prohibits firearm possession so long as the defendant is subject to a restraining order. (Id. at p. 1902.) Moreover, mirroring the "going armed laws," Section 922(g)(8) allows for imprisonment and, if imprisonment is permissible, "then the lesser restriction of temporary disarmament . . . is also permissible."  (Ibid.)

In upholding the constitutionality of Section 922(g)(8), the U.S. Supreme Court repudiated the Fifth Circuit's conclusion that current laws restricting firearm possession need to be a "historical twin" to laws enacted at the time of the Second Amendment's ratification. (Rahimi, supra, 144 S. Ct. at p. 1903.) To the contrary, the Supreme Court held that the "precedents were not meant to suggest a law trapped in amber," a "historical analogue" will suffice. (Id. at p. 1897, 1903.) The High Court also criticized the Fifth Circuit's analysis of Mr. Rahimi's facial challenge, explaining that "when legislation and the Constitution brush up against each other, a court's task is to seek harmony, not to manufacture conflict."  (Id. at p. 1903.) Lastly, the Supreme Court rejected the Government's contention that it could disarm any person considered not "responsible."  (Ibid.)

Rahimi's potential impact on California's DVPA

California's Domestic Violence Prevention Act (DVPA) was established in 1993 to "prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence." (Fam. Code, § 6220.) The DVPA's main goal is to provide legal protection for victims experiencing domestic abuse through restraining orders. The statute grants courts discretion to issue a temporary and permanent Domestic Violence Restraining Order (DVRO) when the person seeking the order "shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse." (Fam. Code, § 6300, subd. (a).) There are three types of DVROs. First, a bench officer can grant an emergency order if a law enforcement officer reasonably believes a person, child, elder, or dependent adult is in immediate and present danger of domestic violence based on alleged abuse or threats of abuse by the person the order is against. (Fam. Code § 6250.) Second, a Temporary Restraining Order can be issued by a court before a full hearing. Lastly, a permanent DVRO can be granted once the court has issued a notice and a hearing. (Fam. Code § 6345, subd. (a).) In contrast to a temporary restraining order, which can be issued on an ex parte basis, a "permanent" DVRO can only be granted after a full hearing. (See Fam. Code, § 242(a).) The standard the court considers during these hearings is preponderance of the evidence. (Evid. Code, § 115.) Additionally, when evaluating the evidence, the court must consider the "totality of the circumstances." (Fam. Code, § 6301(c).) In California, a permanent DVRO can last up to five years, but they can be renewed. (Fam. Code, § 6345(a).) A court may modify or terminate a temporary or permanent DVRO at any time after its issuance. (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503-04 [applying the standards set forth in Code of Civil Procedure section 533].)

Under the DVPA, "abuse" is defined as "to intentionally or recklessly cause or attempt to cause bodily injury, sexual assault, to place a person in reasonable apprehension of imminent serious bodily injury to that person or to another, to engage in any behavior that has been or could be enjoined pursuant to Section 6320." (Fam. Code, § 6203, subd. (a).) Section 6320 includes additional behaviors considered "abuse," including "molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in Section 528.5 of the Penal Code, falsely personating as described in Section 529 of the Penal Code, harassing, telephoning . . . destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party." (Fam. Code, § 6320.)

Anyone subject to a DVRO cannot own, possess, purchase, or receive a firearm or ammunition, unless there is a statutory exception. (Fam. Code, § 6389, subds. (a) & (h).) The restriction on firearms can only be for the duration of the DVRO. Once the DVRO expires, an individual can obtain firearms if they choose.

Rahimi confirms that a California DVRO based on a credible threat to another's physical safety may form the basis to temporarily limit a person's Second Amendment right to bear arms. Like Section 922(g)(8), the DVPA does not restrict the public generally from possessing firearms but allows a court to issue a permanent DVRO against an individual after a hearing where that person can contest the order and present evidence. Numerous acts, under the DVPA, would support the limited restriction of the fundamental right to keep and bear arms. Although Mr. Rahimi's weapon of choice was firearms, Chief Justice Roberts made clear in the majority opinion that historical surety laws allowed for the abridgment of Second Amendment rights for those who misuse any offensive and dangerous weapon. (Rahimi, supra, 144 S. Ct. at p. 1900 [referencing a Massachusetts law that authorized bonds for individuals who "went armed with dirk, dagger, sword, pistol, or other offensive and dangerous weapon"].) Nor did the Chief Justice limit the applicability of Rahimi to those cases involving weapons. The High Court pointed to English criminal and civil laws that prohibited "fighting or . . . individuals who threatened others." (Id. at p. 1899.) Therefore, a DVRO based on conduct that intentionally or recklessly causes or attempts to cause bodily injury, or places a person in reasonable apprehension of imminent serious bodily injury, like molesting, attacking, striking, stalking, threatening, sexually assaulting, and battering would probably be covered by Rahimi's holding. These acts - defined as abuse under the DVPA - would likely create a credible threat to another's physical safety.

The Supreme Court, however, did not decide whether Section 922(g)(8)(C)(ii)'s alternate basis to bar an individual from possessing a firearm - namely, if the restraining order "prohibits the use, attempted use, or threatened use of physical force" - would be consistent with the Second Amendment. Stated differently, the High Court has not decided whether domestic violence restraining orders that do not include a finding that the restrained person poses "a credible threat to the physical safety" of another may be used to restrict a person's Second Amendment right to bear arms. (See Rahimi, supra, 144 S. Ct. at p. 1909 [Gorsuch, J., concurring] ["[W]e do not decide today whether the government disarms a person without a judicial finding that he poses a 'credible threat' to another's physical safety."].) Under the DVPA, nonviolent behaviors are defined as "abuse." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496 [The statute lists "several types of nonviolent conduct that may constitute abuse within the meaning of the DVPA."].) Abuse can mean "disturbing the peace of the other party," or conduct that can harm the "mental or emotional calm of the other party."  (Fam. Code, § 6320 subd. (c).) Other examples of this type of abuse include "harassing, telephoning . . . making annoying telephone calls . . . destroying personal property, contacting . . . by mail or otherwise, [and] coming within a specified distance of."  (Fam. Code, § 6320 subd. (a).) On the one hand, Rahimi's holding suggests that the abuse must be sufficiently violent or dangerous in order to create a credible threat to another's physical safety. On the other hand, the Chief Justice relied on surety laws that could be used to require someone to post bond if "the accused would do him harm or breach the peace." (Rahimi, supra, 144 S. Ct. at p. 1900.) He explained that, in common law, wives could demand "sureties for good behavior" and have their husbands pleaded to "demean and behave himself well." (Ibid.) If surety laws were used to "keep the peace," then DVROs issued to prevent disturbance of the other party's peace of mind may be a "historical analogue."

This article is a preliminary look at United States v. Rahimi and its potential impact, if any, on the DVPA. It is not a critique of the Supreme Court's decision. The Supreme Court will undoubtedly provide further clarity on whether and when restraining order statutes, like the DVPA, are consistent with the Second Amendment's fundamental right to keep and bear arms.