WASHINGTON – Advocates, prosecutors and lawmakers fear a recent federal appeals court decision that allows domestic abusers to keep their guns rather than give them up while they are covered by protective orders will undermine efforts to keep their victims safe.
Members of Congress say they’ll look at two avenues to respond — pass a new law and appeal the 5th U.S. Circuit Court of Appeals decision — while local prosecutors can rely on similar protections under a state law that isn’t affected by the federal court order.
“It’s like a crack in the dam,” said Rep. Troy Carter, who represents parts of New Orleans and Baton Rouge and is the delegation’s only Democrat. “The decision could cause great harm if that crack starts widening.”
U.S. Rep. Debbie Dingell, D-Michigan, said members concerned with domestic violence and gun issues met Tuesday night to start looking for wording that would circumvent the hurdles raised by the 5th Circuit decision.
A three-judge, 5th Circuit panel on Feb. 2 found unconstitutional a 30-year-old federal law that prohibits a person subject to a domestic violence restraining order from possessing firearms.
The decision only impacts federal law in the three states of the 5th Circuit: Louisiana, Mississippi and Texas. The state-level laws passed in Louisiana and Texas are not impacted; Mississippi doesn’t legally withhold firearms for people under a court order for domestic violence.
Thirty-one states have a means to prohibit domestic abusers who are subject to civil protective orders from having guns, according to Everytown for Gun Safety, a group funded largely by former New York City Mayor Michael Bloomberg and advocates for tighter accessibility restrictions for guns.
Though the ruling is limited to three states, David Pucino, deputy chief counsel for Giffords, an gun control advocacy group, says anyone under a restraining order, regardless of where they live, will be able to raise the 5th Circuit decision as a defense.
The U.S. Justice Department has indicated it would appeal but hasn’t said whether it would ask the full 5th Circuit to look at the decision first or whether to go directly to the U.S. Supreme Court.
In the meantime, East Baton Rouge District Attorney Hillar Moore is having to figure out how the decision might someday impact cases at the local level. His office is reviewing the court’s decision and understands that the Court’s opinion did not address the constitutionality of Louisiana state laws.
“We believe that the framers of our Constitution would have condoned restrictions of gun possession for individuals found by a court to be a credible threat to the safety of a victim and community,” Moore said.
A former president of the New Orleans City Council, Helena Moreno, criticized the members of the appellate court panel.
“Their decision shows that the 5th Circuit is much more willing to protect abusers than victims,” Moreno said.
In 2014, while Moreno was a state legislator, she led the effort to enshrine in state law specific prohibitions against anyone under a domestic violence order from having or buying firearms. The legislation was negotiated with National Rifle Association lobbyists and other gun rights advocates, who in the end did not object to what became Louisiana’s law.
According to the Louisiana Protective Order Registry, a statewide tally of court orders issued to prevent domestic abuse, dating violence, stalking and sexual assault, East Baton Rouge had 3,585 restraining orders filed in 2022 alone. Jefferson Parish logged 3,045, and Orleans 4,556. In recent years, the numbers have generally risen in the densely populated parishes.
The Violence Policy Center reported that in 2020, the year with the most recently available data, that 35 out of 52 women killed in Louisiana by a man were shot to death.
The Louisiana Coalition Against Domestic Violence released a statement: “We know that domestic violence and firearms are a deadly combination, and we call on courts and law enforcement across Louisiana to enforce and strengthen Louisiana’s state-level domestic violence firearm prohibitions in light of this ruling.”
Judge Cory T. Wilson, of Mississippi, wrote the Gun Rights U.S. v. Rahimi decision. He was joined by Judge Edith Jones, of Houston. Judge James Ho, of Austin, wrote a concurring opinion. Wilson and Ho were nominated by President Donald Trump. Jones was tapped by President Ronald Reagan.
Zackey Rahimi went on a shooting spree in December 2020 and January 2021, firing on someone he had sold drugs to, someone he was in a car accident with, a constable, and at a Whataburger that had refused his friend’s credit card.
Arlington, Texas, Police searched Rahimi’s home and found a rifle and a pistol even though he was subject to a civil protective order after allegedly assaulting an ex-girlfriend.
A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of federal law. He pleaded guilty.
“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” Wilson wrote. The question is whether the federal law that does so is constitutional.
The 5th Circuit panel pointed to a U.S. Supreme Court decision that determined in June 2022 that any prohibitions against someone exercising their Second Amendment rights to buy and keep firearms needs to be reviewed from an historical perspective — what the nation’s founders intended in 1791 when the Bill of Right was ratified — rather than from a basis of societal good.
Shira Feldman, counsel at Brady, a gun control advocacy group, points out that, in the 18th century, women were considered property of their husbands and that family violence was accepted until recently.
“In domestic violence, there’s a clear pattern of escalation. Protective orders are put into place with the intention of preventing that escalation,” said Suzanne Hamilton, executive director of the Capital Area Family Justice Center in Baton Rouge.
Those experiencing domestic abuse can contact the statewide Louisiana Domestic Violence Hotline at (888) 411-1333 or the National Domestic Violence Hotline at (800) 799-7233.