Kathryn Jacobs is closely following a U.S. Supreme Court case about domestic violence and gun rights that originated in Arlington.
A potential ruling could increase her number of clients.
Jacobs leads SafeHaven, the only state-designated domestic violence center in Tarrant County. She fears that a possible outcome of the case will threaten the safety of domestic abuse victims.
Several officials and advocates in Tarrant County are waiting for the Supreme Court to hear United States v. Rahimi. The case questions the constitutionality of a federal law prohibiting the possession of firearms by persons subject to domestic violence protective orders. The county’s criminal district attorney and law enforcement also are concerned for the security of domestic abuse victims they strive to protect.
The case will be argued in the court’s next term, which starts in October.
“We’re fundamentally feeling a fair amount of anxiety around how this will play out,” Jacobs said.
She worries lethal domestic violence cases could increase.
Of Texas’ 254 counties, Tarrant had the fourth most domestic violence homicides in 2021, according to the Texas Council on Family Violence. In the same year, three times as many victims were killed with a firearm than by all other means combined in Texas.
The federal law in question:
United States v. Rahimi questions the constitutionality of 18 U.S.C. 922 (g)(8). The statute establishes “the prohibition against disposal of firearms to, or receipt or possession of firearms by, persons who are subject to domestic violence protection orders.”
The defendant, Zackey Rahimi, was convicted for his involvement in five different shootings around Arlington between December 2020 and January 2021 while he was subject to a protective order.
James Matthew Wright, Rahimi’s lawyer, declined a Fort Worth Report interview request.
Rahimi’s first appeal to the district court argued the law violated his Second Amendment gun rights and was denied. The Fifth Circuit Court of Appeals supported the lower court’s ruling. When he asked for a rehearing, a ruling from a separate case came out and changed the trajectory of his case.
The other case was New York State Rifle & Pistol Association Inc. v. Bruen, which examined whether a state law restricting Second Amendment rights was constitutional. In the majority opinion, Justice Clarence Thomas wrote, “the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.”
The Fifth Circuit agreed to rehear Rahimi’s case after the Supreme Court’s Bruen decision.
What is a protective order and what does it do?
A protective order is a court order issued to victims of family violence to protect them from the abuser.
The Texas Family code defines family violence as “an act by a member of a family or household against another member that is intended to result in physical harm, bodily injury, assault, or a threat that reasonably places the member in fear of imminent physical harm.”
The protective order restricts the issued persons from:
- Contacting or going near the victim, as well as their children, family relatives, home, workplace, or your children’s school.
- Carrying a firearm or license to carry a firearm.
A violation of conditions can result in arrest.
The Fifth Circuit concluded protective orders and their restrictions on firearms do not have a comparable historical context. The appeal court deemed the federal protective order law unconstitutional and reversed Rahimi’s conviction.
Following the Fifth Circuit’s decision, the U.S. Justice Department asked the Supreme Court to hear the Rahimi case and uphold the law that barred Rahimi from owning a firearm.
Rahimi’s lawyer wrote a brief explaining why the Supreme Court should not revisit his case.
“The founding generation understood the threat of private violence, including specifically private violence against intimate partners,” Wright stated. “It never chose to address either of those threats with a complete ban on possessing firearms like” the federal protective order law.
If the Supreme Court strikes down Rahimi’s challenge, the law about firearm possession under protective orders would remain in place. Not much would change, said Rachael Houston, a Texas Christian University political science professor who studies the Supreme Court.
A ruling that upholds the Fifth Circuit’s decision on Rahimi would cause a ripple effect of changes nationwide, Houston said.
“This case would challenge a lot of state level laws that prohibit guns,” she said. “Who can own them, who cannot?”
Houston expects lower courts to analyze other laws regulating firearm rights through a historical context to see if they are constitutional.
But a vagueness surrounding the standard of the historical similarity may bring more questions, she said.
“Lower courts across the country have no idea how to interpret the historical context,” Houston said. “Like what is a good analog to use, and what is the sufficient analog? There’s all sorts of confusion.”
Houston expects justices to rule in favor of Rahimi, with the same 6-3 conservative majority seen in the Bruen case.
In Bruen, justices analyzed laws from the 13th to the 20th century. They were determining whether New York could require residents to prove a need for carrying a pistol outside of their home. Justices found no historical context to justify the law and ruled it unconstitutional.
The majority said the law broke the 14th Amendment’s guarantee to safeguard life, liberty and property from arbitrary action from the government.
Houston predicted the justices will look at historical context in the Rahimi case through the same lens.
“I think they’re going to look at the time of the founding, the creation of the Second Amendment in 1791 and the 14th Amendment as well in 1868,” she said. “They’ll see if there were restrictions in place to prohibit people subjected to domestic violence restraining orders from owning a firearm.”
Thomas, the justice who wrote the Bruen opinion, interprets the Constitution through a style called originalism, which looks at how the founding document and its amendments would have been understood or was intended to be understood at the time that they were written, Houston said.
Federal and state law did not begin to define and ban forms of domestic abuse until the 1900s, Houston said. She believes the justices will not find a historical analogy supporting the law questioned in Rahimi.
“Hopefully, we’ll get some clarity on how lower courts should interpret historical context,” Houston said. “But, it’s unclear whether the court is going to provide a very detailed framework for what a historical analog is going to look like.”
An ‘earth-shattering’ effect
Tarrant County District Attorney Phil Sorrells, a Republican, filed an amicus brief in support of the Justice Department.
The local relevance of the Arlington case was only part of the reason for filing the document, said Fredericka Sargent, an assistant criminal district attorney.
What is the law in Texas?
A Texas law under the Texas Family Code states the following about protective orders and firearm regulation:
“In a protective order, the court may prohibit the person found to have committed family violence from possessing a firearm, unless the person is a peace officer, as defined by Section 1.07, Penal Code, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision.”
“We believe strongly in protecting victims of domestic violence,” she said. “One of the biggest ways we can do that is to get these protective orders and have the guns taken away from the partners.”
In the brief, the district attorney’s office argued “disarming those subject to a protective order, those who are not ‘ordinary, law-abiding citizens’” does not violate the Second Amendment.
Removing firearms from abusers is a crucial step that makes not only victims, but also the communities that work to protect them feel safer, Sargent said. Eliminating this restriction of the protective order would diminish the sense of security for many.
“The impact would be immediate, and it would really be earth-shattering,” she said.
Sargent worries law enforcement officers intervening in protective order violations could be put in an even more dangerous situation if the Supreme Court rules for Rahimi. Prosecutors could face challenges in ensuring victims’ full protection, she said.
“I can’t imagine what it would look like for our nonprofit organizations like SafeHaven, ” Sargent said. “The people they protect would be even more terrified than they already are.”
Jacobs and those who work alongside her at Safehaven are nervous.
“Victims are fundamentally scared of their partner,” Jacobs said. “That’s the impact of being in a relationship where one person has power — it’s fear.”
They worry the Rahimi case could amplify the victims’ fears but silence their voices.
Victims calling 911, filing a protective order or taking action in any way is a major violence trigger for abusers, Jacobs said.
“If that offender now legally can still have access to a gun, how likely do we think it is that victims will continue to pursue the protective order process?” she said.
A protective order not only provides a sense of security to victims, but also becomes a document that can validate their fears and concerns, Jacobs said.
“It is such an important component of telling that larger victim story,” she added.
Jacobs views filing a protective order as a way for victims to protect their future selves. She has seen its absence used later in court to discredit victims.
“It just plays into the narrative of, ‘Well, if it was so bad, why didn’t she file a protective order? Why didn’t she just leave?’” she said.
As October approaches, Jacobs, along with others in Tarrant County, will continue to closely follow the case.
A briefing schedule will be set later this summer. Arguments are expected to take place in the fall.
The court is likely to issue a decision by the end of its term in June 2024.
Jacobs’ worries only ignite her passion to protect domestic violence victims. She wants them to feel safe, regardless of the Supreme Court’s decision.
How did the case get to the Supreme Court?
- Zackey Rahimi is issued a protective order against him by an ex-girlfriend
December 2020 – January 2021:
- Rahimi is involved in five different shootings around Arlington.
- Arlington Police Department officials search Rahimi’s home to discover a rifle, pistol and copy of the protective order.
- A federal grand jury indicts Rahimi for the violation of a federal law that prohibits persons under protective orders from possessing firearms. He is sentenced to 73 months in prison.
- Rahimi moves to appeal the indictment on the ground that the law violates his Second Amendment rights. The district court denies and the Fifth Circuit of Appeals court affirms the conviction.
- Rahimi petitions for a rehearing
June 23, 2022:
- While the petition is pending, the Supreme Court issues a ruling in N.Y. State Rifle & Pistol Association, Inc. v. Bruen, which states that gun regulations must be analogous to historical context in order to be considered constitutional.
- The Fifth Circuit asks for more briefings, and ultimately decides that the law violates the Second Amendment and vacates Rahimi’s conviction.
- The United States Justice Department petitions the Supreme Court to overturn the appeals court decision.
- The Supreme Court agrees to hear United States v. Rahimi.
Sara Honda is the audience engagement and social media fellow for the Fort Worth Report. Contact her at firstname.lastname@example.org. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.