Domestic violence gun ban's fate before Fifth Circuit

(CN) — The federal government asked a Fifth Circuit panel Thursday to find that it can disarm people under domestic violence protective orders even when the order doesn’t include an explicit finding that the person poses a credible threat of violence.

In May 2022, Litsson Antonio Perez-Gallan was stopped at a border checkpoint in Texas while carrying a gun. Border patrol agents found that he had a restraining order against him due to being charged in Kentucky with assaulting his wife. As a result, Perez-Gallan was indicted for violating the Lautenberg Amendment, a federal law that prohibits people under domestic violence protective orders from possessing firearms.

That November, however, a Texas federal judge threw out the firearm case against Perez-Gallan, finding that the Lautenberg Amendment violates the Second Amendment. The government appealed to the Fifth Circuit.

While the appeal was pending, the Supreme Court ruled in United States v. Rahimi that disarming accused abusers isn’t facially unconstitutional. Although victims advocates celebrated the decision as a victory for survivors of domestic violence, the ruling was limited to people under protective orders who have been found to pose a “credible threat” of violence.

The Lautenberg Amendment covers two categories of protective orders: those where the judge has found that the person poses a credible threat to the protected party and those where the order prohibits the use or threat of violence against the protected party. In Rahimi , the Supreme Court only found that the former is constitutional; it specifically stated it wasn’t ruling on the constitutionality of the latter — which is the kind of protective order Perez-Gallan was under.

Now before a panel of judges is whether disarming people under the second type of protective order is constitutional.

During oral arguments on Thursday, Assistant U.S. Attorney Stephanie Cagniart told the judges that the Supreme Court’s reasoning in Rahimi applies to all domestic violence protective orders.

She argued that even when the judge doesn’t make an explicit credible threat finding, the issuance of a protective order inherently implies the finding of a credible threat.

“In order for a court to enter an injunction … to prohibit the use of physical force sufficient to harm another person, it is a legal requirement that the court first determine that a real threat of danger or injury actually exists,” Cagniart said.

But Perez-Gallan’s attorney, Shane O’Neal, said that’s not necessarily the case. He posed a hypothetical scenario where a person voluntarily agreed to a protective order: “The judge saying, ‘You know, Mr. Perez, I’m thinking about issuing a protective order that prohibits you from using, attempting to use or threatening physical force against your spouse. Do you have a problem with that?”

“And, of course, someone in Mr. Perez’s shoes is going to say, ‘No, because all you’re directing me to do is follow the law,’” O’Neal said.

However, U.S. Circuit Judge Stuart Duncan questioned whether such a scenario makes the Lautenberg Amendment facially unconstitutional, suggesting O’Neal’s argument would be better suited to an as-applied challenge based on the specific facts of a case.

U.S. Circuit Judge Jerry Smith, a Ronald Reagan appointee, and U.S. Circuit Judge Carl Stewart, a Bill Clinton appointee, joined Duncan, a Donald Trump appointee, on the panel.