The New Orleans-based 5th Circuit Court of Appeals ended 2024 with a gun control ruling on the year’s final day. The federal appeals court determined that the law prohibiting gun ownership by accused domestic abusers passed constitutional muster.
This constituted reversing a previous circuit court decision, and the ban may now be enforced.
The earlier ruling stated that the federal law prohibiting such persons from possessing weapons violated Second Amendment protections. After the Rahimi decision, the U.S. Supreme Court returned the appeal to the 5th Circuit.
Judges were ordered to consider Rahimi and reconsider U.S. v. Perez-Gallan.
Last June, the high court ruled 8-1 that the federal law barring domestic abusers was constitutional under the Second Amendment. The statute specifically banned “individuals subject to domestic violence restraining orders from possessing firearms.”
These persons must pose a “credible threat” of violence.
The case returned to the 5th Circuit centered on Litsson Perez-Gallan, who was arrested at the U.S.-Mexico border in June 2022. When authorities asked if he had weapons in his 18-wheeler, Perez-Gallan confirmed there was a pistol in his backpack.
Officials found the gun had been reported stolen, but the driver said it was given to him by a friend. Then, his trouble began in earnest.
A check by border authorities found that Perez-Gallan was subject to a restraining order in Kentucky. In May, he was arrested and charged with assault after a domestic incident in which his partner told police he struck her in the face.
She reported that she was holding their baby when she was hit. After she put the child down, he allegedly pulled her into the bathroom and struck her multiple times.
Kentucky authorities charged Perez-Gallan with fourth-degree assault. He was released on bond under an order prohibiting possessing a firearm under the federal Lautenberg Amendment.
Interestingly, the Lautenberg Amendment prohibited gun possession by accused domestic abusers who fall into two categories. The first is a person the judge found posed a credible threat to the victim.
The other category is an order prohibiting an individual from committing or threatening violence against the person targeted. The Rahimi ruling only covered the first category, and the high court specifically noted that it did not determine the constitutionality of the second.
That was the type of order covering Perez-Gallan. That meant the appeals court would determine if prohibiting persons under the second type of protective order infringed on their Second Amendment rights.
The 5th Circuit, now considering the Rahimi ruling and the parameters set by the high court, reversed itself on New Year’s Eve.
Judge Jerry E. Smith wrote the court’s opinion that the Supreme Court, in effect, made the reversal obligatory.
He wrote, “In short, if we cannot adhere to our former precedent without disregarding intervening Supreme Court precedent, our circuit’s precedent has been implicitly overruled.”
Smith noted that alleged domestic abusers present a violent threat as clarified by Rahimi.
Even as it overturned its previous decision, the court declared that there would be instances when the federal law is “problematic” and could reasonably be determined to violate the Second Amendment.
The court wrote that complications could arise if a so-called “mutual” protective order is issued. A judge may determine that there is “no downside in forbidding both parties from harming one another,” even if there is no apparent threat from one of the individuals.
This order could affect both the abuser and the victim, according to the 5th Circuit.
For example, Smith wrote that “an abused woman could lose her right to possess a gun just because her violent domestic partner is awarded a mutual protective order against her, even if there are no indications that the woman herself is dangerous.”
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