United States v. Rahimi
| Decision Date | 02 February 2023 |
| Docket Number | 21-11001 |
| Parties | United States of America, Plaintiff-Appellee, v. Zackey Rahimi, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-83-1
Before JONES, HO, and WILSON, Circuit Judges.
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. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle &Pistol Ass'n, Inc. v Bruen, 142 S.Ct. 2111 (2022), it is not.
Zackey Rahimi levies a facial challenge to § 922(g)(8). The district court and a prior panel upheld the statute, applying this court's pre-Bruen precedent. See United States v. Rahimi, No 21-11011, 2022 WL 2070392 at *1 n.1 (5th Cir. June 8, 2022). Rahimi filed a petition for rehearing en banc; while the petition was pending, the Supreme Court decided Bruen. The prior panel withdrew its opinion and requested supplemental briefing on the impact of that case on this one. Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, § 922(g)(8) fails to pass constitutional muster. We therefore reverse the district court's ruling to the contrary and vacate Rahimi's conviction.
Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.[1] On December 1 after selling narcotics to an individual, he fired multiple shots into that individual's residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver's car. On December 22, Rahimi shot at a constable's vehicle. On January 7, Rahimi fired multiple shots in the air after his friend's credit card was declined at a Whataburger restaurant.
Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi's alleged assault of his ex-girlfriend. The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm.[2]
A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8), which provides:
It shall be unlawful for any person[] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition ....
Rahimi moved to dismiss the indictment on the ground that § 922(g)(8) is unconstitutional, but he acknowledged that United States v. McGinnis, 956 F.3d 747 (5th Cir. 2020), foreclosed his argument.[3] The district court denied Rahimi's motion, and he pled guilty.
On appeal, Rahimi renewed his constitutional challenge to § 922(g)(8).[4] Rahimi again acknowledged that his argument was foreclosed, and a prior panel of this court agreed. See Rahimi, 2022 WL 2070392 at *1 n.1. But after Bruen, the prior panel withdrew its opinion, ordered supplemental briefing, and ordered the clerk to expedite this case for oral argument before another panel of the court. Rahimi now contends that Bruen overrules our precedent and that under Bruen, § 922(g)(8) is unconstitutional. We agree on both points.
Under the rule of orderliness, one panel of the Fifth Circuit "'may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.'" In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021) ). The Supreme Court need not expressly overrule our precedent. "Rather, a latter panel must simply determine that a former panel's decision has fallen unequivocally out of step with some intervening change in the law." Id. "One situation in which this may naturally occur is where an intervening Supreme Court decision fundamentally changes the focus of the relevant analysis." Id. (internal quotation marks and alterations omitted). That is the case here, as the Government concedes.
In Emerson, we held that the Second Amendment guarantees an individual right to keep and bear arms-the first circuit expressly to do so. 270 F.3d at 260. But we also concluded that § 922(g)(8) was constitutional as applied to the defendant there. Id. at 263. "Emerson first considered the scope of the Second Amendment right 'as historically understood,' and then determined-presumably by applying some form of means-end scrutiny sub silentio-that § 922(g)(8) [wa]s 'narrowly tailored' to the goal of minimizing 'the threat of lawless violence.'" McGinnis, 956 F.3d at 755 (quoting Emerson, 270 F.3d at 264).
After D.C. v. Heller, 554 U.S. 570 (2008), courts coalesced around a similar "two-step inquiry for analyzing laws that might impact the Second Amendment." McGinnis, 956 F.3d at 753 (internal quotation marks omitted). First, we "ask[ed] whether the conduct at issue [fell] within the scope of the Second Amendment right." Id. at 754 (internal quotation marks omitted). If the conduct fell outside the scope of the Second Amendment right, then the challenged law was constitutional. Id. But if the conduct fell within the scope of the right, then we proceeded to the second step of the analysis, which applied either intermediate or strict scrutiny. Id. at 754, 757 (). In McGinnis, this court upheld § 922(g)(8) using this two-step framework. The initial panel in this case did likewise, citing McGinnis. Rahimi, 2022 WL 2070392 at *1 n.1.
Enter Bruen. Expounding on Heller, the Supreme Court held that "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Bruen, 142 S.Ct. at 2129-30. In that context, the Government bears the burden of "justifying] its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." Id. at 2130. Put another way, "the [G]overnment must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms." Id. at 2127. In the course of its explication, the Court expressly repudiated the circuit courts' means-end scrutiny-the second step embodied in Emerson and applied in McGinnis. Id. at 2128-30. To the extent that the Court did not overtly overrule Emerson and McGinnis-it did not cite those cases but discussed other circuits' similar precedent-Bruen clearly "fundamentally change[d]" our analysis of laws that implicate the Second Amendment, Bonvillian Marine, 19 F.4th at 792, rendering our prior precedent obsolete.
Our review of Rahimi's facial challenge to § 922(g)(8) is de novo. See United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir. 1997). First, the court addresses the Government's argument that Rahimi is not among those citizens entitled to the Second Amendment's protections. Concluding he is, we then turn to whether § 922(g)(8) passes muster under Bruen's standard.[5]
According to the Government, Heller and Bruen add a gloss on the Second Amendment that restricts its applicability to only "law-abiding, responsible citizens," Heller, 554 U.S. at 635, and "ordinary, law-abiding citizens," Bruen, 142 S.Ct. at 2122. Because Rahimi is neither responsible nor law-abiding, as evidenced by his conduct and by the domestic violence restraining order issued against him, he falls outside the ambit of the Second Amendment. Therefore, argues the Government, § 922(g)(8) is constitutional as applied to Rahimi.
There is some debate on this issue. Compare Kanter v Barr, 919 F.3d 437, 451-53 (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S.Ct. 2111, with Binderup v. Att'y Gen. U.S., 836 F.3d 336, 357 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments). As summarized by now-Justice Barrett, "one [approach] uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature's power to take it away." Kanter, 919 F.3d at 452 (Barrett, J., dissenting). The Government's argument that Rahimi falls outside the community covered by the Second Amendment rests on the first approach. But it runs headlong into Heller and Bruen,...
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