Police May Not Take Firearms Away from Domestic Abusers Under Federal Court Ruling
As a 1993 California gun-control law now stands, a person found by a judge to pose a threat of violence to a domestic partner can have their firearms taken away. Recent federal court rulings turning Second Amendment law back to the 1700s put that law, and protections for abuse victims, in serious doubt.
If you’re a victim of domestic violence or accused of committing it, Castillo & Associates can discuss the matter with you. We can talk about how state law may apply and the steps you should take next. If you need help, call us at 800-497-9774.
California Law Allows Removal of Firearms and Ammunition From Someone Accused of Domestic Violence
Unless the US Supreme Court acts to preserve this California law, and many others like it in other states, those suffering domestic violence now will have the same protections against firearms as these victims had about 250 years ago. Given a Supreme Court ruling about a year ago set this in motion, that may not happen.
California law bars possession of firearms or ammunition by anyone ordered by a judge not to harass, harm, or contact a spouse, domestic partner, dating partner, or household member. Violators could face a year in jail and a $1,000 fine.
Why was this and similar laws passed? Studies estimate these laws have cut the number of homicides of domestic partners by 10% or more, according to the San Francisco Chronicle. In addition, about half of intimate partner homicides are committed with firearms.
Texas Case Decision May End California Law as It Now Stands
The US Court of Appeals for the Fifth Circuit recently ruled a similar, but more narrow, federal law is unconstitutional because it violated the Second Amendment right to own firearms of a Texas resident.
A Texas judge in 2020 ordered Zackey Rahimi to hand his firearms over due to a domestic violence allegation. He later violated the order by obtaining a gun and shooting at cars and other targets in five incidents. A federal grand jury indicted Rahimi on charges he violated federal law forbidding violators of domestic-violence restraining orders from having firearms.
The Fifth US Circuit Court of Appeals in New Orleans ruled that federal law is unconstitutional, overturning prior court rulings in the case. The appellate court’s ruling is based on a Supreme Court decision that substantially widened gun possession rights last year.
The court’s majority stated Americans can carry concealed firearms publicly. A New York law (California has a similar law) was declared unconstitutional because, according to Justice Clarence Thomas, writing the majority opinion, governments can only limit the right to own or carry guns if the restriction is part of “our Nation’s historical tradition of firearm regulation.”
The Fifth Circuit reasoned that since at the time the nation was founded, there were no laws barring gun ownership by someone not convicted of a crime, a statute doing so based on a judge in a civil proceeding determining the person committed domestic violence was unconstitutional.
State Law Allows Less Procedural Protection for Gun Owners Than the Federal Law Struck Down
California’s law makes it easier for those accused of domestic violence to lose their firearms than the federal law at issue in the Rahimi case, so is at a greater risk of being struck down. The federal law banned gun ownership after a hearing the gun owner could attend.
The state allows restraining orders (with prohibitions against gun and ammunition possession) that can be issued without a hearing for up to a week if requested by police who a victim contacted. That could be extended another three weeks after another request by the victim.
After a hearing that both parties could attend, a judge can extend the stay-away order for up to five years. The person subject to the order can be criminally charged if they purchase or possess firearms or ammunition.
What’s Next? – In filings with the Supreme Court, the Biden administration, through the Department of Justice, is asking the Supreme Court to reverse the Rahimi decision and clarify Second Amendment law that has rapidly and dramatically changed, according to CNN. Twenty-five states, including California, are also petitioning the court to overturn the Rahimi ruling. Through his attorneys, he asks the Court to let the decision stand.
The justices are expected to meet and discuss the case and decide whether to hear an appeal.
Get the Help You Need from an Experience Family Law Lawyer if You’re Dealing With Domestic Violence
The earlier you contact our family law attorney’s with concerns, the earlier we can start advocating for you and exploring potential solutions. Call our team at 800-497-9774 or contact us online. ¡Hablamos Español!
Attorney Domingo Castillo handles workers’ compensation, personal injury, family law & immigration throughout Southern California from our 5 offices: Indio, Pomona, Riverside, San Diego & Cathedral City. We help clients file injury claims, obtain residency & citizenship, and we assist families through divorce, child custody and all family law matters.
