The federal 5th Circuit court of appeals released a rare opinion that bears on Texas family law cases. Usually family law cases are only a matter of state court decisions (and the super-rare US Supreme Court opinion); the federal courts rarely have an occasion to weigh in on our state’s domestic relations.

Along comes the Rahimi decision this week. Giving you the punch line first: The 5th Circuit Court of Appeals determined that a person subject to a civil domestic violence court order cannot be convicted of a criminal offense for violating a civil domestic violence order prohibiting him/her from possessing guns. The court said doing so stripped him of his constitutional right to bear arms under the 2nd Amendment of the US Constitution and the federal law prohibiting that is unconstitutional. Rahimi’s conviction for violation of the protective order was reversed and he was acquited. Read US v. Rahimi here.

NOTE, this decision only addresses the constitutionality of the federal statute making possession of guns a crime while subject to a civil domestic violence order; the opinion specifically does not address whether the family court’s protective order is valid or void. But, there are certainly many inferences that can be drawn from the opinion as it applies to civil family court orders in this regard.

See my Facebook live video discussion of the Rahimi opinion here.

Here’s the longer version of the story.

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. The spree resulted in law enforcement searching his home and finding firearms.

Previously, in January 2020, Rahimi’s girlfriend sought application for domestic violence protective order stemming from multiple previous incidents of alleged violence and threats of violence against her and her child. The most recent event occurred in December 2019 ended with Rahimi firing a gun at her car as she drove away with the child in the car. On February 5, 2020, Rahimi, without representation by a lawyer, agreed to a 2-year domestic violence protective order against him for the protection of his girlfriend and their child. In that order, drafted by the Tarrant County district attorney’s office, a standard provision barred him from possessing firearms.

Having been found with guns in violation of that civil protective order, a federal grand jury indicted Rahimi under 18 U.S.C. § 922(g)(8). He plead guilty but then his lawyers launched a challenge to the constitutionality of his conviction. At first, the 5th Circuit denied his challenge, but then the US Supreme Court came out with the US v. Bruen decision in June 2022, which gave Rahimi’s challenge new life. The 5th Circuit granted reconsideration in light of Bruen. Read the Bruen opinion here.

The Bruen decision said that when the 2nd Amendment’s plain text covers an individual’s conduct, the constitution presumptively protects that conduct, and the government bears the burden of justifying a regulation, demonstrating that it is consistent with the nation’s historical tradition of firearm regulation. Only tne may a court conclude that the individual’s conduct falls outside of the 2nd Amendment’s unqualified rights. To carry that burden, the government must show historical precedent.

The Rahimi court analyzed the laws prohibiting gun possession by those subject to a civil domestic violence order and decided that historical laws only disarmed an offender after a criminal proceeding and conviction, not a civil case. In other words, a person can only be disarmed under the law if there’s a criminal conviction, not a civil adjudication.

And, what about other types of civil orders that fall under section 922’s prohibition of possessing guns?

The US v. Emerson case several years ago extended 922’s prohibition of possessing guns to a standard family court restraining order/injunction. Read the Emerson opinion here. In Emerson, the family court granted a temporary injunction based on very loose evidence of strife between the husband and wife with no finding of family violence or future danger to the wife or daughter. The temporary injunction prevented husband from engaging in any of twenty-two enumerated acts, including the following:

“2. Threatening Petitioner in person, by telephone, or in writing to take unlawful action against any person.”
“4. Intentionally, knowingly, or recklessly causing bodily injury to Petitioner or to a child of either party.”
“5. Threatening Petitioner or a child of either party with imminent bodily injury.”
The order provides that it “shall continue in force until the signing of the final decree of divorce or until further order of this court.”

Husband was convicted in federal court of illegal gun possession in violation of 922 based on this civil court injunction. Husband challenged his conviction based on the 2nd Amendment’s right to bear arms, but in 2001 his challenge was denied. The 5th Circuit in that opinion decided there was a sufficient basis to ban gun possession for violation of civil court orders in that instance.

In Rahimi, the court opined that SCOTUS impliedly overruled Emerson in the Bruen opinion and they declined to follow Emerson even though it was their own precedent. They said, “To the extent that the Supreme Court did not overtly overrule EmersonBruen clearly fundamentally changed our analysis of laws that implicate the Second Amendment… rendering our prior precedent obsolete.” Thus, I believe Emerson is not good law any longer.

So where does this leave family courts in crafting civil court orders regarding gun possession? Certainly federal criminal prosecution for gun possession in violation of a civil court order under 922 is out the window in the 5th Circuit region as a result of this Rahimi opinion. Although the 5th Circuit’s Rahimi opinion is only binding on the federal district courts within that circuit and not on state courts, I think this opinion when taken as an interpretation of the Supreme Court’s Bruen opinion on gun rights as a whole means that the almost identical Texas state statute is subject to challenge if not unconstitutional as well. Further, if a client were faced with criminal contempt of court in a family court proceeding for a similar violation, I’d make the same argument under the Bruen/Rahimi analysis.

I’m also concerned that even bond conditions on a person accused of a crime but not yet convicted might not be effective in banning gun possession until the conviction occurs. Look for inventive criminal defense attorneys to begin making those types of challenges under this logic.

But, how can family courts assist in protecting victims of domestic violence if the perpetrators will still have guns? In Rahimi, the defendant got in this mess because he shot a gun at the victim/child and now we’re telling victims that we will enter pieces of paper that prohibit them from taking those actions but we won’t take their guns away! Are there other remedies that would allow a civil court to enforce a ban on gun possession? Maybe appointing a “gun receiver” to hold the guns for the duration of the PO and then ordering them turned over? Creative, maybe, but I’m not sure it gets there.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.