To understand this, I think it’s worth laying out some background information on the fact pattern behind the Rahimi decision. To be perfectly clear, Zackey Rahimi is currently in prison serving his sentence at Green Bay Federal Prison in Fort Worth, Texas. In 2019, Rahimi assaulted his girlfriend, threatened her with a firearm and then fired his weapon at innocent bystanders (he claims he “fired in the air”). In 2020, his girlfriend applied for a temporary domestic violence restraining order. Rahimi appeared in court, stipulated (confessed) to the facts surrounding the restraining order and then consented to the entry of the restraining order. He then subsequently, (allegedly) engaged in three separate shootings and was the prime suspect in those events by local law enforcement. He then also violated his restraining order and confronted his ex-girlfriend (the subject of the restraining order). Police used this event to obtain a search warrant of his home where they found a pistol, a rifle, and a copy of the restraining order. It appears that the limited evidence of his involvement in the three separate shootings precluded further prosecution in those cases but Rahimi was charged with violating Federal Statute, Section 922(g)(8), possession of firearms by a person subject to a domestic violence restraining order, was convicted, and given a lengthy sentence.
He then appealed that conviction, asserting that Section 922(g)(8) was Unconstitutional.
This case was not a civil lawsuit challenging the Constitutionality of the statute in question. This is case by a particular criminal defendant challenging his conviction and SCOTUS, in this case, would be releasing Rahimi from prison if they struck down 922(g)(8) on either a “facial” (the law itself is Unconstitutional) or “as-applied” (the law is Unconstitutional in the way it was applied to Rahimi) basis. As many had speculated, the Court was unlikely to do so because the fact pattern here was bad. I think all rational people would agree that Rahimi should remain in the custody of Department of Corrections for as long as possible.
But there are some important key takeaways from the way SCOTUS reached their conclusions: 1) the fully reaffirmed the Bruen methodology (text first, then history and tradition with the burden of proof on the state). And 2) in reaching their conclusion, the Supreme Court relied heavily on the idea that in this case, there were adequate procedural safeguards, namely that Rahimi himself had adequate due process along the way.
In this case, “bad facts” didn’t necessarily lead to “bad law.”
The core of the holding is extremely narrow, and is simply this: the state may TEMPORARILY disarm someone when a Court has determined that they are a direct threat to a particular person. In doing so, they relied on the historical tradition of both surety laws and affray laws that were in place throughout the nation in the time of its founding but importantly they cited to the fact that there was adequate due process at the time of the founding in both cases.
Again, the fact pattern in Rahimi was particularly bad but problematic for another reason. In the entry of the initial restraining order, Rahimi himself essentially admitted to all the facts surrounding the case and then consented to the entry of the order. In doing so, he essentially waived his right to due process. In his appeal, therefore, he was unable to challenge the procedural elements of his restraining order (he was unable to assert that the restraining order process violated his 5th and 14th Amendment rights.)
This fact is extremely important as it relates to future challenges involving areas of the law with more questionable procedural safeguards. Of note is New Jersey’s laws surrounding temporary and permanent Extreme Risk Protection Orders (“Red Flag” laws). Temporary Extreme Risk Protection Orders (TERPO’s) are potentially suspect, as the law is written in New Jersey, based on the holding in Rahimi.
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While a permanent ERPO might be closer to a domestic violence restraining order since it would include a court proceeding with the person at the center of the order present for the proceedings (and able to defend him or herself in court), a TERPO is generally issued *ex parte* meaning the subject of the TERPO is not present.
In principle, a TERPO is closer to a search warrant in that, based on the allegation of a family member or another resident in the home, or someone connected to the subject of the TERPO, or a law enforcement officer, that person or law enforcement officer can apply for the order based on something close to a probable cause standard, like a search warrant. But here is where things break down.
4th Amendment Protections
In the context of a search warrant, all Americans are protected under the 4th Amendment from unreasonable searches and seizures and there is a large body of: 1) statutory law, 2) Supreme Court jurisprudence, and 3) State and Federal Rules of Criminal Procedure governing how search warrants may be issued and what happens to property that is seized in a search warrant. It’s important to note that even when someone is convicted of a crime, that person is entitled to receive back the property seized as evidence at the conclusion of the trial (unless the property itself is illegal. Drugs, for example, are routinely destroyed after proper lab testing and logically won’t be returned after a conviction).
New Jersey’s statute provides no obvious mechanism for the return of property seized in a TERPO even when no permanent order is entered. That makes NJ’s statute nothing at all like a search warrant. The apparent permanent seizure of property based on an *ex parte* order and the apparent permanent loss of a Constitutional right turns a TERPO into a FINAL judicial proceeding with no due process protections or procedural safeguards at all.
To make matters worse, in 2018, Governor Murphy, along with a collection of other gun control measures, signed into a law a bill that modified the states “Duty to Inform” laws requiring that mental healthcare workers now have a legal obligation to report anyone that has made some sort of threat to harm themselves or others during confidential discussions with a psychiatrist. It should be noted that, as a general matter, the doctor-patient confidentiality relationship precludes a doctor from testifying against a patient in a court proceeding.
The State’s Red Flag laws taken together with the State’s Duty to Inform laws completely upend both privacy expectations and due process. The holding in Rahimi does not only NOT address these circumstances, the holding in Rahimi would appear to directly contradict this type of system on the basis that the law lacks all procedural safeguards.
Based on the holding in Rahimi, these laws are very likely Unconstitutional. The State of New Jersey should, *at a minimum*, correct the laws to provide for a straightforward return of seized property when no permanent Extreme Risk Protection Order is entered based on the findings of a court proceeding with the subject of the order present.
Putting aside the Constitutional challenges, this also explains why laws like these are just bad policy. In the end, everyone wants to prevent suicide or violence towards others. But the thoughtless and extreme nature of these laws and policies deter people from actually using these tools because the perception is that the subject’s life is ruined by the application of these laws (civil death). Moreover, the extreme version of the Duty to Inform law could act as a deterrent for those in crisis to seek help from mental health professionals. With no expectation of confidentiality, those in the most dire need of help would either not trust their healthcare professionals or at best they wouldn’t be truthful with them.
To prevent suicide and violence, in particular mass violence, the State should be doing almost the complete opposite: tearing down any barrier to early intervention by the patient or their loved ones.
- Provide for a straightforward mechanism to clear a TERPO and return seized property when a court determines that no permanent order is necessary so that those closest to a person in crisis are least deterred from using these tools when they are necessary.
- Make TERPO proceedings completely sealed and hidden from any permanent record, as expeditious as possible and limit any further criminal action from the proceedings itself (no other criminal proceeding can flow from the execution of a TERPO).
- Make ERPO’s finite, even if conditional, with a clear finish line and a path to a full restoration of rights and liberties at their conclusion (even under a permanent ERPO, the loss of the right is TEMPORARY consistent with Rahimi)
- Roll back Duty to Inform laws to make it easier for those in crisis to seek professional help and encourage everyone to do so; and, preserve the maximum degree of confidentiality between a patient and a mental healthcare provider (as much as confidentiality as there can be under federal law).
Doing so would both make these laws more likely to pass Constitutional muster (post Rahimi), and it’s also better, more common-sense policy. The current system lacks all of the “common sense” that proponents of these policies claim to stand for. These types of enhancements would do a better job of both protecting civil liberties, ensuring adequate due process and encouraging the public to use these tools as early as possible.
For the moment, in complex domestic situations where a parent, spouse or child is concerned for the safety of their loved one, or themselves, or others, they must choose between saving that person from suicide while simultaneously imposing civil death on that loved one OR waiting just a little bit longer to act for fear of the legal consequences.
In reading about infamous mass shootings in the national news, we are often left wondering why the warning signs were ignored….
