Summary
This Fifth Circuit opinion addresses a facial constitutional challenge to 18 U.S.C. § 922(g)(8)(C)(ii), which prohibits firearm possession by individuals subject to domestic violence restraining orders. Following the Supreme Court’s decision in United States v. Rahimi, the court holds that the provision does not facially violate the Second Amendment because historical surety and going-armed laws support disarming individuals who pose a clear threat of physical violence. The court reverses the district court’s dismissal and remands for proceedings on the defendant’s as-applied challenge.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court's decision in United States v. Rahimi, 602 U.S. 680 (2024), implicitly overruled the Fifth Circuit's prior holding that 18 U.S.C. § 922(g)(8) is facially unconstitutional, such that the rule of orderliness no longer required adherence to that precedent as to § 922(g)(8)(C)(ii).
- Whether 18 U.S.C. § 922(g)(8)(C)(ii), which prohibits firearm possession by a person subject to a qualifying order that explicitly prohibits the use, attempted use, or threatened use of physical force against an intimate partner or child, is facially unconstitutional under the Second Amendment.
- Whether the case should be remanded for the district court to address Perez-Gallan's as-applied challenge.
Holdings
- Rahimi 2024 unequivocally overruled the historical-analysis and facial-challenge reasoning underlying Rahimi 2023, so the Fifth Circuit's rule of orderliness did not require the court to follow Rahimi 2023 as to § 922(g)(8)(C)(ii).
- Section 922(g)(8)(C)(ii) is not facially unconstitutional because it is not unconstitutional in all its applications; at least some qualifying protective orders may constitutionally support temporary disarmament.
- The case must be remanded for the district court to consider Perez-Gallan's as-applied challenge to § 922(g)(8)(C)(ii) in the first instance.
Key quotations
“Because there are at least some circumstances in which the government could constitutionally apply (C)(ii) to a defendant’s conduct, we reverse and hold that (C)(ii) is not facially unconstitutional.” (at 2)
“A facial challenge “is the ‘most difficult challenge to mount successfully,’ because it requires a defendant to ‘establish that no set of circumstances exists under which the Act would be valid.’” (at 12)
“Because a statute needs just one permissible application to survive a facial challenge, see id. at 693, the district court’s ruling deeming (C)(ii) facially unconstitutional is legal error.” (at 14)
“The fact that (C)(ii) may have some perverse and possibly unconstitutional applications does not mean that all its possible applications violate the Second Amendment.” (at 19)
Factual background
In June 2022, border agents discovered a pistol in Perez-Gallan's backpack during a secondary inspection at a checkpoint in Presidio, Texas. The firearm had been reported stolen, and Perez-Gallan stated that he carried it for self-protection. Agents also found a Kentucky court order issued after his arrest for assaulting his domestic partner; the order prohibited him from harassing, contacting, threatening, or committing domestic violence or abuse against the alleged victim and prohibited him from possessing a gun. The order resulted from an incident in which his partner alleged that Perez-Gallan struck her repeatedly while she was caring for their child.
Procedural history
Perez-Gallan was indicted for possessing a firearm while subject to a domestic-violence restraining order. The Western District of Texas held that § 922(g)(8) was facially unconstitutional under the Second Amendment and dismissed the indictment without reaching his as-applied challenge. A Fifth Circuit panel summarily affirmed under United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). The Supreme Court later reversed Rahimi 2023, granted certiorari in this case, vacated the Fifth Circuit's judgment, and remanded. On remand, the Fifth Circuit held that § 922(g)(8)(C)(ii) is not facially unconstitutional and remanded for consideration of the as-applied challenge.
Remand instructions
The district court must consider Perez-Gallan's as-applied challenge to § 922(g)(8)(C)(ii) in the first instance. The Fifth Circuit expressed no view on which issues the district court should decide or what conclusions it should reach.