Supreme Court Upholds Ban on Gun Possession by Persons Subject to Certain Restraining Orders

CATEGORY: Special Bulletins
CLIENT TYPE: Public Safety
AUTHOR: Paul D. Knothe
PUBLICATION: LCW Special Bulletin
DATE: Jun 24, 2024

On June 21, 2024, the U.S. Supreme Court, in United States v. Rahimi, 602 U.S. ____ (2024), upheld the constitutionality of the federal Gun Control Act, 18 U.S.C. § 922(g)(8), which prohibits firearm possession by any individual subject to a domestic violence restraining order containing a finding that the individual represents a credible threat to the physical safety of an intimate partner, or to the individual’s or intimate partner’s child.  Such individuals remain unable to possess a gun — including for use in the individual’s capacity as a peace officer in California.

The Court’s 2022 decision in New York State Rifle & Pistol Assn. Inc. v. Bruen, 597 U.S. 1, held that gun restrictions could survive Second Amendment scrutiny if they were “consistent with the Nation’s historical tradition of firearm regulation.”  The Fifth Circuit Court of Appeal held that section 922(g)(8) did not meet this recently-announced test because it did not have a “historical twin.”  The Supreme Court reversed this decision, holding that only a “historical analogue” – a seemingly lower level of similarity – was necessary to uphold gun regulations.  The Court pointed to a tradition of firearm regulations distinguishing from citizens who have been found to pose a credible threat to the physical safety of others from those who have not.

Therefore, California law enforcement agencies must continue to relieve of their peace officer powers any officer subject to a domestic violence restraining order who poses a credible threat to the physical safety of the persons protected by the order. Agencies are encouraged to consult with their trusted legal advisors before making employment decisions about peace officers. Liebert Cassidy Whitmore attorneys are closely monitoring developments in relation to this Special Bulletin and are able to advise on the impact this could have on your organization. If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento office.

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