Previously in part one, criminal-defense attorney Don Hammond explained why, post-Bruen, states may no longer impose discretionary constraints in concealed-carry permitting regimes. But will that change after the Supreme Court’s recent 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen? **
Rahimi, when attempting to comport it with Heller and Bruen, **gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California’s authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?
The answer seemed easy a few weeks ago, but is suddenly a bit more difficult.
Don Hammond’s biography and LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis, welcome
Jeff Lewis 0:17
everyone. I am Jeff Lewis.
Tim Kowal 0:18
and I'm Tim kowall, and as certified appellate specialist, both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast useful, please recommend it to a colleague. Yeah, they
Jeff Lewis 0:33
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Tim Kowal 0:36
All right, and we continue our conversation today. Jeff with Don Hammond, founder of criminal defense heroes, we were talking last week about these, these new CCW permit applications, brand new as of January of 2024 this is the process that follows the 2022 Supreme Court decision in Bruen, which struck down a CCW licensing application in a process, process in New York and so now California has become, after many, many years, only issued CCW applications on on a discretionary basis. Now, under you know, consistent with Supreme Court precedent, is issuing CCW applications on a shall issue basis, meaning that they can only be denied if you if the applicant falls under an exemption listed under the statute. And we talked about how one of Don the cases are coming out all over the place, but Donna has been successful in petitioning for rid of mandamus on on at least one of these applications because it was denied for it for a reason not enumerated under the statute, just for for non disclosure of a of a temporary seven day hold. And we wanted to, we left off that conversation Don talking about, could the legislature go back and make non disclosure of a seven day emergency protective order? Make non disclosure of that that incident a basis for for denying a CCW application, we thought we should talk about Rahimi first, giving
Don Hammond 2:04
the California Legislature ideas. That's right. Well,
Tim Kowal 2:08
let's talk about the Rahimi case that came down just a couple of weeks ago from the US Supreme Court. I'll do a very crude setup of that case. Rahimi was kind of a bad dude. He was kind of abusing his was it a wife or girlfriend, I think, bang your head into the car, and then after she ran away, he fired a gun in either her general direction or a bystanders general direction, just generally terrorizing the public. After that, he was he engaged in serial gun abuses, firing his gun in public, and when a restraining order issued against him, and he challenged it under Second Amendment principles, the eight one majority decided no he was a threat to the public, he was found to have engaged in physical violence in the past, and that is enough to meet the text and tradition standards set forth In Heller and Bruin only justice. Clarence Thomas dissented, pointing to the only two historical analogs were a bond requirement and, and thought that, well, a financial penalty is not analogous to a deprivation penalty and and then the other analog was a, what was it called? What was it going on, going arms laws, going armed laws, basically a public nuisance law. If you're going around, you know, shooting guns into the air and generally threatening the public with physical violence, then you can be disarmed. But found that this particular case involving individual violence did not fit into those two analogs, but but the eight, the other eight members of the court disagreed and found that it fit close, closely enough with those two analogs. So from there, Don, let me hand it off to you and give me your, your take on Rahimi and what it's going to mean, because there's been a lot of confusion. I think, before Rahimi was thought that, I mean, the Fifth Circuit thought that it ran afoul of Heller and Bruin, but we have eight members of the court that says, no, no, no, it fits closely enough. So what does that make of applying the text in History test going forward, including to things maybe like CCW permitting regimes, right?
Don Hammond 4:15
Well, that's why I titled my daily journal article on this bad fact, bad law, right? I mean, because Rahimi is such a bad dude, the court's going to find a way to keep guns away from him, and that doesn't necessarily mean it's bad law, but somebody who's subject to a domestic violence restraining order, you know, should be disarmed temporarily. That that I don't necessarily disagree with with that as a concept with appropriate safeguards in place, I think what's really bad about this opinion is that it leaves no guidelines for the lower courts. I think it does very little in terms of advancing the law and Second Amendment jurisprudence and giving guidance to lower court in Bruen itself, two years ago, the court basically said, Yeah, surety laws aren't enough. And then here we are in Rahimi, and they say, Oh, we like the surety law Sure looks similar enough to us, and it's like and that's part of what the fifth distribution, because the government made the same arguments in the Fifth Circuit and said, well, surety laws should be good. And well, they looked at ruin and said, Oh no, surety laws aren't enough. And the Supreme Court says, Oh yeah, surety laws are plenty. Now, what guidance is this giving to the lower courts to be able to figure out what is going to be a good enough historical analog versus the court clearly said, you don't need to have a historical twin. Do they accuse the circuit of looking for a historical twin through the challenge statute? And by the way, the statute that they were looking at here was under 18, USC, 922, g8, for those following along in your hymnals at home, he was actually prosecuted for having a firearm after while he was subject to the restraining order. So he was prosecuted under federal law. And so this was a facial challenge to the federal law prohibited prohibiting somebody from having a firearm while subject to a domestic violence restraining order that made specific findings.
Tim Kowal 6:05
Yeah, and one of those findings was that he had committed physical violence.
Don Hammond 6:09
It was in his case because the there's actually, there's an ore buried down there in 922, c8, and one is a finding of physical violence, and that's the one that the Court addressed. And the court left alone explicitly said, we're not going to talk about c2 which is a more general if the order prohibits you from, you know, doing certain things, which is, I think would be a more troubling statute to rationalize.
Tim Kowal 6:36
Yeah, and did the court reach the c2 the perspective Supreme
Don Hammond 6:41
Court punted on that. They said, because we find that c1 is sufficient, as applied to Rahimi to take his guns away, we don't need to look at c2 and I think c2 is going to be much more problematic when that's challenged someday. Yeah. So
Tim Kowal 6:54
if there's a finding that we are dealing with the violent dude, then it passes muster. But if the finding is only that, well, we think he might be fixing to be violent. That that is yet to be determined, right? And, I
Don Hammond 7:05
mean, by all accounts, Rahimi is a bad dude. I mean, the only one in the country who thinks he should have a gun is Justice Thomas. So, you know, I think they probably, they are justified in doing some mental gymnastics, you know, to do that, to take away his guns. It's like I said, it just leaves us with with a problematic body of law to interpret for the lower court. I think it's probably a terrible case for the for the gun lobby, to have taken up this one because he's such a bad dude, like, obviously, we're going to find a way to take his guns what, you know, take up a case that where we don't have such a bad dude, and we'll see how it goes. Yeah?
Tim Kowal 7:43
So I wonder, were there, were there second amendment attorneys holding up their hands and saying, Whoa, whoa, whoa, this is not the right case to take up.
Don Hammond 7:51
Yeah. I mean, I certainly would have been. You know, nobody asked me about whether they should take up this, this fifth circuit thing out of Texas. But, yeah, it's, it's, it's a mess of a of a decision in terms of the guidance that it gives to lower courts, yeah, and, and the guidance that it gives to legislatures who are trying to make these laws right. I mean, California's domestic violence restraining order scheme has elements that would meet that, that c1 that would be upheld under Rahimi, and it has elements that would be under c2 that we don't know, we
Tim Kowal 8:20
don't know yet. Yeah, there was a case, not the only case, but it was just the the recent, a recent one in California here Paris J versus Christopher you, which the the quote from that one is behavior that may be enjoined under Family Code Section 6320 includes, and quoting from this statute destroying the mental or emotional calm of the other party, the party petitioning for a restraining order. So under California, yeah, California law, you can have firearms taken away from you if, if the court believes that you might threaten or destroy the mental or emotional calm of another person. That's a far cry from being physically violent, right? And
Don Hammond 9:00
the legislature does a circular thing there, too, where they say you can enjoin these things, which is prospective, but then it says that you can do it because they have done any of those things. So then it goes back to being the retrospective, so they can issue a restraining order because you have disturbed the peace of someone and, you know, mess with their mental calm, and then you can prohibit it from from disturbing their peace and messing with their mental calm. And because the statute then prohibits, you know, striking etc, under which meets the criteria under c2 even if there has been no finding of violence that, I mean, that's going to be an interesting issue for somebody to take up someday. There was also this when they get prosecuted, right, for having guns when they're not supposed to which, you know, is already a bad position to be. In my advice to clients would be, don't have guns when you're subject to this, so that we don't have to go fight about this, right? There was
Tim Kowal 9:55
also the discussion in Chief Justice Roberts majority opinion in Rahimi regen. Rejecting the I guess it was the state's the state's argument that Rahimi could also be disarmed because he was not a responsible firearm owner. And the court rejected the idea that you could be deprived of Second Amendment rights merely because you're found to be not responsible, because that was too vague a term. And I wondered if, if that would be a good argument to take up to to carry forward, to say to California Family Code 6320 which makes mental or emotional calm a basis for issuing a restraining order that could disarm the respondent in such a case, to say that no, this is like a this is like the argument that was rejected by the eight one majority, that you can be disarmed merely for being not responsible. This is just too vague,
Don Hammond 10:48
right? That language goes back to Heller Supreme Court's last seminal Second Amendment decision, I think, was 2008 where they said, basically responsible citizens can have gun. And the government glommed onto that, and said, Oh, well, then somebody who's not responsible can't have guns, right? Trying to, you know, make a logical leap there. And the court said, No, that was kind of, kind of dict, kind of a, you know, a general term of somebody who's responsible, but, you know, trying to say somebody who's not responsible. I mean, where do you draw that line? It's too vague. We're not going to go there. But by the way, we've already found that Rahimi is a bad dude, so we don't need to, we don't need to engage in that, yeah, but yeah, they pretty clearly rejected the government's argument there and that, I mean, that could be a line, you know, a subheading and a brief challenging, you know, California's restraining order firearm prohibitions, and say, you know that this, this level of restraining order is basically because somebody's not acting responsibly, and the Supreme Court did away with that, so give them his guns.
Tim Kowal 11:53
Yeah. What do you say to critics? I guess, critics of originalism and the Heller precedent and the Bruin precedent, that the text and history approach just does not lead to clear enough results. It's not a clear enough analytical structure. Because look, as you had mentioned, the bond analogy didn't work in was it in Bruen, but it but it did work here in Rahimi and so how are you supposed to how are lower courts supposed to know when it's a close enough fit, or whether the court is just, well, the court's not going to like the outcome in this one, so the court's probably going to find this as a close enough analog and but, but the situation may come out differently depending on what the facts or the closest of the analogy, or what Is it, is there a good response to to critics of originalism that look the Rahimi case? So the Rahimi opinion shows that this approach just does not lead to predictable results. Well, I
Don Hammond 12:51
think it's a good question, because of the way the court, sort of, you know, went in a different direction in Rahimi than it did in Bruen, and especially with regard to the surety laws. So it's, it's tough. I think that, you know, textualism is not originalism certainly is not dead. The majority of the court right now who supports it, which you know, can be problematic in other areas of law, certainly, but in the Second Amendment, I I mostly like it. I think that it's, it's good to to look at what the framers intended at that point in time. With regard to the Second Amendment, it's, you know, it's, it's clear, the court has made clear that, you know, you're not limited to the types of arms that existed at that time. But it is also pretty clear that it relates to arms that can be carried, right? So people who try to go off the deep end and say, Oh, well, then everybody's going to have a tank well, that that's pretty well limited by what was in place at the time, so that we don't have to worry about those kinds of extremist things arising out of a originalist approach. But it is problematic because of the way the court has sort of, you know, flip flopped on itself a little bit. It doesn't give clear guidance to the lower courts. And you know, you're asking judges to be historians now and go back and scour the historical record. And there's an open question also as to what the relevant time period is, is it, you know, when the Constitution itself was ratified? Is it when the Amendment was ratified? Do we go back into historical England? And several of the justices have said, well, no, because that's the stuff that we rebelled against when we created our constitution. So we don't want to rely on what happened in England in the 1600s because we we already, we rejected that with our Constitution, appropriate historical precedent.
Tim Kowal 14:32
And I think the court is still punting on the question of, do we look at at the time of of reconstruction? Yeah, it's
Don Hammond 14:38
not clear at all. Right, now as to what the appropriate timeframe is. We know it's not 1960s you know, it's got to go back further than that, but it's, it's really an open question. I think it's really tough for the lower courts to to parse this and figure it out.
Tim Kowal 14:56
Yeah, well, I think you're right, that that there is an element of. Facts make bad law, or at least confusing law. But it does seem clear that the Rahimi majority did breathe new life into this, this bond analogy, that it cannot be cast aside, maybe so easily as the Fifth Circuit had done, which and not to say that they were not justified in doing so, given it had been cast aside in in Heller. But going forward now, we are going to maybe look at the bond example a little bit more expansively than the court had done before. I
Don Hammond 15:31
think another key thing here is that this is a temporary deprivation that is only prohibited from possessing firearms while the restraining order is in effect. So I think the court really considered that also in terms of, you know, the impact of this, that it's not a permanent deprivation. And then you have cases like Duarte recently out of the ninth circuit that said a non violent felon cannot be prohibited once he served his term and he's out, they invalidated. It was actually g1 on a as applied challenge to Mr. Duarte that he had served his time. He's out now, it was a non violent felony, and they said, Give him his gun. Yeah, so, or at least you couldn't convict him for having guns under those facts. So, you know, we're seeing an interesting mix of decisions coming out that are, they're going to make their way up, and we're going to get, we're going to have to get more guidance out of the Supreme Court on these issues, yeah,
Tim Kowal 16:21
something you, you said, reminded me of another question I wanted to ask you about, did any of the did the majority opinion that you, you can recall, express concern about the the restraining order procedures, which, you know it's just before a judge. You don't have a right to a jury, and it's and we're still talking about depriving constitutional rights. Is there a concern there that that these kind of, I would call them express lane procedures, because there's also only a preponderance of evidence standard that these Express Lane procedures can be used to deprive Second Amendment Right. I
Don Hammond 16:55
mean, of course that is a concern. I don't recall the majority in Rahimi really addressing that. But again, I think that they're, they're saying, Well, it's a temporary deprivation. It's the, you know, it requires a find under c1 they're saying it requires a finding that there has been threats of violence at a minimum. And so, you know, if a judge says that about you, we're okay with taking away your rights temporarily,
Tim Kowal 17:21
yeah. And then another, just another thing I wanted to that occurred to me, looking at some of the criticisms of justice Thomas's dissent, is that I didn't get the impression necessarily that Justice Thomas felt that, you know, that he wanted Mr. Rahimi to keep his guns. I didn't know why the white I guess why prosecutors didn't go after him for for serially firing off his guns, even after he was ordered not to and supposedly in public. That would create a very tight connection to that historical analogy against going armed laws.
Don Hammond 17:55
It is bizarre that Mr. Rahimi did not have an extensive criminal history that would have made him a prohibited person regardless of this restraining order issue. It's completely bizarre to me that he didn't have domestic violence convictions or something else, or, you know, brandishing convictions or something that would make him a prohibited person assault with a deadly weapon. I mean, there are myriad laws, and certainly in California's penal code, I assume in Texas's, that would have made him a prohibited person long before this restraining order. So it's totally, like I said, it's a bizarre case to take up. Yeah, on these facts,
Tim Kowal 18:33
I think, I think the public comes to this opinion thinking, oh my god, this is really bad dude, and the only thing standing in the way of him coming to my town and firing his guns like Yosemite Sam. Is this domestic violence restraining order law, which, come on, there's a ton of other mechanism, mechanisms and laws that we have to to lock up this bad dude and take away his guns. Yeah,
Jeff Lewis 18:53
none of them applied here, but yeah,
Don Hammond 18:57
somehow they didn't apply. It's baffling.
Tim Kowal 18:59
Yeah, all right, and then to bring this, bring our conversation of Rahimi back, Don I want to ask you again, now that we've we've kind of chewed over Rahimi, do you have any thoughts? And again, I'm loathe to to give, to give bad ideas to the California legislature. But could the California Legislature, do you think, consistent with Rahimi, impose an additional exemption to the to the right to to have a concealed carry permit based on non disclosure of a previous short term emergency protective order.
Don Hammond 19:33
So the non disclosure issue is interesting. I think that they could probably put it in the statute, and then we'd have to run it up the flagpole and see what the appellate courts think with with the current state of the guidance. I mean, I'm not sure that 26 202 as it stands right now, would pass constitutional muster if it goes up. I mean, you'd have to try to find historical analogs for every every element of 26 202 and. I think that that'll get parsed out over time. The interesting thing there is, you know, it's not a deprivation of firearms ownership. It's a right to carry, which was, which was, what was at issue in Bruen also, yeah, that you know that you should have the right to carry a firearm for personal protection, so, but I think that there's a lower burden in terms of, you know, suppressing somebody's right to carry versus a right to own even though maroon was a carry case. So I think that they they certainly could pass that law. I wouldn't anticipate any friction in the California Legislature making things more restrictive on people who want to carry guns, and it would be interesting to see where where it goes. I don't think that that should be a reason for denial, as long as it comes up somewhere in the process that the agency is aware of this thing and they can consider it as to whether this person is going to be dangerous, yeah. I
Tim Kowal 20:58
think you pointed out it's not like, yeah. I mean, this is the Department under which the that temper, that emergency restraining order had issued. So it's not like the the agency is in the dark that this thing issued. So it's more like giving the applicant a memory test, right? They were
Don Hammond 21:13
perfectly aware of it. They knew of the arrest, which really is the issue, right? We you know, this guy was accused of domestic violence by someone 10 years ago. That's the issue that we should be concerned about, right? Does that do the effects underlying that give us a reason to believe that he's going to be dangerous if we let him carry a gun around? I mean, is he any more dangerous carrying the gun around than he would be just having it in his house? Because he's allowed to have it in his house, he's allowed to take it to the range, right? What's the incremental risk, yeah. What's the incremental risk to letting him carry it on his hip, concealed? We're in the grocery store where nobody sees it anyway.
Tim Kowal 21:47
Is it reviewed? Is it reviewed for strict scrutiny? Because it's a well, no,
Don Hammond 21:51
they did away with all the scrutinies. It's just historical analog, right? That's that was the point of brewing and Heller. But especially Bruen, they said we're not, we're going to do away with these levels of scrutiny. There's intermediate scrutiny for extreme we're going to get rid of all that and just say, is there a historical analog that the founders would have found this law to be? Okay? Yeah, there's, there's no level of scrutiny anymore, no, because I think reports are struggling with, yeah,
Tim Kowal 22:18
yeah. They obviously are. And they're going, they're going to, all right, Don any any parting thoughts or any predictions about where do we go from here? I
Don Hammond 22:26
mean, stay tuned. There are a lot of cases working their way through the Ninth Circuit right now regarding magazine bands, Assault Rifle bands, you know, the California handgun roster. There are all kinds of cases just working their way up and sort of on pause in the ninth circuit right now. You know, a lot of them are sitting behind a case called Duncan in the Ninth Circuit and waiting for a decision on that one that hopefully will be out in the next couple of months. And then we'll, you know, that'll probably end up going to the Supreme Court, and we'll get more guidance. Yeah. Then there are several cases that actually meant to look if cert was granted on a couple of cases out of Chicago that are similar issues regarding magazine capacity, assault rifles and those kinds of things. So we may get guidance from the Supreme Court before these Ninth Circuit ones make their way up.
Jeff Lewis 23:14
Also have you back on when those cases come down. And next time you're on, want to talk to you about this guy, Brian Steele, out of Fulton, Georgia and go into jail for your client and secret meetings between judges and
Don Hammond 23:25
witnesses. Oh, that's a mess. Yeah, that's a mess. Do
Jeff Lewis 23:28
a whole episode on that,
Don Hammond 23:30
yeah. Oh, I'd be pissed if they judge.
Tim Kowal 23:33
Oh, man, okay, well, yeah, Don thank you for joining us. We'll bring you back on to give us more updates on on gun regulation front again, an under examined area of law by by many of us attorneys. So I thank you for coming on and educating us and getting getting the juices flowing on some of these issues. Jeff, do you want to see us out? Well,
Jeff Lewis 23:54
yeah, this has been an episode of The California appellate law podcast. I don't have my notes in front of me, but if you have ideas for future episodes, give us an email at info at Cal podcast, Cal podcast.com and tune in for future episodes about laying the groundwork for your appeal.
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