US v Litsson Antonio Perez-Gallan (Order of Protection v Second Amendment)

[mauserme]

https://www.texastribune.org/2022/11/14/texas-judge-domestic-abusers-second-amendment/

 

Federal judge in Texas rules that disarming those under protective orders violates their Second Amendment rights

BY WILLIAM MELHADO

 

A Texas federal judge declared it was unconstitutional to disarm someone who is under a protective order, setting into motion a likely legal fight over who can possess firearms — a move that advocates say could have wide-ranging impacts on gun access across the county.

...

The case involves Litsson Antonio Perez-Gallan, who was stopped at a border checkpoint in Presidio while carrying a firearm. Law enforcement found Perez-Gallan had a restraining order issued against him, in which case federal law prohibits the possession of a firearm.

 

(U.S. District Judge David) Counts ruled that the federal government’s disarming of Perez-Gallan did not sufficiently consider the historical context of domestic abuse law when revoking his Second Amendment rights....

 

“The court said that the way that you’ve got to decide the constitutionality of modern-day gun laws … is not by looking at modern policy considerations, but rather looking at historical laws and trying to analogize specific legal traditions from a very different time and place,” (Southern Methodist University assistant law professor Eric) Ruben said.

...

 

 

 

From the opinion:

 

Yet the Court notes that even if § 922(g)(8) is trimmed from the Second Amendment,
state court orders still exist. Indeed, the piece of paper that says, “abuser shall not harass,
stalk, threaten, approach, or interact with victim” is still effective. So whether or not
§ 922(g)(8) exists, states still can (and should) make it unlawful to violate restraining orders.
In fact, Kentucky state law makes it a crime to violate the conditions of a protective order.131
It follows then that Kentucky authorities could still arrest Defendant and prosecute him.

 

It’s also ridiculous to argue that a second piece of paper, one charging a violation of
§ 922(g)(8), magically prevents the alleged-abuser from violating the first piece of paper. If
that were reality, this case wouldn’t be before the Court. Again, states should punish abusers
with the full force of the law. But that does not mean the Government historically has been 

able to piggyback off state laws to prohibit conduct protected under the Second Amendment.

 

 

 

Perez-Gallan-Order-Granting-Motion-to-Dismiss.pdf

[Flynn]

The effect of not being able to weigh in Means–Ends is going to have historic ripples for 2nd rights as long as the Judges actually follow the precedent!

[Euler]

The case is US v Perez-Gallan filed in the Federal District Court of West Texas. (docket)

 

On 11/16/2022 at 10:03 PM, mauserme said:

...

It's also ridiculous to argue that a second piece of paper, one charging a violation of
§ 922(g)(8), magically prevents the alleged-abuser from violating the first piece of paper. ...

 

Isn't it the implication that the first piece of paper (restraining order) magically prevents the alleged abuser from violating the second (getting another firearm)? It's on the 4473, after all. It must not have worked.

 

There is another possibility that could have applied (but didn't). Historically bail was not money. It was the set of conditions under which someone arrested would be released from custody pending trial. Perez was out on bail after an arrest for domestic abuse. That judge could have specified that Perez had to surrender his firearms and not possess any further as a condition of that release. In the opinion, however, the judge writes that, until the early 20th century, courts were more likely to confiscate a man's liquor than his firearms. There have been very few instances (not zero, but very few) of a court confiscating a person's firearms as a condition of bail.

 

Meanwhile, the guy was trying to cross the border into Mexico with a firearm. Hmm.... I think he may have a few problems aside from the domestic abuse charge.

 

Nevertheless, it's interesting that the KY court order that Perez had on him did NOT specify that he could not possess firearms. The government even conceded that Perez had not been served with notice of such a prohibition, which Federal law requires to charge someone with a violation of 18 USC 922(g)(8). The court got around that requirement by saying that it is 5th Circuit precedent (and 1st, 4th, 9th, and 11th -- note that KY is in the 6th) that the understanding of a restraining order implies a prohibition. The opinion itself does not prohibit state courts from confiscating firearms of people who are the subjects of restraining orders, but the opinion points out that a further problem with 18 USC 922(g)(8) is that such people are prohibited from possessing firearms (i.e., federally) even if the state order specifically allows possession.

 

The order dismissing the federal charge against Perez was issued on November 15. On November 16, the US appealed to CA5. It will probably be a day or two before CA5 assigns a case number.

 

Given that restraining order prohibitions could soon be a thing of the past, possibly along with "red flag" restraining orders, maybe firearm surety could see a comeback, especially with the "no cash" bail wave sweeping the country.

[Euler]

5th Circuit Court of Appeals (docket)

The following opinion is "unpublished." That means it does not set precedent.

Order and Opinion said:

...
... Perez-Gallan moves for summary affirmance, relying on United States v. Rahimi....

As the parties concede, the Government's appeal is foreclosed by Rahimi.... The grant of certiorari in Rahimi does not override this court's precedent. ...

Accordingly, Perez-Gallan's motion for summary affirmance is GRANTED, ..., and the judgment of the district court is AFFIRMED.

Rahimi is a Supreme Court case, for which there's already a topic here.

All of the stuff above means that however the Supreme Court rules in Rahimi is what will set precedent. Meanwhile, the case against Perez-Gallan is still dismissed.

Edited August 30, 2023 at 09:54 PM by Euler

[Euler]

On October 31, the government petitioned for certiorari. (docket)