Implication of United States v. Rahimi on Colorado Gun Rights

On Friday June 21, 2024, the United States Supreme Court published an opinion. The opinion focused on a person’s ability to have firearms. Specifically, it dealt with individuals who are subject to restraining orders.

Gun rights are a controversial topic, but they are a basic right for all American citizens. The opinion does not have any limiting principles. Questions such as can the government restrict people of their First Amendment rights in the similar fashion are still open.

The ruling makes it easy for a court to strip an individual of their right to possess firearms, especially in Colorado. Understanding the law surrounding firearms is just as important as knowing how to properly use the weapon.

What were the facts of United States v. Rahimi?

Between December 2020 and January 2021, Zachary Rahimi was involved in five shootings in Texas. After the shootings, law enforcement officers obtained a search warrant for Mr. Rahimi’s house. Police found firearms while conducting the search.

Mr. Rahimi has previously been subject to a domestic violence restraining order. This is a civil order protection order. Mr. Rahimi was never convicted of a felony offense or crime involving domestic violence prior to being charged with possession of a firearm in violation of a protection order. 

After finding the gun, federal prosecutors filed charges under 18 U.S.C. § 922 (g)(8). This statue prohibits persons subject to protection orders from possessing firearms. A person guilty of this offense can be punished by up to 15 years imprisonment. 

A prosecutor may proceed on this charge if they meet three criteria. First, a defendant must receive actual notice and an opportunity to be heard before the order is entered. Second, the order must prohibit the defendant from harassing, stalking, or threatening an intimate partner. 

Intimate partner includes spouses and formal spouses, parents of children, and anyone the individual cohabitated with. Finally, the order must contain a finding that the defendant represents a credible threat to the intimate partners safety or prohibits the use or attempted use of force against the intimate partner.

Mr. Rahimi was found guilty of this offense. Considering the Supreme Court’s Decision in New York Rifle and Pistol Assocation, Inc. v. Bruen, Mr. Rahimi appealed the conviction arguing the law was a violation of his second amendment rights.

What was the opinion of United States v. Rahimi?

The opinion found that the government can impose criminal penalties for gun possession without violating the Second Amendment as long as a judge finds the person to be a danger to others. 

The decision is a sharp change from the broader Bruen decision. Congress’ effort to keep guns out of the hands of domestic abusers fit with the history and tradition of firearms laws. The Court found courts can disarm people found to be dangerous to others, the decision states. 

The decision was 8-1. Justice Clarence Thomas authored the dissenting opinion. He framed the question as whether the government can strip the Second Amendment rights of anyone subject to a protection order – even if they have never been accused or convicted of a crime. Justice Thomas argued the government failed to meet its burden and opined that the conviction should be overturned.

How does United States v. Rahimi impact Colorado citizens?

A statement from Joe Biden started “[n]o one who has been abused should have to worry about their abuser getting a gun”. Several signs outside the Supreme Court echoed this messaging. The case itself reflects an extreme on the classification of abuser. Arguably, Mr. Rahimi is the type of person that should not have access to firearms.

The problem is that Supreme Court does not provide case specific remedies. It provides interpretation and guidance that will apply to the entire spectrum and country. Colorado has more lenient rules for domestic violence restraining orders compared to other states with stricter requirements.

While the opinion does not alter any law, it does make challenging loss of gun rights impossible.

What is Domestic Violence under Colorado law?

Domestic violence is a sentence enhancer under C.R.S. 18-6-800.3. It applies to any crime that is an act or threatened act of violence. It also includes any crime that is committed against a person or property if done for coercion, control, punishment, intimidation, or revenge.

The victim of this crime has to be someone with whom the defendant was in an intimate relationship. This includes spouses, former spouses, past or present unmarried couples, or person who are parents of the same child. 

Domestic violence includes municipal ordinance violation. These are crimes defined by municipal code, and they are typically low-level offense. For example, a battery under Aurora Municipal Code is the use of force on another. It is distinguished from state level offenses by not requiring any form of injury to be proven.

The definition can be applied to non-violent crimes such against property or theft. It can also be applied to general offenses such as disturbing the peace or harassment through obscene language. In essence the definition of “abuser” can be applied to anyone that falls in this broad category of domestic violence.

How does this work with Colorado’s civil protection order statute?

Colorado details the requirements of a civil protection order at C.R.S. 13-14-104.5. In order to get a protection order, the petitioner must allege a qualifying offense and reason to believe it will continue. 

A qualifying offense includes assaults or threatened bodily harm, domestic abuse, emotional abuse, sexual assault, and stalking. To be eligible, the petitioner does not have to show that the actions were reported or that charges have been filed. 

The term domestic abuse is extremely broad, as is the term domestic violence under Colorado law. It can apply to non-violent crimes.

How does the Civil Protection Order process work in Colorado?

A petitioner must first file for a protection order in the correct venue. The first step is an ex parte hearing by the petitioner. This means respondent or defendant is not present. 

Colorado Courts have a uniform form that must be completed, and the petitioner will go testify before the Court concerning the contents of that form. The form requires the petitioner to detail incidents that serve as a basis for the offense.

After the hearing, a court may grant a temporary restraining order. The petitioner must then serve a copy of the restraining order on the respondent. A permanent protection order hearing is set two weeks after the temporary protection order is granted. 

The hearings are short. Most jurisdictions in the Denver Metro area will only schedule these hearings for an hour, and each side will only be allotted 30-minutes. 

This is 30-minutes for presenting evidence, cross examination, and closing. This is an extremely short period of time, and the respondent is typically at a disadvantage. 

The petitioner has been provided to opportunity to present their allegations ex parte and in writing. It is also important to remember the case is decided by a judge, not a jury. This is typically the same judge that already agreed to a temporary protection order. 

There are also no disclosure requirements. In other civil and criminal proceedings, the parties are required to provide exhibits or evidence in advance of trial. A respondent may get a continuance, but courts will usually only provide a defendant two weeks. 

Finally, and most importantly, the burden of proof is not beyond a reasonable doubt. The laws surrounding civil protection orders in Colorado require a court to find a by a preponderance of evidence. This means that it is more likely than not that the actions took place. 

United States v. Rahimi ratified a problematic Colorado law involving Gun Rights

The Supreme Court’s decision did not alter or overturn any Colorado law. Instead, it ratified and removed any citizens right to challenge the loss of their Second Amendment rights through a civil protection order. 

This is problematic when considering the laws and procedures discussed above. That is not to say that domestic abusers or Rahimi should be permitted to have access to firearms, but Colorado defines an extreme vast amount of conduct as domestic abuse.