In a ruling handed down on the last day of 2024, a federal appeals court ruled that the statute banning gun ownership by accused domestic abusers is not unconstitutional under the Second Amendment and can be enforced.
The decision by the 5th Circuit Court of Appeals in New Orleans was a reversal of its earlier decision, and judges took into account the 2024 U.S. Supreme Court ruling in United States v. Rahimi in reaching their latest conclusion.
The case, U.S. v. Perez-Gallan, revolves around the June 2022 arrest of Litsson Perez-Gallan, who was driving his 18-wheeler at the Mexico-United States border in Presidio, Texas. Asked if he was armed, Perez-Gallan said yes and consented to a search, which resulted in agents finding a pistol in his backpack.
The gun had been reported stolen, which Perez-Gallan explained away by saying it had been given to him by a friend. However, further investigation revealed that he was under a restraining order from the state of Kentucky for an incident the month before when he was arrested and charged with assault. In that incident, his partner stated that Perez-Gallan had struck her in the face while she was holding their baby, and after she put the baby down, he dragged her to the bathroom, struck her in the face again, and began hitting her in the ribs.
Perez-Gallan was subsequently charged with assault in the fourth degree. The Kentucky state district court released him on bond but issued an order imposing conditions of release, including forbidding him from owning a gun.
Earlier, the 5th Circuit Court of Appeals had ruled that the federal law barring alleged domestic abusers from having a gun violated the Second Amendment. When the appeal hit the U.S. Supreme Court, which occurred after the Rahimi ruling, the high court remanded the case back to the Circuit Court with the instructions to consider the Rahim decision when reconsidering the case.
In the December 31 ruling, Judge Jerry E. Smith wrote that because alleged domestic abusers pose a clear threat of violence, the statute is constitutional under SCOTUS Rahimi ruling.
In the ruling, Judge Smith wrote that the intervening Supreme Court decision was sufficient reason for the 5th Circuit to change its precedent.
“In short, if we cannot adhere to our former precedent without disregarding intervening Supreme Court precedent, our circuit’s precedent has been implicitly overruled,” he wrote.
Ultimately, the judgment reversed an earlier district court’s finding that the law was unconstitutional and sent the case back to that court for further consideration. The circuit court did, however, note that there are likely times when the statute is “problematic” and could be considered a constitutional infringement.
“Finally, we acknowledge that some potential applications of § 922(g)- (8)(C)(ii) appear problematic, and we do not hold that the statute is (or even likely to be) constitutional in all its applications,” the ruling stated. ‘As one judge noted in Rahimi 2023, so-called ‘mutual’ protective orders pose a real concern. Because in ‘any domestic violence dispute, a judge may see no downside in forbidding both parties from harming one another,’ domestic-violence proceedings ‘have often led to the issuance of unmerited mutual restraining orders, namely in situations where one party is the abuser and the other party is a victim.’
“If these court orders also meet the terms of §§ 922(g)(8)(A) and (B), an abused woman could lose her right to possess a gun just because her violent domestic partner is awarded a mutual protective order against her, even if there are no indications that the woman herself is dangerous.”
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