[00:00:00] Speaker 04:
Good morning, everyone.

[00:00:01] Speaker 04:
Welcome to the Ninth Circuit.

[00:00:03] Speaker 04:
Please be seated.

[00:00:06] Speaker 04:
I am Judge Sanchez, and with me are Judge McEwen and Judge Pais, and we welcome you to the arguments for today.

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We have one argument that's been submitted, Mejia Garcia versus Bondi, case number 23-3855.

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And the first case on argument is United States versus Ryan Van Dyke, case number 24-2861.

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And counsel, you may approach.

[00:00:36] Speaker 01:
Morning, Your Honors.

[00:00:37] Speaker 01:
Scott Meisler on behalf of the United States.

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I'll try to reserve two minutes for rebuttal.

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The district court held unconstitutional, as applied in this case, a portion of the same federal firearms law that the Supreme Court upheld in Rahimi just last year.

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We submit here that Rahimi

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This court's unbanked decision in Duarte and three recent decisions of Sister Storkitz all demonstrate that the district court erred in its dismissal order.

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This court could reach that conclusion applying either of the two historical principles set forth in our brief.

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The first of those applied in Rahimi itself was that legislatures may disarm individuals who present a credible threat to the physical safety of others.

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And the second is the principle applied in Duarte

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that legislatures may disarm categories of persons that they have found to present a special danger of misuse.

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I've reversed the order there from the order in our brief.

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In part, because I think the ground I'm leading with here is the narrower ground for decision, and the principle applied in Duarte, I think, is a broader basis for decision by this court.

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And the other courts of appeals, the fifth, sixth, and tenth circuits in the recent decisions have decided the case more narrowly based on the Rahimi principle of a credible threat.

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I think it's a... Sorry.

[00:01:51] Speaker 02:
Let me ask you with respect.

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Obviously, Judge Windmill didn't have the benefit of Rahimi.

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That's correct.

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Is there any difference you think in our analysis in that it's an applied challenge rather than a facial challenge?

[00:02:08] Speaker 01:
There is a difference in the sense that as the movement in the district court, Mr. Van Dyke, didn't have to establish that this version of the statute, I'll call that subparagraph C2, is invalid in all of its applications.

[00:02:21] Speaker 01:
But as I understand Judge Windmill's analysis, it would basically exclude all Idaho no-contact orders from the reach of the statute.

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It would hold the statute unconstitutional as applied to all of them, unless the government could find somewhere else in the record a credible

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an explicit credible threat finding, which Idaho law does not require state judges to make.

[00:02:42] Speaker 04:
Can I ask, I wasn't sure if I was reading this correctly from Judge Windmill's order, but did the order essentially say that there needed to be a judicial finding of a credible threat in order to sustain something in alignment with the historical tradition?

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In other words, even though this is framed as an as applied challenge,

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I almost read the order to almost seem facial as if c2 was facially unconstitutional I Read the order the same way not that it's necessarily facially unconstitutional.

[00:03:13] Speaker 01:
I think judge windmill and footnote 5 if I'm reading the opinion correctly I

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left open the possibility that the government could find somewhere else in the record, not in the form, because the form itself that is required by Idaho law for courts to use is not going to contain a credible threat finding.

[00:03:28] Speaker 01:
I understood, footnote five of his opinion, to leave open the possibility that we could marshal, for example, a hearing transcript or a recording of the hearing that wasn't available here, or the judge went above and beyond what's required under Idaho law to make the credible threat finding.

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But in those situations,

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The government would not be able to use C-1 as the basis for prosecution because the order itself would not contain the finding, and C-1 by its terms applies to orders.

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It's talking about the content of the domestic violence restraining orders.

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But I agree with Your Honor that his rationale was much broader.

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All the parties here have debated the relevance of facts about Mr. Van Dyck's personal circumstances.

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I don't understand that to really be the basis for Judge Windmill's decision.

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It's the basis that is the characteristics of domestic violence restraining orders or no-contact orders under Idaho law.

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And as applied to that class of orders, I think he was finding the statute unconstitutional.

[00:04:21] Speaker 03:
So can I just take it to Rahimi for a few seconds?

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The court was, the chief was pretty careful in distinguishing out 922G8C1 from C2.

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And why do you think he did that?

[00:04:44] Speaker 01:
It's a great question, Your Honor.

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I think C1 was the easier case for the court.

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I mean, this is an eight-justice majority opinion.

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They coalesced around that.

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And if you look at some of the language at the end of Rahimi, the court says they have no trouble concluding.

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So I think the court found that to be a very easy case and C2 to be slightly harder.

[00:05:00] Speaker 03:
Well, they seem to emphasize, though, the finding of credible threat.

[00:05:04] Speaker 01:
I agree that that is the holding of Rahimi.

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I did write down before argument this morning, I wrote down four spots though in the opinion where the court articulated the historical principle that I mentioned at the beginning, individuals who present a credible threat to the physical safety of others.

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The court wrote that four times in the opinion that I counted without tying it to a judicial finding.

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So I think you're right that the holding of Rahimi itself involved that kind of a finding, but the court, the historical principle the court recognized there

[00:05:31] Speaker 03:
was broader than just... So the order here, the no-contact order we're dealing with here, it had the language of C2, which was, if the restraining order prohibits the use, attempted use, or threatened use of physical force, it contains that language, doesn't it?

[00:05:48] Speaker 01:
It does.

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Yes, Your Honor.

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Is that tantamount of a critical, you know, of a threat?

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That as the individual poses a threat?

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That is our submission and that has been accepted by, again, three courts of appeals to consider this issue since Rahimi.

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They've relied on the background principle of equity that courts, and I think it's also just a common sense principle, that a court is not going to enjoin action unless it perceives a real danger that the enjoined person is going to undertake that action.

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That's common-sensical.

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It's been accepted as a construction of this statute for 25 years.

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Can I push back on you a little bit, counsel?

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Those were all facial challenges, and I do think there is an important distinction between facial and as applied.

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And so is it your argument that just

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If any no-contact order just contains the language that is required under C2, that necessarily means that it's related to dangerousness, and that's good enough.

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There doesn't need to be any more for an as-applied analysis.

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That is our main submission.

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I think that's under both this principle and, again, the Duarte analysis about special danger of misuse.

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But again, the reason I led up with this and mentioned it's a narrower ground is you'll notice that in the facial challenges, the decisions that Your Honor mentioned,

[00:07:00] Speaker 01:
The courts have left open the possibility that in some unusual circumstance, maybe a defendant could come forward and show that this is the result of a mutual protective order, some other kind of strange failing in the system.

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And that's the kind of as applied challenges they left it are open for.

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But those decisions, as I read them from your sister circuits, do not leave open a challenge based on resisting the background principle, resisting the notion, as Judge Pai has just said,

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that this kind of determination by court is tantamount to the kind of credible threat finding the Supreme Court deemed sufficient in Rahimi.

[00:07:33] Speaker 02:
Well, let me ask you about the due process aspects of the case, because several times the Supreme Court in Rahimi talks about procedural protections.

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And of course, we typically would analyze those under the 14th Amendment.

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And we're now in the Second Amendment world.

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How do you square and how do those two intersect?

[00:07:52] Speaker 01:
It's a great question, your honor.

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I think for this court's purposes here, I think you can do exactly what the Supreme Court did in Rahimi in footnote two, which is just to say those aren't presented here.

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I haven't understood the defendant to raise any due process challenge.

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And here, I think the statute itself bakes in a lot of protections.

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It requires the kind of orders that are covered or preceded by notice, hearing, and an opportunity to participate in that hearing.

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So I think the statute itself is going to ensure, basically has guardrails in it not to sweep in

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state court orders that weren't imposed after procedural protections.

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This court and many others have rejected the notion that defendants can collaterally attack the state court orders in the federal proceedings.

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State court doors are open to those challenges.

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And just one last point before I sit down, I think the cases that we've cited from the Idaho Supreme Court, Lodge and Thompson, show that Idaho courts are open to these challenges.

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And when Idaho state judges do not follow state law, do not demand that the

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competent and sufficient evidence that the Supreme Court requires, they reverse those orders.

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And the State versus Thompson case we cited in our brief is an example of that.

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Before you sit down, I'm sure that our presiding judge will give you a little leeway.

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With reference to Idaho law, we have the Lodge case, of course, which you rest on.

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And it talks in that case about that

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It must be made to protect the current or future victims, this type of order.

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Is there a conflict in that Lodge case with the earlier Cobbler case?

[00:09:28] Speaker 01:
I don't think so, Your Honor.

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Cobbler, as I recall, Cobbler actually reversed an order for being perpetual and not having sufficient findings.

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There's kind of loose language at the beginning saying that the district court, the state court judge, permissibly entered a broader order without assessing fully the risks

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I don't think that anyone argued in Cobbler that the state court didn't do any risk analysis at all.

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The issue there was there was a victim.

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It was obvious that the defendant posed a risk to the victim.

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The question was, could the court expand that scope to all minors the defendant might have contact with?

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And so I think that's also a 2009 decision.

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And we since then in the last five years have two published decisions from the Idaho Supreme Court, Lodge and Thompson, that clarify the standard.

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And I think construe the statutory duty of the judge in light of the crimes that are enumerated.

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And the last thing I'll say on this round is just to remind the court that there are domestic civil protection orders under Idaho law.

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This kind of no contact order is an order imposed in a criminal case.

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That means the defendant is charged with or convicted of a crime under Idaho law.

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And the crimes that are listed in the statute as the principal basis for these orders are all crimes against the person.

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That's what Lodge holds.

[00:10:35] Speaker 02:
That's a helpful distinction.

[00:10:37] Speaker 01:
Thank you.

[00:10:38] Speaker 04:
I'll give you some extra time.

[00:10:41] Speaker 04:
So because this is an as applied challenge, is it appropriate for us, are we able to look even beyond the circumstances of the Idaho laws themselves to the circumstances of this case?

[00:10:52] Speaker 04:
The fact that the defendant here was charged with first-degree stalking meant that he was alleged to have committed this crime while he was under another no-contact order or restraining order I think a civil one beforehand that was supposed to last a year is that

[00:11:14] Speaker 04:
Is that an indicia of dangerousness that would add to the government's argument that, you know, whatever you might have other no-contact orders say in some other case, here, under those circumstances, that lent itself to the notion that there was a credible threat being, you know, that the court was concerned with?

[00:11:32] Speaker 01:
Yes, I think, this is the chart it shows, yes, I think you can consider those.

[00:11:35] Speaker 01:
You don't have to consider them, but I think you can, and it's also important to recall here,

[00:11:39] Speaker 01:
The court, the state court minutes at ER 68 and 69 show us that this, again, the judge was making, imposed a no contact order at an initial appearance on the stalking charge that your honor mentioned.

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And the judge also imposed a no firearms restriction under state law as a bail condition.

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So the judge had in mind, even if not directly as part of the no contact order, the potential that Mr. Van Dyke would have access to firearms and that that would be a danger as well.

[00:12:07] Speaker 03:
The firearms restriction was contained in the,

[00:12:09] Speaker 01:
The firearms restriction, your honor, is on page 69 of the excerpts of record volume one.

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It's exhibit two to a government filing.

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It's a paragraph about three quarters the way down the page.

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It starts Judge Mallard set bond in the amount of $3,000.

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And it says he used to have no firearms in his possession, including his residence, vehicles, sheds, or storage units.

[00:12:31] Speaker 04:
And this was before he was found with the firearm at the courthouse is that correct?

[00:12:36] Speaker 01:
This is October 2022 and the court the firearm incident that gave rise to this federal charge is May of 23 Thank you, thank you

[00:13:01] Speaker 00:
May it please the court Sam Mac Humber on behalf of Mr.. Ryan Van Dyke I'd like to begin with the practical function of Idaho no contact orders Because Mr.. Van Dyke sent messages and gifts the state court imposed a no contact order And that no contact order was triggered by statute that was in the civil was that us in?

[00:13:21] Speaker 00:
This is the criminal case the criminal case.

[00:13:24] Speaker 00:
Yes, the civil protection order is not relevant because there was no hearing It's not eligible for prosecution under c2

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And because it was triggered by statute, it's solely the allegations, and that no contact order in Idaho does not include any finding of dangerousness, any finding of threat, or any factual finding at all.

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And that's problematic here because the government is trying to disarm Mr. Van Dyke based on a historical analogy of danger without any factual finding of dangerousness.

[00:13:55] Speaker 04:
Councilman it is your argument essentially that c2 Should never apply because there's there isn't a judicial finding of credible sort of danger under c2 Is it your view that that?

[00:14:08] Speaker 00:
Is unconstitutional under the second amendment no, and that's why your questions about as applied are relevant here because this is about an Idaho no contact order as applied to Mr.. Van Dyke and

[00:14:19] Speaker 00:
Mr. Van Dyke's no-contact order did not have any finding of dangerousness, nor any implied finding of dangerousness.

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So I think that the government's argument about implied findings is wrong on the law, because this is statutory criminal law, not civil common law.

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And implied findings come from civil common law.

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This is explicit statutory common law.

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But it's also wrong on the facts, where here the state court found no finding of dangerousness for Mr. Van Dyke.

[00:14:47] Speaker 00:
Could there?

[00:14:47] Speaker 02:
What about the Idaho law coming from Lodge that you don't even, you can't issue these kind of orders unless it's made to protect a current or future victim?

[00:15:00] Speaker 00:
I think that when you read Lodge, Matlock and Thompson together, they all show a broad protection for victims or alleged victims, but we can offer protections to alleged victims that are different than dangerousness or violence.

[00:15:15] Speaker 00:
And I think that that's a decision that Idaho has made, and it's appropriate.

[00:15:19] Speaker 00:
The no-contact order here is appropriate.

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Idaho can protect alleged victims from contact.

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We want to give these out freely.

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And our source of truth for that is Judge Windmill.

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He practiced in Idaho, or has practiced, and continues to for 40 years on the bench.

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He knows how these no-contact orders work in state court, and he is the source of truth for how these are imposed in state court.

[00:15:41] Speaker 02:
I have a lot of respect for Judge Windmill, but I don't think we can impute to him

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State of truth and of course as we know he didn't really have the benefit of Rahimi.

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I mean he was operating on broon Correct your honor.

[00:15:55] Speaker 00:
He does distinguish Rahimi even in the hypothetical before it came out But returning to your question about lodge lodge talks about where the district court appears to include a potential threat It doesn't have an explicit finding same thing with may lack There's no specific threat of ongoing risk

[00:16:12] Speaker 00:
And then in Thompson, the court finds that the state court needs to find the subject is a victim.

[00:16:21] Speaker 00:
That means to be explicit, but makes no indication of whether there needs to be a finding of dangerousness.

[00:16:27] Speaker 00:
So I think with those three together, you see that Idaho Supreme Court and court repeals is applying no contact orders.

[00:16:34] Speaker 00:
with specific due process protections, like you talked about with the government, and with specific protections about identifying the victim, but without any specific factual finding about whether the defendant is dangerous, because there are no contact orders imposed where the defendant is not dangerous.

[00:16:53] Speaker 03:
So in your view, we just disregard the court's order?

[00:16:58] Speaker 03:
the superior court's order, or whatever, the state district court's order.

[00:17:03] Speaker 03:
That is, the order says, do not contact or attempt to contact.

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Do not communicate.

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Do not harass, stalk, threaten.

[00:17:12] Speaker 00:
So the court said.

[00:17:14] Speaker 00:
And that's a valid no-contact order.

[00:17:17] Speaker 00:
Right.

[00:17:18] Speaker 00:
But it's not the finding of dangerousness necessary to make an historical analogy to disarmament.

[00:17:25] Speaker 00:
Well, what does harass mean?

[00:17:28] Speaker 00:
It's just like mr.. Van dyke here recent unwanted text messages or stocking and the only reason it's first stocking the first degree is because there was a underlying civil protection order So here unwanted attention is not dangerous.

[00:17:40] Speaker 04:
Why isn't there an implicit?

[00:17:42] Speaker 04:
Finding or concern about dangerousness if someone has been ordered to

[00:17:48] Speaker 04:
To have no contact with the victim and then violates that order and that's what results in the stalking charge of first degree so you have a pattern of this of Ignoring those orders Over over some period of time why why isn't that in the context of what the no-contact orders meant to do sufficient here?

[00:18:12] Speaker 00:
because the conduct is not dangerous.

[00:18:16] Speaker 00:
It's harassment, it's messages, it's not assault.

[00:18:19] Speaker 00:
So perhaps there's a underlying allegation like assault that would trigger a finding of dangerousness with the same form, but that's not what happened here for Mr. Van Dyke.

[00:18:33] Speaker 00:
And that's why that's important because it's a different how and why

[00:18:39] Speaker 00:
than from... Isn't it a bit of a narrow view, though?

[00:18:42] Speaker 04:
So unless someone has committed assault on a victim, there's no danger to their possession of a firearm if they continue to make contact with that person, with the same person each time, despite a court ordering them to stay away.

[00:18:58] Speaker 04:
Why would the historical tradition say that's not enough?

[00:19:03] Speaker 00:
Because the state court could have made that finding and did not, and the government could have chose a different

[00:19:09] Speaker 00:
Analogy but did not they leaned on dangerousness and here this conduct is not danger Let me just one other Is the stalking charge of felony

[00:19:23] Speaker 00:
For Mr. Van Dyke?

[00:19:23] Speaker 00:
Yes.

[00:19:24] Speaker 00:
Because of the underlying civil protection order.

[00:19:26] Speaker 03:
Doesn't that require, at some point along the way, there was a probable cause determination that he was committed a stocking charge?

[00:19:32] Speaker 03:
Yes.

[00:19:33] Speaker 00:
Why doesn't that provide the basis?

[00:19:36] Speaker 00:
Because that's not the disarmament, right?

[00:19:38] Speaker 00:
He's charged because of this no contact order, not because of the underlying felony.

[00:19:42] Speaker 02:
Right.

[00:19:42] Speaker 02:
You know, you talk about historic tradition, you look back to, I was somewhat taken by the Supreme Court's language in Hayes.

[00:19:51] Speaker 02:
which is not that long ago, maybe 15 years ago, and said firearms and domestic strife are a potentially deadly combination.

[00:20:01] Speaker 02:
And of course, studies have borne that out.

[00:20:07] Speaker 02:
Cases have borne that out.

[00:20:10] Speaker 02:
And why is not that most obvious connection sufficient?

[00:20:16] Speaker 00:
Because a order preventing contact between acrimonious domestic partners is not the same as a credible threat of illegal behavior.

[00:20:26] Speaker 00:
We do not equate firearm possession with dangerousness, particularly in Idaho, where the Second Amendment is second nature.

[00:20:31] Speaker 00:
Almost 60% of Idahoans own a firearm.

[00:20:35] Speaker 00:
There's no demonstrated threat here, merely a warning not to do so.

[00:20:40] Speaker 03:
But it arises in the context of a stalking charge.

[00:20:43] Speaker 00:
Correct.

[00:20:44] Speaker 00:
Right?

[00:20:45] Speaker 00:
And the narrow constitutional floor here is that there must be some finding of dangerousness for Mr. Van Dyke, and there wasn't one.

[00:20:53] Speaker 04:
Well, what about the government's categorical argument?

[00:20:57] Speaker 04:
There is also a historical tradition of disarming vagrants and those intoxicated.

[00:21:03] Speaker 04:
Duarte talks about that.

[00:21:05] Speaker 04:
Perez-Garcia talks about some of that.

[00:21:06] Speaker 04:
And here, why isn't it sufficient for the Idaho legislature to have determined

[00:21:12] Speaker 04:
on a temporary basis that if someone is subject to a domestic restraining order, that they should not be allowed to have a firearm for that duration after a court has made an individualized finding that it's appropriate to do so in that case, even without a finding of a credible threat.

[00:21:32] Speaker 04:
Why isn't that categorically enough to align with the historical tradition?

[00:21:37] Speaker 00:
Then it's a level of generality question, where there is a category of folks who can be disarmed because they're dangerousness and Mr. Van Dyke does not fit into that category of dangerous people.

[00:21:46] Speaker 00:
And I think you mentioned some historical analogues.

[00:21:48] Speaker 00:
I think surety is a very important one because surety from Rahimi requires a probable ground to suspect of future misbehavior.

[00:21:57] Speaker 00:
And here there's no probable ground of misbehavior with firearms.

[00:22:00] Speaker 00:
It's just about the texting and the gifts.

[00:22:06] Speaker 00:
Unwanted attention does not rise to that level of dangerousness.

[00:22:14] Speaker 00:
I'd like to briefly distinguish

[00:22:17] Speaker 00:
Gordon Combs and Perez gallon all three of those are facial challenges all three of those apply law where the underlying court finds a serious threat for example in Gordon the Utah law has an extra finding to disarm where the state court must find that there's a serious threat and all three of them leaves open as applied challenges without a disarmament finding and

[00:22:42] Speaker 00:
And that's what's happening here.

[00:22:44] Speaker 00:
Mr. Van Dyke is that exception that those three cases leave open.

[00:22:49] Speaker 00:
And this court can decide Mr. Van Dyke's as-applied challenge without a circuit split with those decisions.

[00:22:54] Speaker 02:
Can I ask just one follow-up related to that?

[00:22:58] Speaker 02:
I think I started out with the government about this distinction between the as-applied and the facial.

[00:23:04] Speaker 02:
But with respect to Rahimi's how and why dichotomy that is discussed,

[00:23:12] Speaker 02:
Is that altered in an as-applied challenge?

[00:23:16] Speaker 00:
Is that how and why?

[00:23:18] Speaker 00:
Yes, because, for example, the why here for Mr. Van Dyke is that it's wise to give a cooling off space in a no-contact order.

[00:23:26] Speaker 00:
And the cooling off space is different than dangerousness.

[00:23:30] Speaker 00:
I see him over time.

[00:23:31] Speaker 00:
Unless the court has any questions, I ask that the court affirm.

[00:23:34] Speaker 04:
Thank you.

[00:23:35] Speaker 04:
Thank you.

[00:23:42] Speaker 04:
Why don't we give you a couple minutes.

[00:23:44] Speaker 01:
Thank you, Your Honor.

[00:23:44] Speaker 01:
I'll try to be brief.

[00:23:46] Speaker 01:
Starting picking up off the how and why, I don't think they're different, Your Honor.

[00:23:50] Speaker 01:
And again, relying on the Sister Circuit decisions, they basically have reason.

[00:23:54] Speaker 01:
They're the same in all the respects that matter to the Supreme Court.

[00:23:57] Speaker 01:
We're talking about temporary disarmament, disarmament only of a narrow swath of the population, not the general population.

[00:24:03] Speaker 01:
The same why your Sister Circuits have held, because it's to mitigate the threats inherent in domestic violence.

[00:24:11] Speaker 01:
And the only difference, as we mentioned, is the verbiage of the order.

[00:24:18] Speaker 01:
I think you would be creating a circuit split because I think you would have to reject the equitable principle we've been talking about that inherent in the decision to impose a restriction on the use of force is a finding that the defendant risks using force against the victim.

[00:24:31] Speaker 01:
So I think that is critical, central to the analysis of your sister circuits.

[00:24:36] Speaker 01:
I think you would be creating a split on that.

[00:24:38] Speaker 01:
pivoting to Judge Sanchez's question to counsel about the broader principle.

[00:24:43] Speaker 01:
Again, we've been focusing on Rahimi, but the broader principle from Duarte, I think, equally would allow the statute to be applied constitutionally here.

[00:24:52] Speaker 01:
In fact, it's a broader principle, because I think what Duarte holds is that no individualized dangerousness determination is required at all.

[00:25:00] Speaker 01:
So whereas your sister circuits have left open the possibility of as applied challenges, as my colleague mentioned, I don't think those would be available at all under application of Duarte, just as they're not available in this circuit.

[00:25:11] Speaker 01:
for felons who want to claim, like Mr. Range, that they personally are not violent or dangerous.

[00:25:17] Speaker 01:
And again, that principle is not dangerousness per se.

[00:25:19] Speaker 01:
It's special danger of misusing firearms.

[00:25:22] Speaker 04:
But it's sweeping a little broadly, don't you think?

[00:25:24] Speaker 04:
What if a state order is one of these dual no-contact ones that Judge Ho mentioned in his Rahimi decision?

[00:25:32] Speaker 04:
And and let's say it doesn't involve an enumeration of violence against a victim, but you know let's say theft or something Pretty milk toast are you?

[00:25:43] Speaker 04:
Would you still rely on the notion of injunctive relief as a basis to say that it should be upheld and

[00:25:49] Speaker 01:
I think we would, but I think that's where the two principles I mentioned maybe lead to different results, right?

[00:25:54] Speaker 01:
One is that if you endorse the, if you apply the Duarte or Perez-Garcia principle about special danger of misuse, I don't think it leaves room.

[00:26:00] Speaker 04:
We were talking there about, like, convicted felons at that point, as opposed to someone charged with something.

[00:26:05] Speaker 01:
That's true, but again, if you're doing the how and why, I think it's also just a temporary disarmament, whereas it's permanent in the context of felons or misdemeanor crime and domestic violence defendants, like the ones Judge McEwen mentioned in the Hayes case.

[00:26:19] Speaker 01:
But I do think that those leads to potentially different results in those situations, whereas the mutual protective order scenario you could consider as applied under the credible threat rationale.

[00:26:32] Speaker 01:
I'm not sure that Duarte's rationale would leave that open.

[00:26:35] Speaker 01:
I should say that I don't think the mutual protective order thing is really a possibility under the Idaho regime that we've been discussing.

[00:26:41] Speaker 01:
as I think my colleague acknowledged, that's a criminal case.

[00:26:44] Speaker 01:
You can't have someone come in, a plaintiff, a victim come in and say, I want one of these, and the defendant will say, well, I want one too.

[00:26:50] Speaker 01:
That can't happen in an Idaho criminal case.

[00:26:53] Speaker 01:
So again, if you're thinking about as applied, that concern does not arise in a subset of cases.

[00:26:57] Speaker 01:
I think that's important.

[00:27:00] Speaker 03:
What does it take to prove up a felony stalking case in Idaho State Court?

[00:27:08] Speaker 01:
I think it's the basic elements of stalking, which I don't have on my fingertip, Your Honor, plus an aggravating circumstance, which I think in these kind of cases, as Judge Santz has mentioned, oftentimes involve violation of a previous protective order or stalking that occurs while the defendant is on probation for a prior stalking offense.

[00:27:26] Speaker 03:
That doesn't seem to be alleged in the complaint.

[00:27:30] Speaker 01:
That the defendant's engaged in that conduct?

[00:27:33] Speaker 03:
Yeah.

[00:27:36] Speaker 01:
I take your point.

[00:27:38] Speaker 01:
Is that part of the statutory?

[00:27:40] Speaker 01:
I would think so.

[00:27:41] Speaker 04:
I don't have, I think the... It was alleged in ER 52.

[00:27:44] Speaker 04:
Oh, 52.

[00:27:46] Speaker 04:
I'm at the wrong page.

[00:27:47] Speaker 01:
Right, and I think we did, I think Mr. McComber did include some of the underlying charging documents from the case.

[00:27:55] Speaker 01:
I don't have it at my fingertips.

[00:27:56] Speaker 03:
Because, you know, what it alleges is there was stocking

[00:28:01] Speaker 03:
seriously alarmed, annoyed, or harassed, causing substantial emotional distress to the victim to wit by sending text messages to and or by receiving gifts to family members.

[00:28:12] Speaker 01:
But because it's alleged to be first degree stalking, Your Honor, I think it has to have one of those aggravators, the aggravators that we know from other information in the ER, including I think volume three, the sealed volume we submitted to the court.

[00:28:23] Speaker 01:
Okay, I'll look at it.

[00:28:24] Speaker 01:
We know that information.

[00:28:25] Speaker 01:
We know it to be basically a recurrence of prior stalking.

[00:28:28] Speaker 03:
Okay.

[00:28:29] Speaker 03:
Thank you.

[00:28:29] Speaker 01:
That helps.

[00:28:31] Speaker 01:
Thank you, Your Honors.

[00:28:33] Speaker 04:
Thank you both for your helpful arguments.

[00:28:34] Speaker 04:
The matter will stand submitted.