[00:00:00] Speaker 03:
234094 and 234151, US v. Gordon and US v. Brown.

[00:00:09] Speaker 03:
Mr. Wilson.

[00:00:11] Speaker 02:
Thank you, Your Honor.

[00:00:12] Speaker 02:
Scott Wilson, appearing on behalf of Mr. Brown and Mr. Gordon.

[00:00:17] Speaker 02:
I acknowledge that I'm facing a burden here.

[00:00:22] Speaker 02:
You're asking this court to declare a federal statute unconstitutional on its face.

[00:00:27] Speaker 02:
But I would say that the Supreme Court

[00:00:30] Speaker 02:
has set up a sort of unique way that these cases have to be analyzed that puts the government to its burden.

[00:00:40] Speaker 02:
In cases where the Second Amendment rights of a citizen are being restricted, the Supreme Court has said that the government bears the burden to show that this restriction has historical analogs basically from the 18th century.

[00:00:58] Speaker 00:
And council, before you get into that piece of the analysis, which what is your understanding of this facial challenge standard that you have to satisfy here?

[00:01:10] Speaker 00:
In other words, is it that just one permissible application defeats a facial challenge?

[00:01:17] Speaker 00:
What is your understanding of a facial challenge in the second amendment context?

[00:01:20] Speaker 02:
Well, yes, if there is a permissible application, then a facial challenge fails.

[00:01:27] Speaker 02:
But I would say it's not,

[00:01:29] Speaker 02:
It's not just like if there's people who are dangerous, who could get guns restricted.

[00:01:36] Speaker 02:
I mean, Mr. Rahimi, for example, the court didn't stop and say, well, look at how horrible Mr. Rahimi is.

[00:01:43] Speaker 03:
No, they just said- Well, they did comment that there's your one example right there, didn't they?

[00:01:49] Speaker 02:
Well, they did in the sense that, well, no.

[00:01:53] Speaker 02:
I mean, all they said was, yes, this is part of the problem.

[00:01:57] Speaker 02:
But then they went on to do,

[00:01:59] Speaker 02:
the facial analysis.

[00:02:00] Speaker 02:
They didn't say, well, because bad people can be restricted under this thing, it's okay.

[00:02:05] Speaker 03:
Well, the important point of Rahimi was saying what sort of constraints are consistent with the Second Amendment.

[00:02:13] Speaker 03:
And that was a very important issue and maybe a little surprising to some people.

[00:02:19] Speaker 03:
Justice Thomas was apparently surprised.

[00:02:22] Speaker 03:
Yes.

[00:02:23] Speaker 03:
So they had a reason to write the opinion, even though

[00:02:28] Speaker 03:
Mr. Rahimi clearly satisfied the Second Amendment requirements for a constraint.

[00:02:36] Speaker 02:
No, to be clear, Mr. Rahimi's conduct isn't what made it okay.

[00:02:40] Speaker 02:
It was the fact that the statute he was prosecuted under on its face as the elements of the offense were allowed under the Second Amendment.

[00:02:50] Speaker 02:
So that's the argument we're making.

[00:02:51] Speaker 02:
I don't disagree on that point.

[00:02:53] Speaker 02:
I just didn't express it well, I guess.

[00:02:55] Speaker 02:
Sure.

[00:02:55] Speaker 02:
Okay, go ahead.

[00:02:57] Speaker 02:
So the question before us then is, you know, we have a sort of limited universe in which to talk, and that's why, you know, the case law that has been presented to the court and discussed in the court is fairly limited.

[00:03:09] Speaker 02:
It's basically what does Rahimi mean in the context of subsection two as opposed to subsection one?

[00:03:15] Speaker 02:
And, you know, the initial thing is, well, subsection two does not do the thing

[00:03:21] Speaker 02:
that the court pointed to in subsection one that made it okay, which is a finding that a particular person constitutes a future danger.

[00:03:31] Speaker 02:
And that was the basis for finding that the restriction was okay.

[00:03:37] Speaker 03:
I'm not sure it's the finding.

[00:03:38] Speaker 03:
It was the difference between one and two was that in one, it's an express finding in the order.

[00:03:46] Speaker 03:
Here we have an order that doesn't make an express finding.

[00:03:53] Speaker 03:
But the court had to make such a finding.

[00:03:57] Speaker 03:
That's the question.

[00:03:58] Speaker 03:
Did the court have to make such a finding to issue that order?

[00:04:02] Speaker 03:
And if that were the case, Rahimi's satisfied.

[00:04:04] Speaker 03:
Do you agree?

[00:04:06] Speaker 02:
If a court has to make that finding.

[00:04:08] Speaker 02:
But there's no basis to hold that in order to proceed against a defendant under subsection two, that a finding is required.

[00:04:20] Speaker 02:
Because it's not an element of the offense.

[00:04:23] Speaker 02:
And it can't, and it isn't true.

[00:04:25] Speaker 00:
So what is required?

[00:04:26] Speaker 00:
What in your view is required?

[00:04:28] Speaker 00:
Section two doesn't talk about findings, but so what is required?

[00:04:31] Speaker 02:
Under section two, just all it means is that there's an order which says you can't commit an act of violence in the future against the domestic partner.

[00:04:42] Speaker 02:
But that doesn't imply finding that you are likely to do so.

[00:04:47] Speaker 02:
And the deficit is made up

[00:04:51] Speaker 02:
by this assumption that common law principles of injunctive relief are going to apply.

[00:04:58] Speaker 02:
The two circuits that I'm up against here, I recognize I'm up against two other circuits and I'm asking for a circuit split here, they rely on basically a general proposition about the common law of injunctive relief.

[00:05:16] Speaker 02:
Are they wrong about that proposition?

[00:05:17] Speaker 02:
Well, they're not wrong about the fact that the common law

[00:05:21] Speaker 02:
provides that.

[00:05:22] Speaker 02:
What they're wrong about is the applicability of the common law to these types of injunctions.

[00:05:28] Speaker 02:
The government has cited no law saying that this general proposition is applicable in the context of these state statutory schemes providing for domestic violence protective orders.

[00:05:40] Speaker 02:
There is no reason to believe that that presumption applies.

[00:05:43] Speaker 00:
Why not?

[00:05:44] Speaker 00:
I mean, I agree with you that there's no case that's been directly presented, but why isn't

[00:05:49] Speaker 00:
Why doesn't that just make sense to understand the applicability of the common law here?

[00:05:56] Speaker 02:
Because those statutory schemes were meant to avoid those restrictions.

[00:06:01] Speaker 02:
If you look at the way they're set up, we know the common law doesn't apply.

[00:06:08] Speaker 02:
There's another common law principle, for example, that you can't get an injunction against a criminal act in the future.

[00:06:15] Speaker 02:
Wright and Miller says that too, but it doesn't apply.

[00:06:19] Speaker 03:
I'm looking at the statutory language.

[00:06:22] Speaker 03:
Under 78B-7-6042, which I think govern one of these, the order may prohibit the respondent from purchasing, using, or possessing a firearm or other weapon upon a finding, quote, finding that the respondent's use or possession of a weapon may pose a serious threat of harm to the petitioner.

[00:06:45] Speaker 03:
And under 6031A,

[00:06:48] Speaker 03:
The court can issue an ex parte protective order against the person that appears from the petition, quote, that domestic abuse has occurred or is substantially likely to occur.

[00:07:00] Speaker 03:
Right.

[00:07:02] Speaker 03:
So you need to rely on the common law.

[00:07:04] Speaker 03:
The statute says you can't issue a protective order without those findings.

[00:07:08] Speaker 02:
Well, it's an or.

[00:07:10] Speaker 02:
So you can issue a protective order if an act happened in the past without respect to a finding as to what might happen in the future.

[00:07:18] Speaker 02:
Also, these protective orders are very broad in terms of their definition of what domestic violence is.

[00:07:24] Speaker 02:
A lot of nonviolent conduct is included in every state statute that I've ever seen, certainly anything that's been quoted here.

[00:07:30] Speaker 02:
Is that true?

[00:07:32] Speaker 02:
And in Utah?

[00:07:33] Speaker 02:
Absolutely.

[00:07:34] Speaker 02:
Domestic abuse?

[00:07:35] Speaker 02:
In Utah, you can be a domestic abuser if you mess with their phone.

[00:07:42] Speaker 02:
In the Kentucky one that the Fifth Circuit talks about,

[00:07:47] Speaker 02:
In that state, you can be a domestic abuser if you threaten somebody's pet.

[00:07:53] Speaker 03:
So about 78B7-6042, which requires a finding that the respondent's use or possession of a weapon may pose a serious threat of harm.

[00:08:07] Speaker 02:
Yes.

[00:08:07] Speaker 02:
So if there was actually that finding, then they could be prosecuted under subsection one.

[00:08:16] Speaker 03:
order was under that statute, 78B7-6042, then the court, unless the court was acting illegitimately, needed to find that.

[00:08:29] Speaker 03:
You don't have to put that in the order.

[00:08:31] Speaker 02:
Well, I don't know where a finding exists other than in an order.

[00:08:36] Speaker 03:
Well, no.

[00:08:38] Speaker 03:
You make a finding and then you issue an order.

[00:08:40] Speaker 03:
Yes.

[00:08:40] Speaker 03:
And you don't have to state in the order all the facts you found.

[00:08:44] Speaker 02:
where are we making this finding then?

[00:08:47] Speaker 02:
I mean, a finding doesn't just exist in a judge's head.

[00:08:51] Speaker 02:
And that's part of the problem also with this presumption under the common law.

[00:08:57] Speaker 02:
The government posits a presumed finding.

[00:08:59] Speaker 02:
There's no such thing in the law as a presumed finding.

[00:09:03] Speaker 00:
It just means the court was satisfied that the finding was supportable and two, doesn't require an explicit finding the way that one does.

[00:09:12] Speaker 00:
This isn't coming from my head.

[00:09:15] Speaker 00:
This is, you know, I'm looking at Perez Galan's analysis in the Fifth Circuit, and I'm just wondering.

[00:09:21] Speaker 03:
Do you think once, every once in a while, a judge might have made the required finding to issue that order so that statute is not?

[00:09:30] Speaker 02:
Again, is it a required finding?

[00:09:33] Speaker 02:
If it is, then you can be prosecuted under subsection one.

[00:09:36] Speaker 02:
And, you know, so if this court finds that subsection two is constitutional,

[00:09:41] Speaker 02:
Only if it qualifies also for prosecution under subsection one, it's a fairly limited constitutionality.

[00:09:47] Speaker 02:
But that's what I'm saying.

[00:09:48] Speaker 00:
Could you speak to what we should find unpersuasive about the Fifth Circuit's analysis?

[00:09:55] Speaker 02:
Sure.

[00:09:56] Speaker 02:
First of all, they do rely on this idea of some sort of freestanding common law presumption, which doesn't apply.

[00:10:04] Speaker 02:
And nobody says that it applies in domestic violence protective orders.

[00:10:10] Speaker 02:
and relies on this idea of an implied finding, which I don't understand what that means.

[00:10:16] Speaker 02:
If a finding is required, then it would be on the record.

[00:10:19] Speaker 02:
And I would say, I mean, imagine you have an injunction.

[00:10:26] Speaker 02:
And in order to issue an injunction, you have to find A, B, and C. And a judge in issuing the injunctions finds A and B. On appeal,

[00:10:36] Speaker 02:
Does the Court of Appeals say, oh, well, they got A and B. They probably were going to presume that they found C. No.

[00:10:43] Speaker 02:
It's like, well, it's an illegal order.

[00:10:45] Speaker 02:
Send it back for more findings.

[00:10:46] Speaker 02:
You have to actually make those findings.

[00:10:48] Speaker 02:
And if that common law principle applied, then you would have to have findings as to future dangerousness in every order.

[00:10:55] Speaker 03:
It's actually like you're collaterally attacking the Utah Court's finding.

[00:11:00] Speaker 03:
No, I'm... If that was a proper... I'm sorry.

[00:11:04] Speaker 03:
not the court's finding, but their court's order.

[00:11:08] Speaker 03:
We have to presume, we're not, you can't challenge the Utah court's issuance of that order.

[00:11:17] Speaker 03:
We have to presume that that was a proper order.

[00:11:20] Speaker 03:
And if it was a proper order, then it had to be predicated on this kind of finding.

[00:11:26] Speaker 03:
It did, the statute requires that this finding be made before, yeah.

[00:11:31] Speaker 02:
If the particular order

[00:11:34] Speaker 02:
under state law requires a finding of future dangerousness, it would qualify under subsection one.

[00:11:40] Speaker 02:
What I'm saying is the orders in this case, which only contained findings of don't do harm in the future, doesn't require those findings.

[00:11:51] Speaker 03:
It doesn't require them to be stated in the order.

[00:11:54] Speaker 03:
That's like saying every judgment has to include all the fact findings the judge makes.

[00:11:59] Speaker 02:
So the hypothetical is, at a hearing, the judge makes findings orally on the record

[00:12:05] Speaker 02:
and then issues an order without those findings in it.

[00:12:07] Speaker 03:
Is that what you're talking about?

[00:12:08] Speaker 03:
I'm not sure he has to make it on the record to make it a legitimate judgment.

[00:12:12] Speaker 03:
If somebody, if you're challenging it, it seems to me you're challenging the legitimacy of the Utah court order when you say it could have been issued without this finding.

[00:12:25] Speaker 02:
I'm saying that under Utah law, you don't have to make that finding and that there's no reason to believe that you have to make that finding.

[00:12:31] Speaker 02:
Utah law doesn't require it.

[00:12:33] Speaker 00:
So what in your view does Utah law require?

[00:12:35] Speaker 02:
Utah law requires the finding that at some point in the past you committed an act of domestic abuse, broadly defined, as I've said.

[00:12:43] Speaker 02:
That's all it requires.

[00:12:46] Speaker 02:
And so there's no requirement of this.

[00:12:48] Speaker 03:
That's one of the statutes.

[00:12:49] Speaker 02:
That's one of the two statutes.

[00:12:52] Speaker 02:
That's one of the grounds.

[00:12:57] Speaker 02:
I would just say also as to the

[00:13:03] Speaker 02:
Fifth Circuit decision, the point is fairly clear in their hypothetical under the Kentucky law.

[00:13:13] Speaker 02:
They say, well, what if there is a judge who makes a finding as to future violence, and then it isn't included in the order?

[00:13:21] Speaker 02:
And again, this is what I'm asking.

[00:13:23] Speaker 02:
What is a finding?

[00:13:24] Speaker 02:
A finding is something that is on the record.

[00:13:26] Speaker 02:
It's not just some ethereal thing in a judge's head.

[00:13:31] Speaker 02:
it's either required or it isn't.

[00:13:33] Speaker 02:
If it is required, then you make it on the record and you can be prosecuted under subsection one.

[00:13:39] Speaker 02:
I cited in my opening brief a case where in fact an oral finding was determined to be sufficient for prosecution under subsection one.

[00:13:47] Speaker 02:
An oral finding that was not actually explicit in the order.

[00:13:51] Speaker 02:
So all I'm saying is subsection two does not require explicit findings.

[00:13:58] Speaker 02:
And explicit findings is the only kind of findings that exist in the law.

[00:14:02] Speaker 00:
So why does subsection two exist?

[00:14:05] Speaker 02:
Well, it was the result of a congressional judgment that in the context of domestic violence or domestic abuse or domestic disputes, guns are a bad thing to have.

[00:14:16] Speaker 02:
And that is a legislative judgment that you and I can agree with wholeheartedly.

[00:14:21] Speaker 02:
But the Supreme Court has said, we don't care about legislative judgments.

[00:14:26] Speaker 02:
We care about history.

[00:14:28] Speaker 02:
As the Supreme Court said, in its ruling, the tradition distinguishes between citizens who have been found to pose a credible threat from those who haven't.

[00:14:42] Speaker 02:
And what I'm saying is subsection two doesn't distinguish between those who have been found to have been a credible threat and those who haven't.

[00:14:56] Speaker 02:
I could say I'm out of time.

[00:14:59] Speaker 02:
Unless there's any further questions.

[00:15:05] Speaker 03:
Thank you.

[00:15:05] Speaker 03:
Mr. Jack.

[00:15:12] Speaker 01:
May it please the court, Nathan Jack of the United States.

[00:15:16] Speaker 01:
The only question for this court to answer is whether subsection two is unconstitutional in every possible application.

[00:15:25] Speaker 01:
The answer to that has to be no, because in many applications, Subsection 2 comports with the Second Amendment principle that the government may disarm those who pose a credible threat to the safety of another.

[00:15:39] Speaker 01:
And we can see that in at least three ways.

[00:15:42] Speaker 01:
First, as applied under Utah law, which requires either the domestic violence abuse has occurred or a substantial likelihood that it will occur.

[00:15:51] Speaker 01:
We can see that as section two applies more generally because enjoining the use of force entails, in many instances, a risk that such force will be used.

[00:16:02] Speaker 01:
And finally, we can see that as applied to a category of persons that Congress has deemed dangerous or poses a special danger of misuse.

[00:16:10] Speaker 01:
And I'll take each of those in turn.

[00:16:13] Speaker 01:
But first, my friend's argument seems to boil down that Rahimi requires some type of finding of

[00:16:21] Speaker 01:
explicit future dangerousness.

[00:16:23] Speaker 01:
And that is not the second member principle that Rahimi identified.

[00:16:26] Speaker 00:
But how can we be satisfied that the defendant poses an actual threat for purposes of two?

[00:16:31] Speaker 00:
I mean, two doesn't require a finding.

[00:16:34] Speaker 00:
What are we relying on to comport with two?

[00:16:38] Speaker 01:
Yeah, so we need to show these factors.

[00:16:40] Speaker 01:
So let's take Utah law, for example.

[00:16:42] Speaker 01:
So for a cohabited abuse protective order in Utah law, there must be either domestic abuse has occurred or a substantial likelihood that it will occur.

[00:16:51] Speaker 01:
Now, whether that finding actually makes it into the order, either prong shows that the defendant poses a credible threat to the safety of another.

[00:17:00] Speaker 00:
Well, to Judge Hartz's point, do we just assume that we have an order under a statute under Utah law that requires these things, and so therefore, we proceed into the two analysis assuming those findings have been made or supported at some point?

[00:17:15] Speaker 01:
Absolutely.

[00:17:15] Speaker 01:
This is not a form for collaterally attacking the protective order.

[00:17:21] Speaker 03:
opposing counsel said domestic abuse doesn't need to be violent under Utah law.

[00:17:27] Speaker 01:
And that is a straw man.

[00:17:29] Speaker 01:
There may be some applications where it's broader.

[00:17:32] Speaker 01:
There may be some applications based on past contact.

[00:17:36] Speaker 01:
The only question for this court is, in at least one application of a court finding that domestic violence has occurred, does that defendant pose a credible threat to the safety of another?

[00:17:47] Speaker 01:
And I think we've got two great examples here of both Gordon

[00:17:51] Speaker 01:
and Brown, a Gordon who threatened to kill his former partner, and a Brown who threw his girlfriend to the ground, got on top of her, punched her in the face, tried dragging her out of the apartment by her clothes.

[00:18:07] Speaker 01:
These are dangerous men.

[00:18:09] Speaker 01:
These are men who pose a credible threat to the safety of another.

[00:18:13] Speaker 01:
And even though a explicit judicial finding of future dangerousness didn't make it into the order,

[00:18:19] Speaker 01:
The application of subsection two comports with the Second Amendment principle in these two cases that these men pose a credible threat to the safety of another, and that is enough to defeat these facial challenges.

[00:18:34] Speaker 01:
So because under Utah law, as applied under Utah law, in many instances, under either of those prongs, the defendant will pose a credible threat to the safety of another.

[00:18:44] Speaker 01:
But again, we can look more generally to

[00:18:47] Speaker 01:
subsection two, which enjoins the use of physical force.

[00:18:50] Speaker 01:
And as the Fifth Circuit explained in Perez-Gaon, again, in many instances, that will demonstrate that the defendant poses a credible threat to the safety of another.

[00:19:01] Speaker 01:
Again, we don't need to show that that's true in all applications.

[00:19:06] Speaker 01:
This is a facial challenge here.

[00:19:08] Speaker 01:
One application, as my friend recognized, defeats these challenges, and again,

[00:19:14] Speaker 01:
In many applications, when a court specifically enjoins the use of force, it's because the court found that there is a risk that force will be used in the future.

[00:19:24] Speaker 00:
Do you agree that we don't need to rely on the common law principles governing injunctive relief as the Fifth Circuit did, or would you suggest that's an important

[00:19:35] Speaker 00:
relevant part of the analysis.

[00:19:36] Speaker 01:
I don't think this court needs to rely on it.

[00:19:37] Speaker 01:
I think, again, we can look specifically at Utah law.

[00:19:40] Speaker 01:
And again, we can look at many other of these state provisions, the way that these protective orders actually happen.

[00:19:46] Speaker 01:
It does entail a risk.

[00:19:48] Speaker 01:
And I think the historical analogs of surety laws and going on laws are especially appropriate here.

[00:19:57] Speaker 01:
The Supreme Court in Ohimi didn't identify that the orders themselves

[00:20:02] Speaker 01:
included a finding of future dangerousness in the order.

[00:20:06] Speaker 01:
It was the fact that the court entered the order that indicated that the defendant was dangerous.

[00:20:10] Speaker 01:
And that's what we have in many of these protective orders.

[00:20:13] Speaker 01:
Maybe not all, but we don't need all.

[00:20:15] Speaker 01:
But in many protective orders, the fact that the court enters a protective order against someone and enjoins them from using force itself indicates that that person poses a credible threat to the safety of another.

[00:20:29] Speaker 01:
So, sorry, long answer.

[00:20:30] Speaker 01:
No, it's not part, but it is, I think, a helpful point.

[00:20:35] Speaker 03:
You had the third thing you were gonna say.

[00:20:36] Speaker 01:
The third point is that there's a historical tradition, a Second Amendment principle, that Congress can disarm those it deems pose a special danger of misuse.

[00:20:50] Speaker 01:
Historically, that has been loyalists or miners or vagrants or

[00:20:58] Speaker 01:
those intoxicated or those unsound mind.

[00:21:02] Speaker 01:
And that has been accepted from the founding.

[00:21:05] Speaker 00:
Because of the risk of future dangerousness.

[00:21:07] Speaker 01:
Because they pose a special danger from use.

[00:21:09] Speaker 01:
Exactly.

[00:21:10] Speaker 00:
And so Congress... But it's based on the risk in the future, not what's happened in the past.

[00:21:15] Speaker 01:
Correct.

[00:21:16] Speaker 01:
Correct.

[00:21:17] Speaker 01:
And I think Congress has made that determination here that those who are under a protective order

[00:21:23] Speaker 01:
prohibiting them from stalking, terrorizing an intimate partner.

[00:21:29] Speaker 01:
A domestic abuse protective order poses a special danger of misuse.

[00:21:35] Speaker 01:
So that is just an instance of a category of persons that Congress, under the second amendment, can disarm.

[00:21:43] Speaker 01:
And it's important that this is only temporary.

[00:21:46] Speaker 01:
It's a temporary restriction while the protection order is pending.

[00:21:50] Speaker 01:
And under Utah law, that's 150 days, up to three years, but it's a temporary provision that disarms them while that order's in place.

[00:22:05] Speaker 01:
But under any of those prongs, we can see that subsection two is constitutional in at least some of its applications, and that's all that this court needs to find.

[00:22:14] Speaker 01:
Any one of those defeats these facial challenges.

[00:22:25] Speaker 01:
If there are no other questions, I would ask this court to affirm.

[00:22:29] Speaker 01:
Thank you, counsel.

[00:22:30] Speaker 01:
Thank you.