STATE OF IOWA v. JORDAN KEVIN COLE
No. 23-1391
In the Iowa Supreme Court
June 27, 2025
Amended August 26, 2025
Submitted February 19, 2025
A defendant appeals his conviction for possession of firearms while under a domestic violence protective order entered pursuant to
Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield and McDonald, JJ., joined. Christensen, C.J., filed a concurring opinion. May, J., filed a dissenting opinion, in which Oxley and McDermott, JJ., joined.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson (argued), Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Olivia D. Brooks (argued), Assistant Attorney General, for appellee.
Jordan Cole consented to the entry of a one-year protective order in a domestic abuse case. The consent order expressly prohibited Cole from possessing firearms pursuant to
On appeal, Cole challenges his convictions by claiming that
Cole also argues that the district court’s sentencing order includes an unlawful provision. It provides that if Cole’s probation is revoked in the future, his prison sentences shall be served consecutively. We agree with Cole that this provision is unlawful. So we remand for entry of a corrected sentencing order.
I. Background Facts and Proceedings.
Although this is an appeal from two Story County criminal cases, the relevant facts begin with a Hamilton County civil proceeding under Iowa Code chapter 236, our domestic abuse act. Our record of the proceeding consists of a “Protective Order by Consent Agreement” (consent order), dated March 7, 2022. The consent order reports that on March 7, “a hearing was held on [a] Petition for Relief from Domestic Abuse.” The consent order also notes that Cole, the
In his appellate briefing in this criminal appeal, Cole repeatedly acknowledges that he consented to the protective order, writing such statements as:
- “The order was entered via consent agreement . . . .”
- “Cole consented to entry of the protective order . . . .”
- “The order was entered by a consent agreement . . . .”
- “Cole was not convicted of domestic abuse, but consented to the entry of a civil protective order.”
- “[Cole] consented to entry of the protective order.”
- “Cole’s protective order was entered pursuant to a consent agreement.”
The consent order included an unchecked box that said, “If checked, [Cole] committed a domestic abuse assault against [Julie].” But to commence the proceeding, and as a prerequisite to entry of this order, Julie had to have filed a petition alleging that Cole assaulted her. See
The consent order then provided as follows:
[Cole] is restrained from committing further acts of abuse or threats of abuse. [Cole] is restrained from any contact with [Julie]. . . .
. . . .
1. [Cole] shall not threaten, assault, stalk, molest, attack, harass or otherwise abuse [Julie]. [Cole] shall not use, or attempt to
use, or threaten to use physical force against [Julie] that would reasonably be expected to cause bodily injury. 2. [Cole] shall not communicate with [Julie] in person or through any means including third persons. . . .
3. [Julie] shall have exclusive possession of the residence . . . . [Cole] shall not go to, enter, occupy or remain in that residence or any other residence in which [Julie] is staying, under any circumstance.
. . . .
5. [Julie] is granted temporary custody of [two children whose identifiers we have omitted]. [Cole] is granted visitation with these children . . . . [Cole] shall not otherwise contact these children and shall not contact [Julie] about visitation except as provided in this order.
6. [Cole] shall not possess, ship, transport or receive firearms, offensive weapons, or ammunition while this order is in effect pursuant to
Iowa Code section 724.26(2)(a) . [Cole] shall deliver all firearms, offensive weapons, and ammunition to the HAMILTON County Sheriff or other law enforcement agency on or before March 15, 2022. [Cole] is advised that the issuance of this protective order may also affect the right to possess or acquire a firearm or ammunition under federal law18 U.S.C. sections 922(d)(8) ,(g)(8) .7. A RESPONDENT WHO VIOLATES THIS ORDER FACES IMMEDIATE ARREST. Violation may occur even if the protected party consents to conduct that is prohibited by this order. Only the court can relieve respondent from the restrictions contained in this order.
8. This order is effective immediately.
(Boldface omitted.) The order was signed by a district court judge, and a copy of the order was served on Cole. The order expressly restrained Cole, not Julie. It was not a “mutual” protective order.1
Cole did not object to entry of the consent order. Nor did Cole ask the district court to reconsider any term in the order or to vacate the consent order. Cole never appealed from the consent order, and he is not collaterally attacking the consent order in this criminal appeal.
We now turn to the two criminal cases from which this appeal arises. The two cases were initiated in January and March 2023, respectively. In the January case, Cole was accused of pawning a Carl Gustaf rifle on July 5, 2022, which was during the one-year period that Cole was prohibited from possessing firearms because of the consent order. The trial information charged Cole with one count of “Possession of a Firearm . . . By Domestic Abuse Offender,” a class “D” felony under
In the March case, Cole was accused of pawning a Beretta shotgun on August 31, 2022, and a Howa rifle on October 12,2 both during the period that Cole was prohibited from possessing firearms. The trial information charged Cole with two counts of “Possession of a Firearm . . . By Domestic Abuse Offender,” class “D” felonies under
In June 2023, Cole filed a motion to dismiss in both cases. Cole argued that
Cole and the State then reached an agreement. The State agreed to the dismissal of two charges from the March 2023 case, including the theft charge. This would leave a total of two
Following the trial on the minutes, the district court found Cole guilty on both charges. Cole requested immediate sentencing, and the court agreed. The State recommended “a concurrent sentence of five years” in prison “to be fully suspended” with probation. Cole agreed with the State’s recommendation.
Consistent with the parties’ suggestions, the court imposed concurrent terms of incarceration not to exceed five years. The court suspended the sentences and ordered probation for up to two years. The court noted: “These probationary periods will be served concurrently. However, if the probations are ever revoked, the sentences may be ordered to be served consecutively.”
The same day, the court issued a written sentencing order. It generally matched the court’s statements on the bench. As to the issue of probation, however, the order stated: “If probations are ever revoked, sentences shall run consecutive.”
Cole appealed, and we retained the case.
“We review constitutional claims de novo.” In re N.S., 13 N.W.3d 811, 820 (Iowa 2024) (quoting Mitchell County v. Zimmerman, 810 N.W.2d 1, 6 (Iowa 2012)). “[W]e presume statutes are constitutional, ‘imposing on the challenger the heavy burden of rebutting that presumption.’ ” Summit Carbon Sols., LLC v. Kasischke, 14 N.W.3d 119, 126 (Iowa 2024) (alteration in original) (quoting In re Guardianship of L.Y., 968 N.W.2d 882, 892 (Iowa 2022)). “We defer to the findings of fact made by the district court, ‘but we are not bound by them.’ ” State v. Young, 15 N.W.3d 61, 64 (Iowa 2024) (quoting State v. Bauler, 8 N.W.3d 892, 897 (Iowa 2024)).
“Our review of the defendant’s sentence is for the correction of errors at law.” State v. Duffield, 16 N.W.3d 298, 302 (Iowa 2025). “We will not reverse a sentence unless there is ‘an abuse of discretion or some defect in the sentencing procedure.’ ” State v. Damme, 944 N.W.2d 98, 103 (Iowa 2020) (quoting State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002)).
III. Analysis.
Cole raises two issues on appeal. First, he claims that his
A. Constitutional Challenges.
Except [in circumstances not relevant here], a person who is subject to a protective order under
18 U.S.C. § 922(g)(8) . . . and who knowingly possesses . . . a firearm . . . is guilty of a class “D” felony.
The relevant federal statute,
With this background, we turn to Cole’s attack on his convictions. Notably, Cole does not dispute that the statutory requirements just explained were satisfied.3 Instead, Cole claims that the firearms prohibition imposed by
As to Iowa’s constitution, Cole concedes that his offenses predated the effective date of article I, section 1A. In re N.S., 13 N.W.3d at 815 (noting that section 1A went into effect after its ratification by voters on November 8, 2022). Nevertheless, he contends that because Iowa’s constitution has always included an implied fundamental right to possess firearms,4 section 1A should be applied retroactively to his case. Cole then argues that his convictions cannot survive the strict-scrutiny analysis required by section 1A. They fail strict scrutiny, Cole argues, because they are based on an order that prohibited firearm possession even though Cole had not been “convicted of an underlying criminal offense” or “found to be presumptively dangerous.”
Turning to the Federal Constitution, Cole concedes that in United States v. Rahimi, the Supreme Court rejected a Second Amendment challenge to the prohibition imposed by
We conclude Cole’s constitutional challenges must be rejected. We rest this conclusion on waiver. Cole consented to the entry of the protective order. That order expressly prohibited Cole from possessing firearms. It even included a specific deadline (March 15, 2022) by which Cole had to surrender all of his firearms to law enforcement. And the order expressly warned Cole that a violation of the order’s firearm prohibitions would also violate
Rather, we determine those challenges were waived through Cole’s consent to an order that expressly prohibited him from possessing firearms “pursuant to
The civil hearing on Cole’s consent protective order was unreported. Without a transcript, we don’t know if there was any colloquy between Cole and the judge specifically addressing Cole’s waiver of his constitutional right to possess firearms.5 We do know that Julie must have filed a petition alleging Cole assaulted her to trigger the hearing under Iowa Code chapter 236. See
Neither Cole nor the dissent cite a case from any jurisdiction holding that a formal Zerbst-style8 colloquy is required to voluntarily relinquish Second Amendment rights in a consent protective order. We encourage our district
It’s true that in Rahimi, the defendant had consented to the entry of the protective order that prohibited his possession of a firearm, but the Supreme Court did not rely on that fact in rejecting his Second Amendment challenge. See 602 U.S. at 686–87. The dissent suggests that because the Supreme Court bypassed a waiver analysis, the Court implicitly found that Rahimi did not waive his Second Amendment rights.9 In our view, silence doesn’t amount to a holding, or even dicta. We are bound by what the Supreme Court says; we are not bound by conjecture.
The dissent primarily relies on Class v. United States, 583 U.S. 174 (2018). Class was arrested when he parked his car containing firearms on the grounds of the United States Capitol. Id. at 176. He was charged with violating a federal statute,
Class’s holding was relatively narrow. The Supreme Court held that a criminal defendant who pleads guilty does not necessarily waive challenges to the constitutionality of the statute under which he is convicted. The Court did not, however, hold that such claims are not waivable at all: The Court addressed only whether a guilty plea constitutes a waiver “by itself.” The Court twice emphasized that Class had not waived his objections through conduct other than his guilty plea, thus making clear that the Court was addressing only the effect of pleading guilty. Al Bahlul did not plead guilty, so Class is irrelevant to this case.
Al Bahlul v. United States, 967 F.3d 858, 875 (D.C. Cir. 2020) (citations omitted); see also United States v. Pittman, 125 F.4th 527, 531–32 (4th Cir. 2025) (holding that defendant forfeited constitutional claim where defendant pleaded guilty and did not timely raise the claim before the district court); United States v. Turner, 124 F.4th 69, 73, 78 (1st Cir. 2024) (holding that defendant “waived his as-applied Second Amendment claim by failing to move timely for dismissal of the felon-in-possession count” and observing that “Turner’s mention of Class does not afford him a free pass”).
We conclude that Cole’s firearm rights under the Second Amendment and article I, section 1A of the Iowa Constitution, are subject to waiver. Courts have found defendants waived Second Amendment rights under analogous circumstances. For example, in State v. Maietta, the Connecticut Supreme Court held “that the defendant waived his second amendment right when he agreed to the condition of his probation barring him from possessing firearms.” 134 A.3d 572, 581 (Conn. 2016). Similarly, in Roman v. State, the Texas Court of Appeals held that the defendant waived his Second Amendment challenge when he accepted a firearm ban among the terms of his deferred-adjudication community supervision. 571 S.W.3d 317, 321–23 (Tex. App. 2018) (rejecting defendant’s argument that “his Second Amendment right is not one that he can waive”); see also Turner, 124 F.4th at 73; Deng, 104 F.4th at 1054 (“Deng’s as-applied [Second Amendment] challenge fails too because he waived it by pleading guilty unconditionally.”); State v. Kates, 694 S.W.3d 462, 465 (Mo. Ct. App. 2024) (holding that defendant’s guilty plea waived Second Amendment challenge to felon-in-possession statute); People v. Johnson, 225 A.D.3d 453, 454–55 (N.Y. App. Div. 2024) (holding that defendant’s guilty plea waived right to bring Second Amendment challenge on appeal).
Iowans regularly waive constitutional protections with far less formality and without the court hearing and judicial imprimatur reflected in Cole’s consent
Federal courts likewise routinely uphold waivers of constitutional rights. See, e.g., United States v. Moon, 33 F.4th 1284, 1299 n.14 (11th Cir. 2022) (holding that the constitutional “public-trial right may be waived by a defendant’s counsel on his behalf”); United States v. Garske, 939 F.3d 321, 332 (1st Cir. 2019) (“Of course, the right to a constitutional jury may be waived.”); United States v. Stanley, 891 F.3d 735, 738 (8th Cir. 2018) (holding that the constitutional right to counsel may be waived); United States v. Obak, 884 F.3d 934, 937 (9th Cir. 2018) (holding that the constitutional venue right may be waived). Cole cites no authority holding that firearm rights cannot be waived.
We hold that Cole waived his firearm rights under both the Second Amendment and article I, section 1A of the Iowa Constitution when he voluntarily agreed to the entry of the consent protective order that prohibited his possession of firearms for one year. We therefore reject his constitutional challenges and affirm his convictions under
The dissent concocts a novel anti-waiver argument that would hold any waiver of Cole’s Second Amendment rights in his consent protective order (“Case 1”) is limited to that proceeding and waived no rights in this separate criminal prosecution (“Case 2”). The dissent cites no case on point that adopts that theory. The dissent’s approach would severely undermine the enforcement of firearm prohibitions in protective orders. Enforcement of a protective order through contempt proceedings in the same “Case 1” is limited to a maximum of six months in jail. See
B. Sentencing Issues. We move on to Cole’s sentencing challenge. The parties agree that during the sentencing hearing, the court imposed concurrent prison terms, suspended them, and ordered probation. The court warned, however, that if probation were revoked, the prison terms could be run consecutively. Then, in its written sentencing order, the court said: “If probations are ever revoked, sentences shall run consecutive.” (Emphasis added.)
Cole points to two problems in this sentencing process. The first is the discrepancy between the court’s oral pronouncement, which suggested that a future revocation could involve consecutive prison sentences, and the written order, which said that a future revocation shall result in consecutive prison sentences. As Cole notes, it is a “rule of nearly universal application” that “where there is a discrepancy between the oral pronouncement of sentence and the written judgment and commitment, the oral pronouncement of sentence controls.” State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (quoting State v.
As Cole also points out, there is another problem to consider. As explained, in the court’s oral pronouncement (as well as in its written order), the court suggested that consecutive sentences would be a proper outcome in the event of revocation. We agree with Cole that this suggestion was incorrect. If Cole’s probation were revoked, it would not be lawful to order consecutive sentences.
Accordingly, we remand for entry of a corrected sentencing order that omits any suggestion that Cole’s sentences for his current convictions may or shall be run consecutive to one another if his probation is revoked.
We add one final observation. In cases where multiple options are available at revocation (e.g., consecutive versus concurrent terms), the revocation court must exercise its own independent discretion when selecting the proper option. See State v. Covel, 925 N.W.2d 183, 187–88 (Iowa 2019) (discussing the two-step process for revocation proceedings); State v. Darrin, 325 N.W.2d 110, 113 (Iowa 1982) (“[T]he trial court’s order revoking probation must be based on more than a simple reevaluation of the information known by the trial judge at the time of sentencing.”). Orders granting probation should not purport to restrict the revocation court’s exercise of that discretion.
IV. Disposition.
We affirm Cole’s convictions. We remand for entry of a corrected sentencing order that is consistent with part III.B of this opinion.
Convictions Affirmed and Case Remanded for Entry of Corrected Sentencing Order.
Christensen, C.J., and Mansfield and McDonald, JJ., join this opinion. Christensen, C.J., files a concurring opinion. May, J., files a dissenting opinion, in which Oxley and McDermott, JJ., join.
I am joining the majority opinion in full, as I agree that Cole waived his Second Amendment and article I, section 1A constitutional rights. However, I write separately to address the dissent’s arguments concerning the judicial determination of dangerousness in this case.
Domestic violence is a widespread, enduring problem, and firearms are a major contributor to that problem. In fact, firearms are responsible for more intimate partner homicides than all other weapons combined. State v. Rumpff, 308 A.3d 169, 182 (Del. Super. Ct. 2023). And their threat is not limited to intimate partners, as “domestic violence encounters often endanger police officers due to their volatile and unstable nature.” Id..
Undermining the efficacy of firearm prohibitions in protective orders could intensify that threat by placing battered domestic partners and the professionals who work to protect them at greater risk. In the United States, an average of twenty-four people per minute are victims of abuse by an intimate partner, which is approximately twelve million people per year. Domestic Violence Statistics, Nat’l Domestic Violence Hotline, https://www.thehotline.org/stakeholders/domestic-violence-statistics/ [https://perma.cc/EZ48-3R9L]. In Iowa alone, the Iowa Attorney General’s Office reported that 386 Iowans died in suspected domestic violence homicides over an almost twenty-nine-year timeframe. Victim Assistance Section, Iowa Att’y Gen.’s Off., Domestic Violence Fatality Chronicle (2023) [https://perma.cc/2A9J-JD8V]. This court has also noted the pervasiveness of domestic abuse in Iowa, particularly among women. Linn v. State, 929 N.W.2d 717, 734 (Iowa 2019) (“In 2010, among the 24,000 reports of domestic abuse in Iowa, approximately eighty percent to eighty-five percent were crimes against women.”).
Courts across the country have further articulated the harmful impact that guns have in domestic violence situations. The Seventh Circuit stated that “[d]omestic assaults with firearms are approximately twelve times more likely to end in the victim’s death than are assaults by knives or fists.” United States v. Skoien, 614 F.3d 638, 643 (7th Cir. 2010) (en banc). The First and Third Circuits have also noted the evidence linking firearms and domestic violence fatalities. United States v. Boyd, 999 F.3d 171, 188–89 (3d Cir. 2021) (noting extensive evidence linking firearms and domestic violence fatalities); United States v. Booker, 644 F.3d 12, 25–26 (1st Cir. 2011) (“According to figures collected by the Justice Department and included in the record here, nearly 52,000 individuals were murdered by a domestic intimate between 1976 and 1996, and the perpetrator used a firearm in roughly 65% of the murders (33,500).”).
Federal courts have consistently rejected constitutional challenges to
May, Justice (dissenting).
I. Introduction.
The Second Amendment right to keep and bear arms is a “fundamental” constitutional right that is “necessary to our system of ordered liberty.” McDonald v. City of Chicago, 561 U.S. 742, 778 (2010). But some worry that lower courts are starting to treat the Second Amendment right as “a second-class right.” Snope v. Brown, 145 S. Ct. 1534, 1539 (2025) (mem.) (Thomas, J., dissenting from the denial of certiorari) (quoting McDonald, 561 U.S. at 780). I have similar worries here.
Jordan Kevin Cole is being prosecuted for violating a statute that makes it a felony—a prison offense—for him to possess firearms, that is, to keep and bear arms. Yet our court refuses to even consider Cole’s Second Amendment challenge to that statute. This refusal is justified, the court says, because Cole allegedly waived his challenge when he consented to the entry of a protective order in a separate civil proceeding that ended months before this felony prosecution was even brought.
I disagree. Cole’s right to bring Second Amendment challenges in future criminal cases was not even addressed—much less waived—in that prior civil proceeding. Our court’s refusal to consider Cole’s challenge is erroneous in several respects:
- It is inconsistent with the Supreme Court’s approach in United States v. Rahimi, 602 U.S. 680 (2024).
- It is contrary to the Supreme Court’s general standards for evaluating waivers of fundamental constitutional rights.
- It is inconsistent with the Supreme Court’s holding in Class v. United States, 583 U.S. 174 (2018).
It is not supported by the cases cited in the majority opinion.
We should reach the merits of Cole’s Second Amendment challenge. And—based on controlling Supreme Court precedent—his challenge should succeed. So we should reverse his convictions and remand the case for dismissal. I respectfully dissent.
II. Rahimi Weighs Against a Finding of Waiver.
As we begin to think about the waiver issue, it’s important to realize that the State has not found any case from any jurisdiction in which any court has refused to consider the merits of a Second Amendment challenge to a criminal firearms prohibition because of the defendant’s consent to the entry of a protective order in a prior civil case. The majority does not cite such a case, either.12
I haven’t found one, either. It looks like only two courts—the Tenth Circuit Court of Appeals and a federal district court—have even entertained the idea that consent to a protective order could waive a subsequent Second Amendment challenge to a criminal statute. See United States v. Reese, 627 F.3d 792, 804 n.3 (10th Cir. 2010), abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Schoendaller, No. 1:18–cr–00179, 2019 WL 2746695, at *2 (D. Idaho July 1, 2019) (citing Reese, 627 F.3d 792). And, in both cases, the courts would only go so far as to say that the prior consent had “arguably” resulted in a waiver. Reese, 627 F.3d at 804 n.3; Schoendaller, 2019 WL 2746695, at *2. Neither court was willing to say that a waiver had actually occurred. And neither was willing to base its resolution of the defendant’s Second Amendment challenge on a theory of consent or waiver. Instead, the courts in both cases did just what we should do here: they
That’s also what the Supreme Court did in the Rahimi case, which involved an almost identical fact pattern. See id. at 690–702. Like Cole, Rahimi had been a respondent in a civil domestic abuse proceeding. See id. at 686. Also like Cole, Rahimi consented to the entry of a civil protective order. See id. at 687. Indeed, Rahimi expressly “AGREED TO AND APPROVED” the order, both “AS TO FORM AND CONTENT.” Joint Appendix at 10, Rahimi, 602 U.S. 680 (No. 22–915), 2023 WL 5322443, at *10. And, like Cole, Rahimi was charged with a criminal statute that made it a felony for him to possess firearms while the protective order was in effect. See id. at 688.
Yet, notwithstanding his express adoption of the civil protective order, Rahimi was still allowed to raise a Second Amendment challenge to the criminal statute. See id. at 693. And the merits of his Second Amendment challenge were thoroughly considered both by lower federal courts and the United States Supreme Court. See id. at 689–702.
Likewise, even though Cole consented to the entry of a civil protective order, Cole should be allowed to raise a Second Amendment challenge to the statute that criminalized his possession of firearms. And, like the Supreme Court in Rahimi, we should thoroughly consider the merits of Cole’s Second Amendment challenge to that criminal statute. See id. at 690–702. Like cases should be treated alike.
III. General Waiver Principles Show There Was No Waiver.
As the majority properly notes, however, the Rahimi opinion did not explicitly discuss the issue of waiver. But in other cases, the Supreme Court has provided an established body of principles that govern alleged waivers of
“A waiver is . . . an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). When it comes to waivers of fundamental federal rights, the Supreme Court “has always set high standards of proof,” which the government has the burden to satisfy. Miranda v. Arizona, 384 U.S. 436, 475 (1966). Courts must “ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Zerbst, 304 U.S. at 464 (quoting Aetna Ins. v. Kennedy, 301 U.S. 389, 393 (1937)). We cannot find a valid waiver unless the record shows that a waiver actually occurred and that it was voluntary, knowing, and intelligent. See Montejo v. Louisiana, 556 U.S. 778, 786 (2009).
When these principles are faithfully applied, they do not allow us to find a valid waiver here. They do not allow us to say that Cole’s consent to a civil protective order somehow waived his right to raise future Second Amendment challenges in future criminal prosecutions like this one.
Let’s start with the hearing itself, at which Cole’s alleged waiver allegedly occurred. We have no transcript or other record from that hearing. We cannot say that there was any discussion during the hearing about (1) firearms, (2) the Second Amendment right to possess firearms, (3) future prosecutions for possessing firearms, or, most importantly, (4) possible Second Amendment challenges that Cole might raise in the event of a future prosecution. Certainly, we cannot say that those possible future challenges were a “known right or
It’s true that Cole consented to the entry of the protective order. It’s also true that the order mentioned
To begin with, we do not know if Cole, who was proceeding pro se, even saw the order before it was entered. Nor do we know if Cole understood the order’s contents after it was entered. In any event, the order said nothing about Cole giving up his right to mount constitutional challenges to
IV. Class Forecloses a Finding of Waiver.
The conclusion that no waiver occurred finds extra support in the Supreme Court’s Class opinion. Indeed, if—as the Supreme Court found—there was no
Rodney Class’s car contained firearms when he parked it on the United States Capitol grounds. Class, 583 U.S. at 176. Class was charged with violating a federal statute,
Class then entered a written plea agreement with the government. Id. The agreement covered various issues that Class was and was not waiving through his plea. Id. at 176–77. “The agreement said nothing about the right to raise on direct appeal a claim that the statute of conviction was unconstitutional.” Id. at 177. The court “held a plea hearing during which it reviewed the terms of the plea agreement (with Class present and under oath) to ensure the validity of the plea.” Id. “After providing Class with the required information and warnings,” the court accepted the guilty plea and sentenced Class. Id.
On appeal, Class again raised his claim that the statute violated the Second Amendment. Id. at 177–78. But the D.C. Circuit Court of Appeals held that “Class could not raise his constitutional claims because, by pleading guilty, he had waived them.” Id. at 177–78.
The Supreme Court disagreed. Id. at 178–85. In the Court’s view, the simple act of pleading guilty did not automatically mean that Class relinquished his right to challenge the statute of conviction. Id. Moreover, the Court noted, Class’s plea agreement did not expressly waive Class’s right to pursue such a constitutional challenge. Id. at 184–85. And so, the Court held, no waiver had occurred. Id. at 185.
V. The Majority’s Waiver Cases Do Not Show Waiver Here.
I appreciate the majority’s efforts on this case. And I have respectfully considered the many waiver cases cited by the majority. None of them changes the outcome here. None of them involves facts like those before us, that is, a hearing in a civil case that allegedly led to a waiver of the right to raise a constitutional challenge in a future criminal case.
At first glance, it seems like the majority’s most factually relevant cases might be those involving guilty pleas that were established or confirmed through in-court colloquies.15 Those bear at least surface similarity to the situation of Cole, whose alleged waiver occurred during a court hearing. As just explained though, under Class, even a guilty plea with an in-court colloquy does not waive the defendant’s right to raise constitutional challenges to the statute of conviction unless that particular right is expressly waived. This precludes a finding that Cole waived his right to bring a constitutional challenge in this case:
This points toward a broader problem with the majority’s cases: Almost all of them involve situations in which a party’s choices in one particular case have led a judge to conclude that the party waived certain rights in that same case. For instance, some of the majority’s cases involve waivers of counsel within a particular case,16 or speedy trial waivers within a particular case,17 or waivers of other trial rights within a particular case,18 or forfeiture of appeal rights within a particular case.19 Two of them involve waivers of Second Amendment rights
So the majority’s cases stand for the unremarkable principle that waivers within a particular case—call it Case 1—can lead to the loss of rights in the same case, Case 1. But none of the majority’s cases show that a defendant’s waiver of firearm rights in one civil case (Case 1) could prevent that defendant from raising a Second Amendment challenge in Case 2, a separate criminal case that may or may not be filed in the future. Indeed, there is apparently no authority for that proposition.20 So even if we view Cole’s consent to entry of the protective order as a waiver of the right to raise a Second Amendment challenge within the protective order case (Case 1), e.g., in response to a rule to show cause for violating the order, we still should not find a waiver of his right to raise a Second Amendment challenge in this separate criminal case, Case 2.
Because Cole did not waive his right to bring a Second Amendment challenge here, we should proceed to the merits of that challenge.
a.
The Second Amendment protects “the right of the people to keep and bear Arms.”
When an individual raises a Second Amendment challenge to a regulation, courts pursue a two-part inquiry. Bruen, 597 U.S. at 17. In the first part of the inquiry, courts ask whether “the Second Amendment’s plain text covers” the regulated conduct. Id. If so, “the Constitution presumptively protects that conduct.” Id.
In the second part of the inquiry, courts ask: Can the government carry its burden of “justify[ing] its regulation?” Id.; see also Rahimi, 602 U.S. at 691. To carry this burden, “the government may not simply posit that the regulation promotes an important interest.” Bruen, 597 U.S. at 17. Instead, the government must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Id. In other words, the government must show that the modern regulation “is ‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance struck by the founding generation to modern circumstances.’ ” Rahimi, 602 U.S. at 692 (alteration in original) (quoting Bruen, 597 U.S. at 29).
To decide whether modern and historical regulations are “relevantly similar,” courts must consider both “why” and “how” the regulations have
b.
With these standards in mind, I now address Cole’s as-applied challenge to
- First, the order must have been “issued after a hearing of which [the] person received actual notice, and at which [the] person had an opportunity to participate.”
18 U.S.C. § 922(g)(8)(A) . - Second, the order must restrain the person “from harassing, stalking, or threatening” his or her “intimate partner” or his or her partner’s child, or from “engaging in other conduct that would place” the partner “in reasonable fear of bodily injury to the partner or child.”
Id. § 922(g)(8)(B) . - Finally, under paragraph (C), the order must satisfy at least one of two criteria, which are set out in subparagraphs (C)(i) and (C)(ii). To satisfy (C)(i), the order must “include[] a finding that [the] person represents a credible threat to the physical safety of such intimate partner or child.”
Id. § 922(g)(8)(C)(i) . To satisfy (C)(ii), the order must “by its terms explicitly prohibit[] the use, attempted use, or threatened use ofphysical force against such intimate partner or child that would reasonably be expected to cause bodily injury.” Id. § 922(g)(8)(C)(ii) .
As the majority correctly notes, Cole does not dispute that these statutory requirements are met. There’s an important caveat, though, concerning paragraph (C). Cole concedes that because the protective order here prohibits certain uses of force, the order satisfies (C)(ii). Cole emphasizes, however, that the requirements of (C)(i) have not been separately met. They have not been separately met because the order included no finding that Cole represented a threat to anyone’s safety. This fact is central to Cole’s constitutional challenge.
c.
With that background out of the way, I return to the two-part inquiry. The first part of the inquiry is easy to resolve: There is no doubt that “the Second Amendment’s plain text covers” the conduct regulated by
So now we turn to the second part of the inquiry: Can the State carry its burden of showing that
Here, the State proposes three historical analogues:
- Founding-era statutes that disarmed whole groups of people who fell into certain racial, religious, political, or socioeconomic categories.
Founding-era surety laws, under which persons suspected of future misbehavior—including domestic abuse—could be required to post a bond before carrying arms. - Founding-era going armed laws, under which individuals who had menaced others with firearms could be punished.
We can eliminate the first proposed analogue, category-based statutes, from the outset. The State concedes that they are not adequately relevant because they disarmed people for different reasons—for a different “why”—than
So now we can consider the State’s last two proposed analogues: surety laws and going armed laws. Those were the laws that the Rahimi Court relied upon to justify Mr. Rahimi’s disarmament under
I disagree. Here again, the “why” for the disarmament is dispositive. As the Rahimi Court made clear, surety laws and going armed laws allowed disarmament “to mitigate demonstrated threats of physical violence,” 602 U.S. at 698, that were verified through “judicial determinations” that a particular individual posed a threat of danger to another’s physical safety, id. at 699. Those were the “whys” for disarmament under those historical regimes. And those
But those “whys” do not apply to Cole. Unlike disarmament under surety laws and going armed laws, Cole was not disarmed because he posed a “demonstrated threat[] of physical violence.” Id. at 698 (emphasis added). There was no evidence—and no stipulation—that Cole posed a threat to anyone’s physical safety.21 See State v. Kieffer, 17 N.W.3d 651, 664 (Iowa 2025) (“[T]he surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” (quoting Rahimi, 602 U.S. at 698)).
Moreover—and, again, unlike with surety laws and going armed laws—Cole was not disarmed because of a “judicial determination[]” that he had threatened or would threaten anyone. Rahimi, 602 U.S. at 699. The court made no finding that Cole had been or would be abusive or violent. Although the court used a form order that included a box for the judge to check if Cole had committed a domestic abuse assault, the judge left that box unchecked. I see that as clear confirmation that the court did not find that Cole had engaged in domestic abuse. This makes sense because, so far as we can tell, there was no evidence to support such a finding.
VII. An Implied-Finding Theory Should Not Prevail Here.
I have considered the State’s implied-finding theory. This is the idea that although the protective order contains no finding that Cole presents a threat to anyone, and although the record contains no evidence that would have supported such a finding, we should nonetheless infer such a finding from the mere fact that a protective order was issued. Respectfully, I do not believe such reasoning can justify Cole’s disarmament.
I recognize that some courts have used implied-finding rationales to uphold disarmament under
All three courts started with a correct assumption: under Rahimi, a protective order cannot serve as a constitutional basis for disarmament unless the issuing court has made a judicial determination that the person “poses a clear threat of physical violence to another.” Rahimi, 602 U.S. at 698; see
Respectfully, I do not believe these opinions should lead us to reject Cole’s as-applied challenge. To begin with, it is important that in all three cases, the courts rejected only facial challenges to
In any event, there are at least three reasons why an implied-finding theory should not foreclose Cole’s as-applied challenge. First, as a general matter, we can take judicial notice that when parties are willing to consent to a protective order, Iowa judges will often enter the order without further inquiry into whether actual abuse has occurred. This practice is now codified in
I acknowledge that the “without a finding” language was added to the Code in 2022 and became effective July 1, 2022, just months after Cole’s order was entered. 2022 Iowa Acts ch. 1042, § 2 (codified at
Indeed, we have sometimes encouraged this practice through our own “New Judges School.” We have trained new judges that near the beginning of a protective order hearing, the judge should give the defendant three choices: (1) continue the hearing so they can obtain an attorney (assuming they didn’t show up with one); (2) go straight to an evidentiary hearing, during which both sides will testify and then the court will decide whether the defendant committed
This brings me to the second reason to reject an implied-finding-of-abuse theory: the protective order itself, which illustrates the practice that I just described. Because Julie and Cole consented to the entry of an order, the judge did not make a finding about whether domestic abuse had occurred. This is made clear through the empty check box discussed before. Here’s a reproduction of the order, including the unchecked box, “(3)”:
Again, if the judge had found that Cole “committed a domestic abuse assault” against Julie, the box next to “(3)” would have been checked. But that box was not checked. This makes it plain that the judge did not find that Cole committed domestic abuse. We should not ignore this plain reality. We should not infer that there was a finding when it’s plain that there was not a finding.
Finally, consider the empty record. Our only record from the protective order proceeding is the order itself. We have no transcript or other evidence. And we have no other reason to think that the court heard any testimony or received any exhibits. Certainly, we have no reason to think that the court heard evidence that Cole posed a credible threat to anyone’s physical safety. And I can’t assume an Iowa judge would find such a threat without supporting evidence.
VIII. The Majority’s Points About the Record.
a.
The majority suggests that the record may be broader than I’ve explained. In particular, the majority mentions the petition that Julie filed to commence the chapter 236 action. And the majority invites us to imagine the petition’s contents—that it “had to have” included an “alleg[ation]” of assault by Cole.
But I think we should keep two other things in mind. First, although this probably goes without saying, no matter what allegations were contained in the petition, mere allegations could never fulfill Rahimi’s requirement of a judicial finding that Cole presented a credible threat to Julie’s person. If mere allegations were enough to justify the disarmament of a citizen, Rahimi’s requirements would be largely meaningless, as would the Second Amendment.
Second, we should remember that the petition is not in our record. So we do not know what it actually said. Nor should we make assumptions about a petition that we have not seen. Of course, we know that many protective order actions are filed for good and sufficient reasons, including terrible acts of domestic violence. But we know that some are not. Some actions are initiated for
Bottom line: Just because one person has requested a protective order against a second person, we cannot just assume that the second person is a violent abuser. Rather, we must demand a finding of violent abuse made by a judge who has heard evidence of violent abuse. Here, there was neither evidence nor a finding.
b.
The majority opinion also repeatedly mentions the unproven, now-dismissed theft charge against Cole. These repeated mentions, especially
In any event, we should not permit the theft charge to distract us or cause us to slide into faulty thinking. We should not entertain the faulty notion that because Cole was charged with the crime of theft, he is now a constitutional nobody whose rights aren’t worthy of consideration. Instead, we should embrace the bedrock principle of justice that people are presumed innocent until proven guilty beyond a reasonable doubt. And Cole was never proven guilty of the theft charge, which has now been dismissed. So that charge should carry no weight in our analysis of his fundamental constitutional rights.
c.
Because the record does not establish—and because a judge did not find—that Cole presented a threat of violence to anyone, the Second Amendment precluded Cole’s disarmament. Cole’s possession of firearms should not have been grounds for felony convictions. We should vacate those convictions and reverse for dismissal.
IX. The Very Important Issue of Safety.
a.
Before concluding, I must discuss the state’s very legitimate interest in disarming violent abusers. I applaud the concurrence for highlighting this very important issue.
Even so, our court’s analysis of Second Amendment issues is dictated by the Supreme Court’s precedents. We must follow those precedents “whether we agree with them or not,” Rahimi, 117 F.4th at 334 (Ho, J., concurring), and whether they conflict with important policy interests or not.
Here, though, I see no conflict. Under Rahimi, the state may disarm “individual[s] found by a court to pose a credible threat to the physical safety of
b.
One last thought on the safety issue. Although civil protective orders can play an important role in disarming violent abusers, they are not the only answer. Judge Ho has written about this topic at least twice now. Rahimi, 117 F.4th at 335 (Ho, J., concurring); Rahimi, 61 F.4th at 463–64 (Ho, J., concurring). As he properly notes, the criminal justice system provides the traditional mechanism through which “[v]iolent criminals” can be “disarmed, detained, prosecuted, convicted, and incarcerated.” Rahimi, 117 F.4th at 335 (Ho, J., concurring); see Rahimi, 61 F.4th at 463–64 (Ho, J., concurring). Indeed, within
But because the State didn’t charge Cole with violating any of those domestic abuse statutes—or, indeed, with committing any crime of violence—we need not discuss those matters further.
X. Conclusion.
For the reasons explained above, I would reverse and remand for dismissal of Cole’s convictions. I respectfully dissent.
Oxley and McDermott, JJ., join this dissent.