UNITED STATES OF AMERICA, Plaintiff—Appellant, versus LITSSON ANTONIO PEREZ-GALLAN, Defendant—Appellee.
No. 22-51019
United States Court of Appeals for the Fifth Circuit
December 31, 2024
Before SMITH, STEWART, and DUNCAN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This is Litsson Perez-Gallan’s facial challenge to
violence restraining orders. The district court granted Perez-Gallan’s motion to dismiss the indictment, and a panel summarily affirmed. At that time, this court was bound by United States v. Rahimi, 61 F.4th 443, 461 (5th Cir. 2023) (“Rahimi 2023”), which held that § 922(g)(8) in its entirety is facially unconstitutional. The Supreme Court reversed, holding that § 922(g)(8)(C)(i) is not facially invalid; the Court did not reach the constitutionality of (C)(ii). United States v. Rahimi, 602 U.S. 680, 693 (2024) (“Rahimi 2024”). The Court then granted certiorari in this case, vacated, and remanded for reconsideration in light of Rahimi 2024. United States v. Perez-Gallan, 144 S. Ct. 2707, 2708 (2024).
The dispute is whether, post-Rahimi 2024,
I.
A.
In June 2022, Perez-Gallan was driving an eighteen-wheeler at the Mexico-United States border in Presidio, Texas, when he entered a border patrol checkpoint and was directed to a secondary inspection area by border agents, who then asked him whether he was armed. After Perez-Gallan said yes and consented to a search, the agents found a pistol in his backpack. When the agents performed a weapons check, they discovered that the gun had been reported stolen and arrested Perez-Gallan on suspicion of possession of a stolen firearm. After Miranda rights advisement and waiver, Perez-Gallan claimed that he did not know the gun was stolen because a friend had given it to him. He also said that he carried the gun with him on drives for
self-protection.
The agents also found a Kentucky state court order in Perez-Gallan’s wallet (“Court Order”), which outlined his conditions of release stemming from a May 2022 arrest for assault.2 The Court Order resulted from a May 2022 incident with his domestic partner, with whom Perez-Gallan shares a child. His partner stated that Perez-Gallan had struck her in the face while she was holding their baby, and, after she put the baby down, he dragged her to the bathroom, struck her in the face again, and began hitting her in the ribs. Perez-Gallan was charged with assault in the fourth degree.3
The Kentucky state district court released Perez on bond but issued an order imposing conditions of release. That Court Order, which bore the signatures of the issuing judge and Perez-Gallan, expressly prohibited him from harassing, contacting, and “threatening to commit or committing acts of domestic violence or abuse against the alleged victim.” It also forbade him from possessing a gun. Perez-Gallan’s arrest in Texas occurred one month after the issuance of the Court Order.
B.
Believing that the Court Order met the requirements of a protective
order under
The district court first addressed whether
present when the Restraining Order was issued, only the Court Order is relevant. Id. at 699.
The district court then noted that the Court Order prohibited him from “threatening to commit or committing acts of domestic violence or abuse against the alleged victim or other family or household member.” Id. (quoting the Court Order). Applying Fifth Circuit precedent holding that “if the commonly understood definitions of terms in the protective order include acts involving ‘physical force,’ the protective order is sufficient to support a conviction under
But while the district court found that the Court Order satisfied § 922(g)(8)’s statutory requirements, the court ruled that (g)(8) violates the Second Amendment. Specifically, the court found that because “the historical record does not contain evidence sufficient to support the federal government’s disarmament of domestic abusers, . . . .
The government appealed. While the appeal was pending, and before the government had submitted its brief, a panel of this court decided Rahimi 2023—which, like the district court order, also held that (g)(8) facially violates the Second Amendment. 61 F.4th at 461. The government conceded that Rahimi 2023 was outcome-determinative for its appeal but filed a brief to preserve its arguments for further review.
2023, see Rahimi 2024, 602 U.S. at 702, then granted certiorari, vacated, and remanded. Perez-Gallan, 144 S. Ct. at 2708. The Government and Perez-Gallan have since submitted additional letter briefs addressing the effect of Rahimi 2024. As with all constitutional questions, we consider the issue de novo. United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
II.
Perez-Gallan contends that Rahimi 2023 controls this case under the rule of orderliness. We consider and reject that preliminary argument before deciding the merits of Perez-Gallan’s facial challenge. See United States v. Diaz, 116 F.4th 458, 465 (5th Cir. 2024).
A.
Last term, the Supreme Court held that
It is “well-settled” in the Fifth Circuit that, “even if a panel’s interpretation of the law appears flawed,” “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such
as by a statutory amendment, or the Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (cleaned up). “This rule is strict and rigidly applied.” In re Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021).
For a Supreme Court decision to change our circuit’s law, “neither a mere hint of how the Supreme Court might rule in the future nor a decision that is merely illuminating with respect to the case before us will permit a subsequent panel to depart from circuit precedent.”8 The intervening decision or decisions “must unequivocally overrule prior precedent.” Bonvillian, 19 F.4th at 792 (internal quotations and citations omitted).
But the Court need not expressly overrule our precedent for a panel opinion to lose its precedential force. When an intervening Supreme Court decision represents a sufficiently clear break from this circuit’s precedent, “a latter panel must simply determine that a former panel’s decision has fallen unequivocally out of step with some intervening change in the
Rahimi 2023 itself provides an example. There, the panel held that Bruen “clearly ‘fundamentally changed’ our analysis of laws that implicate the Second Amendment, rendering our prior precedent” employing the pre-Bruen methodology “obsolete.” Rahimi 2023, 61 F.4th at 450–51 (quoting Bonvillian, 19 F.4th at 792) (cleaned up). We recently reached a similar con-
clusion in Diaz, holding that because Rahimi 2024 employed an analysis fundamentally different from that employed in an older case, the “law of orderliness mandates that we abandon that prior precedent.” 116 F.4th at 465. In short, if we cannot adhere to our former precedent without disregarding intervening Supreme Court precedent, our circuit’s precedent has been implicitly overruled.9
B.
Perez-Gallan maintains that because Rahimi 2023 found that
The government has the better of this dispute. To see why, it helps first to understand the statute’s text and structure. A prosecution under
The challenge here involves (8)(C)(ii). Unlike Rahimi’s court order, Perez-Gallan’s Court Order did not contain an express finding that he is dangerous, but it did prohibit the use or threatened use of force against his domestic partner.11 The question then is whether Rahimi 2024, despite expressly ruling on only (C)(i)’s facial validity, is nevertheless a sufficiently
First, and most fundamentally, Rahimi 2024 holds that Rahimi 2023 misread Bruen “to require a ‘historical twin’ rather than a ‘historical analogue.’” Id. (quoting Bruen, 597 U.S. at 30). The panel’s decision declaring
‘going armed’ laws, and (3) colonial and early state surety laws.” Rahimi 2023, 61 F.4th at 456. The panel then discussed why, in its view, each of those historical regulations was not a “relevantly similar” precursor to (g)(8). The crux of the panel’s decision was that the “Government’s proffered analogues falter under one or both of the metrics articulated in Bruen as the baseline for measuring ‘relevantly similar’ analogues: ‘how and why the regulations burden a law-abiding citizen’s right to armed self-defense.’” Id. at 460 (quoting Bruen, 597 U.S. at 29). Therefore, the panel held that “§ 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.” Id. at 460–61.
Rahimi 2024 rejects that analysis. Rahimi 2023 looked to historical “going armed” and surety laws and concluded that they were “not viable historical analogues for
Perez-Gallan urges us to read Rahimi 2024 as only a narrow rebuke of Rahimi 2023, given the Supreme Court’s assertion that its opinion addresses only
An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Rahimi 2024, 602 U.S. at 702 (emphasis added). The “found by a court” language refers to (C)(i), not (ii), so the Supreme Court did not conclude whether an individual subject only to an order which “by its terms explicitly prohibits” the use or attempted use of force is also facially constitutional.
But Rahimi 2024’s concluding language cannot save Perez-Gallan’s theory from the rest of the Supreme Court’s opinion,
These “two errors” demonstrate why no part of Rahimi 2023’s
This “fundamentally changes” the legal significance of going-armed and surety laws. Bonvillian, 19 F.4th at 792 (alteration omitted). Therefore, because a “subsequent Supreme Court opinion establishes a rule of law inconsistent with” the panel’s decision in Rahimi 2023, Bonvillian, 19 F.4th at 792 (citation omitted), “[t]he law of orderliness mandates that we abandon that prior precedent,” Diaz, 116 F.4th at 465.12
III.
Having decided that we are not bound by Rahimi 2023, we consider whether
A.
A facial challenge “is the ‘most difficult challenge to mount successfully,’ because it requires a defendant to ‘establish
vail, the government need only demonstrate that
To demonstrate that
“Why” and “how” a regulation burdens an individual’s Second Amendment right are two separate questions. The “why” analysis instructs that “if laws at the Founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category” of firearms regulation. Id. The “how” analysis warns that “when a law regulates arms-bearing for a permissible reason . . . it may not be compatible with the right if it does so to an extent beyond what was done at the founding.” Id. Even “when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’” Id. (quoting Bruen, 597 U.S. at 30). “The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin.’” Id. (quoting Bruen, 597 U.S. at 30).
We know from Rahimi 2024 that (C)(i) is facially constitutional because, “[t]aken together,” the historical surety and going-armed laws invoked by the government “confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” 602 U.S. at 698. But significant to the Court’s reasoning is that (C)(i) “applies only once a court has found that the defendant ‘represents a credible threat to the physical safety’ of another.” Id. at 699 (quoting that provision). The question here is whether a prosecution brought under (C)(ii), which does not expressly require a court’s finding a “credible threat,” could ever be compatible with the nation’s history of firearm regulation.
B.
We are not the first court to consider this question post-Rahimi 2024. The Sixth Circuit recently resolved a similar facial challenge to (C)(ii) in the government’s favor, holding that the “historic and ‘common sense’ tradition that allows the disarmament of those who ‘pose[] a clear threat of physical violence to another’ with respect to
We agree with the Sixth Circuit. While applications of (C)(ii) might present closer calls than do applications of (C)(i), Perez-Gallan’s facial challenge still fails because the provision is not inconsistent with the Second Amendment in all its applications. See Rahimi 2024, 602 U.S. at 693; Salerno, 481 U.S. at 745.
Recall that under (C)(ii), an individual is barred from possessing firearms for as long as he is “subject to a court order that . . . by its terms expli-
citly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.”15 Recall further that under Rahimi 2024, “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” 602 U.S. at 698. Considered together, this means that if a court order necessarily implies that the defendant poses a clear threat of violence to another, he can be disarmed consistently with the Second Amendment (and, therefore, a facial challenge to (C)(ii) would fail).
At least some court orders covered by (C)(ii) fit that bill. In United States v. Emerson, we evaluated a similar challenge to (C)(ii) by a defendant positing that the provision “should be construed to require that the particular predicate court order include an explicit finding that the person enjoined posed a credible threat of violence to his spouse or child.” 270 F.3d 203, 213 (5th Cir. 2001) (emphases added). In other words, Emerson averred that unless (C)(ii) requires the same explicit credible threat finding as (C)(i), it cannot satisfy the Second Amendment. Perez-Gallan advances essentially the same theory. But we find no fault in Emerson’s construction of (C)(ii), which ably demonstrates why prosecutions brought under that provision will often (perhaps even always) accord with the Second Amendment as expounded by Rahimi 2024.16
As discussed in Emerson, when Congress enacted
Further, and without deciding any question of state law, we observe that the procedures provided by Kentucky seem to accord with Emerson’s understanding of (g)(8). Consider a slightly modified version of the facts of
this case: A defendant’s battered domestic partner alleges that the defendant struck her repeatedly. The victim then seeks a restraining order under
In such a hypothetical case, the government could not charge the defendant under (C)(i) because the court order itself did not include an explicit finding of dangerousness. So, as here, the government would need to resort to charging the defendant under (C)(ii). But given the state statutory prerequisites of this hypothetical order, which required a court to find by “a preponderance of the evidence that domestic violence and abuse has occurred and may again occur,”
U.S. at 699 (quoting
In short, this potential application of (C)(ii) “fits comfortably within” the regulatory tradition identified in Rahimi 2024, 602 U.S. at 690. This dooms Perez-Gallan’s facial challenge. Because a statute needs just one permissible application to survive a facial challenge, see id. at 693, the district court’s ruling deeming (C)(ii) facially unconstitutional is legal error.18
C.
Finally, we acknowledge that some potential applications of
This is indeed “profoundly perverse,” id., but when considering a facial challenge, a court’s “task is to seek harmony, not to manufacture conflict.” Rahimi 2024, 602 U.S. at 701 (quoting Hansen, 599 U.S. at 781).19 The fact that (C)(ii) may have some perverse and possibly unconstitutional applications does not mean that all its possible applications violate the Second Amendment. The district court’s failure to grapple with this point highlights its well-intended error.20 As in Rahimi 2023, “[r]ather than consider the circumstances in which
* * * * *
consider Perez-Gallan’s as-applied challenge in the first instance. We express no view as to which matters the court may address and decide on remand, and we give no hint as to what decisions it should make.