UNITED STATES OF AMERICA, Plaintiff-Appellee, v. STEVEN DUARTE, AKA Shorty, Defendant-Appellant.
No. 22-50048
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUL 17 2024
D.C. No. 2:20-cr-00387-AB-1 Central District of California, Los Angeles
FOR PUBLICATION
ORDER
MURGUIA, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to
United States v. Duarte, No. 22-50048
“What would you do if you were stuck in one place and every day was exactly the same, and nothing that you did mattered?” In the Ninth Circuit, if a panel upholds a party‘s Second Amendment rights, it follows automatically that the case will be taken en banc. This case bends to that law. I continue to dissent from this court‘s Groundhog Day approach to the Second Amendment.1
Following the Supreme Court‘s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), the federal government acquiesced in certiorari in a handful of cases pending before the Court and presenting the same question addressed in this case.2 The Supreme Court should have granted one or more of those cases, and this
case illustrates why. After New York State Rifle & Pistol Ass‘n, Inc. v. Bruen, 597 U.S. 1 (2022), perhaps no single Second Amendment issue has divided the lower courts more than the constitutionality of the
Nothing in the Supreme Court‘s recent Rahimi decision controls or even provides much new guidance for these cases, which is undoubtedly why the federal government took the unusual step of asking the
pending cases immediately after Rahimi instead of following the Court‘s usual practice of GVRing (granting, vacating, and remanding) related cases. It‘s also why the original panel in this case, after careful consideration, saw no reason to modify our opinion after Rahimi came down. But the Supreme Court rejected the government‘s request and kicked the can down the road, GVRing all the pending
The Supreme Court‘s docket this next term is no doubt full of important issues to decide, and this delay-the-inevitable approach to pressing Second Amendment questions would be just fine if the circuit courts were populated with judges committed to faithfully applying the considerable instruction already provided to us by the Court. But that is clearly not the case. In this circuit, you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court‘s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court. The other 17/29ths of our bench is doing its best to avoid the Court‘s guidance and subvert its approach to the Second Amendment. That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud.
For most of the judges in our circuit, any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial
cabining of Bruen. Such losses are bound to arise—as with any constitutional challenge, not all Second Amendment ones have merit. But when those losses occur, our court will grasp onto the loss itself as if that were the overarching guiding principle offered by the Court, using it to supplement and invigorate the cherrypicked language already mis- and over-applied from the Court‘s prior precedents. Like someone who eisegetes Scripture just to validate their pre-existing worldview, judges who are more interested in sidestepping than following the Court‘s Second Amendment precedent will latch onto phrases like “presumptively lawful” and “law-abiding citizen” while conveniently overlooking such bothersome details like the government‘s burden of supplying relevantly similar historical analogues.
None of our current justices spent time in this circuit, so perhaps it is understandable that they would reasonably expect all lower courts to faithfully apply the entirety of their Second Amendment caselaw. Let‘s be clear: out here on the Left Coast, that is a fantasy. The kind of subversive approach I have described will continue as long as the Supreme Court leaves an opening. Granting certiorari, vacating, and remanding Range et al. after deciding Rahimi only served to open the field a little more for our court to contort the Supreme Court‘s Second Amendment guidance. The Ninth Circuit is going to joyride Rahimi and the GVRs that followed it like a stolen Trans Am until the Supreme Court eventually corrects us (again).
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Emboldened by Rahimi‘s loss and the Court‘s subsequent GVRs, the en banc panel in this case will surely rely on Rahimi as support for an inevitable and entirely predictable conclusion that Duarte has no Second Amendment rights. But Rahimi actually validates the original panel‘s application of the Court‘s prior precedents. The Supreme Court emphasized that Rahimi had been judicially determined to pose a credible threat to the safety of others. The government never tried to show that Duarte poses such a threat. The Court also
First, the legal question addressed in Rahimi is significantly different than the one presented here. Unlike Duarte, who the government concedes had no prior violent convictions, see Duarte, 101 F.4th at 663 n.1, Rahimi involved a domestic abuser with a long and well-documented history of violence with a firearm. 144 S. Ct. at 1894–95. During one incident, Rahimi dragged his girlfriend to his car, shoved
her head against the dashboard, and fired a gun when she tried to flee. Id. Rahimi later “threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon,” and became “the suspect in a spate of at least five additional shootings.” Id. at 1895. A judge issued Rahimi‘s girlfriend a restraining order on the basis that he posed “a credible threat to the physical safety of [her] or her family.” Id. at 1896 (cleaned up). This rendered him ineligible to possess firearms under
The Supreme Court emphasized that its holding in Rahimi was a narrow one. See id. at 1903 (“[W]e conclude only this: ....“). It relied heavily on the distinction between those “who have been found to pose a credible threat to the physical safety of others [and] those who have not,” id. at 1902, to “conclude only [that] [a]n 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,” id. at 1903 (emphasis added). As Justice Gorsuch explained, the Court did not “decide ... whether the government may disarm a person without a judicial finding that he poses a ‘credible threat’ to another‘s physical safety,” “resolve whether the government may disarm an individual permanently,” or “approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem ... ‘not responsible.‘” Id. at 1909–10 (Gorsuch, J., concurring). These issues left unaddressed by Rahimi are directly implicated in this case, and the factors that the Court relied on to assure itself of
The historical examination in Rahimi directly supports the original panel‘s conclusion in this case. In analyzing Rahimi‘s facial challenge to
to be posted by anyone who posed a clear threat of violence to another. See, e.g., Act of May 18, 1846, in The Revised Statutes of the State of Michigan, Passed and Approved May 18, 1846 692 (1846) (requiring surety for “any person [who] shall go armed with a ... pistol ... on complaint of any person having reasonable cause to fear an injury or breach of the peace“). Affray laws similarly targeted individuals who misused arms, but instead of aiming to prevent future violence, they “provided a mechanism for punishing those who had menaced others with firearms.” Rahimi, 144 S. Ct. at 1900. For example, Massachusetts punished those “as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” Act of January 29, 1795, in 1 The General Laws of Massachusetts, From the Adoption of the Constitution, to February, 1822 454 (Theron Metcalf ed. 1823).
The Supreme Court analyzed these laws and extracted the principle that “[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Rahimi, 144 S. Ct. at 1901. Because ”
specifically posed a ”demonstrated threat[] of physical violence.” Id. (emphasis added).
The Court in Rahimi also found it relevant that, “like surety bonds of limited duration,”
Finally, the Court examined the penalty imposed by the historical surety and affray laws. The affray laws “provided for imprisonment,” Rahimi, 144 S. Ct. at 1902 (citation omitted), and under the surety laws, “[i]f an individual failed to post a bond, he would be jailed,” id. at 1900 (citation omitted). The Court then reasoned that “if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that
This is fundamentally the same reasoning already adopted by the original panel in Duarte. The panel reasoned that for those crimes that were historically
punished by “death, estate forfeiture, or a life sentence,” the defendants were necessarily disarmed and therefore these crimes could be used as analogies “to largely modern crimes that may not closely resemble their historical counterparts but still share with them enough relevant similarities to justify permanent disarmament.” Duarte, 101 F.4th at 689–90 (cleaned up). Applying this reasoning in Rahimi led the Court to conclude that Rahimi could be disarmed under
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In a circuit with a majority of judges committed to faithfully applying the Supreme Court‘s Second Amendment jurisprudence, I wouldn‘t need to write this. In that world, this court‘s forthcoming en banc decision denying Duarte‘s Second Amendment rights could be characterized as additional, desirable lower court “percolation” that might possibly assist the Supreme Court when it eventually addresses this question. But precisely because a supermajority of our court is so predictably biased against firearms, our en banc decision will once again speak
volumes only about Second Amendment inevitability in the Ninth Circuit, while telling us nothing about how the Supreme Court‘s precedents, properly construed, apply to