Could Florida Gun Possession Under Domestic Violence Restraining Order be Legalized?

The U.S. Supreme Court is poised to decide whether to uphold a federal law that prohibits individuals subject to a domestic violence restraining order from possessing firearms.

The case is U.S. v. Rahimi, and it involves a Texas man accused of striking his girlfriend during an argument and later threatening to shoot her.

As Fort Lauderdale criminal defense lawyers who have represented defendants in matters of domestic violence, domestic violence restraining orders, and unlawful firearm possession, we’ve been watching the case closely. Although it comes down to federal law (18 U.S.C. §922(g)(8)) and we primarily handle state-level cases, there could certainly be some ripple effects if the justices err on the side of the right to bear arms.

Despite the conservative bend on the bench and the fact that justices expanded gun rights last year, many legal scholars are concluding it unlikely justices will go against the grain on this federal law in the Rahimi case. A federal appellate court in that matter struck down a 1994 federal ban on firearms for those under court order to stay away from their partners or spouses.

Whatever they decide, it could have implications for lots of other cases – including a pending matter involving President Joe Biden’s son, Hunter Biden. The younger Biden is facing criminal charges for purchasing a firearm while addicted to drugs, something that is also prohibited under federal law, though less commonly enforced as the domestic violence restraining order restriction.

As noted during the SCOTUS oral arguments, the existing federal background check system has blocked some 75,000 gun sales to those subject to domestic violence protection orders over the last 25 years.

What the Federal Law Says

The federal law says it’s unlawful for a person who has a protection order (a Florida judgment of injunction for protection of domestic violence meets this definition) in effect to possess guns or ammunition, to ship or transport guns or ammunition interstate, to receive any that have been so shipped or transported, or to have any that have been seized returned to them. The respondent in that case must be identified as an “intimate partner” (spouse, ex-spouse, co-parent, or person who lives/has lived together with victim). There are exemptions for police and active military members who who are required to possess service firearms as part of their job.

If a person is convicted of a domestic violence offense, they are permanently disqualified from possessing a gun or ammunition – and there’s no official use exemption in that case. Even if the case is expunged, the court can still retain that firearm prohibition.

Violate the federal firearm law on this, and you’re facing up to 10 years in federal prison and/or a $250,000 fine.

However, as our Fort Lauderdale defense attorneys can explain, even the repeal of the federal law wouldn’t necessarily mean these prohibitions would magically disappear. That’s because we still have state firearm restrictions for domestic violence injunctions with which to contend.

Florida Firearm Possession Rules for Subjects of Domestic Violence Injunction

F.S. 790.233(1) states that if a person has a permanent injunction against them for domestic violence, they’re barred from possessing both guns and ammunition. There is an official use exemption for this statute as well.

Previous Florida statute prohibited a license to carry a concealed firearm to anyone subject to domestic violence injunctions and those who’ve had adjudication withheld/sentence suspended for misdemeanor domestic violence-related offenses within the last three years.

Although as of earlier this year, Florida no longer requires licenses to carry a concealed firearm, lawful permitless carry still requires individuals to meet the criteria outlined in F.S. 790.06 in order to carry a concealed firearm. That means Florida firearm possession is still prohibited by anyone:

• Convicted of a felony.
• Convicted of a domestic violence offense.
• Chronically/habitually addicted to alcohol or drugs.
• With an active restraining order for domestic violence.
• Who had a misdemeanor DV suspended sentence/adjudication withheld outcome within the last three years.