Florida law governing the possession of firearms by someone who is under a domestic restraining order is found in Florida Statute § 790.233, which provides the following:
“A person may not have in his or her care, custody, possession, or control any firearm or ammunition if the person has been issued a final injunction that is currently in force and effect, restraining that person from committing acts of domestic violence, as issued under s. 741.30 or from committing acts of stalking or cyberstalking, as issued under s. 784.0485.”
Federal Law Bans Firearm Possession for Person Under Domestic Restraining Order
An equally strong federal law also bans those with domestic restraining orders in which the court finds they represent a credible threat to an intimate partner from possessing any firearm that was transported in interstate commerce. 18 U.S. Code § 922.)
The law does not require that the person be convicted of any criminal offense, nor even that they have criminal charges pending. The ban on firearm possession applies to any person under a final domestic restraining order for the full time the order is in effect.
This law reflects similar laws passed throughout the United States following a long series of deadly shootings in which victims were killed by domestic partners, spouses, or others restrained by court orders from contacting or interfering with the victim at the time of the shooting.
Penalty: The criminal penalty for possessing a firearm while under the injunction of a domestic restraining order in Florida is up to 1 year in jail or probation and a $1,000 fine.
This seemed to be a clear and straightforward ban on the possession of any firearm by anyone currently bound by a domestic restraining order in the state of Florida.
But is this law about to change?
One Federal Appellate Court Ruled the Gun Ban Is Unconstitutional – Will It Apply to Florida?
In January 2023, the U.S. Court of Appeals for the Fifth Circuit (Mississippi, Louisiana, Texas, and the Canal Zone) ruled in favor of Zackey Rahimi who challenged the constitutionality of the federal statute mentioned above. Rahimi claimed the law violated his Second Amendment right to bear arms because he had never been convicted of any crime, and he was merely subject to a civil restraining order.
To back up his legal arguments, Rahimi relied on a 2022 ruling by the United States Supreme Court in a case called N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In the Bruen case, the Supreme Court held that determining whether a gun control law violated the Second Amendment depended on a two-part test:
- Does the Second Amendment’s plain text protect the activity the law in question regulates, and
- If it does, “the government must affirmatively prove that its firearms regulation is part of the historical tradition” to set restrictions on gun use.
The Fifth Circuit Court’s Rahimi decision held that the federal statute outlawing the possession of firearms by anyone under a domestic restraining order finding them to represent a danger to an intimate partner was unconstitutional.
The Circuit Court explained that the Second Amendment expressly protects the right to possess a firearm and that the ban on gun possession by those with domestic restraining orders against them was not consistent with the traditional history of American gun regulations.
To make its point, the Fifth Circuit detailed how our nation’s traditional restrictions on gun possession were applied to convicted felons, by definition, not “law-abiding” people.
Our traditions also permit firearms to be denied to persons deemed mentally unfit and to be banned from locations like federal buildings, schools, and similarly sensitive places.
Rahimi was not a convicted felon, nor was he adjudicated mentally unfit from a mental disorder or a drug dependency.
In the absence of compelling evidence that Rahimi posed an imminent threat to anyone in particular, the U.S. Constitution did not permit the government to deny him the right to possess a firearm for self-protection.
What Does the Fifth Circuit’s Decision Mean for Florida?
Until the United States Supreme Court rules on the Rahimi case, the law in Florida and elsewhere in the United States outside of the Fifth Circuit’s jurisdiction remains as it was before Rahimi. That’s because of the way the federal court’s jurisdiction is limited to its own regions unless special circumstances apply.
The jurisdiction of the United States federal courts is split into eleven separate circuits plus the D.C. Circuit. Each circuit court hears appeals from the federal district courts that are located within the states over which the circuit has jurisdiction. As mentioned earlier, the Fifth Circuit Court of Appeals hears cases from Texas, Louisiana, Mississippi, and the Panama Canal Zone. The Eleventh Circuit hears cases from the federal district courts in Florida, Alabama, and Georgia.
Every Circuit Court of Appeals must follow the rulings of the United States Supreme Court. But occasionally, the courts may disagree or vary in the interpretation of a particular law or the application of a legal principle. When that happens, the United States Supreme Court usually hears a case that presents the issue in a way that will allow the Supreme Court to settle the law clearly for all circuits to follow.
The Rahimi case is the only instance in which a U.S. Circuit Court has ruled that barring a person with a domestic restraining order from possessing a firearm is unconstitutional. All the other circuits presumably still follow the pre-Rahimi understanding that the law prohibits them from possessing guns.
Read More > Firearms Crimes at the Federal Level
Consult with an Experienced Criminal Defense Lawyer Before Any Firearms Purchase
No one should make the mistake of thinking the Fifth Circuit’s Rahimi decision applies to them. Until the U.S. Supreme Court reviews the case, the decision carries no weight whatsoever outside of Texas, Louisiana, Mississippi, or the Canal Zone.
Even within the Fifth Circuit, it would be a mistake for someone with a restraining order to tempt fate by rushing out and purchasing a gun. Until you engage in full consultation with a qualified, experienced criminal defense lawyer who is up to date with the most current legal authorities, don’t place yourself in jeopardy or invite criminal prosecution if you have a domestic restraining order.
In Tampa, Contact the firearms criminal defense law firm Stechschulte Nell, Attorneys at Law for a case review at 813-280-1244. We are on your side.