Certain Injunctions + Gun Possession = Federal Crime

Could your client be convicted of a felony and a lengthy imprisonment for a crime that neither you nor they knew was committed? Ignorance is no defense to the law. For Dr. Timothy Emerson, this was a painful lesson. In 2023, the Fifth Circuit overturned the issue that landed Dr. Emerson in prison, but now… it’s back.

On June 21, 2024, SCOTUS issued an 8-1 opinion overturning the Fifth Circuit’s ruling in U.S. v. Rahimi.[1] As with many second amendment cases, dozens of amicus briefs were filed, and the lengthy ruling covers the history of the second amendment in America. Most of the excitement seems focused on to what extent and under what circumstances the federal government can limit a citizen’s right to possess a firearm – deep questions, but I am writing about a rather narrow and I believe likely unintended consequence.

What happened to Dr. Emerson?

In 1998, Mrs. Emerson filed for divorce, including an “application for a temporary restraining order--essentially a form order frequently used in Texas divorce procedure--sought to enjoin Emerson from engaging in various financial transactions to maintain the financial status quo and from making threatening communications or actual attacks upon his wife during the pendency of the divorce proceedings.”[2]

“[N]o evidence was adduced concerning any acts of violence or threatened violence by Mr. Emerson against any member of his family, and the district court made no findings to that effect. Furthermore, the court did not admonish Mr. Emerson that if he granted the temporary restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the order.” [3]

Four years later, a federal grand jury indicted Emerson on three counts of possessing a firearm while under a restraining order, in violation of 18 U.S.C. § 922(g)(8).[4] Two months later, a jury found him guilty.[5] In January 2003, Emerson was sentenced to thirty months imprisonment and three years of supervised release.[6] By 2007, Emerson had served his imprisonment and was appealing the terms of his supervised release.[7]

How did this happen?

It all started in 1994, when Congress passed the Federal Firearms Act, as a part of the Safe Homes for Women Act.[8] Doing so added 18 U.S. 922 (g)(8), which states in relevant part as follows:

“It shall be unlawful for any person –”[9]

“(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly 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;”[10] (emphasis added)

“to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”[11]

As the logic goes, such injunctions are not put into effect without good cause,[12] and this law only applies to persons who received actual notice and had an opportunity to participate. If, after notice and hearing, a court deems someone so much a threat to an intimate partner as to order an injunction, surely that person should not have a firearm at the ready. Yet, the road to hell is paved with good intentions.

When Emerson came to my attention, I asked around and found that many attorneys were unfamiliar with the case. Unknowingly, many clients were subjected to injunctions that prohibited them from possessing a gun. Eventually, my research led me to U.S. v. Rahimi, a 2023 Fifth Circuit decision that found 18 U.S. 922(g)(8) to be unconstitutional based on analysis from New York Rifle & Pistol Assoc., Inc. v. Bruen, 591 U.S. 1 (2022).[13] So, I put the issue out of my mind.

On June 21, 2024, SCOTUS stated that the Fifth Circuit misapplied its Bruen analysis and reversed Rahimi.[14] Now, Emerson is alive again.

Does your injunction prohibit your client from possessing a gun?

To understand the problem, we need to consider the nuts and bolts of family law and temporary orders hearings. In a divorce, the trial court needs to quickly determine where spouses will live, when each may possess the children, who will pay bills, and other issues. Often, we add injunctions as guardrails and to reinforce good conduct since any divorce is stressful and emotional. Usually, all of this is done in an hour or less.

Typical injunctions are below. I have bolded key words that may trigger 18 U.S. 922(g)(8):

• "Threatening the other party in person or in any other manner, including by telephone or another electronic voice transmission, video chat, in writing, or electronic messaging, to take unlawful action against any person, intending by this action to annoy or alarm the other party."[15]

• "Intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party." [16]

• "Threatening the other party or a child of either party with imminent bodily injury." [17]

• “Threatening another party in person, by telephone, or in writing, including by email, text message, or any other electronic communication, to take unlawful action against the party, a member of the party's family, including but not limited to anyone with whom the party has a dating relationship, or the party's property.”[18]

• “Threatening the other party in person or in any other manner, including by telephone or another electronic voice transmission, video chat, social media, or in writing, or electronic messaging, to take unlawful action against any person, intending by this action to annoy or alarm the other party.”[19]

• “Intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party.”[20]

• “Threatening the other party or a child of either party with imminent bodily injury.”[21]

Some counties (like Denton) have standing orders, injunctions that automatically go into effect when a family law petition is filed. 18 U.S. 922 (g)(8) only kicks for injunctions “issued after a hearing of which such person received actual notice.” Therefore, being issued prior to the hearing, standing orders may not present a problem, but would permitting the standing orders to persist, after a hearing, trigger 18 U.S. 922 (g)(8)? Maybe.

It is common practice to request injunctions that mirror standing orders or Texas Family Code 6.501(a). Doing so likely triggers 18 U.S. 922 (g)(8), and it does not matter if the injunctions are agreed or contested.

Would 18 U.S. 922 (g)(8) be triggered by subsequent injunctions issued after a hearing – perhaps from mediation? Maybe.

We’re stuck with this.

I do not believe the state court has the authority to disavow 18 U.S. 922 (g)(8) by making a finding that the injunction is not based on a “credible threat” or that the parties expressly agree to permit the possession of firearms during the injunctive period.

Courts and/or attorneys need to clearly admonish their clients on this issue. Clients may want to request different injunctions or dispossess themselves of firearms during litigation.

Misdemeanor domestic violence also triggers 18 U.S. 922(g).

As a tangent to this article on injunctions, in 1996, Congress added a similar violation for anyone convicted of misdemeanor domestic violence.[22] As a result, 18 U.S. 922(9) also makes it unlawful for any person “has been convicted in any court of a misdemeanor crime of domestic violence,” to possess a firearm.[23] Such convictions may include plea bargains.

Protecting your client’s right to bear arms

Your client should understand these issues prior to agreeing to or allowing such injunctions to be entered. Clients should be aware of Emerson from the beginning of their family law proceedings, and definitely after any hearing whether they participate or not.