[00:00:00] Speaker 05: You may proceed. [00:00:01] Speaker 05: Thank you, Your Honor. [00:00:01] Speaker 05: Good morning. [00:00:02] Speaker 05: May it please the court. [00:00:04] Speaker 05: Vitaly Kirchin, present for Mr. David Niles, the appellant on this matter. [00:00:08] Speaker 05: I'd like to reserve three minutes for rebuttal, please. [00:00:12] Speaker 05: The court shall reverse the district court's dismissal of Mr. Niles' Second Amendment claim. [00:00:17] Speaker 05: The claim is not subject to the Rooker-Feldman doctrine because Mr. Niles does not challenge the protection order itself, but rather challenges only the applicability of various state and federal firearm statutes. [00:00:29] Speaker 05: Furthermore, the court should also reach the question of whether the Supreme Court's Rahimi decision is dispositive of Mr. Miles' claim and hold that it is not dispositive. [00:00:39] Speaker 05: So the primary reason why we're here today is the Rooker-Fellman doctrine, because that was the basis for dismissal in the district court. [00:00:46] Speaker 05: In order for the Rooker-Fellman doctrine to apply, there needs to be two things. [00:00:50] Speaker 05: One, there needs to be a state loser in federal court. [00:00:53] Speaker 05: the state loser needs to allege that the state court committed legal error or errors and actually I guess there's three things and the federal plaintiff must request relief from the state court judgment. [00:01:09] Speaker 05: We're not doing any of those things in this case. [00:01:12] Speaker 05: This case presents the question to the federal courts of does the Second Amendment tolerate the imposition of a permanent [00:01:23] Speaker 05: firearm prohibition under G8 and other state laws in the context of a protection order. [00:01:30] Speaker 05: And in order to answer that question, the federal courts need to consider the historical analog framework that set forth by the Supreme Court in Bruin. [00:01:42] Speaker 02: Let me just go back to the state court order. [00:01:45] Speaker 02: So what is the harm that you're alleging that does not arise [00:01:51] Speaker 02: from the state court's judicial decision. [00:01:55] Speaker 05: The harm arises because there are statutes on the books that are enforced by the respondents in this case. [00:02:04] Speaker 02: Well, we'll come to that in terms of the attorney general in a minute. [00:02:08] Speaker 02: But with respect to the judicial decision, which is the state court protective order, the harm that you're claiming is that the protective order imposes [00:02:21] Speaker 02: the disarmament, right? [00:02:24] Speaker 05: That is not the injury we've been pointing. [00:02:28] Speaker 05: Of course, the injury wouldn't exist without the protection order. [00:02:31] Speaker 05: I understand that concept, and that there is a relationship there. [00:02:35] Speaker 05: But ultimately, the injury, which is the firearm prohibition, does not flow from the protection order. [00:02:39] Speaker 05: It flows from the automatic application of the challenge statutes. [00:02:43] Speaker 02: And typically, in a lot of these kind of cases, you see a facial challenge. [00:02:47] Speaker 02: But you've made it very clear that this is an as-applied [00:02:52] Speaker 02: challenge. [00:02:54] Speaker 02: So, distinguishing a little bit from this Mithroth case, why did you bring this as an as-applied challenge? [00:03:03] Speaker 05: Because the order is permanent and that is significantly different from [00:03:10] Speaker 05: If we brought out a facial challenge, we'd lose. [00:03:12] Speaker 05: Rahimi is directly on point that the case is that G8 survives a facial challenge. [00:03:18] Speaker 05: But in that case, that was truly a temporary order because in that particular instance, Mr. Rahimi, it was subject to a protection order for two years after release from prison. [00:03:27] Speaker 05: So the court, although duration was not really a central issue in Rahimi, the court in passing referred to the two-year period as temporary, at least to consider it temporary. [00:03:38] Speaker 03: But I read your complaint. [00:03:39] Speaker 03: I thought you were challenging the state statute on its face. [00:03:46] Speaker 03: No, no, no. [00:03:49] Speaker 03: So you're you're saying the state statute as applied here by the Superior Court? [00:03:57] Speaker 05: No, as enforced by the. [00:04:00] Speaker 02: As enforced by whom? [00:04:02] Speaker 05: As enforced by the Attorney General of the United States as the Chief Law Enforcement Officer of the United States for the federal statute and by the Attorney General of the Washington State, which is the Chief Criminal Enforcement for... The Washington, if you read the Washington Attorney General's authority, it's really a county authority. [00:04:19] Speaker 02: It's the state attorney general has kind of subsidiary authority if the county decides not to use it. [00:04:28] Speaker 02: But I don't really see the state, and this wasn't really [00:04:31] Speaker 02: I think well briefed, but I don't really see the state attorney general's authority to enforce the statute. [00:04:37] Speaker 02: If your client violates the order, then the superior court holds contempt proceedings or some kind of proceedings. [00:04:47] Speaker 02: The state attorney general doesn't enforce it, right? [00:04:50] Speaker 05: Not in that context, Your Honor, but we are challenging the constitutionality of the state statute, and that is within the purview of the state. [00:04:55] Speaker 02: Well, that's different than I thought you just answered to Judge Paez. [00:04:59] Speaker 02: So you're challenging the state. [00:05:02] Speaker 05: We're challenging the state laws and the federal laws. [00:05:04] Speaker 02: State law. [00:05:05] Speaker 02: So let's kind of separate those. [00:05:06] Speaker 05: Under the Second Amendment. [00:05:07] Speaker 02: So the state law you're challenging as being unconstitutional under Bruin, Rahimi, whomever. [00:05:13] Speaker 02: Sure. [00:05:13] Speaker 02: Okay. [00:05:14] Speaker 03: As I read this, I'm looking at your complaint. [00:05:18] Speaker 03: It's a short complaint. [00:05:19] Speaker 03: Sure. [00:05:20] Speaker 03: You know, didn't say much. [00:05:22] Speaker 03: That's what it needs to. [00:05:23] Speaker 03: Well, I don't want to get into that, but paragraph 11 says, therefore 18 USC section 922 G8 Washington revised code section 9.41.0402A little two in Washington revised code 9.41800 must be invalidated. [00:05:49] Speaker 03: as they apply to Mr. Niles. [00:05:53] Speaker 03: So it's not a facial challenge? [00:05:57] Speaker 05: No. [00:05:58] Speaker 03: No? [00:05:59] Speaker 05: No. [00:05:59] Speaker 05: We'd lose a facial challenge. [00:06:00] Speaker 05: I'll admit that. [00:06:01] Speaker 05: If the protection order had been issued for one or two years, we couldn't be here. [00:06:05] Speaker 05: Rogini's already taken care of that. [00:06:07] Speaker 02: Let me go back into the procedure. [00:06:09] Speaker 02: And this obviously doesn't necessarily bear on Rooker Feldman. [00:06:16] Speaker 02: It may bear on the merits. [00:06:19] Speaker 02: In the Superior Court, you made a Second Amendment challenge, correct? [00:06:24] Speaker 05: We filed a Second Amendment challenge on the revision to the duration statute, yes. [00:06:29] Speaker 05: Right. [00:06:30] Speaker 05: Yes. [00:06:30] Speaker 02: So Second Amendment was aired out there. [00:06:33] Speaker 02: You did not appeal that to the Washington Court of Appeal, correct? [00:06:38] Speaker 02: Correct. [00:06:39] Speaker 02: So that order remains in place? [00:06:42] Speaker 05: The protection order is absolutely in place right now, yeah. [00:06:44] Speaker 02: And has the appeal period run for that order? [00:06:48] Speaker 05: Many years ago. [00:06:48] Speaker 02: Okay, that's what I thought. [00:06:50] Speaker 02: But I take it that any given year, you can go back in and ask for revision? [00:06:59] Speaker 05: The statute does not allow for revision. [00:07:00] Speaker 05: The revision is a 10-day period of time. [00:07:05] Speaker 05: So we've burned through revision and we've burned through all the pellet deadlines. [00:07:10] Speaker 04: But what about the authority that allows you to go back, I think, every year to say something's changed? [00:07:14] Speaker 05: Right, every year. [00:07:15] Speaker 05: Yes, sir. [00:07:15] Speaker 05: I was getting to that. [00:07:16] Speaker 05: So there is a statute that allows, not for revision necessarily, but for modification or termination. [00:07:21] Speaker 05: Modification. [00:07:21] Speaker 05: That is how the statute is written. [00:07:23] Speaker 02: Okay, so the word is modification, not revision. [00:07:26] Speaker 02: Yes. [00:07:27] Speaker 02: Okay, thank you. [00:07:27] Speaker 03: Do you have to make a showing of, what, change circumstances or something? [00:07:32] Speaker 05: Under state law, you have to make, the respondent has the burden of proof. [00:07:36] Speaker 05: The respondent has to prove a substantial change in circumstance, and the court that [00:07:42] Speaker 05: The protection order court has essentially complete autonomy and discretion. [00:07:48] Speaker 03: In your view, that provision, does that make the statute temporary? [00:07:54] Speaker 05: No. [00:07:55] Speaker 05: No? [00:07:55] Speaker 05: You mean the protection order temporary? [00:07:57] Speaker 03: No. [00:07:57] Speaker 05: You said the statute temporary. [00:07:59] Speaker 05: Yeah. [00:07:59] Speaker 05: I'm confused. [00:08:00] Speaker 05: Why would the statute be temporary? [00:08:01] Speaker 03: Well, no, I mean the requirement from the statute. [00:08:06] Speaker 05: I'm sorry. [00:08:07] Speaker 03: So you're challenging the statute straight on, right? [00:08:10] Speaker 05: We're not challenging the termination statute, Your Honor. [00:08:13] Speaker 03: No, no, no. [00:08:16] Speaker 03: You asked me about the termination statute. [00:08:18] Speaker 03: I read you what you lodged here. [00:08:21] Speaker 05: I understand, Your Honor. [00:08:22] Speaker 03: This is in your complaint, and the case was knocked out on your complaint. [00:08:27] Speaker 05: I understand, Judge, but you asked me about the termination statute. [00:08:29] Speaker 05: We're not challenging it. [00:08:31] Speaker 03: I understand that. [00:08:32] Speaker 05: Okay, so what's your question? [00:08:35] Speaker 03: My question is, [00:08:38] Speaker 03: maybe this gets to the merits is your argument that the fact that there is the availability to modify. [00:08:46] Speaker 03: Okay. [00:08:48] Speaker 03: That under Rahimi, um, it's still different than Rahimi. [00:08:58] Speaker 05: Yes, your honor, because the order right now, the status quo, it is permanent. [00:09:02] Speaker 05: It's set for 40 years in the Ark. [00:09:04] Speaker 03: But you can go in. [00:09:06] Speaker 03: like next year, whatever, and say there's been changed circumstances. [00:09:10] Speaker 03: He took all these courses on aggression and whatnot. [00:09:16] Speaker 05: Yeah, that doesn't guarantee anything. [00:09:17] Speaker 03: No, I know, but it's available, right? [00:09:19] Speaker 05: It's available, but our position is that that does not turn a permanent order. [00:09:23] Speaker 05: The fact that an individual allegedly, and that's our argument, [00:09:29] Speaker 05: unconstitutionally denied, unlawfully denied the constitutional right. [00:09:34] Speaker 05: The fact that he or she has the privilege of filing a motion and bearing the burden of proving a negative, which is what the respondent has to do, in a proceeding where the judicial officer hearing the matter has total discretion, that doesn't change the order from permanent to temporary just because that release is at least available. [00:09:54] Speaker 02: Is there any harm that [00:09:57] Speaker 02: You allege that does not stem from the protective order? [00:10:03] Speaker 05: Again, I would just reiterate that. [00:10:04] Speaker 02: No, I'm just asking. [00:10:05] Speaker 02: That's a yes or no question. [00:10:07] Speaker 02: And then you can explain. [00:10:10] Speaker 05: Then the answer is, if you're asking for a yes or no question, the answer is no. [00:10:13] Speaker 02: There's no harm that doesn't stem from the protective order. [00:10:16] Speaker 02: All right. [00:10:16] Speaker 02: Thank you. [00:10:18] Speaker 03: So let me ask you this. [00:10:19] Speaker 03: Let's say we say that Brooker-Fellman [00:10:23] Speaker 03: Doesn't is the bar here. [00:10:24] Speaker 03: Sure. [00:10:25] Speaker 03: It's not a jurisdiction. [00:10:27] Speaker 03: So, you go back to the district court. [00:10:30] Speaker 03: Let's just say we say, you can go back to the. [00:10:35] Speaker 03: What's in play. [00:10:36] Speaker 03: I'm sorry. [00:10:37] Speaker 03: What does the district court need to decide? [00:10:40] Speaker 05: The district court needs to decide if there's a historical analog that allows a protection order to impose a lifetime prohibition. [00:10:46] Speaker 05: And presumably the district court would do that by looking at the historical record to see how long surety laws were typically enforced for. [00:10:55] Speaker 05: And that would be something that the government entities would need to prove. [00:10:59] Speaker 04: And would that not also take into account the procedures the state has made available at this one year? [00:11:05] Speaker 04: I understand your position is that those are paper guarantees or they're meaningless, but somebody may disagree with you on that, and would that be part of the analysis as well? [00:11:17] Speaker 05: No. [00:11:17] Speaker 05: I don't think that would be a part of the analysis unless, because that has to do with now and not history. [00:11:25] Speaker 05: It would be a historical analysis. [00:11:27] Speaker 05: You're talking about a statute that exists in 2026 and has existed. [00:11:30] Speaker 05: I mean, it's existed for a while, but certainly not since the founding generation. [00:11:34] Speaker 04: I mean, I think somebody could take the position that although it's a 40-year duration, the fact that the state has allowed annual reviews and the procedures that are associated with it means that in practice there are ways to get relief from this that satisfy the Second Amendment. [00:11:50] Speaker 04: I'm not holding that. [00:11:52] Speaker 04: I'm just offering that as something somebody could say in response. [00:11:57] Speaker 05: I understand that as a response. [00:11:59] Speaker 05: I just don't think it makes for [00:12:02] Speaker 04: Is that what you want to now litigate these questions? [00:12:06] Speaker 04: I'm sorry? [00:12:07] Speaker 04: Is that what you want to now litigate? [00:12:10] Speaker 04: You want to go back to the district court and have it out? [00:12:12] Speaker 04: on the merits of these points that Judge Pais and I have been raising here? [00:12:16] Speaker 05: I want to go back to the district court and I want to have a hearing on the merits applying the historical framework. [00:12:21] Speaker 05: I'm not sold on this. [00:12:25] Speaker 05: What you're saying, Your Honor, about the fact that a person can go and have the protection order terminated, but that would be ultimately for a district court judge to decide whether that's relevant or not. [00:12:33] Speaker 05: But we need to get to the merits. [00:12:34] Speaker 02: The district court would also be looking at issue preclusion in light of the superior court proceedings? [00:12:41] Speaker 05: Potentially. [00:12:43] Speaker 05: I don't think that applies here because the issue was slightly different. [00:12:46] Speaker 05: And the parties were different as well. [00:12:48] Speaker 05: Now, I understand that doesn't necessarily apply for issue preclusion. [00:12:50] Speaker 04: But at least as to the protective order itself, there's some consequences that come out of that, some criminal liability potentially that if your client violates the protective order. [00:13:04] Speaker 04: But as to the protective order itself and the duration, there was a Second Amendment challenge raised to that in the state court [00:13:12] Speaker 04: in the state trial court, why is that challenge not issue precluded? [00:13:17] Speaker 05: Because it was issued to a different statute. [00:13:19] Speaker 05: It was issued on the, on the, the argument was towards the duration statute and to the potential unconstitutionality of the duration statute, which allows an order to be made permanent. [00:13:28] Speaker 05: Um, and the, the, the, the issue here is that we're challenging different statutes. [00:13:33] Speaker 02: So just to be clear, the, [00:13:40] Speaker 02: Imposition of a protective order is mandatory under Washington law. [00:13:45] Speaker 02: But the duration statute is now what you're challenging? [00:13:49] Speaker 05: No. [00:13:49] Speaker 02: No. [00:13:50] Speaker 05: No. [00:13:50] Speaker 02: What are you challenging? [00:13:52] Speaker 05: RCW 9401040282, as Judge Paez stated, 941-800. [00:13:56] Speaker 05: Right. [00:13:57] Speaker 05: And 922-G8, which is a federal statute. [00:14:01] Speaker 02: I understand the federal statute. [00:14:02] Speaker 02: OK. [00:14:02] Speaker 02: But why wasn't the state statute part and parcel of what the district, I mean, what the Superior Court was looking at? [00:14:10] Speaker 05: Superior Court did look at it, and then it rejected the argument. [00:14:14] Speaker 05: The duration statute, right? [00:14:16] Speaker 02: Right, so I mean, that went back to my question about issue preclusion. [00:14:20] Speaker 02: The Second Amendment was squarely presented in the state court, right? [00:14:26] Speaker 05: It was presented, yes, it was argued in the state court, yes, Your Honor, but it was to a different statute. [00:14:32] Speaker 05: I think that's the point I'm trying to make. [00:14:34] Speaker 04: What's the difference? [00:14:35] Speaker 04: I'm a little confused on that. [00:14:38] Speaker 05: Well, the duration statute really talks about the protection order as a whole, right? [00:14:44] Speaker 05: So the relief we're seeking there is that the protection order as a whole was going to only be one year if we had gotten our way. [00:14:50] Speaker 05: But here, we're not talking about the protection order duration in any way, shape, or form anymore. [00:14:53] Speaker 05: We're talking about the potential unconstitutionality of the application of the firearm statutes that prohibit the firearm possession. [00:15:00] Speaker 02: To recipients of protective orders. [00:15:04] Speaker 05: Well, no, specifically to Mr. Niles. [00:15:06] Speaker 02: I understand. [00:15:06] Speaker 02: I understand. [00:15:08] Speaker 05: So with that, Your Honor, do I have two more minutes? [00:15:11] Speaker 04: Well, we'll give you two more minutes, so why don't we hear from your opposing counsel here. [00:15:16] Speaker 04: So I guess we'll hear first from the Washington AG's office. [00:15:42] Speaker 01: Good morning. [00:15:42] Speaker 01: May it please the court, Sarah Smith-Levy for the Attorney General of Washington. [00:15:47] Speaker 01: The district court dismissed this case for lack of jurisdiction under Rooker Feldman, and this court should affirm that decision. [00:15:54] Speaker 01: The Rooker Feldman doctrine prohibits litigants who lost in state court for re-litigating their cases by suing in federal court. [00:16:01] Speaker 01: Niles brings a federal court challenge to a state court's decision to enter a 40-year protective order against him because it prevents him from possessing firearms while the order is in place. [00:16:11] Speaker 01: The district court held it lacked jurisdiction over this de facto appeal and this court should affirm. [00:16:16] Speaker 01: The Rooker Feldman doctrine prohibits federal courts from reviewing state court judgments. [00:16:21] Speaker 01: This means that a state court loser who alleges they have been injured by a state court judgment and who asks a federal court to reverse that judgment cannot bring a case in federal court. [00:16:30] Speaker 03: So as I read the complaint, they're not asking for that. [00:16:33] Speaker 01: You're right, Your Honor. [00:16:34] Speaker 03: They're not asking to reverse the judgment. [00:16:36] Speaker 03: They're not asking us to review what the state court did. [00:16:40] Speaker 03: So Rooker felt it is to declare the statute unconstitutional as applied to Mr. So his third is 40 year. [00:16:48] Speaker 01: Certainly. [00:16:49] Speaker 01: So what we have here is a de facto appeal. [00:16:51] Speaker 01: And here, Niles is challenging two state laws as they apply to him. [00:16:56] Speaker 01: But both are barred as improper de facto appeals. [00:16:59] Speaker 02: Really, the entire would it be different if he brought a facial challenge? [00:17:03] Speaker 01: It would be different if he brought a facial challenge, but for the reasons that opposing counsel conceded, that claim would likely fail under Rahimi. [00:17:12] Speaker 01: And really, the entire premise of Niles' case is that he has been injured by the state court's decision to enter a protective order that prevents him from possessing firearms for 40 years, and that a federal court should basically overturn that decision. [00:17:27] Speaker 01: That's the rub, though, right there. [00:17:29] Speaker 02: He says, no, I don't want to. [00:17:31] Speaker 02: Leave alone the state court decision. [00:17:34] Speaker 02: I would like you, the court of appeals, or ultimately the district court, to make a determination that this statute in Washington, which would permit, in effect, a lifetime bar, is unconstitutional. [00:17:51] Speaker 02: So that's what he's asking. [00:17:52] Speaker 02: But then he says, as to him. [00:17:55] Speaker 01: Yes, Your Honor. [00:17:56] Speaker 01: So what we need to look at here is the nature of the relief side. [00:18:01] Speaker 01: The practical effect of the relief that Mr. Niles is seeking here today would be to say that the challenged laws can't lawfully apply to him for the duration of the protective order. [00:18:12] Speaker 01: And he concedes that under Rahimi, he can be temporarily disarmed and only complains that 40 years is too long as a matter of law. [00:18:20] Speaker 01: But he already litigated and lost this exact issue before the state court, and any relief here would effectively reverse the portion of the order that prohibits him from possessing firearms for that 40-year period. [00:18:32] Speaker 03: More like a preclusion order? [00:18:34] Speaker 03: A preclusion issue? [00:18:35] Speaker 01: The issues definitely do overlap. [00:18:37] Speaker 03: I mean, Worker Feldman doesn't really, you know, separate from preclusion matters. [00:18:42] Speaker 01: Yeah, they overlap, I would say. [00:18:44] Speaker 01: They have some similar flavors to them. [00:18:47] Speaker 01: But that being said here, we're arguing that what Mr. Niles is effectively seeking is review of the state court's judgment rather than he's already litigated these issues. [00:18:57] Speaker 03: So we shouldn't take him for what he alleges in his complaint? [00:19:03] Speaker 01: I think this court can take it for what he alleges in his complaint. [00:19:07] Speaker 01: And this court, you know, Ricker Feldman can apply regardless of what the exact underlying reasoning of the state court was. [00:19:17] Speaker 01: What matters is, is the state court loser here asking for what is effectively appellate review of the state court's judgment. [00:19:25] Speaker 01: And that is what we have here. [00:19:27] Speaker 02: You know what confused me a little bit is I didn't see the state had even invoked the 11th Amendment or ex parte Young. [00:19:34] Speaker 02: And if you look at the attorney general's authority as opposed to the county prosecutor or the judge entering a contempt order, it was certainly unclear to me whether there's any connection between this defendant and this claim. [00:19:49] Speaker 02: What's the state's response to that? [00:19:52] Speaker 01: Um, so I think there's two responses to that. [00:19:55] Speaker 01: The first is that, you know, the attorney general is entitled to be heard on challenges to the constitutionality of state law. [00:20:03] Speaker 01: Um, the second thing I would say is that this court is here on de novo review, so it can affirm up for any basis that's supported by the record, even if it isn't the basis that the district doesn't really explain to me why the attorney general would just fly by what I thought was a pretty significant legal issue here. [00:20:22] Speaker 02: So you're basically saying, well, the attorney general is making himself a party representative of the state. [00:20:32] Speaker 02: Is that what's happening here? [00:20:34] Speaker 02: I think that's right, Your Honor. [00:20:36] Speaker 03: Well, you can always waive the 11th Amendment. [00:20:37] Speaker 02: And we can always waive the 11th Amendment. [00:20:38] Speaker 03: Yes, you can always waive the 11th Amendment. [00:20:40] Speaker 02: But I haven't seen it done by this state attorney general very often. [00:20:45] Speaker 02: So that's why this case is a little confusing, having the attorney general [00:20:51] Speaker 02: as a defendant here. [00:20:53] Speaker 02: I understand, and we'll hear from the United States as to their situation. [00:20:58] Speaker 02: So the difficulty we have, of course, is what's a de facto appeal and what is in fact not, as counsel says, I'm not asking you to do anything with the state court protective order. [00:21:18] Speaker 02: It might be a collateral consequence that if you declare it unconstitutional, then that protective order would fall by the wayside. [00:21:26] Speaker 02: But so where do we draw the line between I'm not really challenging the order and your claim that it's a de facto appeal of the order? [00:21:35] Speaker 01: Yes. [00:21:36] Speaker 01: So to determine whether a case presents a de facto appeal, we look to whether [00:21:41] Speaker 01: the state court loser, the federal plaintiff, if they are alleging that they've been harmed by an erroneous legal ruling of the state court that either withholds a benefit, imposes a detriment, or otherwise injures them. [00:21:56] Speaker 01: And here, Mr. Niles is pretty clearly stating that he's been harmed by the state court's judgment because it prevents him from possessing firearms for the 40-year period. [00:22:05] Speaker 02: When I asked him, do you have any harm that doesn't stem from the state court order, he said no. [00:22:10] Speaker 01: I think that's right, Your Honor. [00:22:11] Speaker 01: The two state statutes he's challenging here apply only by virtue of the state court's judgment. [00:22:17] Speaker 01: They wouldn't independently apply to him absent the order. [00:22:21] Speaker 01: And that's really what makes us exactly the type of collateral attack that Rooker Feldman prohibits. [00:22:28] Speaker 04: What about the line of cases saying that people can bring independent challenges like Maldonado? [00:22:33] Speaker 01: Yeah, so I think two thoughts, maybe more than two thoughts on that. [00:22:39] Speaker 01: So the first thing is what I was just discussing with Judge McEwen, which is that these statutes only apply to him by virtue of the protective order. [00:22:48] Speaker 01: So there really are no independent claims possible here. [00:22:51] Speaker 01: And then the second point I'd like to make is that this case is really actually pretty distinct from Maldonado. [00:22:58] Speaker 01: I would agree that on the case's face, they appear to be pretty similar, but this case in Maldonado are actually quite different. [00:23:06] Speaker 01: In Maldonado, he had never raised the constitutional claims in state court. [00:23:10] Speaker 01: He didn't challenge the underlying state court judgment. [00:23:15] Speaker 01: And he was kind of challenging ongoing continued enforcement of a law years later after the state court's judgment had been entered. [00:23:24] Speaker 01: And so by contrast, this case, Mr. Niles isn't arguing that someone committed a wrongful act in securing the state court's judgment or that a statute is being illegally or wrongfully enforced at this time. [00:23:36] Speaker 01: Instead, he really just disagrees with and seeks reversal of the state court's decision. [00:23:41] Speaker 04: I mean, isn't, isn't his complaint seeking to challenging the continued enforcement? [00:23:47] Speaker 04: Isn't that part of what he's arguing or really is what he's arguing? [00:23:51] Speaker 01: I'd agree. [00:23:52] Speaker 01: It's what he's arguing, but that's exactly what the state court, that was the exact issue before the state court in deciding to issue the protective order. [00:24:00] Speaker 02: I think he made some distinction. [00:24:02] Speaker 02: Well, he, the state court [00:24:04] Speaker 02: Protective order is under one statute, although he said at one point it was under two, and that this is a challenge to a different statute. [00:24:10] Speaker 02: So that gets him out of Rucker Feldman land. [00:24:13] Speaker 01: I think it's really a distinction without a difference here, Your Honor. [00:24:16] Speaker 01: If you look to what the state court actually said, the state court very clearly understood that what was being challenged was the duration of the order and saying that it was unconstitutional in the Second Amendment. [00:24:29] Speaker 01: The state court understood the position that was being presented to it. [00:24:32] Speaker 01: It considered it and rejected it. [00:24:34] Speaker 01: But really, the state court knew what was being asked of it and decided to reach a contrary decision. [00:24:41] Speaker 02: Would that issue be more appropriately determined on a remand on issue preclusion as opposed to a decision here on Rucker Feldman? [00:24:53] Speaker 01: No, Your Honor. [00:24:54] Speaker 01: I think this court can resolve this on the jurisdictional Rucker Feldman grounds. [00:25:00] Speaker 01: Unless there are any further questions, the district court correctly held this case is barred by Rooker Feldman, and this court should affirm. [00:25:09] Speaker 01: Thank you. [00:25:11] Speaker 04: Thank you. [00:25:11] Speaker 04: We'll hear from the United States. [00:25:22] Speaker 00: Good morning, Your Honors, and may it please the court, Sean Janda for the federal government. [00:25:26] Speaker 00: Two and a half years ago, a Washington state court entered a domestic violence protection order against plaintiff. [00:25:32] Speaker 00: After concluding, the plaintiff represents a credible threat to the safety of his now former wife. [00:25:37] Speaker 00: I find plaintiff's claim against the federal government a little bit hard to parse in this case, but to the extent that his claim is that the federal prohibition on possessing firearms cannot constitutionally be applied to him today as a result of that protection order, I think that claim is clearly foreclosed by Rahimi around two and a half years after [00:25:58] Speaker 00: The protection order, and there's been no argument in this case that there's any meaningful distinction between the two plus year term of the protection order in Rahimi and the two and a half years that we've had since the protection order issue in this case. [00:26:12] Speaker 02: I think if I understand his argument, his problem is it's not two and a half years. [00:26:17] Speaker 02: That's actually the lag time between the order and now. [00:26:22] Speaker 02: It's the life in effect lifetime duration. [00:26:24] Speaker 00: Right, so I think that then, if that's his claim, that it would be fine to enforce 922-G8 against him today, but it would not be fine to enforce 922-G8 against him in five years and 10 years and 15 years. [00:26:38] Speaker 00: I think that's the ripeness problem. [00:26:40] Speaker 00: And so depending on exactly how he's framing his claim, and like I said, I'm not entirely sure, [00:26:46] Speaker 00: how he's conceiving of the claim. [00:26:48] Speaker 00: But if the claim is that it's going to become unconstitutional at some point because of the duration of the order, then I just don't think that claim is ripe. [00:26:56] Speaker 04: I mean, it seems like he's subject to it now. [00:26:59] Speaker 04: So there may be merits responses to it. [00:27:01] Speaker 04: But I mean, we let people come in and challenge a lengthy criminal sentence and say, I'm subject to this long sentence. [00:27:07] Speaker 04: I think it should be shorter, even though they concede they're going to be in prison for a certain period of time in the short term. [00:27:13] Speaker 00: Right, so I think the key difference there, Your Honor, is that the state court order is not subject to review in this court. [00:27:19] Speaker 00: I mean, that's the Rucker Feldman issue. [00:27:21] Speaker 00: So the question, just focusing on his claim against the United States, the question is whether the United States or the Attorney General can enforce 922 G8 against him. [00:27:30] Speaker 00: And to the extent that the court is sort of evaluating that question as of today, whether as of sort of the time of the court's decision, 922 GA can be enforced against him. [00:27:40] Speaker 00: I think that claims ripe. [00:27:42] Speaker 00: There's just a big problem with it to the extent that the claim is that. [00:27:46] Speaker 00: at some future point, it will sort of no longer be permissible to enforce 922 G8 against him on the basis of this particular protection order. [00:27:55] Speaker 00: I think that's the rightness problem. [00:27:57] Speaker 02: And so- So you say, okay, he's overcome rightness, at least to some degree. [00:28:02] Speaker 02: If that's the case, why can't he bring his case in federal court in terms of the challenge to the statute? [00:28:15] Speaker 00: So I think if you get past the ripeness issue, then I think exactly how you would resolve that claim on the merits. [00:28:21] Speaker 00: And we agree that the court could get to the merits at that point would depend on whether you're thinking about sort of today, whether the claim is about whether we could enforce the statute today or whether it's about sort of in the future. [00:28:34] Speaker 02: And so as of today, he would say, well, let me go back and argue that on the merits. [00:28:39] Speaker 02: I mean, where he means a merits issue. [00:28:42] Speaker 02: It's, so let me go back. [00:28:45] Speaker 02: It's not a Rooker Feldman issue is the way he frames it. [00:28:48] Speaker 00: Right. [00:28:49] Speaker 00: And the court could, I mean, in its discretion, say that the Rooker Feldman holding with respect to the claim against the United States is wrong. [00:28:54] Speaker 00: We agree with that. [00:28:56] Speaker 02: In other words, you're saying there's not a Rooker Feldman problem with his as applied challenge. [00:29:03] Speaker 00: With respect to the claim against the United States, which is the only claim we've taken a position on. [00:29:06] Speaker 02: I don't think you can talk for the state. [00:29:08] Speaker 00: Yeah. [00:29:09] Speaker 00: We do not think there's a Rooker Feldman problem. [00:29:10] Speaker 00: With respect to that claim, I think that Mithras, for example, sort of draws the distinction between challenges to the effects of a state court order and challenges to the state court order itself. [00:29:22] Speaker 00: And so it's certainly true that sort of the state court order is a necessary predicate for the G8 enforcement. [00:29:27] Speaker 00: But I think to the extent that he wants an injunction prohibiting the Attorney General of the United States from enforcing G8 against him, that's not a prohibited appeal of the... So with respect to what's on appeal to us, [00:29:41] Speaker 02: The position of the United States is that the district court should be reversed and the case should be remanded to the district court. [00:29:49] Speaker 00: Uh, no, although I don't think that would be wrong. [00:29:53] Speaker 00: We do think that this report's wrong about Rucker Feldman. [00:29:54] Speaker 00: Okay. [00:29:55] Speaker 00: Uh, we think that it would be appropriate for this court to say, again, sort of depending on exactly how his claim is framed, that the claim's not ripe or that it fails on the merits. [00:30:02] Speaker 00: I mean, applying Rahimi sort of to the circumstances as they exist today, uh, I think is a pretty straightforward legal- If it's not ripe as to the future part of this, when does it become ripe? [00:30:12] Speaker 04: Like he'll, he'll do this again in a year and we'll say, [00:30:15] Speaker 04: Well, it's been three years, so it's not quite right yet getting riper. [00:30:19] Speaker 04: It's getting riper. [00:30:21] Speaker 00: Yeah, so I think it's right when he when he thinks that his claim is sort of that we could not enforce the statute today. [00:30:27] Speaker 04: I think it's I think he's there on that. [00:30:29] Speaker 00: I mean, so if that's what his claim is, if his claim is that. [00:30:31] Speaker 00: the two-and-a-half-year order is too old, then we don't think there's a ripeness problem, but that's just foreclosed by Rahimi. [00:30:39] Speaker 00: And so I think whenever he decides, I don't know what he thinks about whether that's foreclosed by Rahimi, but we think it's fine for him to come in and say, you cannot enforce it against us today. [00:30:50] Speaker 00: You cannot enforce it against me today. [00:30:52] Speaker 04: That's not a ripeness problem. [00:30:54] Speaker 04: The complaint is, [00:30:55] Speaker 04: limited in its detail, but what I understand the claim to be essentially is that there's a federal prohibition that's resting on a state protective order, but the state protective order is effectively permanent. [00:31:06] Speaker 04: People may disagree with that, and that the procedures for trying to make it not permanent are not good enough. [00:31:12] Speaker 04: Therefore, the federal prohibition can't rest on that, and that violates Rahimi. [00:31:17] Speaker 00: Yeah, I mean, so let me say sort of two things about that. [00:31:18] Speaker 00: I mean, number one, just sort of taking on its own terms, the 40-year order. [00:31:22] Speaker 00: And these are brief explains that the key point in Rahimi is that you have the tying of the judicial determination of a credible threat with a relatively temporary prohibition. [00:31:32] Speaker 00: And I think here, taking Washington law as a whole, he has the opportunity to get every year a judicial determination or potential judicial determination about whether he continues to pose a credible threat to his ex-wife. [00:31:46] Speaker 04: You know, I don't know how any sort of details of this not matter, like, you know, exactly how the state procedure functions and who bears the burden and what one needs to show. [00:31:54] Speaker 04: Because, I mean, you can imagine a world where it's not this law, but somebody would say, well, you can come back every five years and the burden is to show beyond a reasonable doubt that, you know, beyond a shadow of a doubt that you're not dangerous. [00:32:06] Speaker 04: And someone could respond to that and say, well, that's just too onerous. [00:32:10] Speaker 04: And perhaps the argument's being made here. [00:32:12] Speaker 04: I don't know what the answer to that is. [00:32:14] Speaker 04: That's the merits question as I understand it. [00:32:17] Speaker 00: Yeah, I mean, at some point that may sort of become a good argument. [00:32:20] Speaker 00: I don't think he's developed any argument that the Washington scheme is that sort of particularly onerous scheme. [00:32:26] Speaker 00: I mean, he can go back every year. [00:32:27] Speaker 00: It's a preponderance burden. [00:32:29] Speaker 00: And again, if he goes back to the state court and the state court says, you know, I no longer think you're a credible threat, but I'm going to exercise my discretion to leave the order in place or something like that, you know, maybe he then has a federal claim that's a better federal claim than the one that he has right now. [00:32:45] Speaker 00: But I think all of that is very speculative. [00:32:47] Speaker 00: And so to the extent that his claim, again, sort of turns on what could happen or what might happen in the state court proceedings, there's the ripeness problem. [00:32:55] Speaker 00: To the extent that his claim is that, again, as we sort of all stand here or sit here today, it would be unconstitutional to enforce G8 against me. [00:33:02] Speaker 00: I think he has a Rahimi problem. [00:33:04] Speaker 02: And so- On that point, if, you know, the federal government says no Ricker Feldman, but decide the Rahimi, but typically, [00:33:14] Speaker 02: If we were going to decide it on the merits, we would go for the non-constitutional route, which would be preclusion, not deciding Rahimi on a constitutional basis under the Second Amendment, right? [00:33:29] Speaker 00: I mean, so the court, obviously the preclusion issue hasn't been briefed here. [00:33:32] Speaker 00: I don't know how Washington state law would treat... That's why a remand would be appropriate, wouldn't it? [00:33:38] Speaker 00: If the court wanted to say, like I said, there's no worker problem problem with respect to the claim against us and remand, we don't think the court has to do that. [00:33:45] Speaker 00: We think it would be sort of... [00:33:48] Speaker 00: perfectly appropriate for the court to apply Rahimi to the extent that his claim is about today. [00:33:51] Speaker 00: I mean, I think it's a pretty straightforward application of Rahimi. [00:33:54] Speaker 02: Let me ask you a question I don't think I asked the state, but can you split these claims? [00:33:59] Speaker 02: In other words, is it possible to say, well, your claim under the Washington law is in fact a Rooker Feldman type claim, whereas under federal law, the 922, it's not. [00:34:16] Speaker 02: Is that possible, or can you not split these? [00:34:20] Speaker 00: So we've only taken a position on the federal claim. [00:34:22] Speaker 00: I don't sort of have a good argument for you about why the Washington claims should be treated different than the federal claim. [00:34:28] Speaker 00: I can tell you why we think the federal claim doesn't run into a Rockefeller problem. [00:34:33] Speaker 00: But obviously, I think there's a tighter connection between his challenges to the Washington statutes and the state court order that's not present with respect to the federal claim. [00:34:42] Speaker 00: And so maybe the court could think that there's a difference there. [00:34:44] Speaker 00: But I think applying this court's precedent [00:34:46] Speaker 00: To the federal claim that we just don't see the regretful problem. [00:34:52] Speaker 00: Okay, there are no further questions. [00:34:54] Speaker 04: Okay, thank you. [00:34:55] Speaker 04: Mr. Janet. [00:34:55] Speaker 04: Thank you. [00:35:00] Speaker 05: I want to address the United States argument real quick. [00:35:03] Speaker 05: First. [00:35:04] Speaker 05: Specifically, the point that counsel made about the ability to go back to court and ask for termination on a yearly basis. [00:35:11] Speaker 05: And if the termination is denied, then that's essentially a finding that the individual continues to represent a credible threat. [00:35:17] Speaker 05: That is not what the state statute requires. [00:35:19] Speaker 05: The state statute does not require the court to deny motion to terminate because it finds that the individual is continuing to be dangerous or because the individual's [00:35:31] Speaker 05: So we can't say that if he goes to court and gets denied, that means he's a credible threat. [00:35:40] Speaker 05: Those are intent amount findings. [00:35:43] Speaker 05: And with regard to the attorney general's argument with Brooker-Fellman and the fact that this is a de facto appeal, this is not a de facto appeal because the question to be decided, which is the historical analog, does not require the district court to second-guess the state court in any way, shape, or form. [00:35:59] Speaker 05: Those are completely different questions, and whether a historical analog exists has nothing to do with what the state court decided when it issued the protection order. [00:36:09] Speaker 02: Didn't the state court have to decide that there was not a constitutional infirmity with the imposition of the statute? [00:36:18] Speaker 05: That's not part of the initial decision to issue the order. [00:36:22] Speaker 02: It might not be the initial, but then it's part of the initial proceedings that are at issue on appeal. [00:36:31] Speaker 05: You raised it in the motion too. [00:36:35] Speaker 05: To adjust. [00:36:37] Speaker 05: Correct, Your Honor, but we're not raising that on the federal, we're not saying that the Superior Court erred on that issue in federal court. [00:36:45] Speaker 05: We don't care what the state court did. [00:36:47] Speaker 02: I know you don't care, but if the Superior Court, if there was a constitutional problem, then the Superior Court couldn't have entered this order, right? [00:36:59] Speaker 05: I think that's a little presumptive. [00:37:01] Speaker 05: Somebody would have had to have raised that. [00:37:03] Speaker 02: And you raised it. [00:37:04] Speaker 02: I mean, when it came back, it's all in the briefing about the Second Amendment and Rahimi and the distinctions between Rahimi and Permanent. [00:37:15] Speaker 02: That's all raised in the state court, right? [00:37:18] Speaker 05: As the challenge was at the time to the duration statute, correct, yes. [00:37:22] Speaker 05: Okay. [00:37:22] Speaker 05: I do want to take... You're a little over your time, but go ahead and make your final point. [00:37:26] Speaker 05: Thank you, your honor. [00:37:28] Speaker 05: I just wanted to touch on something Judge McCown said to the Attorney General's office. [00:37:31] Speaker 05: And one of your questions, one of the premises was that if the statutes that were challenging are invalidated, the protection order will fall by the wayside. [00:37:38] Speaker 05: That is not correct. [00:37:40] Speaker 05: If the statutes are invalidated, the protection order continues to be valid for the next 40 years. [00:37:46] Speaker 05: Nothing changes about the protection order. [00:37:47] Speaker 05: I think that's an important point. [00:37:49] Speaker 05: That makes no sense to me. [00:37:50] Speaker 02: That makes no sense to me. [00:37:53] Speaker 02: It makes absolutely no sense, I'm sorry. [00:37:54] Speaker 05: But it's not validating the protection order. [00:37:56] Speaker 02: I know they're not, but if I say this protection order says, here's the parameters of the protection order and you may not have firearms for this period. [00:38:08] Speaker 02: under this statute. [00:38:09] Speaker 02: And then that statute is invalidated. [00:38:13] Speaker 02: Well, that portion of the protective order goes by the wayside. [00:38:16] Speaker 05: That portion, yes. [00:38:17] Speaker 05: But all the other terms of the protective order would still remain. [00:38:20] Speaker 05: It would not be voided because of... I understand. [00:38:22] Speaker 02: Don't contact or various things. [00:38:24] Speaker 05: Yes. [00:38:24] Speaker 05: So with that, we ask the court to reverse and remand. [00:38:28] Speaker 05: Thank you. [00:38:29] Speaker 04: Okay. [00:38:29] Speaker 04: Thank you. [00:38:29] Speaker 04: We thank all counsel for the briefing and argument. [00:38:31] Speaker 04: This matter is submitted. [00:38:33] Speaker 04: That concludes our calendar for this morning. [00:38:35] Speaker 04: We'll stand in recess until tomorrow.