[00:00:00] Speaker 05:
You may proceed.

[00:00:01] Speaker 01:
Thank you, Your Honor. Good morning. May it please the court. Vitaly Kirchin, present for Mr. David Niles, the appellant on this matter. I'd like to reserve three minutes for rebuttal, please.

[00:00:12] Speaker 01:
The court should reverse the district court's dismissal of Mr. Niles' Second Amendment claim.

[00:00:17] Speaker 01:
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. Furthermore, the court should also reach the question of whether the Supreme Court's Rahimi decision is dispositive of Mr. Miles's claim and hold that it is not dispositive.

[00:00:39] Speaker 01:
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 01:
In order for the Rooker-Fellman doctrine to apply, there needs to be two things. One, there needs to be a state loser in federal court.

[00:00:54] Speaker 01:
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 01:
We're not doing any of those things in this case. This case presents the question to the federal courts of does the Second Amendment tolerate the imposition of a permanent, fire on prohibition under G8 and other state laws in the context of a protection order.

[00:01:30] Speaker 01:
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 03:
Let me just go back to the state court order. So what is the harm that you're alleging that does not arise from the state court's judicial decision.

[00:01:55] Speaker 01:
The harm arises because there are statutes on the books that are enforced by the respondents in this case.

[00:02:04] Speaker 03:
Well, we'll come to that in terms of the Attorney General in a minute. 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 the disarmament, right?

[00:02:25] Speaker 01:
That is not the injury we've been pointing. Of course, the injury wouldn't exist without the protection order. I understand that concept and that there is a relationship there. But ultimately, the injury, which is the firearm prohibition, does not flow from the protection order. It flows from the automatic application of the challenge statutes.

[00:02:43] Speaker 03:
And typically, in a lot of these kind of cases, you see a facial challenge, but you've made it very clear that this is an as-applied So distinguishing a little bit from this Mithroth case, why did you bring this as an as-applied challenge?

[00:03:03] Speaker 01:
Because the order is permanent, and that is significantly different from – if we brought a facial challenge, we'd lose. Rahimi is directly on point that the case is that G8 survives a facial challenge. 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. 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 04:
But I read your complaint. I thought you were challenging the state statute on its face.

[00:03:46] Speaker 04:
No, no, no. No. So you're saying the state statute is applied here by the Superior Court?

[00:03:57] Speaker 01:
No, as enforced by the... As enforced by whom?

[00:04:02] Speaker 01:
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... Oh, but the Washington... If you read the Washington Attorney General's authority...

[00:04:17] Speaker 03:
It's really a county authority. The state attorney general has kind of subsidiary authority if the county decides not to use it. But I don't really see the state, and this wasn't really, I think, well briefed, but I don't really see the state attorney general's authority to enforce the statute. If your client violates the order, then the superior court, holds contempt proceedings or some kind of proceedings, the state attorney general doesn't enforce it, right?

[00:04:50] Speaker 01:
Not in that context, Your Honor. But we are challenging the constitutionality of a state statute, and that is within the purview of the state attorney general.

[00:04:55] Speaker 03:
Well, that's different than I thought you just answered to Judge Pius. So you're challenging the state?

[00:05:02] Speaker 01:
We're challenging the state laws and the federal laws. State law. So let's kind of separate those. Under the Second Amendment.

[00:05:07] Speaker 03:
So the state law you're challenging as being unconstitutional under Bruin, Rahimi, whomever. Sure.

[00:05:14] Speaker 04:
As I read this, I'm looking at your complaint. It's a short complaint. Sure. You know, didn't say much.

[00:05:22] Speaker 04:
Says what it needs to. Doesn't even – well, I don't want to get into that. But paragraph 11 says, therefore, 18 U.S.C. section 922 G.8, Washington Revised Code section 9.41.0402A little 2.

[00:05:42] Speaker 04:
in Washington Revised Code 9.41800 must be invalidated as they apply to Mr. Niles. So it's not a facial challenge?

[00:05:57] Speaker 01:
No.

[00:05:58] Speaker 04:
No?

[00:05:58] Speaker 01:
No. We'd lose a facial challenge. I'll admit that. If the protection order had been issued for one or two years, we couldn't be here. Rahimi's already taken care of that.

[00:06:07] Speaker 03:
Let me go back into the procedure, and this obviously It doesn't necessarily bear on Rook or Feldman. It may bear on the merits. But in the Superior Court, you made a Second Amendment challenge, correct?

[00:06:24] Speaker 01:
We filed a Second Amendment challenge on the revision to the duration statute, yes. Right. Okay.

[00:06:30] Speaker 03:
So Second Amendment was aired out there. You did not appeal that to the Washington Court of Appeal, correct? So that order remains in place.

[00:06:41] Speaker 01:
The protection order is absolutely in place right now, yeah.

[00:06:44] Speaker 03:
And has the appeal period run for that order?

[00:06:48] Speaker 01:
Many years ago.

[00:06:48] Speaker 03:
Okay, that's what I thought. But I take it that in a given year, you can go back in and ask for revision?

[00:06:58] Speaker 01:
The statute does not allow for revision. The revision is a 10-day period of time. So we've burned through revision and we've burned through all the pellets, the deadlines.

[00:07:10] Speaker 05:
But what about the authority that allows you to go back, I think, every year to say something's changed?

[00:07:14] Speaker 01:
Sure. Yes, sir. I was getting to that. So there is a statute that allows, not for revision necessarily, but for modification or termination. Modification. That is how the statute is written. Okay.

[00:07:24] Speaker 03:
So the word is modification, not revision. Yes. Okay.

[00:07:27] UNKNOWN:
Thank you.

[00:07:27] Speaker 04:
But you have to make a showing of, what, changed circumstances or something?

[00:07:32] Speaker 01:
Under state law, you have to make, the respondent has the burden of proof. The respondent has to prove a substantial change in circumstance. And the court that, the protection order court has essentially near provenance has essentially complete autonomy and discretion.

[00:07:48] Speaker 04:
In your view, that provision, does that make the statute temporary?

[00:07:54] Speaker 01:
No.

[00:07:55] Speaker 01:
No? You mean the protection order temporary?

[00:07:57] Speaker 04:
No.

[00:07:57] Speaker 01:
You said the statute temporary.

[00:07:59] Speaker 04:
Yeah.

[00:07:59] Speaker 01:
I'm confused. Why would the statute be temporary?

[00:08:01] Speaker 04:
Well, no, I mean the requirement from the statute.

[00:08:06] Speaker 01:
I'm sorry.

[00:08:07] Speaker 04:
So you're challenging the statute straight on, right?

[00:08:10] Speaker 01:
We're not challenging the termination statute, Your Honor.

[00:08:13] Speaker 04:
No, no, no.

[00:08:16] Speaker 01:
You asked me about determination.

[00:08:18] Speaker 04:
You know, I'm reading. I read you what you alleged here.

[00:08:21] Speaker 01:
I understand, Your Honor.

[00:08:22] Speaker 04:
And this is in your complaint. And the case was knocked out on your complaint.

[00:08:27] Speaker 01:
I understand, Judge. But you asked me about determination statute. We're not challenging.

[00:08:31] Speaker 04:
I understand that.

[00:08:32] Speaker 01:
OK, so what's your question?

[00:08:35] Speaker 04:
My question is.

[00:08:38] Speaker 04:
Maybe this gets to the merits. Is your argument that the fact that there is the availability to modify that under Rahimi it's still different than Rahimi?

[00:08:58] Speaker 01:
Yes, Your Honor. Because the order right now, the status quo, it is permanent. It's set for 40 years. But you can go in like

[00:09:07] Speaker 04:
next year, whatever, and say there's been changed circumstances. He took all these courses on aggression and whatnot.

[00:09:16] Speaker 01:
Yeah, that doesn't guarantee anything.

[00:09:17] Speaker 04:
No, I know, but it's available, right?

[00:09:19] Speaker 01:
It's available, but our position is that it does not turn a permanent order. The fact that an individual allegedly, and that's our argument, unconstitutionally denied, unlawfully denied the constitutional right 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 03:
Is there any harm that you allege that does not stem from the protective order?

[00:10:03] Speaker 01:
Again, I would just reiterate that.

[00:10:04] Speaker 03:
No, I'm just asking. That's a yes or no question. And then you can explain.

[00:10:10] Speaker 01:
If you're asking for a yes or no question, the answer is no.

[00:10:13] Speaker 03:
There's no harm that doesn't stem from the protective order. All right. Thank you.

[00:10:18] Speaker 04:
So let me ask you this. Let's say we say that Brooker-Fellman isn't a bar here. Sure. It's not a jurisdiction. So you go back to the district court.

[00:10:30] Speaker 04:
Let's just say we say, you know, go back to the district court.

[00:10:35] Speaker 04:
What's in play? I'm sorry? What does the district court need to decide?

[00:10:40] Speaker 01:
The district court needs to decide if there's a historical analog that allows a protection order to impose a lifetime prohibition. And presumably the district court would do that by looking at the historical record to see how long surety laws were typically enforced for. And that would be something that the government entities would need to prove.

[00:10:59] Speaker 05:
And would that not also take into account the procedures that state has made available at this one year period. I understand your position is that those are, you know, paper guarantees or they're meaningless, but that somebody may disagree with you on that. And would that be part of the analysis as well?

[00:11:17] Speaker 01:
No, 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 01:
It would be a historical analysis. And we're talking about a statute that exists in 2026 and has existed for I mean, it's existed for a while, but certainly not since the founding generation.

[00:11:34] Speaker 05:
Right. 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. I'm not holding that. I'm just offering that as something somebody could say in response.

[00:11:56] Speaker 01:
I understand that as a response. I just... Don't think it makes for – Is that what you want to litigate?

[00:12:03] Speaker 05:
Is that what you want to now litigate, these questions? I'm sorry? Is that what you want to now litigate?

[00:12:10] Speaker 05:
You want to go back to the district court and have it out on the merits of these points that Judge Pius and I have been raising here?

[00:12:16] Speaker 01:
I want to go back to the district court, and I want to have a hearing on the merits applying a historical framework. I'm not sold on this – 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 03:
The district court would also be looking at issue preclusion in light of the superior court proceedings?

[00:12:41] Speaker 01:
Potentially. I don't think that applies here because the issue was slightly different and the parties were different as well. Now I understand that doesn't necessarily apply for issue preclusion.

[00:12:50] Speaker 05:
But at least as to the protective order itself, I mean there's some consequences that come out of that, some criminal liability potentially that if you violate – your client violates the protective order. But as to the protective order itself and the duration, there was a Second Amendment challenge raised to that in the state court – in the state trial court. Why is that challenge not issue precluded?

[00:13:16] Speaker 01:
Because it was issued to a different statute. It was issued 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. And the issue here is that we're challenging different statutes.

[00:13:33] Speaker 03:
So just to be clear, the imposition of a protective order is mandatory under Washington law, but the duration statute is now what you're challenging?

[00:13:49] Speaker 01:
No. No. No.

[00:13:50] Speaker 03:
What are you challenging?

[00:13:52] Speaker 01:
RCW 941-040-282, as Judge Paez stated, 941-800. Right. And 922-G8, which is a federal statute.

[00:14:00] Speaker 03:
I understand the federal statute. Okay. 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 01:
The Superior Court did look at it and then rejected the argument. The duration statute, right?

[00:14:16] Speaker 03:
Right. So, I mean, that went back to my question about issue preclusion to The Second Amendment was squarely presented in the state court, right?

[00:14:26] Speaker 01:
It was presented. Yes, it was argued in state court. Yes, Your Honor. But it was to a different statute. I think that's the point I'm trying to make.

[00:14:34] Speaker 05:
What's the difference? I'm a little confused on that.

[00:14:38] Speaker 01:
Well, the duration statute really talks about the protection order as a whole, right?

[00:14:44] Speaker 01:
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. But here we're not talking about the protection order duration in any way, shape, or form anymore. We're talking about the potential unconstitutionality of the application of the firearm statutes that prohibit the firearm possession.

[00:15:00] Speaker 03:
To recipients of protective orders.

[00:15:04] Speaker 01:
Well, no, specifically to Mr. Niles.

[00:15:06] Speaker 03:
I understand. I understand.

[00:15:08] Speaker 01:
So with that, Your Honor, do I have two more minutes?

[00:15:11] Speaker 05:
Well, we'll give you two more minutes. So why don't we hear from your opposing counsel here. So I guess we'll hear first from the Washington AG's office.

[00:15:42] Speaker 02:
Good morning. May it please the court, Sarah Smith Levy for the Attorney General of Washington. The district court dismissed this case for lack of jurisdiction under Rooker Feldman, and this court should affirm that decision. 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 02:
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. The district court held it lacked jurisdiction over this de facto appeal, and this court should affirm.

[00:16:16] Speaker 02:
The Rooker-Feldman doctrine prohibits federal courts from reviewing state court judgments. 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.

[00:16:30] Speaker 04:
So as I read the complaint, they're not asking for that.

[00:16:33] Speaker 02:
You're right, Your Honor.

[00:16:34] Speaker 04:
They're not asking to reverse the judgment. They're not asking us to review what the state court did.

[00:16:40] Speaker 04:
So Rucker felt – He has to declare the statute unconstitutional as applied to Mr. – his 40-year.

[00:16:48] Speaker 02:
Certainly. So what we have here is a de facto appeal.

[00:16:53] Speaker 02:
And here Niles is challenging two state laws as they apply to him, but both are barred as improper de facto appeals.

[00:16:59] Speaker 03:
Really the entire – But would it be different if he brought a facial challenge?

[00:17:03] Speaker 02:
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.

[00:17:13] Speaker 02:
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.

[00:17:29] Speaker 03:
He says, no, I don't want to leave alone the state court decision. 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. So that's what he's asking. But then he says, as to him.

[00:17:55] Speaker 02:
Yes, Your Honor. So what we need to look at here is the nature of the relief sought. 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. 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. 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 04:
Is that more like a preclusion order, a preclusion issue?

[00:18:36] Speaker 02:
The issues definitely do overlap.

[00:18:37] Speaker 04:
I mean, Rucker Feldman doesn't really, you know, separate from preclusion matters.

[00:18:42] Speaker 02:
Yeah, they overlap, I would say. They have some similar flavors to them. 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 04:
So we shouldn't take him for what he alleges in his complaint?

[00:19:03] Speaker 02:
I think this court can take it for what he alleges in his complaint.

[00:19:09] Speaker 02:
And this court, you know, Ricker-Feldman can apply regardless of what the exact underlying reasoning of the state court was. What matters is, is the state court loser here asking for what is effectively appellate review of the state court's judgment? And that is what we have here.

[00:19:27] Speaker 03:
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. 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. What's the state's response to that?

[00:19:53] Speaker 02:
So I think there's two responses to that. The first is that, you know, the attorney general is entitled to be heard on challenges to the constitutionality of state law. The second thing I would say is that this court is here on de novo review, so it can affirm for any basis that's supported by the record, even if it isn't the basis that the district.

[00:20:13] Speaker 03:
Well, it 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 03:
So you're basically saying, well, the attorney general is making himself a party representative of the state? Is that what's happening here? I think that's right, Your Honor.

[00:20:34] Speaker 04:
Well, you can always waive the 11th Amendment.

[00:20:37] Speaker 03:
And we can always waive the 11th Amendment. Yes, you can always waive the 11th Amendment. But I haven't seen it done by this state attorney general very often. So that's why this case is a little confusing, having the attorney general – As a defendant here, I understand and we'll hear from the United States as to their situation. So is the difficulty we have, of course, is what's a de facto appeal.

[00:21:05] Speaker 03:
And what is, in fact, not as counsel says, I don't I'm not asking you to do anything.

[00:21:14] Speaker 03:
With.

[00:21:16] Speaker 03:
The state court protective order. 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 03:
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 02:
Yes. So to determine whether a case presents a de facto appeal, we look to whether 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. 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 03:
And I asked him, do you have any harm that doesn't stem from the state court order? He said no.

[00:22:10] Speaker 02:
I think that's right, Your Honor. The two state statutes he's challenging here apply only by virtue of the state court's judgment. They wouldn't independently apply to him absent the order.

[00:22:23] Speaker 02:
And that's really what makes this exactly the type of collateral attack that Rucker Feldman prohibits.

[00:22:28] Speaker 05:
What about the line of cases saying that people can bring independent challenges like Maldonado?

[00:22:33] Speaker 02:
Yeah. So I think two thoughts, maybe more than two thoughts on that. 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. So there really are no independent claims possible here.

[00:22:52] Speaker 02:
And then the second point I'd like to make is that this case is really actually pretty distinct from Maldonado. I would agree that on the case's face, they appear to be pretty similar, but this case and Maldonado are actually quite different.

[00:23:06] Speaker 02:
In Maldonado, he had never raised the constitutional claims in state court. He didn't challenge the underlying state court judgment. And he was kind of challenging ongoing continued enforcement of a law years later after the state court's judgment had been entered. And so by contrast, this case, you know, 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 passed. or wrongfully enforced at this time.

[00:23:36] Speaker 02:
Instead, he really just disagrees with and seeks reversal of the state court's decision.

[00:23:40] Speaker 05:
I mean, isn't his complaint seeking to be challenging the continued enforcement? Isn't that part of what he's arguing or really is what he's arguing?

[00:23:51] Speaker 02:
I'd agree 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.

[00:24:01] Speaker 03:
He made some distinction. Well, the state court, 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. So that gets him out of Rucker Feldman land.

[00:24:13] Speaker 02:
I think it's really a distinction without a difference here, Your Honor. 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, you know, it was unconstitutional, the Second Amendment. The state court understood the position that was being presented to it. It considered it and rejected it.

[00:24:36] Speaker 02:
But really, the state court knew what was being asked of it and decided to reach a contrary decision.

[00:24:41] Speaker 03:
Would that issue be more appropriately determined on a remand on issue preclusion as opposed to a decision here on Rooker-Feldman?

[00:24:53] Speaker 02:
No, Your Honor. I think this court can resolve this on the jurisdictional Rooker-Feldman grounds. Okay. Unless there are any further questions, the district court correctly held this case is barred by Ricker Feldman, and this court should affirm. Thank you.

[00:25:09] Speaker 05:
Okay, thank you. 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. Two and a half years ago, a Washington state court entered a domestic violence protection order against plaintiff. After concluding, the plaintiff represents a credible threat to the safety of his now former wife.

[00:25:38] 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 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 Brahimi and the two and a half years that we've had since the protection order issue in this case.

[00:26:12] Speaker 03:
I think if I understand his argument, his problem is it's not two and a half years, that's actually the lag time between the order and now. It's the in effect lifetime duration.

[00:26:24] Speaker 00:
Right. So I think That then sort of gets – if that's his claim, it would be fine to enforce 922G8 against him today. But it would not be fine to enforce 922G8 against him in five years and 10 years and 15 years. I think that's the ripeness problem. And so depending on exactly how he's framing his claim, and like I said, I'm not entirely sure how he's conceiving of the claim. 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 claims right.

[00:26:56] Speaker 05:
And I mean, it seems like he's subject to it now.

[00:26:59] Speaker 05:
So there may be merits responses to it. But I mean, we let people come in and challenge a lengthy criminal sentence and say, I'm subject to this long sentence. 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. I mean, that's the Rucker Feldman issue. 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.

[00:27:31] 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 G8 can be enforced against him. I think that claim's ripe. There's just a big Rahimi problem with it. To the extent that the claim is that 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. I think that's the ripeness problem.

[00:27:57] Speaker 03:
So you say, okay, he's overcome ripeness at least to some degree. 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 rightness issue, I think exactly how you would resolve that claim on the merits – 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. And so as of today –

[00:28:43] Speaker 03:
It's – so let me go back. It's not a Rooker-Feldman issue is the way he frames it.

[00:28:48] Speaker 00:
Right, 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. We agree with that.

[00:28:56] Speaker 03:
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 03:
I don't think you can talk for the state.

[00:29:09] Speaker 00:
We do not think there's a Rooker-Feldman problem with respect to that claim, I think. Mithros, 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. And so it's certainly true that sort of the state court order is a necessary predicate for the G8 enforcement. 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 –

[00:29:41] Speaker 03:
The position of the United States is that the district court should be reversed and the case should be remanded to the district court.

[00:29:50] Speaker 00:
No, although I don't think that would be wrong. We do think the district court is wrong about Rucker Feldman. Okay. 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 is not ripe or that it fails on the merits. I mean, applying Rahimi sort of to the circumstances as they exist today, I think is a pretty straightforward legal.

[00:30:08] Speaker 05:
It is not ripe as to the future part of this. When does it become ripe? He'll do this again in a year, and we'll say, well, it's been three years, so it's not quite ripe yet. It's getting riper. It's getting riper.

[00:30:20] Speaker 00:
Yeah, so I think it's ripe when he thinks that his claim is sort of that we could not enforce the statute today.

[00:30:27] Speaker 05:
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 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. And so I think whenever he decides – Again, 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 or you cannot enforce it against me today. That's not right.

[00:30:54] Speaker 05:
The complaint is 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. People may disagree with that. and that the procedures for trying to make it not permanent are not good enough. 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 two things about that. I mean, number one, just sort of taking on its own terms, the 40-year order, and I think as our brief explains, the key point in Rahimi is that you have the tying of the judicial determination of a credible threat with a relatively temporary prohibition. And I think here, taking Washington law as a whole, he has the opportunity to get every year a judicial determination or a potential judicial determination about whether he continues to pose a credible threat to his ex-wife.

[00:31:45] Speaker 05:
And I don't know how any sort of – Do the details of this not matter, like exactly how the state procedure functions and who bears the burden and what one needs to show? 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 – beyond a shadow of a doubt that you're not dangerous, and someone could respond to that and say, well, that's just too onerous.

[00:32:10] Speaker 05:
And perhaps the argument is being made here. I don't know what the answer to that is. That would have to – 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. I don't think he's developed any argument that the Washington scheme is that sort of particularly onerous of scheme. I mean he can go back every year. It's a preponderance burden at times. And again, if he goes back to the state court and the state court says, 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, maybe he then has a federal claim that's a better federal claim than the one that he has right now. 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. 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 jade against me. I think he has a Rahimi problem.

[00:33:04] Speaker 03:
On that point, if the federal government says no, Ricker Feldman, but decide the Rahimi. But typically, 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:
So the court – obviously the preclusion issue hasn't been briefed here. I don't know how Washington state law would treat – That's why a remand would be appropriate, wouldn't it? If the court wanted to say, like I said, there's no worker problem with respect to the claim against us and remand, we don't think the court has to do that. We think it would be sort of perfectly appropriate for the court to apply Rahimi to the extent that his claim is about today. I think it's a pretty straightforward application.

[00:33:54] Speaker 03:
Let me ask you a question. I don't think I asked the state. But can you split these claims? 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. Is that possible or can you not split these?

[00:34:19] Speaker 00:
So we've only taken a position on the federal claim. I don't. sort of have a good argument for you about why the Washington claim should be treated different than the federal claim. I can tell you why we think the federal claim doesn't run into a worker felton problem.

[00:34:33] Speaker 00:
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. And so maybe the court could think that there's a difference there. But I think applying this court's precedence to the federal claim, we just don't see the worker felton problem.

[00:34:52] Speaker 00:
if there are no further questions.

[00:34:54] Speaker 05:
Okay. Thank you, Mr. Chanda. Thank you.

[00:35:00] Speaker 01:
I want to address the United States argument real quick first.

[00:35:04] Speaker 01:
Specifically, the point that counsel made about the ability to go back to court and ask for termination on a yearly basis. And if the termination is denied, then that's essentially a finding that the individual continues to represent a credible threat. That is not what the state statute requires. The state statute does not require the court to deny motion to terminate because it finds that the individual has continued to be dangerous or because the individual continues to represent a credible threat. Those are not elements of the statute.

[00:35:35] Speaker 01:
So we can't say that if he goes to court and gets denied, that means he's a credible threat. Those aren't tantamount findings.

[00:35:44] Speaker 01:
With regard to the Attorney General's argument with Rupert Feldman 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. 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.

[00:36:08] Speaker 03:
Didn't the state court have to decide that there was not a constitutional infirmity with the imposition of the statutes?

[00:36:18] Speaker 01:
That's not part of the initial decision to issue the order.

[00:36:22] Speaker 03:
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 01:
We're not making... You raised it in the motion to adjust.

[00:36:35] Speaker 04:
To adjust.

[00:36:37] Speaker 01:
Correct, Your Honor. But we're not raising that on the federal...

[00:36:40] Speaker 01:
We're not saying that the Superior Court erred on that issue in federal court. We don't care what the State Court did.

[00:36:46] Speaker 03:
Well, 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 01:
I think that's a little presumptive. Somebody would have had to have raised that.

[00:37:03] Speaker 03:
And you raised it. 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, that's all raised in the state court, right?

[00:37:18] Speaker 01:
As the challenge was at the time to the duration statute, correct, yes.

[00:37:21] Speaker 03:
Okay, 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 01:
Thank you, Your Honor. I just wanted to touch on something Judge McCallum said to the Attorney General's office. 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. That is not correct. If the statutes are only valid, if the protection order continues to be valid for the next 40 years, nothing changes about the protection order. I think that's an important point. That makes no sense to me.

[00:37:50] Speaker 03:
That makes no sense to me.

[00:37:53] Speaker 01:
There's absolutely no sense. I'm sorry.

[00:37:56] Speaker 03:
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 under this statute, and then that statute is invalidated, well, that portion of the protected order goes by the wayside.

[00:38:16] Speaker 01:
That portion, yes. But all the other terms of the protected order would still remain. They would not be voided because of... I understand.

[00:38:22] Speaker 03:
Don't contact or various things.

[00:38:24] UNKNOWN:
Yes.

[00:38:24] Speaker 01:
So with that, we ask the court to reverse and remand. Thank you.

[00:38:28] Speaker 05:
Okay. Thank you. We thank all counsel for the briefing and argument. This matter is submitted. That concludes our calendar for this morning. We'll stand in recess until tomorrow.