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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Steven William Eng v. State of Alaska, Department of Public Safety (10/25/2024) sp-7729
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STEVEN WILLIAM ENG, )
) Supreme Court No. S-18257
Appellant, )
) Superior Court No. 3AN-20-06070 CI
v. )
) O P I N I O N
STATE OF ALASKA, ALASKA )
DEPARTMENT OF PUBLIC ) No. 7729 - October 25, 2024
SAFETY, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Josie Garton, Judge.
Appearances: Andrew J. Fierro, Law Office of Andrew J.
Fierro, Inc., Eagle River, for Appellant. Ryan A. Schmidt
and David A. Wilkinson, Assistant Attorneys General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Appellee.
Before: Maassen, Chief Justice, Carney, Borghesan, and

Pate, Justices, and Winfree, Senior Justice. [Henderson,
Justice, not participating.]
CARNEY, Justice.
BORGHESAN, Justice, with whom PATE, Justice, joins
concurring.
 Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
INTRODUCTION
After a man was unable to buy a gun because a background check revealed
he was subject to a long-term domestic violence protective order, the man sued the
State. He claimed that he was no longer subject to a protective order as defined by
federal statute, and sought a permanent injunction and declaratory judgment that the
Department of Public Safety (DPS) notify a national database that he was no longer
subject to a protective order under 18 U.S.C. § 922(g)(8). He then filed a motion for
summary judgment; the State opposed and filed a cross-motion for summary judgment.
The superior court granted the State's cross-motion. The man appeals. We affirm the
superior court's decision.
FACTS AND PROCEEDINGS
A. Facts
In 2013 Steven Eng's ex-wife petitioned for a long-term domestic
violence protective order (DVPO) against him. Eng received notice of the petition and
participated in a contested hearing. The superior court granted the petition. The court
found by a preponderance of the evidence that Eng committed or attempted to commit
assault or reckless endangerment against his ex-wife. The court also found that Eng
"represents a credible threat to the physical safety of petitioner," citing 18 U.S.C.
1
§ 922(g)(8)(C)(i) of the Brady Act. Finally, the court found that Eng was in possession
of a firearm during the commission of domestic violence, citing AS 18.66.100(c)
subsections (6) and (7).
1 The Brady Handgun Violence Protection Act established a national instant
criminal background check system (NICS), which prohibits the sale of firearms to
people subject to DVPOs as defined by 18 U.S.C. § 922(g)(8). See 18 U.S.C. §§ 921-
922.
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2
The court issued a DVPO pursuant to AS 18.66.100 . The DVPO
prohibited Eng from committing or threatening to commit acts of domestic violence,
3
stalking, or harassment pursuant to subsection (c)(1). This general prohibition was to
"remain in effect indefinitely, until dissolved by court order." The DVPO also required
Eng to only contact his ex-wife through her attorney, to stay away from her residence
and workplace, and not to interfere with her operation of any vehicle, as authorized by
subsections (c)(2) through (5) and (16). Citing subsections (6) and (7) of the statute,
the DVPO prohibited Eng from using or possessing a firearm and ordered him to
"surrender every firearm" he owned and possessed. The more specific provisions,
including the prohibition on using or possessing a firearm, remained in effect for one
year and expired in November 2014. A section of the order entitled "Notice to
Respondent" warned that even if other sections of the DVPO "do not prohibit you from
possessing" a firearm or ammunition, "you may be charged with a federal offense" for
such possession. The notice section cited 18 U.S.C. § 922(g).
After receiving a copy of the DVPO from the court, DPS entered it into
4
the National Crime Information Center (NCIC) database as required by AS 18.65.540.
2 Alaska Statute 18.66.100 governs DVPOs, providing "victim[s] of a crime
involving domestic violence" the opportunity to petition for "a protective order against
a household member."
3 AS 18.66.100(c)(1) (stating DVPOs may "prohibit the respondent from
threatening to commit or committing domestic violence, stalking, or harassment").
4 See AS 12.62.110(4) (requiring DPS commissioner to "cooperate with . . .
the National Crime Information Center, and other appropriate agencies or systems, in
the development and operation of an effective interstate, national, and international
system of criminal identification, records, and statistics"); see also AS 18.65.540(a)
(requiring DPS to "maintain a central registry of protective orders issued by or filed
with a court of this state").
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DPS determined that the DVPO qualified for inclusion in the database authorized in the
5
enabling regulations that accompanied the Brady Act.
At some point in late 2014 or 2015, after all provisions of the order except
the one prohibiting further acts of domestic violence had expired, the DVPO was
6
uploaded from the Alaska Public Safety Information Network to the NCIC database.
It was entered with a specific code that indicated Eng was prohibited from possessing
a firearm or ammunition because the section of the DVPO remaining in effect "until
further order of the court" qualified as an order under § 922(g)(8).
In 2019 Eng attempted to buy a gun. He completed a firearms transaction
record for the firearms dealer to complete a background check as required by federal
7
law. The Bureau of Alcohol, Tobacco, Firearms, and Explosives denied approval for
5 See 34 U.S.C. § 40901(b)(1) (directing Attorney General to "establish a
national instant criminal background check system that any [federal firearms dealer]
may contact . . . for information, to be supplied immediately, on whether receipt of a
firearm by a prospective [buyer] would violate section 922 of Title 18 or state law");
28 C.F.R. §§ 25.1, 25.3, 25.4 ("establish[ing] a National Instant Criminal Background
Check System (NICS)" to "implement[] the Brady . . . Act," which would include
information from two other databases - the National Crime Information Center
(NCIC) and the Interstate Identification Index (III) - "contributed voluntarily by
Federal, state, local, and international criminal justice agencies"); see also
AS 12.62.110(4) (requiring DPS commissioner "to cooperate with . . . [other] criminal
record repositories," including "the Interstate Identification Index, the National Law
Enforcement Telecommunications System, the [NCIC], and other appropriate agencies
or systems, in the development and operation of an effective interstate, national, and
international system of criminal identification, records, and statistics").
6 The Alaska Public Safety Information Network tracks criminal histories
and other information necessary for law enforcement purposes, including DVPOs; the
network connects to other federal and state networks via the National Law Enforcement
Telecommunications System. See Division of Statewide Services , ALASKA DEP'T PUB.
SAFETY, https://dps.alaska.gov/Statewide/Home (last visited Oct. 10, 2024).
7 When a person attempts to purchase a firearm, a federally licensed dealer
must contact NICS to perform a background check on the buyer to verify eligibility.
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the purchase. Eng unsuccessfully contested the denial with the Federal Bureau of
Investigation (FBI). In July 2019 he received a letter from the FBI upholding the denial
and informing him that he was prohibited from purchasing firearms under Section
922(g)(8) because he was "[a] person who is subject to a court order."
In March 2020 Eng's attorney sent a letter to DPS regarding the denial;
DPS sent a letter in response advising him to request that the superior court dissolve the
order and directing him to a specific court form designed for that purpose. The
Department of Law reiterated the same advice in an email in April 2020. Eng did not
attempt to modify or dissolve the DVPO.
B. Proceedings
In April 2020 Eng filed a complaint for injunctive and declaratory relief
in superior court. Eng sought an order that DPS notify NCIC that he was no longer
subject to a protective order under 18 U.S.C. § 922(g)(8). The State moved to dismiss
Eng's complaint with prejudice.
Eng filed a motion for summary judgment, arguing that the DVPO was
"contrary to federal case law and [was] not supported by Alaska law or procedure"
because it was indefinite. The State opposed and filed a cross-motion for summary
judgment.
The superior court held oral argument in April 2021. Eng argued that
"after one year [the DVPO] is no longer a protective order" and that the State violated
his rights under the Second Amendment of the United States Constitution by
"prevent[ing] him from purchasing and actually possessing a firearm." The State
responded that the superior court had found Eng posed a credible threat to his ex-wife
and was either in possession of or used a firearm during the commission of domestic
Firearms Checks (NICS) , FED. BUREAU INV ., https://www.fbi.gov/how-we-can-help-
you/more-fbi-services-and-information/nics (last visited Oct. 10, 2024).
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----------------------- Page 6-----------------------
violence that led to the DVPO. It also emphasized that the DVPO remained in effect
until further court order.
In August the court denied Eng's motion and granted the State's cross-
motion for summary judgment. The court first found that the DVPO had not expired,
and that it remained a qualifying order under Section 922(g)(8). It then concluded that
Eng's constitutional claims were not ripe. The court also concluded that Eng's claim
that he would not be able to seek modification of the DVPO was not ripe "[b]ecause
Eng ha[d] not initiated modification or dissolution of his order." The court entered a
final judgment in favor of the State in November. Eng appeals.
STANDARD OF REVIEW
We review whether a claim is ripe and whether summary judgment was
8
proper using our independent judgment . "Summary judgment is proper if there is no
genuine factual dispute and the moving party is entitled to judgment as a matter of
9
law." "All reasonable inferences to be drawn from the facts presented must be drawn
in favor of the non-moving party."10
DISCUSSION
Eng argues that the legislature intended long term DVPOs to expire, that
the DVPO is not a qualifying protective order under 18 U.S.C. § 922(g)(8), and that the
superior court erred by finding his remaining claims not ripe for adjudication. We
disagree: the legislative history does not support Eng's interpretation of AS 18.66.100,
the DVPO qualifies under Section 922(g)(8), and Eng's remaining claims are not ripe.
8 Anderson v. Alaska Hous. Fin. Corp ., 462 P.3d 19, 25 (Alaska 2020)
(quoting Blair v. Fed. Ins. Co. , 433 P.3d 1048, 1051 (Alaska 2018)); State v. ACLU of
Alaska , 204 P.3d 364, 367-68 (Alaska 2009).
9 Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008).
10 Id. at 758.
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A. The DVPO Remains In Effect.
Eng argues that the legislative history of AS 18.66.100 "does not support
the superior court's conclusion that protective orders in Alaska are of indefinite
duration."
When analyzing a statute, "[w]e begin with the text and its plain meaning,
and we use a sliding-scale approach to interpret the language. [T]he plainer the
statutory language is, the more convincing the evidence of contrary legislative purpose
or intent must be."11
1. Plain meaning.
When we consider statutory language, "unless words have acquired a
peculiar meaning, by virtue of statutory definition or judicial construction , they are to
be construed in accordance with their common usage."12 "[W]e presume that no words
or provisions are superfluous and that the legislature intended 'every word, sentence, or
provision of a statute to have some purpose, force, and effect.' "13
Alaska Statute 18.66.100(c) states that "[a] protective order under this
section may . . . prohibit the respondent from threatening to commit or committing
domestic violence, stalking, or harassment."14 Alaska Statute 18.66.100(b) provides
that "[t]he provisions of a protective order issued under . . . (c)(1) of this section are
11 Res. Dev. Council for Alaska, Inc. v. Vote Yes for Alaska's Fair Share ,
494 P.3d 541, 546 (Alaska 2021) (second alteration in original) (quoting State v.
Planned Parenthood of the Great Nw. , 436 P.3d 984, 992 (Alaska 2019)).
12 Tesoro Alaska Petrol. Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905
(Alaska 1987).
13 Adamson v. Mun. of Anchorage , 333 P.3d 5, 16 (Alaska 2014) (quoting
Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 345 (Alaska 2011)).
14 AS 18.66.100(c)(1).
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effective until further order of the court" while those issued under subsections (c)(2)-
(16) "are effective for one year unless earlier dissolved by court order."15
This language is not ambiguous. In Whalen v. Whalen we discussed the
legislative history of AS 18.66.100.16 We recognized that "the language of the statute
unambiguously provides for the duration of the various kinds of protective relief that
can be ordered."17 We emphasized that protective relief ordered under
AS 18.66.100(c)(1) has an "indefinite time limitation" and remains "effective until
further order of the court."18 DVPOs issued under AS 18.66. 100(c)(1), according to its
terms, "are effective until further order of the court."
When a statute's meaning appears clear and unambiguous, "the party
asserting a different meaning bears a correspondingly heavy burden of demonstrating
contrary legislative intent."19 With this burden in mind, we turn to the legislative
history of AS 18.66.100.
2. Legislative history.
Alaska Statute 18.66.100 is part of the 1996 Domestic Violence
Prevention and Victim Protection Act,20 which changed the protective order provisions
in former AS 25.35.010.21 The initial version of the act was replaced by a committee
15 AS 18.66.100(b).
16 425 P.3d 150, 154 (Alaska 2018).
17 Id. at 155.
18 Id.
19 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)).
20 Ch. 64, § 33, SLA 1996.
21 Former AS 25.35.010(c) (1995) (stating that orders "remain[ed] in effect
for a period of time not to exceed 90 days" and allowing extensions in certain
circumstances).
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substitute based on the Model Code on Domestic and Family Violence.22 The Model
Code did not include time limits on protective orders issued upon notice and hearing
and "shift[ed] the burden from the victim to the perpetrator [to seek] court approval to
terminate an order."23 During hearings on the proposed bill, a Department of Law
representative supported the proposed substitute because even without time limits on
protective orders, it would be "very easy for people to get modifications to protective
orders: all either party needs to do is ask the court for modifications."24 Originally four
of the sixteen provisions had no time limits,25 but the bill was revised to include only
one provision without a stated time limit.26
The Senate Finance Committee expanded the language of that remaining
provision to include harassing and stalking .27 It provided that a protective order under
this section may "prohibit the respondent from threatening to commit or committing
22 Minutes, H. Jud. Standing Comm. Hearing on H.B. 340, 19th Leg., 2d
Sess. 1:30 (Apr. 15, 1996) (statement of Rep. Sean Parnell) ("The committee substitute
is based, in part, on the Model Code on Domestic and Family Violence and is focus[e]d
on victim protection and domestic violence prevention.").
23 MODEL CODE ON DOMESTIC & FAMILY VIOLENCE § 306 cmt. (NAT 'L
COUNCIL OF JUV . & FAM . CT. JUDGES 1994) ("No time limitations are imposed."). The
Model Code was developed by the National Council of Juvenile and Family Court
Judges.
24 Minutes, S. Jud. Comm. Hearing on H.B. 314, 19th Leg., 2d Sess. (Apr.
15, 1996) (comments of Laurie Otto, Deputy Att'y Gen.).
25 Minutes, S. Jud. Comm. Hearing on H.B. 314, 19th Leg., 2d Sess. (Apr.
19, 1996) (comments of Richard Vitale).
26 See AS 18.66.100(c)(1).
27 Minutes, S. Fin. Comm. Hearing on H.B. 314, 19th Leg., 2d Sess. (May
5, 1996) (comments of Sen. Rick Halford, Co-Chair) (suggesting first provision "could
be a perpetual order and include stalking and harassing").
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domestic violence, stalking, or harassment."28 This provision became
AS 18.66.100(c)(1), which is "effective until further order of the court."29
The legislative history reveals that the legislature intended DVPOs based
on subsection (c)(1) to last "until further order of the court" - exactly what the plain
language of the statute states. Eng has failed to meet his "heavy burden of
demonstrating contrary legislative intent."30 The DVPO against Eng remains in effect.
B. The DVPO Is A Qualifying Order Under 18 U.S.C. § 922(g)(8).
Eng argues that the continuing prohibition of acts of domestic violence,
stalking, or harassment in the DVPO does not qualify as a protective order under
18 U.S.C. § 922(g)(8), in part because that section of the DVPO "is not directed to
protect a specific person."
Section 922(g) prohibits the sale of firearms to someone subject to a
protective 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;
28 S. Fin. Comm. Substitute for H.B. 314, 19th Leg., 2d Sess. (May 5, 1996).
29 AS 18.66.100(b)(1)-(c)(1). The legislature amended the statutes
governing the issuance of protective orders following Whalen; these changes expanded
rather than limited protective orders . Ch. 9, SLA 2019; Minutes, S. Jud. Comm.
Hearing on H.B. 12, 31st Leg., 1st Reg. Sess. 6:01:06-6:02:55 (Apr. 23, 2019)
(statement of Rep. Chuck Kopp) (explaining that bill is intended to clarify statutes in
response to Whalen); see also Mitchell v. Mitchell , 445 P.3d 660, 662 (Alaska 2019)
("Among other things, the amendments prohibit a court from denying a petition for a
protective order on grounds that (1) the alleged domestic violence was the basis for a
previous protective order; or (2) the court previously found the petitioner to be a victim
of domestic violence but did not order relief, if the petition alleges a change of
circumstances.").
30 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)).
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(B) restrains such person from harassing, stalking, or
threatening an intimate partner[31] 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. . . .[32]
It is clear from the record that Eng had notice and the opportunity to be
heard - and was heard - at a hearing, that the DVPO was granted to his ex-wife, and
that it included a finding that Eng represented a credible threat to the safety of his ex-
wife. And it is undisputed that the DVPO was a qualifying order from 2013 until
November 2014.
But Eng now claims that notice was insufficient because he "was not told
by the court that [he] will remain indefinitely subject to the protective order" and
therefore prevented from purchasing a gun from a licensed dealer. He argues that
because the only continuing provision of the DVPO "is not directed to protect a specific
person, notably a respondent's intimate partner," "what remains is not a qualifying
protective order." Eng also argues that "it is unreasonable to conclude that respondents
in Alaska remain a credible threat to a victim beyond the expiration of the no contact
provisions."
31 As used in subsections 922(g)(8)(B) and (C), intimate partner is defined
as "the spouse of the person, a former spouse of the person, an individual who is a
parent of a child of the person, and an individual who cohabitates or has cohabited with
the person." 18 U.S.C. § 921(a)(32).
32 18 U.S.C. § 922(g).
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1. Eng received notice and had an opportunity to participate at
the hearing.
Section 922(g)(8)(A) requires that the protective order is issued "after a
hearing of which such person received actual notice, and at which such person had an
opportunity to participate."33 The DVPO was "issued after a hearing," Eng "received
actual notice," and he "had an opportunity to participate." The statutory requirements
were met. Eng's claim that he did not receive notice because he was "not told by the
court that [he] will remain indefinitely subject to the protective order" fails as well. The
DVPO plainly states that the prohibition against acts of domestic violence, stalking, or
harassment "remain[s] in effect indefinitely, until dissolved by court order." In addition
the DVPO gave notice to Eng that he "may be charged with a federal offense even if"
he was not prohibited from "possess[ing] a firearm or ammunition while the order is in
effect."
2. The DVPO is directed to protect Eng's ex-wife and includes a
finding that he represented a credible threat to her.
To qualify as a protective order under 18 U.S.C. § 922(g)(8)(B), an order
must "restrain[] 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."34 "[T]he spouse of the person [and] a former spouse of the person" are
considered intimate partners.35
The DVPO was issued by the court based on the petition filed by Eng's
ex-wife and the testimony presented at the contested petition hearing. The DVPO
identifies Eng's ex-wife as the protected person and includes a finding that she and Eng
33 18 U.S.C. § 922(g)(8)(A).
34 18 U.S.C. § 922(g)(8)(B).
35 18 U.S.C. § 921(a)(32).
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were married. But Eng argues that because the section of the DVPO that prohibits acts
of domestic violence, stalking, or harassment does not include language specifying that
he cannot commit these acts against his ex-wife, the remaining "prohibition [is] not
specific to a particular victim." He cites a case from the United States Court of Appeals
for the Ninth Circuit, United States v. Sanchez.36
Sanchez appealed a finding that he violated 18 U.S.C. § 922(g)(8) by
knowingly possessing a gun while subject to a no-contact order.37 He argued that the
court erred by "denying his motion for acquittal" and that the no contact order did not
"satisfy § 922(g)(8)'s requirement that the underlying court order 'by its terms
explicitly prohibit[ ] 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.' "38 The Ninth Circuit agreed with him and held that the district court had erred
"because a no-contact order that lacks explicit prohibitions on the use, attempted use,
or threatened use of physical force against an intimate partner or child that would
reasonably be expected to cause bodily injury cannot satisfy (8)(C)(ii)."39 The Ninth
Circuit held that "[a] court can ensure an order triggers § 922(g)(8) by including either
a finding that the person subject to the court order represented a credible threat to the
physical safety of an intimate partner or child or specific terms prohibiting the use,
attempted use, or threatened use of physical force."40
Eng asserts that the failure to specify his ex-wife means that the DVPO
does not meet the federal statute's requirements. He claims that "Sanchez clearly points
36 639 F.3d 1201 (9th Cir. 2011).
37 Id. at 1202-04.
38 Id. at 1202 (alteration in original).
39 Id. at 1205.
40 Id. at 1206.
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out that the protective order must be directed to protect a respondent's intimate partner
as stated in subsections B and C of 922(g)(8)."
We have previously noted that "[p]aragraphs (1)-(7) of AS 18.66.100(c)
allow a protective order issued in response to a domestic violence petition to restrict the
respondent's contact with the petitioner."41 Eng's ex-wife was the petitioner, and she
is an intimate partner; the order satisfies Section 922(g)(8)(B).
The superior court found that Eng represented a credible threat to his ex -
wife. Section 922(g)(8)(C) is disjunctive: it requires either "a finding that such person
represents a credible threat to the physical safety of such intimate partner or child; or
[that the order] explicitly prohibits the use, attempted use, or threatened use of physical
force against such intimate partner."42 The no-contact order in Sanchez failed to satisfy
section 922(g)(8)(C)(ii) because the order did not specifically prohibit the use,
attempted use, or threatened use of physical force, and it did not include a finding that
Sanchez represented a credible threat to an intimate partner or child.43 The DVPO here
included a finding that Eng represented a credible threat. Sanchez does not apply.
The DVPO remains a qualifying order under 18 U.S.C. § 922(g)(8).
C. Eng's Remaining Arguments Are Not Ripe.
Eng makes a number of other arguments,44 but none of them are ripe for
adjudication because he has not attempted to dissolve or modify the DVPO.45 The
41 State v. Strane, 61 P.3d 1284, 1286 (Alaska 2003) (emphasis added).
42 18 U.S.C. § 922(g)(8)(C).
43 639 F.3d at 1202-06.
44 Eng argues that the DVPO is not of limited duration, that he is not truly
"subject to" a qualifying order, and that the procedure for modifying the DVPO is not
clear.
45 The concurrence at page 18 asserts that this conclusion "seems
inconsistent" with our resolution of Eng's argument that the DVPO did not qualify
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concurrence disagrees, but to address one of these arguments, the concurrence extends
to Eng the type of lenience usually reserved for self-represented parties.46 Because Eng
was zealously represented by counsel throughout this litigation, we decline to do
likewise.
There must be an "actual controversy" for a court to issue declaratory
relief under Alaska's declaratory judgment act.47 The statute's "actual controversy"
language "encompasses a number of more specific reasons for not deciding cases,
including lack of standing, mootness, and lack of ripeness."48 "The ripeness doctrine
requires a plaintiff to claim that either a legal injury has been suffered or that one will
be suffered in the future."49 Our primary concern is "whether the case involves
uncertain or contingent future events that may not occur as anticipated, or indeed may
not occur at all."50
under the Brady Act because it was "not directed to protect a specific person." But that
argument presents a straightforward question of statutory interpretation that does not
depend on whether the order might be modified in the future.
In contrast, Eng has not attempted to dissolve or modify the DVPO but
nonetheless argues that it is indefinite. Similar to parties held in civil contempt, Eng
"carr[ies] the keys of [his] prison in [his] own pocket[]." Carter v. Broderick, 750 P.2d
843, 844 (Alaska 1988). Likewise "[i]t is well established that as to a party to a suit a
civil contempt order is interlocutory and reviewable only upon appeal taken from a final
judgment or decree." Surina v. Buckalew, 629 P.2d 969, 972 n.4 (Alaska 1981). Unless
and until Eng attempts and fails to dissolve or modify the DVPO, his claim is not ripe.
46 Concurrence at 17-18; see Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)
("[T]he pleadings of pro se litigants should be held to less stringent standards than those
of lawyers.").
47 Borer v. Eyak Corp., 507 P.3d 49, 57-58 (Alaska 2022); AS 22.10.020(g).
48 Brause v. State, Dep't of Health & Soc. Servs. , 21 P.3d 357, 358 (Alaska
2001).
49 Id. at 359.
50 Id. (quoting 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE &
PROCEDURE § 3532, at 112 (2d ed. 1984)).
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When Eng asked DPS to notify the FBI that he was no longer subject to a
protective order, the agency informed him that a "Request to Dissolve a Protective
Order[] must be filed with the court for relief from this firearms prohibition." Instead
of seeking to modify the order, Eng sued DPS and then filed a motion for summary
judgment. Because Eng has not attempted to dissolve the order, there is no actual
controversy to decide, and his other arguments are not ripe.51
CONCLUSION
We AFFIRM the superior court's decision.
51 We do not issue advisory opinions. See Dapo v. State, Dep't of Health &
Soc. Servs., Off. of Child.'s Servs., 509 P.3d 376, 381 (Alaska 2022).
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BORGHESAN, Justice, with whom PATE, Justice, joins concurring.
I agree with the court's ruling that the DVPO entered against Steven Eng
remains in effect and is a qualifying order for purposes of 18 U.S.C. § 922(g)(8), which
1
is part of the federal Brady Act. I write separately because I believe Eng has made a
ripe argument that the court does not address. His argument, as I understand it, is that
protective orders of indefinite duration, like the one to which he remains subject, are
not qualifying orders for purposes of the Brady Act.
To be fair, it is hard to know for certain what Eng is arguing. He states
that he "is not challenging the constitutionality of 922(g)(8)." Instead he challenges
"the actions of the state in identifying him as a person indefinitely 'subject to' a
qualifying order under 922(g)(8) for purposes of invoking federal firearm restrictions."
Alaska law does not deprive Eng of the right to possess a firearm; it is § 922(g)(8) that
does so. Yet Eng's reply brief cites the United States Supreme Court's decision in New
2
York State Rifle & Pistol Ass'n v. Bruen, which was issued after the parties' opening
briefs were filed. This citation suggests that Eng, despite disclaiming a challenge to the
constitutionality of § 922(g)(8), is making a constitutional argument of some sort.
Putting all this together, I take Eng to be arguing that the Brady Act has
been or must be interpreted so that protective orders of indefinite duration are not
"qualifying orders" that bar possession of firearms, lest the Brady Act violate the
Second Amendment. Whether this claim is based on statutory construction or an as-
1 Eng's arguments pertain to 18 U.S.C. § 922(g)(8). Congress enacted
§ 922(g)(8) as part of the Violent Crime Control and Law Enforcement Act of 1994 .
Pub. L. No. 103-322, § 110401(c), 108 Stat. 1796, 2014-15 (1994). This federal
statutory scheme is referred to here as the Brady Act for consistency with the court's
decision.
2 597 U.S. 1 (2022).
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applied constitutional challenge, it is ripe, and we should address it. I believe the
3
argument fails under the Supreme Court's recent decision in Rahimi v. United States.
A. Both Of Eng's Arguments About The Brady Act Are Ripe For
Decision.
Eng argues that the DVPO he is subject to does not qualify under
§ 922(g)(8) for two reasons. First, he argues that § 922(g)(8) applies to protective
orders that restrain a "person from harassing, stalking, or threatening an intimate
partner," while the only remaining DVPO provision in effect against him is a general
prohibition not to threaten or commit acts of domestic violence, stalking, or harassment
- against anyone. Second, he argues that "only protective orders of a limited duration
trigger the 922(g)(8) firearm prohibition," while the DVPO to which he is subject has
an indefinite duration, remaining in effect until dissolved by court order. The court
addresses the first argument, and I agree with its analysis. But the court declines to
address Eng's second argument for lack of ripeness.
That approach seems inconsistent. If the first argument is ripe - and I
believe it is - the second argument is ripe too.
"Our ripeness doctrine aptly deals with the question of whether it is
appropriate to render declaratory judgment based on hypothetical applications of the
4
challenged law." "[T]he central concern of ripeness 'is whether the case involves
uncertain or contingent future events that may not occur as anticipated, or indeed may
5
not occur at all. ' " As the court highlights, a claim is ripe where there is an "actual
6
controversy" based on a "legal injury" that does not involve "uncertain or contingent
3 144 S. Ct. 1889 (2024).
4 Borer v. Eyak Corp., 507 P.3d 49, 57 (Alaska 2022).
5 Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska
2001) (quoting 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 3532, at 112 (2d ed. 1984)).
6 Borer, 507 P.3d at 57-58; AS 22.10.020(g).
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7
future events." When an injury has already occurred, a claim for relief is necessarily
ripe.
In addressing Eng's first argument why his protective order is not a
qualifying order under the Brady Act, the court implicitly deems this claim ripe. That
makes sense because, under the court's interpretation of the Brady Act, it is currently
8 9
illegal for Eng to possess a firearm. He is suffering an injury right now.
Yet the court declines to address Eng's second statutory construction
argument based on the same facts, seeking the same relief. The court suggests this
argument is not ripe because Eng can seek to have the DVPO dissolved. But that point
applies equally to his first statutory construction argument. And the court does not
suggest additional facts need to be developed to decide whether a protective order of
7 Brause, 21 P.3d at 359 (quoting 13A WRIGHT, MILLER & COOPER, supra
note 5, § 3532, at 112).
8 Under our decision in State v. ACLU of Alaska , the court could have
conceivably concluded that none of Eng's claims are ripe unless and until he is arrested
for possessing a firearm in violation of the Brady Act. 204 P.3d 364, 369 (Alaska 2009)
(holding that a pre-enforcement challenge to state marijuana law was not ripe "because
the activities that the plaintiffs wish [ed] to engage in [were] already criminal under
federal law"). But unlike the plaintiffs in that case, Eng can credibly assert that he will
forego conduct that he claims is lawful. See id. ("Where a statute criminalizes conduct,
threats of enforcement will support a pre-enforcement challenge if the threats are real
and actually force the plaintiff to choose between forgoing the behavior and facing
penalties."). For that reason, I believe his claim is ripe.
9 We have held that "Alaska's standing rules are liberal" and that "[u]nder
the interest-injury approach, a plaintiff must have an interest adversely affected by the
conduct complained of." Bowers Off. Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095,
1097 (Alaska 1988) (quoting Trs. for Alaska v. State, Dep 't of Nat. Res., 736 P.2d 324,
327 (Alaska 1987)). "The degree of injury to the interest need not be great; '[t]he basic
idea . . . is that an identifiable trifle is enough for standing to fight out a question of
principle; the trifle is the basis for standing and the principle supplies the motivation.' "
Trs. for Alaska , 736 P.2d at 327 (alterations in original) (internal quotation marks
omitted) (quoting Wagstaff v. Superior Ct., Fam. Ct. Div., 535 P.2d 1220, 1225 n.7
(Alaska 1975)).
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indefinite duration is a qualifying order.10 Contrary to the court's suggestion, the DVPO
is of indefinite duration even though Eng has not yet tried to have it dissolved. It is
precisely because it remains in effect until further order of the court that it is of
indefinite duration.
I do not see a persuasive reason to deem one of Eng's statutory
construction arguments ripe and the other unripe. Therefore I would address them both
on the merits.
B. Eng's Argument That DVPOs Of Indefinite Duration Are Not
"Qualifying Orders" Under The Brady Act Fails.
Eng argues that the DVPO is not a "qualifying order" under the Brady Act
because the order does not have a fixed duration. Neither the text of the Brady Act nor
the cases Eng cites support his construction of the statute.
There is no textual basis for Eng's argument. The Brady Act prohibits the
sale of firearms to a person subject to a protective order meeting certain criteria.11 These
criteria do not mention the duration of a protective order.12
Although Eng argues that some courts have construed the Brady Act so
that only orders with fixed terms are qualifying, that is not accurate. Eng has not cited
any cases holding that only protective orders with fixed terms are qualifying under the
Act. Instead, the decisions he cites involved constitutional challenges to the Brady Act
in which courts reasoned that the temporary duration of protective orders was a factor
10 See ACLU of Alaska , 204 P.3d at 368 ("[P]ure legal questions that require
little factual development are more likely to be ripe . . . ." (quoting Alaska Right to Life
Pol. Action Comm. v. Feldman , 504 F.3d 840, 849 (9th Cir. 2007))).
11 18 U.S.C. § 922(g)(8).
12 Id.
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showing the Act was narrowly tailored to satisfy the Second Amendment.13 None of
those decisions adopted the narrowing construction of the Brady Act that Eng proposes
- that only protective orders of fixed duration are qualifying. And those decisions are
of limited relevance in the wake of the Supreme Court's decision in New York State
Rifle & Pistol Ass'n v. Bruen , which rejected the intermediate-scrutiny test those
decisions applied in favor of a historical analogy test.14
Eng appears to argue that the Second Amendment requires the Brady Act
to be narrowly interpreted to exclude protective orders of indefinite duration, but this
argument fails too. The Supreme Court's recent decision in United States v. Rahimi15
supports the conclusion that the Brady Act may constitutionally be interpreted to bar
firearm possession by persons subject to a protective order of indefinite duration.
13 United States v. McGinnis , 956 F.3d 747, 758 (5th Cir. 2020) ("Moreover,
§ 922(g)(8)'s prohibition is temporary, applying only for the duration of the domestic
protective order (in McGinnis's case, two years).") , abrogated by United States v.
Rahimi, 61 F.4th 443 (5th Cir. 2023); United States v. Boyd, 999 F.3d 171, 188 (3d Cir.
2021) ("[W]e are further reassured that the burden imposed by § 922(g)(8) is not
'severe' because the law 'applies only to a narrow class of persons, rather than to the
public at large,' and only for the discrete period of the protective order." (first quoting
United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010), abrogated by New York
State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022); and then citing McGinnis , 956
F.3d at 757); United States v. Witcher, No. 20-CR-116, 2021 WL 5868172, at *5
(S.D.N.Y. Dec. 10, 2021) (noting simply that Brady Act's restriction on gun possession
is "temporary"); United States v. Knight, 574 F. Supp. 2d 224, 226 (D. Me. 2008)
(noting that "the prohibition lasts only as long as the underlying state court order is in
effect" and concluding that "922(g)(8)'s temporary prohibition, while the state court
order is outstanding, is narrowly tailored").
14 597 U.S. at 19.
15 144 S. Ct. 1889 (2024).
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In Rahimi the Supreme Court upheld the Brady Act against a facial
challenge based on the Second Amendment.16 The decision provided some guidance
on how courts must apply the historical analogy test first adopted in Bruen .
Rahimi explained that courts must examine our country's " 'historical
tradition of firearm regulation' to help delineate the contours of the right" to bear
arms.17 The "appropriate analysis involves considering whether the challenged
regulation is consistent with the principles that underpin our regulatory tradition."18 "A
court must ascertain whether the new law is 'relevantly similar' to laws that our
tradition is understood to permit . . . ."19 "Why and how the regulation burdens the right
are central to this inquiry."20 Crucially, the Court explained that "[t]he law must
comport with the principles underlying the Second Amendment, but it need not be a
'dead ringer' or a 'historical twin.' "21
Applying these principles, the Court analogized the justification and
burden of § 922(g)(8) to historical surety laws and going-armed laws. Under surety
laws a person having "reasonable cause to fear" harm by another could petition a
magistrate to require the respondent to post bond before carrying a weapon.22 Surety
16 Id. at 1898.
17 Id. at 1897 (quoting Bruen, 597 U.S. at 17).
18 Id. at 1898 (citing Bruen, 597 U.S. at 26-31).
19 Id. (quoting Bruen, 597 U.S. at 29).
20 Id. ; see also Bruen, 597 U.S. at 29 ("[W]hether modern and historical
regulations impose a comparable burden on the right of armed self-defense and whether
that burden is comparably justified are 'central' considerations when engaging in an
analogical inquiry." (emphasis in original) (quoting McDonald v. City of Chicago, 561
U.S. 742, 767 (2010))); District of Columbia v. Heller , 554 U.S. 570, 599 (2008).
21 Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 30); see also Bruen,
597 U.S. at 21 ("[A]nalogical reasoning under the Second Amendment is neither a
regulatory straightjacket nor a regulatory blank check.").
22 Rahimi, 144 S. Ct. at 1900; see also Bruen, 597 U.S. at 55-59.
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laws "could be invoked to prevent all forms of violence, including spousal abuse."23
Going-armed laws (also called "affray" laws) criminalized the act of "riding or going
armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land."24
Violators could be punished with "forfeiture of the arms . . . and imprisonment."25 From
these historical laws the Court derived the principle that "[w]hen an individual poses a
clear threat of physical violence to another, the threatening individual may be
disarmed."26
The Court held that § 922(g)(8) is "relevantly similar to those founding
era regimes in both why and how it burdens the Second Amendment right."27 The Court
explained that § 922(g)(8) "restricts gun use to mitigate demonstrated threats of
physical violence, just as the surety and going armed laws do."28 As for the "how,"
"[t]he burden Section 922(g)(8) imposes on the right to bear arms also fits within our
regulatory tradition."29 The Court reasoned that: (1) as with surety laws, the respondent
is disarmed only after a judicial determination that "the defendant 'represents a credible
threat to the physical safety' of another";30 (2) "like surety bonds of limited duration,
Section 922(g)(8)'s restriction was temporary as applied to Rahimi";31 and (3) because
23 Rahimi, 144 S. Ct. at 1900.
24 Id. at 1901 (alterations in original) (quoting 4 WILLIAM BLACKSTONE,
COMMENTARIES *149).
25 Id.
26 Id.
27 Id. (internal quotation marks omitted) (recognizing that "922(g)(8) is by
no means identical to these founding era regimes, but it does not need to be").
28 Id.
29 Id.
30 Id. at 1901-02 (quoting 18 U.S.C. § 922(g)(8)(C)(i)).
31 Id. at 1902.
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"going armed laws provided for imprisonment," "the lesser restriction of temporary
disarmament that Section 922(g)(8) imposes is also permissible."32
Although Rahimi does not squarely address Eng's challenge to the Brady
Act, it points the way. Rahimi involved a facial challenge to § 922(g)(8). Eng's lawsuit
presents a narrower as-applied challenge based on the theory that disarmament under
the Brady Act pursuant to a state protective order of indefinite duration, in contrast to
an order of fixed duration, violates the Second Amendment. When the Brady Act is
applied to require disarmament in these circumstances, it is still "relevantly similar" to
the historical regulatory tradition described in Rahimi .
First, the reason for disarmament in this scenario - when the respondent
is subject to a state DVPO of indefinite duration - remains similar to the reason
underlying the surety and going-armed laws. "When an individual poses a clear threat
of physical violence to another, the threatening individual may be disarmed."33 It is
true that, under Alaska law, most of a DVPO's prohibitions expire after one year,
leaving only the general prohibition against threatening or committing acts of domestic
violence.34 But it remains the case that Eng was found by a court to present a credible
threat to his ex-wife. And it seems evident, from the legislature's decision to extend
the prohibition on threatening or committing additional acts of domestic violence until
32 Id.
33 Id. at 1901.
34 AS 18.66.100(c)(1) (general prohibition); AS 18.66.100(b) (providing
that provisions of protective orders under AS 18.66.100(c)(1) "are effective until further
order of the court" but more specific previsions "are effective for one year unless earlier
dissolved by court order"); see AS 18.66.990(3) (domestic violence); AS 11.41.260-
.270 (stalking); AS 11.61.118-.120 (harassment).
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further court order, that the legislature thought this continuing protection necessary to
protect the petitioner - at least until a court expressly determines otherwise.35
Second, when § 922(g)(8) is applied to disarm individuals subject to a
state DVPO of indefinite duration, its operation remains sufficiently similar to the
historical laws described in Rahimi . The same procedural protections for respondents
discussed in Rahimi apply, like notice and an opportunity to be heard. When a
respondent is subject to a protective order of indefinite duration, disarmament is still
temporary, not permanent.36 The only difference is in precisely when and how the
protective order is terminated. A protective order that expires after a fixed term favors
the respondent by placing the onus on the petitioner to show continued protection is
needed. In fact, a fixed term of protection is inherently arbitrary; it is not based on an
individualized finding about how long protection should last. By contrast, a protective
order that expires upon further order of the court favors the petitioner by placing the
35 The legislature intended the prohibition against firearm possession to last
only a year, like most of the protective order's provisions. AS 18.66.100(c)(6)
(specifying DVPO may prohibit possessing a deadly weapon); AS 18.66.100(b)(2)
(providing that such a prohibition expires in one year). But because the legislature
chose to keep the protective order's prohibition against threatening or committing
additional acts of domestic violence in effect until further order of the court, the
consequence of the legislature's policy choice is to make it illegal under federal law for
the respondent to possess a firearm. This result seems counterintuitive, but it is not
absurd. The legislature decided that some level of continuing protection is needed even
after most of the protective order's provisions expire. And Congress decided that, when
a person remains subject to a qualifying protective order, that person should be
disarmed. 18 U.S.C. § 922(g)(8)(B) ("It shall be unlawful for any person who is subject
to a court order that restrains such person from harassing, stalking, or threatening an
intimate partner . . . to . . . possess in or affecting commerce, any firearm or
ammunition."). In short, Congress chose to restrict firearms possession more tightly
than Alaska's legislature, and that is Congress's prerogative.
36 See Rahimi, 144 S. Ct. at 1902 ("Section 922(g)(8) only prohibits firearm
possession so long as the defendant 'is' subject to a restraining order.").
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----------------------- Page 26-----------------------
onus on the respondent to show further protection is unnecessary.37 This procedural
difference reflects a policy judgment about how to balance the need for protection
against the rights of the respondent. But in light of Rahimi 's analysis, and its emphasis
that modern law need not be a "dead ringer" for historical antecedents,38 allowing
disarmament based on a protective order of indefinite duration (in contrast to an order
of fixed duration) is sufficiently consistent with historical tradition that it is permitted
by the Second Amendment.
Although Eng emphasizes the length of time he has been subject to the
DVPO, which was issued over a decade ago, he has not petitioned the court to dissolve
the remaining DVPO provision. Had he done so, the superior court might have agreed
that the DVPO should be dissolved, leaving him free to purchase a firearm. I agree
with the court that Eng's challenge to the adequacy of the process for dissolving a
DVPO under AS 18.66.100(c) is not ripe because he has not yet tried to use it.
Because I believe the Second Amendment does not prohibit application of
the Brady Act to a DVPO of indefinite duration like the one to which Eng is subject, I
concur in the court's decision to affirm the judgment of the superior court.
37 Some of the surety laws the Supreme Court discussed in Bruen had this
sort of burden-shifting approach. "[T]he surety statutes presumed that individuals had
a right to public carry that could be burdened only if another could make out a specific
showing of 'reasonable cause to fear an injury, or breach of the peace .' " N.Y. State
Rifle & Pistol Ass'n v. Bruen , 597 U.S. 1, 56 (2022) (emphasis in original) (quoting
Mass. Rev. Stat., ch. 134, § 16 (1836)). But once the petitioner made that showing, the
burden shifted onto the respondent to prove that "he needed self-defense" and therefore
should not have to post a bond. Id. at 57 (emphasis in original) (quoting Wrenn v.
District of Columbia, 864 F.3d 650, 661 (D.C. Cir. 2017)).
38 Rahimi, 144 S. Ct. at 1898 (quoting Bruen, 597 U.S. at 30).
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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