State of Iowa v. Jordan Kevin Cole

• Court: Supreme Court of Iowa
• Decided: June 27, 2025
• Docket: 23-1391
• Status: Published

Opinion

In the Iowa Supreme Court

No. 23–1391

Submitted February 19, 2025—Filed June 27, 2025 Amended August 26, 2025

State of Iowa,

Appellee,

vs.

Jordan Kevin Cole,

Appellant.

Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

judge.

A defendant appeals his conviction for possession of firearms while under

a domestic violence protective order entered pursuant to Iowa Code

section 724.26(2)(a), claiming violations of the Second Amendment and article I,

section 1A of the Iowa Constitution and an error in his sentence. Convictions

Affirmed and Case Remanded for Entry of Corrected Sentencing Order.

Waterman, J., delivered the opinion of the court, in which

Christensen, C.J., and Mansfield and McDonald, JJ., joined. Christensen, C.J.,

filed a concurring opinion. May, J., filed a dissenting opinion, in which Oxley

and McDermott, JJ., joined.

Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson

(argued), Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Olivia D. Brooks (argued), Assistant

Attorney General, for appellee. 2

Waterman, Justice.

Jordan Cole consented to the entry of a one-year protective order in a

domestic abuse case. The consent order expressly prohibited Cole from

possessing firearms pursuant to Iowa Code section 724.26(2)(a) (2022). Despite

this prohibition, Cole pawned some stolen firearms while the protective order

was in effect. The State charged Cole with theft and violations of Iowa Code

section 724.26(2)(a). The theft charge was dropped, and Cole was convicted of

two violations of section 724.26(2)(a). The court sentenced Cole to concurrent

prison sentences, which were suspended with probation.

On appeal, Cole challenges his convictions by claiming that

section 724.26(2)(a)’s firearm prohibition is unconstitutional under the Second

Amendment to the United States Constitution and article I, section 1A of the

Iowa Constitution. We reject these challenges. By expressly agreeing to give up

his right to possess firearms for the one-year term of the protective order, Cole

waived his Second Amendment and article I, section 1A rights. So we affirm his

convictions.

Cole also argues that the district court’s sentencing order includes an

unlawful provision. It provides that if Cole’s probation is revoked in the future,

his prison sentences shall be served consecutively. We agree with Cole that this

provision is unlawful. So we remand for entry of a corrected sentencing order.

I. Background Facts and Proceedings.

Although this is an appeal from two Story County criminal cases, the

relevant facts begin with a Hamilton County civil proceeding under Iowa Code

chapter 236, our domestic abuse act. Our record of the proceeding consists of a

“Protective Order by Consent Agreement” (consent order), dated March 7, 2022.

The consent order reports that on March 7, “a hearing was held on [a] Petition

for Relief from Domestic Abuse.” The consent order also notes that Cole, the 3

“Respondent/Defendant” in that proceeding, was present for the hearing, as was

the “Petitioner/Protected Party,” whom we call Julie. The consent order also

states the court’s finding that “[i]t has jurisdiction over the parties and subject

matter and [Cole] has been provided with reasonable notice and opportunity to

be heard.” And the order states that “[t]he parties appeared and each consented

to the entry of this order.”

In his appellate briefing in this criminal appeal, Cole repeatedly

acknowledges that he consented to the protective order, writing such statements

as:

• “The order was entered via consent agreement . . . .”

• “Cole consented to entry of the protective order . . . .”

• “The order was entered by a consent agreement . . . .”

• “Cole was not convicted of domestic abuse, but consented to the

entry of a civil protective order.”

• “[Cole] consented to entry of the protective order.”

• “Cole’s protective order was entered pursuant to a consent

agreement.”

The consent order included an unchecked box that said, “If checked, [Cole]

committed a domestic abuse assault against [Julie].” But to commence the

proceeding, and as a prerequisite to entry of this order, Julie had to have filed a

petition alleging that Cole assaulted her. See Iowa Code § 236.3(1)(e).

The consent order then provided as follows:

[Cole] is restrained from committing further acts of abuse or threats of abuse. [Cole] is restrained from any contact with [Julie]. . . .

....

1. [Cole] shall not threaten, assault, stalk, molest, attack, harass or otherwise abuse [Julie]. [Cole] shall not use, or attempt to 4

use, or threaten to use physical force against [Julie] that would reasonably be expected to cause bodily injury.

2. [Cole] shall not communicate with [Julie] in person or through any means including third persons. . . .

3. [Julie] shall have exclusive possession of the residence . . . . [Cole] shall not go to, enter, occupy or remain in that residence or any other residence in which [Julie] is staying, under any circumstance.

5. [Julie] is granted temporary custody of [two children whose identifiers we have omitted]. [Cole] is granted visitation with these children . . . . [Cole] shall not otherwise contact these children and shall not contact [Julie] about visitation except as provided in this order.

6. [Cole] shall not possess, ship, transport or receive firearms, offensive weapons, or ammunition while this order is in effect pursuant to Iowa Code section 724.26(2)(a). [Cole] shall deliver all firearms, offensive weapons, and ammunition to the HAMILTON County Sheriff or other law enforcement agency on or before March 15, 2022. [Cole] is advised that the issuance of this protective order may also affect the right to possess or acquire a firearm or ammunition under federal law 18 U.S.C. sections 922(d)(8), (g)(8).

7. A RESPONDENT WHO VIOLATES THIS ORDER FACES IMMEDIATE ARREST. Violation may occur even if the protected party consents to conduct that is prohibited by this order. Only the court can relieve respondent from the restrictions contained in this order.

8. This order is effective immediately.

(Boldface omitted.) The order was signed by a district court judge, and a copy of

the order was served on Cole. The order expressly restrained Cole, not Julie. It

was not a “mutual” protective order.1

1Iowa courts are prohibited from issuing “mutual protective orders against the victim and

the abuser unless both file a petition requesting a protective order.” Iowa Code § 236.20; see also United States v. Perez-Gallan, 125 F.4th 204, 216 (5th Cir. 2024) (addressing judicial concerns over “mutual” protective orders where “an abused woman could lose her right to possess a gun just because her violent domestic partner is awarded a mutual protective order against her, even if there are no indications that the wom[a]n herself is dangerous”). 5

The consent order went on to state that it “shall remain in effect until”

March 7, 2023, “unless . . . modified, terminated, extended, or superseded by

written order of the court, or until the dismissal of the case.” And the order

included this additional warning: “Federal and state laws provide penalties

for possessing, transporting, shipping, or receiving any firearm or

ammunition. (18 U.S.C. 922(g)(8)); Iowa Code Section 724.26(2)(a).” Cole was

thereby warned.

Cole did not object to entry of the consent order. Nor did Cole ask the

district court to reconsider any term in the order or to vacate the consent order.

Cole never appealed from the consent order, and he is not collaterally attacking

the consent order in this criminal appeal.

We now turn to the two criminal cases from which this appeal arises. The

two cases were initiated in January and March 2023, respectively. In the

January case, Cole was accused of pawning a Carl Gustaf rifle on July 5, 2022,

which was during the one-year period that Cole was prohibited from possessing

firearms because of the consent order. The trial information charged Cole with

one count of “Possession of a Firearm . . . By Domestic Abuse Offender,” a

class “D” felony under Iowa Code section 724.26(2)(a).

In the March case, Cole was accused of pawning a Beretta shotgun on

August 31, 2022, and a Howa rifle on October 12,2 both during the period that

Cole was prohibited from possessing firearms. The trial information charged Cole

with two counts of “Possession of a Firearm . . . By Domestic Abuse Offender,”

class “D” felonies under Iowa Code section 724.26(2)(a). The trial information

2This October date is from the criminal complaint. We note, however, that the trial

information stated that both the shotgun and the rifle were pawned on August 31, 2022. This discrepancy does not alter our analysis or conclusions. 6

also included a third count for “Theft in the Second Degree.” This theft charge

was based on allegations that Cole had stolen the shotgun, the rifle, and other

property from a woman living in Ames.

In June 2023, Cole filed a motion to dismiss in both cases. Cole argued

that section 724.26(2)(a) was unconstitutional under the Second Amendment to

the United States Constitution and article I, section 1A of the Iowa Constitution.

The district court disagreed and denied Cole’s motions.

Cole and the State then reached an agreement. The State agreed to the

dismissal of two charges from the March 2023 case, including the theft charge.

This would leave a total of two section 724.26(2)(a) charges, one in each case.

Cole agreed to waive his jury rights and submit these two remaining charges

through a trial on the minutes of testimony.

Following the trial on the minutes, the district court found Cole guilty on

both charges. Cole requested immediate sentencing, and the court agreed. The

State recommended “a concurrent sentence of five years” in prison “to be fully

suspended” with probation. Cole agreed with the State’s recommendation.

Consistent with the parties’ suggestions, the court imposed concurrent

terms of incarceration not to exceed five years. The court suspended the

sentences and ordered probation for up to two years. The court noted: “These

probationary periods will be served concurrently. However, if the probations are

ever revoked, the sentences may be ordered to be served consecutively.”

The same day, the court issued a written sentencing order. It generally

matched the court’s statements on the bench. As to the issue of probation,

however, the order stated: “If probations are ever revoked, sentences shall run

consecutive.”

Cole appealed, and we retained the case. 7

II. Standard of Review.

“We review constitutional claims de novo.” In re N.S., 13 N.W.3d 811, 820

(Iowa 2024) (quoting Mitchell County v. Zimmerman, 810 N.W.2d 1, 6

(Iowa 2012)). “[W]e presume statutes are constitutional, ‘imposing on the

challenger the heavy burden of rebutting that presumption.’ ” Summit Carbon

Sols., LLC v. Kasischke, 14 N.W.3d 119, 126 (Iowa 2024) (alteration in original)

(quoting In re Guardianship of L.Y., 968 N.W.2d 882, 892 (Iowa 2022)). “We defer

to the findings of fact made by the district court, ‘but we are not bound by

them.’ ” State v. Young, 15 N.W.3d 61, 64 (Iowa 2024) (quoting State v. Bauler,

8 N.W.3d 892, 897 (Iowa 2024)).

“Our review of the defendant’s sentence is for the correction of errors at

law.” State v. Duffield, 16 N.W.3d 298, 302 (Iowa 2025). “We will not reverse a

sentence unless there is ‘an abuse of discretion or some defect in the sentencing

procedure.’ ” State v. Damme, 944 N.W.2d 98, 103 (Iowa 2020) (quoting State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002)).

III. Analysis.

Cole raises two issues on appeal. First, he claims that his

section 724.26(2)(a) convictions violate the United States and Iowa

Constitutions. Second, he claims that even if his convictions are valid, his

sentencing order must be corrected because it erroneously requires consecutive

prison sentences if his probation is revoked. We start with Cole’s attack on his

A. Constitutional Challenges. Section 724.26(2)(a) makes it a state law

crime for a defendant to knowingly possess firearms when that defendant is 8

subject to a protective order that meets certain federal requirements. It states as

follows:

Except [in circumstances not relevant here], a person who is subject to a protective order under 18 U.S.C. § 922(g)(8) . . . and who knowingly possesses . . . a firearm . . . is guilty of a class “D” felony.

Iowa Code § 724.26(2)(a).

The relevant federal statute, 18 U.S.C. § 922(g)(8), prohibits defendants

from possessing firearms “in or affecting commerce” if they are “subject to a court

order that” meets three requirements. First, the order must have been “issued

after a hearing of which” the defendant “received actual notice, and at which”

the defendant “had an opportunity to participate.” 18 U.S.C. § 922(g)(8)(A). The

consent order met this requirement. Second, the order must restrain the

defendant “from harassing, stalking, or threatening” the defendant’s “intimate

partner” or the defendant’s partner’s child, or “from . . . engaging in other

conduct that would place” the partner “in reasonable fear of bodily injury to the

partner or child.” Id. § 922(g)(8)(B). The consent order met this requirement too.

Finally, under § 922(g)(8)(C), the order must either “include[] a finding that” the

defendant “represents a credible threat to the physical safety of such intimate

partner or child,” id. § 922(g)(8)(C)(i), or “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,” id.

§ 922(g)(8)(C)(ii). The consent order satisfied the second alternative.

With this background, we turn to Cole’s attack on his convictions. Notably,

Cole does not dispute that the statutory requirements just explained were

satisfied.3 Instead, Cole claims that the firearms prohibition imposed by

3To be clear, Cole only agrees that alternative section 922(g)(8)(C)(ii) was met, not

alternative (C)(i). But because only one alternative must be met, Cole does not dispute that the statutory requirements were met. 9

section 724.26(2)(a) is unconstitutional under the Second Amendment to the

United States Constitution and under article I, section 1A of Iowa’s constitution.

As to Iowa’s constitution, Cole concedes that his offenses predated the

effective date of article I, section 1A. In re N.S., 13 N.W.3d at 815 (noting that

section 1A went into effect after its ratification by voters on November 8, 2022).

Nevertheless, he contends that because Iowa’s constitution has always included

an implied fundamental right to possess firearms,4 section 1A should be applied

retroactively to his case. Cole then argues that his convictions cannot survive

the strict-scrutiny analysis required by section 1A. They fail strict scrutiny, Cole

argues, because they are based on an order that prohibited firearm possession

even though Cole had not been “convicted of an underlying criminal offense” or

“found to be presumptively dangerous.”

Turning to the Federal Constitution, Cole concedes that in United States v.

Rahimi, the Supreme Court rejected a Second Amendment challenge to the

prohibition imposed by 18 U.S.C. § 922(g)(8), the just-described federal statute

on which section 724.26(2)(a) is based. 602 U.S. 680, 693–702 (2024). Indeed,

Rahimi found that “section 922(g)(8) fits comfortably within” our nation’s

tradition of firearm laws “preventing individuals who threaten physical harm to

others from misusing firearms.” Id. at 690. As Cole notes, however, the

restraining order in Rahimi included express findings that the defendant “had

committed ‘family violence,’ ” that “this violence was ‘likely to occur again,’ ” and

that the defendant posed a “credible threat” to the protected party’s “physical

safety.” Id. at 687. Conversely, although the consent order here expressly

prohibited Cole from abusing or even contacting the protected party, it included

4In State v. Downey, 893 N.W.2d 603, 605 (Iowa 2017), we noted that “[t]he framers of

the Iowa Constitution chose not to include any language in our constitution concerning the right to bear arms.” 10

no express finding of past or projected violence. Because those findings are

absent, Cole argues, the consent order cannot serve as a basis for his

disarmament.

We conclude Cole’s constitutional challenges must be rejected. We rest

this conclusion on waiver. Cole consented to the entry of the protective order.

That order expressly prohibited Cole from possessing firearms. It even included

a specific deadline (March 15, 2022) by which Cole had to surrender all of his

firearms to law enforcement. And the order expressly warned Cole that a violation

of the order’s firearm prohibitions would also violate Iowa Code

section 724.26(2)(a) and 18 U.S.C. § 922(g)(8). It is too late now for Cole to

challenge the prohibitions to which he consented or the resulting convictions.

Rather, we determine those challenges were waived through Cole’s consent

to an order that expressly prohibited him from possessing firearms “pursuant to

Iowa Code section 724.26(2)(a).” See United States v. Reese, 627 F.3d 792,

804 n.3 (10th Cir. 2010) (“By agreeing to the imposition of the protective order,

Reese arguably waived his Second Amendment rights, since the order expressly

prohibited him from possessing firearms and indeed required him to turn over

any firearms and ammunition to Hawaii law enforcement officials. Moreover, it

is clear from the record that Reese was well aware of the restrictions placed on

him by the protective order as well as the impact of that protective order under

federal firearms laws.”), abrogated on other grounds by N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Schoendaller,

No. 1:18–cr–00179, 2019 WL 2746695, at *2 (D. Idaho July 1, 2019) (citing

Reese, 627 F.3d 792, and observing that “by consenting” to a state restraining

order, the defendant “arguably waived his Second Amendment rights”). As the

United States Court of Appeals for the Tenth Circuit aptly concluded in Reese, a

finding of dangerousness was not “necessary because Reese agreed, during the 11

hearing on Jennifer’s motion for protective order, to the imposition of the

protective order.” 627 F.3d at 804. Cole cites no contrary authority on point.

The civil hearing on Cole’s consent protective order was unreported.

Without a transcript, we don’t know if there was any colloquy between Cole and

the judge specifically addressing Cole’s waiver of his constitutional right to

possess firearms.5 We do know that Julie must have filed a petition alleging Cole

assaulted her to trigger the hearing under Iowa Code chapter 236. See Iowa Code

§ 236.3(1)(e). Regardless, the terms of the firearm prohibition in the consent

order are clear.6 And Cole’s appellate counsel in this criminal appeal confirms

that Cole entered into the civil protective order voluntarily. His appellate brief

states, “Cole was served with a copy of the petition and the temporary protective

order, Cole and the protected party appeared at the hearing, Cole consented to

entry of the protective order, and the district court determined Cole and the

protected party were ‘intimate partners.’ ”7

Neither Cole nor the dissent cite a case from any jurisdiction holding that

a formal Zerbst-style8 colloquy is required to voluntarily relinquish Second

Amendment rights in a consent protective order. We encourage our district

5Iowa courts routinely accept written guilty pleas from represented as well as

self-represented defendants without any in-person court colloquy, resulting in valid class “D” felony and misdemeanor convictions. See Iowa R. Crim. P. 2.8(4). 6The dissent questions whether Cole actually read the order. Cole of course had the opportunity to read the order, and he never claims he did not know what it said. Our court has never held that a consent protective order is unenforceable on grounds that the respondent declined to read it. Such a holding would eviscerate the protections chapter 236 affords battered domestic partners. 7This court order signed by a district court judge enjoys a presumption of validity. See

Murillo v. State, 13 N.W.3d 800, 810 (Iowa 2024); Damme, 944 N.W.2d at 106 (noting that it is the defendant’s burden to overcome the presumption of validity). Cole has offered no evidence or argument to call into question the validity of the hearing in which he consented to entry of the protective order. 8A Zerbst-style colloquy requires the trial judge to determine “whether there is an

intelligent and competent waiver” of a constitutional right in a discussion made “upon the record.” See Johnson v. Zerbst, 304 U.S. 458, 465 (1938). 12

courts to engage in such colloquies. But we determine that the terms of Cole’s

consent order are sufficient to establish his waiver of his constitutional rights to

possess firearms. See United States v. Deng, 104 F.4th 1052, 1054 (8th Cir.

2024) (holding that a guilty plea waived Second Amendment challenge); Reese,

627 F.3d at 804 n.3 (observing that “agreeing to the imposition of the protective

order” arguably waived defendant’s Second Amendment rights); Cooper v. State,

903 S.E.2d 770, 776 (Ga. Ct. App. 2024) (rejecting defendant’s claim that he

“must be explicitly advised that he is waiving his Second Amendment rights” to

constitute a valid waiver).

It’s true that in Rahimi, the defendant had consented to the entry of the

protective order that prohibited his possession of a firearm, but the Supreme

Court did not rely on that fact in rejecting his Second Amendment challenge. See

602 U.S. at 686–87. The dissent suggests that because the Supreme Court

bypassed a waiver analysis, the Court implicitly found that Rahimi did not waive

his Second Amendment rights.9 In our view, silence doesn’t amount to a holding,

or even dicta. We are bound by what the Supreme Court says; we are not bound

by conjecture.

The dissent primarily relies on Class v. United States, 583 U.S. 174 (2018).

Class was arrested when he parked his car containing firearms on the grounds

of the United States Capitol. Id. at 176. He was charged with violating a federal

statute, 40 U.S.C. § 5104(e)(1), which prohibits the possession of firearms on

9The dissent argues that the Rahimi Court’s silence on waiver supports rejection of the

State’s waiver argument here. Yet the dissent’s willingness to infer significance from silence stops there. The same dissent incongruently argues that the Iowa protective order should not be read to include an “implied finding” of Cole’s dangerousness. See United States v. Gordon, 137 F.4th 1153, 1157–58 (10th Cir. 2025) (holding that “an explicit-written-finding” of dangerousness is not required because a finding of dangerousness can be inferred from the entry of the protective order). Our waiver analysis does not rely on any implied finding of abuse or dangerousness in Cole’s protective order. Rather, our waiver holding is based on the express firearm prohibition in the consent protective order. 13

Capitol grounds. Id. He moved to dismiss the charge on the grounds that the

statute was facially unconstitutional under the Second Amendment. Id. The

district court rejected his Second Amendment challenge, and Class then entered

into a plea agreement that waived some defenses and preserved others for appeal

but was silent as to his right to appeal his constitutional challenge to

§ 5104(e)(1). Id. at 176–77. On appeal, Class again raised his claim that the

statute violated the Second Amendment. Id. at 178. The United States Court of

Appeals for the D.C. Circuit held that “Class could not raise his constitutional

claims because, by pleading guilty, he had waived them.” Id. The Supreme Court

reversed, concluding that “a guilty plea by itself does not bar” the defendant’s

direct appeal challenging the statute of conviction as unconstitutional. Id. at 176

(emphasis added). Class left open the possibility of waiver or forfeiture of

constitutional challenges by other conduct, as federal appellate courts recognize:

Class’s holding was relatively narrow. The Supreme Court held that a criminal defendant who pleads guilty does not necessarily waive challenges to the constitutionality of the statute under which he is convicted. The Court did not, however, hold that such claims are not waivable at all: The Court addressed only whether a guilty plea constitutes a waiver “by itself.” The Court twice emphasized that Class had not waived his objections through conduct other than his guilty plea, thus making clear that the Court was addressing only the effect of pleading guilty. Al Bahlul did not plead guilty, so Class is irrelevant to this case.

Al Bahlul v. United States, 967 F.3d 858, 875 (D.C. Cir. 2020) (citations omitted);

see also United States v. Pittman, 125 F.4th 527, 531–32 (4th Cir. 2025) (holding

that defendant forfeited constitutional claim where defendant pleaded guilty and

did not timely raise the claim before the district court); United States v. Turner,

124 F.4th 69, 73, 78 (1st Cir. 2024) (holding that defendant “waived his

as-applied Second Amendment claim by failing to move timely for dismissal of

the felon-in-possession count” and observing that “Turner’s mention of Class

does not afford him a free pass”). 14

Unlike Cole, Rodney Class never consented to the entry of a protective

order that he did not appeal and that expressly required him to surrender his

firearms to the sheriff while prohibiting his possession of firearms for one year.

Class is inapposite for that reason, which presumably explains why Cole himself

never cited Class below or in this appeal. The dissent cites no case applying

Class to reject a waiver claim arising from a firearm prohibition in a consent

protective order, and we found none.

We conclude that Cole’s firearm rights under the Second Amendment and

article I, section 1A of the Iowa Constitution, are subject to waiver. Courts have

found defendants waived Second Amendment rights under analogous

circumstances. For example, in State v. Maietta, the Connecticut Supreme Court

held “that the defendant waived his second amendment right when he agreed to

the condition of his probation barring him from possessing firearms.” 134 A.3d

572, 581 (Conn. 2016). Similarly, in Roman v. State, the Texas Court of Appeals

held that the defendant waived his Second Amendment challenge when he

accepted a firearm ban among the terms of his deferred-adjudication community

supervision. 571 S.W.3d 317, 321–23 (Tex. App. 2018) (rejecting defendant’s

argument that “his Second Amendment right is not one that he can waive”);

see also Turner, 124 F.4th at 73; Deng, 104 F.4th at 1054 (“Deng’s as-applied

[Second Amendment] challenge fails too because he waived it by pleading guilty

unconditionally.”); State v. Kates, 694 S.W.3d 462, 465 (Mo. Ct. App. 2024)

(holding that defendant’s guilty plea waived Second Amendment challenge to

felon-in-possession statute); People v. Johnson, 225 A.D.3d 453, 454–55

(N.Y. App. Div. 2024) (holding that defendant’s guilty plea waived right to bring

Second Amendment challenge on appeal).

Iowans regularly waive constitutional protections with far less formality

and without the court hearing and judicial imprimatur reflected in Cole’s consent 15

order. For example, before any criminal charges are filed, Iowans can and do

waive their rights under the Fourth Amendment and article I, section 8 of the

Iowa Constitution when they consent to an officer’s search without being

informed of their right to refuse. See, e.g., State v. Hauge, 973 N.W.2d 453, 466

(Iowa 2022). Iowans can and do waive their right to remain silent without a

Miranda warning during noncustodial questioning by police at a crime scene.

See, e.g., State v. Park, 985 N.W.2d 154, 170–71 (Iowa 2023). And Iowans

routinely waive their constitutional rights in court proceedings in a variety of

contexts. State v. Johnson, 770 N.W.2d 814, 822 (Iowa 2009) (“A broad array of

constitutional and statutory rights protecting defendants in criminal cases may

be waived.”); see, e.g., Park, 985 N.W.2d at 174 (waiver of right to counsel and

right to remain silent in custodial interrogation following Miranda warning);

State v. Miller, 975 N.W.2d 807, 818 (Iowa 2022) (waiver of right to counsel for

trial); State v. Basquin, 970 N.W.2d 643, 659–60 (Iowa 2022) (waiver of trial

rights through a written guilty plea); State v. Liddell, 672 N.W.2d 805, 813–14,

(Iowa 2003) (waiver of right to jury trial); State v. Magnuson, 308 N.W.2d 83, 86

(Iowa 1981) (waiver of right to speedy trial); see also State v. Gomez Garcia,

904 N.W.2d 172, 179 (Iowa 2017) (waiver of statutory right to an interpreter).

Cole himself undisputably waived his constitutional right to a jury trial in this

case.

Federal courts likewise routinely uphold waivers of constitutional rights.

See, e.g., United States v. Moon, 33 F.4th 1284, 1299 n.14 (11th Cir. 2022)

(holding that the constitutional “public-trial right may be waived by a defendant’s

counsel on his behalf”); United States v. Garske, 939 F.3d 321, 332 (1st Cir. 16

2019) (“Of course, the right to a constitutional jury may be waived.”);

United States v. Stanley, 891 F.3d 735, 738 (8th Cir. 2018) (holding that the

constitutional right to counsel may be waived); United States v. Obak, 884 F.3d

934, 937 (9th Cir. 2018) (holding that the constitutional venue right may be

waived). Cole cites no authority holding that firearm rights cannot be waived.

We hold that Cole waived his firearm rights under both the Second

Amendment and article I, section 1A of the Iowa Constitution when he

voluntarily agreed to the entry of the consent protective order that prohibited his

possession of firearms for one year. We therefore reject his constitutional

challenges and affirm his convictions under Iowa Code section 724.26(2)(a). A

contrary holding would call into question the enforceability of firearm

prohibitions in consent orders of protection.

The dissent concocts a novel anti-waiver argument that would hold any

waiver of Cole’s Second Amendment rights in his consent protective order

(“Case 1”) is limited to that proceeding and waived no rights in this separate

criminal prosecution (“Case 2”). The dissent cites no case on point that adopts

that theory. The dissent’s approach would severely undermine the enforcement

of firearm prohibitions in protective orders. Enforcement of a protective order

through contempt proceedings in the same “Case 1” is limited to a maximum of

six months in jail. See Iowa Code § 665.4(1). By contrast, a violation of the

firearm prohibition can be prosecuted in a separate criminal case (“Case 2”) as

here, with a potential prison sentence of up to five years. See id. § 724.26(2)(a);

id. § 902.9(e). Cole agreed to the entry of the consent protective order that

expressly warned he could be prosecuted criminally for possession of a firearm

under “Iowa Code Section 724.26(2)(a).” That warning was not written in

disappearing ink. 17

Because we hold that Cole waived his claims under the Second

Amendment and article I, section 1A of the Iowa Constitution by consenting to

the terms of the protective order, we do not reach the merits of his challenge to

the constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii) or Iowa Code

section 724.26(2)(a). “Avoidance of constitutional issues except when necessary

for proper disposition of [a] controversy is a bulwark of American jurisprudence.”

State v. Kieffer, 17 N.W.3d 651, 667 (Iowa 2025) (alteration in original)

(quoting Salsbury Lab’ys v. Iowa Dep’t of Env’t Quality, 276 N.W.2d 830, 837

(Iowa 1979)).10

B. Sentencing Issues. We move on to Cole’s sentencing challenge. The

parties agree that during the sentencing hearing, the court imposed concurrent

prison terms, suspended them, and ordered probation. The court warned,

however, that if probation were revoked, the prison terms could be run

consecutively. Then, in its written sentencing order, the court said: “If probations

are ever revoked, sentences shall run consecutive.” (Emphasis added.)

Cole points to two problems in this sentencing process. The first is the

discrepancy between the court’s oral pronouncement, which suggested that a

future revocation could involve consecutive prison sentences, and the written

order, which said that a future revocation shall result in consecutive prison

sentences. As Cole notes, it is a “rule of nearly universal application” that “where

there is a discrepancy between the oral pronouncement of sentence and the

written judgment and commitment, the oral pronouncement of sentence

controls.” State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (quoting State v.

10We note that based on the Supremacy Clause of the United States Constitution, a valid

federal prohibition on possession of firearms would preclude relief under article I, section 1A of the Iowa Constitution. Kieffer, 17 N.W.3d at 667. 18

Brydon, 454 A.2d 1385, 1388 (Me. 1983)). And “when a judgment entry

incorrectly differs from the oral rendition of the judgment merely as a result of

clerical error,” we have held “that the proper remedy is for the district court to

correct the written judgment entry by issuing a nunc pro tunc order.” Id. at 527,

529. This would seem to suggest that we should direct the district court to issue

a nunc pro tunc order to conform with the sentencing judge’s oral

pronouncement.

As Cole also points out, there is another problem to consider. As explained,

in the court’s oral pronouncement (as well as in its written order), the court

suggested that consecutive sentences would be a proper outcome in the event of

revocation. We agree with Cole that this suggestion was incorrect. If Cole’s

probation were revoked, it would not be lawful to order consecutive sentences.

Iowa Code section 908.11(4) governs the court’s options when a probation

violation is established. If the court elects to revoke probation, section 908.11(4)

permits the court to “require the defendant to serve the sentence imposed or any

lesser sentence.” Iowa Code § 908.11(4). This means that a revocation court may

only order the sentence that was originally imposed at sentencing (although

suspended) or “any lesser sentence.” Id. The revocation court may not order a

greater sentence than what was originally imposed. See id. So where, as here,

the sentencing court ordered concurrent prison terms, the revocation court may

not impose the greater sentence of consecutive prison terms. The most severe

option at revocation would be the original sentence of concurrent prison terms.

See State v. Collins, No. 21–0638, 2022 WL 949747, at *2 (Iowa Ct. App. Mar. 30,

2022) (observing that consecutive sentences can be imposed “after a probation 19

violation” only if the court “imposed consecutive terms in the original sentencing

proceeding”).11

Accordingly, we remand for entry of a corrected sentencing order that

omits any suggestion that Cole’s sentences for his current convictions may or

shall be run consecutive to one another if his probation is revoked.

We add one final observation. In cases where multiple options are available

at revocation (e.g., consecutive versus concurrent terms), the revocation court

must exercise its own independent discretion when selecting the proper option.

See State v. Covel, 925 N.W.2d 183, 187–88 (Iowa 2019) (discussing the two-step

process for revocation proceedings); State v. Darrin, 325 N.W.2d 110, 113

(Iowa 1982) (“[T]he trial court’s order revoking probation must be based on more

than a simple reevaluation of the information known by the trial judge at the

time of sentencing.”). Orders granting probation should not purport to restrict

the revocation court’s exercise of that discretion.

IV. Disposition.

We affirm Cole’s convictions. We remand for entry of a corrected sentencing

order that is consistent with part III.B of this opinion.

Convictions Affirmed and Case Remanded for Entry of Corrected

Sentencing Order.

Christensen, C.J., and Mansfield and McDonald, JJ., join this opinion.

Christensen, C.J., files a concurring opinion. May, J., files a dissenting opinion,

in which Oxley and McDermott, JJ., join.

11Our discussion here only addresses the two convictions at issue in this appeal. We do

not address the possibility of new convictions with new sentences, which might be run either concurrently or consecutively to sentences for the convictions at issue in this appeal. 20

#23–1391, State v. Cole Christensen, Chief Justice (concurring).

I am joining the majority opinion in full, as I agree that Cole waived his

Second Amendment and article I, section 1A constitutional rights. However, I

write separately to address the dissent’s arguments concerning the judicial

determination of dangerousness in this case.

Domestic violence is a widespread, enduring problem, and firearms are a

major contributor to that problem. In fact, firearms are responsible for more

intimate partner homicides than all other weapons combined. State v. Rumpff,

308 A.3d 169, 182 (Del. Super. Ct. 2023). And their threat is not limited to

intimate partners, as “domestic violence encounters often endanger police

officers due to their volatile and unstable nature.” Id.

Undermining the efficacy of firearm prohibitions in protective orders could

intensify that threat by placing battered domestic partners and the professionals

who work to protect them at greater risk. In the United States, an average of

twenty-four people per minute are victims of abuse by an intimate partner, which

is approximately twelve million people per year. Domestic Violence Statistics, Nat’l

Domestic Violence Hotline, https://www.thehotline.org/stakeholders/domestic-

violence-statistics/ [https://perma.cc/EZ48-3R9L]. In Iowa alone, the Iowa

Attorney General’s Office reported that 386 Iowans died in suspected domestic

violence homicides over an almost twenty-nine-year timeframe. Victim

Assistance Section, Iowa Att’y Gen.’s Off., Domestic Violence Fatality Chronicle

(2023) [https://perma.cc/2A9J-JD8V]. This court has also noted the

pervasiveness of domestic abuse in Iowa, particularly among women. Linn v.

State, 929 N.W.2d 717, 734 (Iowa 2019) (“In 2010, among the 24,000 reports of

domestic abuse in Iowa, approximately eighty percent to eighty-five percent were

crimes against women.”). 21

Domestic abuse becomes even more harmful when the abuser has access

to a firearm. Natalie Nanasi, Disarming Domestic Abusers, 14 Harv. L. & Pol’y

Rev. 559, 562–63 (2020). “[S]everal studies support the conclusion that domestic

violence-related firearm restrictions generally lower the number of

intimate-partner homicides.” Aaron Edward Brown, This Time I’ll Be Bulletproof:

Using ex parte Firearm Prohibitions to Combat Intimate-Partner Violence,

50 Colum. Hum. Rts. L. Rev. 159, 182 (2019); see id. at 179–82 (summarizing

and collecting studies). For example, one study concluded that firearm-related

intimate partner homicide rates decrease by fourteen percent when state laws

prohibit individuals with domestic-violence-related restraining orders from

possessing firearms and require them to relinquish firearms. Carolina Díez et al.,

State Intimate Partner Violence-Related Firearm Laws and Intimate Partner

Homicide Rates in the United States, 1991 to 2015, 167 Annals Internal Med.

536, 536 (2017).

Courts across the country have further articulated the harmful impact

that guns have in domestic violence situations. The Seventh Circuit stated that

“[d]omestic assaults with firearms are approximately twelve times more likely to

end in the victim’s death than are assaults by knives or fists.” United States v.

Skoien, 614 F.3d 638, 643 (7th Cir. 2010) (en banc). The First and Third Circuits

have also noted the evidence linking firearms and domestic violence fatalities.

United States v. Boyd, 999 F.3d 171, 188–89 (3d Cir. 2021) (noting extensive

evidence linking firearms and domestic violence fatalities); United States v.

Booker, 644 F.3d 12, 25–26 (1st Cir. 2011) (“According to figures collected by the

Justice Department and included in the record here, nearly 52,000 individuals

were murdered by a domestic intimate between 1976 and 1996, and the

perpetrator used a firearm in roughly 65% of the murders (33,500).”). 22

Federal courts have upheld the constitutionality of the federal firearm

prohibition in 18 U.S.C. § 922(g)(8)(C)(ii) without an express judicial finding of

dangerousness, acknowledging the well-documented dangerousness posed by

domestic abusers having access to firearms—these types of challenges to the

section were rejected before and after the U.S. Supreme Court decided United

States v. Rahimi, 602 U.S. 680 (2024). See, e.g., United States v. Gordon, 137

F.4th 1153, 1155–57 (10th Cir. 2025) (applying Rahimi to reject a facial

constitutional challenge to § 922(g)(8)(C)(ii)); United States v. Perez-Gallan, 125

F.4th 204, 215–16 (5th Cir. 2024) (same); United States v. Combs, No. 23–5121,

2024 WL 4512533, at *3 (6th Cir. Oct. 17, 2024) (same); Boyd, 999 F.3d at 185–

89 (rejecting an as-applied constitutional challenge to § 922(g)(8)(C)(ii) before

Rahimi); United States v. Zamboroski, No. 24–CR–93–A, 2025 WL 378397, at *2–

3 (W.D.N.Y. Feb. 4, 2025) (rejecting facial and as-applied challenges after

Rahimi).

Federal courts have consistently rejected constitutional challenges to

§ 922(g)(8)(C)(ii). See, e.g., Boyd, 999 F.3d at 176 (“In upholding § 922(g)(8)

against this as-applied constitutional challenge, we now join the other circuits

to have considered the issue.”). The dissent contends that there was not a finding

of dangerousness in this case sufficient to restrain the defendant from

possessing firearms, but that conclusion is not in line with current federal law

and could have harmful consequences in Iowa. A reversal of Cole’s conviction

would set a dangerous precedent, endangering victims of domestic abuse even

further. 23

#23–1391, State v. Cole May, Justice (dissenting).

I. Introduction.

The Second Amendment right to keep and bear arms is a “fundamental”

constitutional right that is “necessary to our system of ordered liberty.”

McDonald v. City of Chicago, 561 U.S. 742, 778 (2010). But some worry that

lower courts are starting to treat the Second Amendment right as “a second-class

right.” Snope v. Brown, 145 S. Ct. 1534, 1539 (2025) (mem.) (Thomas, J.,

dissenting from the denial of certiorari) (quoting McDonald, 561 U.S. at 780). I

have similar worries here.

Jordan Kevin Cole is being prosecuted for violating a statute that makes it

a felony—a prison offense—for him to possess firearms, that is, to keep and bear

arms. Yet our court refuses to even consider Cole’s Second Amendment challenge

to that statute. This refusal is justified, the court says, because Cole allegedly

waived his challenge when he consented to the entry of a protective order in a

separate civil proceeding that ended months before this felony prosecution was

even brought.

I disagree. Cole’s right to bring Second Amendment challenges in future

criminal cases was not even addressed—much less waived—in that prior civil

proceeding. Our court’s refusal to consider Cole’s challenge is erroneous in

several respects:

1. It is inconsistent with the Supreme Court’s approach in United States v.

Rahimi, 602 U.S. 680 (2024).

2. It is contrary to the Supreme Court’s general standards for evaluating

waivers of fundamental constitutional rights.

3. It is inconsistent with the Supreme Court’s holding in Class v. United

States, 583 U.S. 174 (2018). 24

4. It is not supported by the cases cited in the majority opinion.

We should reach the merits of Cole’s Second Amendment challenge. And—

based on controlling Supreme Court precedent—his challenge should succeed.

So we should reverse his convictions and remand the case for dismissal. I

respectfully dissent.

II. Rahimi Weighs Against a Finding of Waiver.

As we begin to think about the waiver issue, it’s important to realize that

the State has not found any case from any jurisdiction in which any court has

refused to consider the merits of a Second Amendment challenge to a criminal

firearms prohibition because of the defendant’s consent to the entry of a

protective order in a prior civil case. The majority does not cite such a case,

either.12

I haven’t found one, either. It looks like only two courts—the Tenth Circuit

Court of Appeals and a federal district court—have even entertained the idea that

consent to a protective order could waive a subsequent Second Amendment

challenge to a criminal statute. See United States v. Reese, 627 F.3d 792, 804

n.3 (10th Cir. 2010), abrogated on other grounds by N.Y. State Rifle & Pistol

Ass’n v. Bruen, 597 U.S. 1 (2022); United States v. Schoendaller, No. 1:18–cr–

00179, 2019 WL 2746695, at *2 (D. Idaho July 1, 2019) (citing Reese, 627 F.3d

792). And, in both cases, the courts would only go so far as to say that the prior

consent had “arguably” resulted in a waiver. Reese, 627 F.3d at 804 n.3;

Schoendaller, 2019 WL 2746695, at *2. Neither court was willing to say that a

waiver had actually occurred. And neither was willing to base its resolution of

the defendant’s Second Amendment challenge on a theory of consent or waiver.

Instead, the courts in both cases did just what we should do here: they

12More on this in part V. 25

addressed the merits of the defendant’s Second Amendment challenge. See

Reese, 627 F.3d at 800–04; Schoendaller, 2019 WL 2746695, at *2–5.

That’s also what the Supreme Court did in the Rahimi case, which involved

an almost identical fact pattern. See 602 U.S. at 690–702. Like Cole, Rahimi had

been a respondent in a civil domestic abuse proceeding. See id. at 686. Also like

Cole, Rahimi consented to the entry of a civil protective order. See id. at 687.

Indeed, Rahimi expressly “AGREED TO AND APPROVED” the order, both “AS TO

FORM AND CONTENT.” Joint Appendix at 10, Rahimi, 602 U.S. 680 (No. 22–

915), 2023 WL 5322443, at *10. And, like Cole, Rahimi was charged with a

criminal statute that made it a felony for him to possess firearms while the

protective order was in effect. See 602 U.S. at 688.

Yet, notwithstanding his express adoption of the civil protective order,

Rahimi was still allowed to raise a Second Amendment challenge to the criminal

statute. See id. at 693. And the merits of his Second Amendment challenge were

thoroughly considered both by lower federal courts and the United States

Supreme Court. See id. at 689–702.

Likewise, even though Cole consented to the entry of a civil protective

order, Cole should be allowed to raise a Second Amendment challenge to the

statute that criminalized his possession of firearms. And, like the Supreme Court

in Rahimi, we should thoroughly consider the merits of Cole’s Second

Amendment challenge to that criminal statute. See id. at 690–702. Like cases

should be treated alike.

III. General Waiver Principles Show There Was No Waiver.

As the majority properly notes, however, the Rahimi opinion did not

explicitly discuss the issue of waiver. But in other cases, the Supreme Court has

provided an established body of principles that govern alleged waivers of 26

fundamental rights. Those principles preclude a finding that Cole waived his

current Second Amendment challenge.13

“A waiver is . . . an intentional relinquishment or abandonment of a known

right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). When it comes

to waivers of fundamental federal rights, the Supreme Court “has always set high

standards of proof,” which the government has the burden to satisfy. Miranda v.

Arizona, 384 U.S. 436, 475 (1966). Courts must “ ‘indulge every reasonable

presumption against waiver’ of fundamental constitutional rights.” Zerbst, 304

U.S. at 464 (quoting Aetna Ins. v. Kennedy, 301 U.S. 389, 393 (1937)). We cannot

find a valid waiver unless the record shows that a waiver actually occurred and

that it was voluntary, knowing, and intelligent. See Montejo v. Louisiana, 556

U.S. 778, 786 (2009).

When these principles are faithfully applied, they do not allow us to find a

valid waiver here. They do not allow us to say that Cole’s consent to a civil

protective order somehow waived his right to raise future Second Amendment

challenges in future criminal prosecutions like this one.

Let’s start with the hearing itself, at which Cole’s alleged waiver allegedly

occurred. We have no transcript or other record from that hearing. We cannot

say that there was any discussion during the hearing about (1) firearms, (2) the

Second Amendment right to possess firearms, (3) future prosecutions for

possessing firearms, or, most importantly, (4) possible Second Amendment

challenges that Cole might raise in the event of a future prosecution. Certainly,

we cannot say that those possible future challenges were a “known right or

13Although the State cites some cases to support its waiver theory, none of them involve

criminal prosecutions, and none of them address federal law principles of waiver. See Sims v. Rush, No. 10–0237, 2010 WL 3503943, at *3 (Iowa Ct. App. Sept. 9, 2010); In re Alatorre, No. 01–0045, 2002 WL 576171, at *2 (Iowa Ct. App. Feb. 20, 2002); Stewart v. Stewart, 687 N.W.2d 116, 117 (Iowa Ct. App. 2004) (en banc). 27

privilege” that Cole was asked to waive or that Cole agreed to waive. Zerbst, 304

U.S. at 464. Nothing in the record shows that. And remember, we must “indulge

every reasonable presumption against waiver” of fundamental rights, including

Second Amendment rights. Id. (emphasis added) (quoting Aetna Ins., 301 U.S.

at 393).

It’s true that Cole consented to the entry of the protective order. It’s also

true that the order mentioned Iowa Code section 724.26(2)(a) (2022) and its

firearm prohibition. But there is an uncrossable gulf between (1) those facts and

(2) the—incorrect—conclusion that Cole voluntarily, knowingly, and intelligently

waived his rights to raise future constitutional challenges to section 724.26(2)(a).

To begin with, we do not know if Cole, who was proceeding pro se, even

saw the order before it was entered. Nor do we know if Cole understood the

order’s contents after it was entered. In any event, the order said nothing about

Cole giving up his right to mount constitutional challenges to

section 724.26(2)(a) (or any other regulation) in the event of future criminal

prosecution. Those future challenges weren’t mentioned in the order.14 So even

if we were to assume that Cole understood and agreed to every single word of the

protective order, we still couldn’t find that Cole had waived his right to raise his

current constitutional challenge.

IV. Class Forecloses a Finding of Waiver.

The conclusion that no waiver occurred finds extra support in the Supreme

Court’s Class opinion. Indeed, if—as the Supreme Court found—there was no

14Because the protective-order court did not address Cole’s future constitutional

challenges to future criminal prosecutions, we would not have addressed those challenges if Cole had appealed the order, as the majority suggests he should have. Those issues wouldn’t have been ripe. See Singer v. City of Orange City, 15 N.W.3d 70, 76 n.3 (Iowa 2024) (noting that as- applied challenges under Article I, section 8 “would not be ripe” where no warrant had been sought or issued and no inspections had occurred). Plus, the wrong parties would have been before us: While Cole’s former girlfriend was the plaintiff in the protective order proceeding, the State would have to be the plaintiff in any criminal prosecution. 28

waiver under the facts of Class, it seems inconceivable that there was a waiver

here.

Rodney Class’s car contained firearms when he parked it on the United

States Capitol grounds. Class, 583 U.S. at 176. Class was charged with violating

a federal statute, 40 U.S.C. § 5104(e)(1), which prohibits the possession of

firearms on Capitol grounds. See id. Class moved to dismiss the charge and

claimed that the statute violates the Second Amendment. Id. The district court

denied the motion. Id.

Class then entered a written plea agreement with the government. Id. The

agreement covered various issues that Class was and was not waiving through

his plea. Id. at 176–77. “The agreement said nothing about the right to raise on

direct appeal a claim that the statute of conviction was unconstitutional.” Id. at

177. The court “held a plea hearing during which it reviewed the terms of the

plea agreement (with Class present and under oath) to ensure the validity of the

plea.” Id. “After providing Class with the required information and warnings,” the

court accepted the guilty plea and sentenced Class. Id.

On appeal, Class again raised his claim that the statute violated the

Second Amendment. Id. at 177–78. But the D.C. Circuit Court of Appeals held

that “Class could not raise his constitutional claims because, by pleading guilty,

he had waived them.” Id. at 177–78.

The Supreme Court disagreed. Id. at 178–85. In the Court’s view, the

simple act of pleading guilty did not automatically mean that Class relinquished

his right to challenge the statute of conviction. Id. Moreover, the Court noted,

Class’s plea agreement did not expressly waive Class’s right to pursue such a

constitutional challenge. Id. at 184–85. And so, the Court held, no waiver had

occurred. Id. at 185. 29

The same must be true of Cole. If pleading guilty to violating 40 U.S.C.

§ 5104(e)(1) didn’t waive Class’s right to challenge the constitutionality of

40 U.S.C. § 5104(e)(1) on appeal, surely Cole’s consent to a protective order in a

prior civil case couldn’t have waived Cole’s right to challenge the constitutionality

of section 724.26(2)(a) in this criminal case. See id. This seems especially clear

because Cole—like Class—never expressly waived his right to bring a

constitutional challenge to any criminal statute in any criminal action. See id. at

184–85. Indeed, as already discussed, there’s no reason to believe that such

future constitutional challenges were even addressed in the protective order

case, much less that Cole was asked to waive those challenges.

V. The Majority’s Waiver Cases Do Not Show Waiver Here.

I appreciate the majority’s efforts on this case. And I have respectfully

considered the many waiver cases cited by the majority. None of them changes

the outcome here. None of them involves facts like those before us, that is, a

hearing in a civil case that allegedly led to a waiver of the right to raise a

constitutional challenge in a future criminal case.

At first glance, it seems like the majority’s most factually relevant cases

might be those involving guilty pleas that were established or confirmed through

in-court colloquies.15 Those bear at least surface similarity to the situation of

Cole, whose alleged waiver occurred during a court hearing. As just explained

though, under Class, even a guilty plea with an in-court colloquy does not waive

the defendant’s right to raise constitutional challenges to the statute of

conviction unless that particular right is expressly waived. This precludes a

finding that Cole waived his right to bring a constitutional challenge in this case:

15See United States v. Deng, 104 F.4th 1052, 1054 (8th Cir. 2024) (concluding that the

defendant waived his constitutional challenge on appeal by pleading guilty unconditionally); People v. Johnson, 206 N.Y.S.3d 584, 586–87 (App. Div. 2024) (concluding that the defendant waived his constitutional challenge on appeal by executing an appeal waiver). 30

Nothing in the record from the protective-order case suggests that Cole expressly

waived his rights to raise a constitutional challenge in this or any future criminal

This points toward a broader problem with the majority’s cases: Almost all

of them involve situations in which a party’s choices in one particular case have

led a judge to conclude that the party waived certain rights in that same case.

For instance, some of the majority’s cases involve waivers of counsel within a

particular case,16 or speedy trial waivers within a particular case,17 or waivers of

other trial rights within a particular case,18 or forfeiture of appeal rights within

a particular case.19 Two of them involve waivers of Second Amendment rights

16See United States v. Stanley, 891 F.3d 735, 738–39 (8th Cir. 2018) (concluding that the

defendant waived his right to counsel); State v. Miller, 975 N.W.2d 807, 816–18 (Iowa 2022) (same). 17State v. Magnuson, 308 N.W.2d 83, 85–86 (Iowa 1981) (concluding that the defendant

waived his right to a speedy trial); see also State v. Johnson, 770 N.W.2d 814, 822–23 (Iowa 2009) (noting that a “broad array of constitutional and statutory rights . . . may be waived” and concluding that the defendant waived his right to trial within the time limit imposed by the Interstate Agreement on Detainers). 18United States v. Moon, 33 F.4th 1284, 1298–300 (11th Cir. 2022) (concluding that the

defendant waived his right to a public trial); United States v. Garske, 939 F.3d 321, 332 (1st Cir. 2019) (reversing the district court’s dismissal and remanding for retrial because the defendants waiver of trial by a twelve-person jury could not “override the government’s unwillingness to consent” to a trial by less than twelve); United States v. Obak, 884 F.3d 934, 937 (9th Cir. 2018) (concluding that the defendant waived “any objection as to a defect in venue” because he pleaded guilty, but addressing the merits because the government did not raise the waiver issue); State v. Basquin, 970 N.W.2d 643, 658–60 (Iowa 2022) (concluding that the defendant waived his right to a plea hearing in open court); State v. Gomez Garcia, 904 N.W.2d 172, 178–81 (Iowa 2017) (assuming without deciding that the defendant waived his statutory right to an interpreter at trial); State v. Liddell, 672 N.W.2d 805, 808–11, 813–14 (Iowa 2003) (rejecting, under the law in effect at the time, the defendant’s claim that his counsel was ineffective for failing to ensure the defendant’s jury trial waiver was knowing, voluntary, and intelligent where the court did not conduct an in-court colloquy but where the defendant “personally signed a written waiver of his right to a jury trial”). 19See United States v. Pittman, 125 F.4th 527, 531 (4th Cir. 2025) (concluding that the

defendant forfeited his constitutional challenge on appeal by failing to timely file a pretrial motion with the district court); United States v. Turner, 124 F.4th 69, 73, 75–78 (1st Cir. 2024) (same); Al Bahlul v. United States, 967 F.3d 858, 876 (D.C. Cir. 2020) (declining to reconsider a constitutional challenge that the defendant forfeited when the defendant refused to participate or present a substantive defense in the original military court proceedings); State v. Kates, 694 S.W.3d 462, 465 (Mo. Ct. App. 2024) (concluding that the defendant’s constitutional challenges were “not preserved for review” when he raised them “for the first time on appeal”). 31

within a particular case. For instance, in State v. Maietta, when the defendant

agreed to give up firearm rights to get probation in a particular criminal case, he

waived his right to raise the Second Amendment as a defense to revocation of his

probation in that same case. 134 A.3d 572, 581 (Conn. 2016). Likewise, in Roman

v. State, when the defendant agreed to give up firearm rights to obtain a

community supervision arrangement in a particular case, he waived his right to

raise the Second Amendment as a defense to the revocation of that arrangement

in that same case. 571 S.W.3d 317, 321–23 (Tex. App. 2018).

So the majority’s cases stand for the unremarkable principle that waivers

within a particular case—call it Case 1—can lead to the loss of rights in the same

case, Case 1. But none of the majority’s cases show that a defendant’s waiver of

firearm rights in one civil case (Case 1) could prevent that defendant from raising

a Second Amendment challenge in Case 2, a separate criminal case that may or

may not be filed in the future. Indeed, there is apparently no authority for that

proposition.20 So even if we view Cole’s consent to entry of the protective order

as a waiver of the right to raise a Second Amendment challenge within the

protective order case (Case 1), e.g., in response to a rule to show cause for

violating the order, we still should not find a waiver of his right to raise a Second

Amendment challenge in this separate criminal case, Case 2.

Because Cole did not waive his right to bring a Second Amendment

challenge here, we should proceed to the merits of that challenge.

20As explained in part II, Reese and Schoendaller mentioned that a waiver in one case

“arguably” could waive a challenge in a second case. Reese, 627 F.3d at 804 n.3; Schoendaller, 2019 WL 2746695, at *2. But neither of them actually found waiver. Both of them reached the merits instead. Reese, 627 F.3d at 800–04; Schoendaller, 2019 WL 2746695, at *2–5. 32

VI. The Second Amendment Precludes Cole’s Disarmament.

a.

The Second Amendment protects “the right of the people to keep and bear

Arms.” U.S. Const. amend. II. It provides individual citizens with a fundamental

right to possess and use arms for private purposes, including self-defense.

Rahimi, 602 U.S. at 690; Bruen, 597 U.S. at 17; McDonald, 561 U.S. at 767–68,

791; District of Columbia v. Heller, 554 U.S. 570, 599, 630 (2008). This

fundamental right limits the power of the federal government to regulate the

possession and use of firearms. And thanks to incorporation, the same

limitations apply to state governments. McDonald, 561 U.S. at 791.

When an individual raises a Second Amendment challenge to a regulation,

courts pursue a two-part inquiry. Bruen, 597 U.S. at 17. In the first part of the

inquiry, courts ask whether “the Second Amendment’s plain text covers” the

regulated conduct. Id. If so, “the Constitution presumptively protects that

conduct.” Id.

In the second part of the inquiry, courts ask: Can the government carry

its burden of “justify[ing] its regulation?” Id.; see also Rahimi, 602 U.S. at 691.

To carry this burden, “the government may not simply posit that the regulation

promotes an important interest.” Bruen, 597 U.S. at 17. Instead, the government

must “demonstrate that the regulation is consistent with this Nation’s historical

tradition of firearm regulation.” Id. In other words, the government must show

that the modern regulation “is ‘relevantly similar’ to laws that our tradition is

understood to permit, ‘apply[ing] faithfully the balance struck by the founding

generation to modern circumstances.’ ” Rahimi, 602 U.S. at 692 (alteration in

original) (quoting Bruen, 597 U.S. at 29).

To decide whether modern and historical regulations are “relevantly

similar,” courts must consider both “why” and “how” the regulations have 33

“burden[ed] the right” to bear arms. Id. This means that courts must consider

(1) “whether modern and historical regulations impose a comparable burden” on

the firearm right—the “how” of the regulations and (2) “whether that burden is

comparably justified”—the “why” of the regulations. Bruen, 597 U.S. at 29.

b.

With these standards in mind, I now address Cole’s as-applied challenge

to section 724.26(2)(a). Under that section, “a person who is subject to a

protective order under 18 U.S.C. § 922(g)(8) . . . and who knowingly

possesses . . . a firearm . . . is guilty of a class ‘D’ felony.” Iowa Code

§ 724.26(2)(a) (emphasis added). A “protective order under 18 U.S.C. § 922(g)(8)”

means an order that would trigger that federal statute’s firearms prohibition. Id.

An order qualifies if it meets three requirements:

• First, the order must have been “issued after a hearing of which [the]

person received actual notice, and at which [the] person had an

opportunity to participate.” 18 U.S.C. § 922(g)(8)(A).

• Second, the order must restrain the person “from harassing, stalking,

or threatening” his or her “intimate partner” or his or her partner’s

child, or from “engaging in other conduct that would place” the partner

“in reasonable fear of bodily injury to the partner or child.” Id.

§ 922(g)(8)(B).

• Finally, under paragraph (C), the order must satisfy at least one of two

criteria, which are set out in subparagraphs (C)(i) and (C)(ii). To satisfy

(C)(i), the order must “include[] a finding that [the] person represents a

credible threat to the physical safety of such intimate partner or child.”

Id. § 922(g)(8)(C)(i). To satisfy (C)(ii), the order must “by its terms

explicitly prohibit[] the use, attempted use, or threatened use of 34

physical force against such intimate partner or child that would

reasonably be expected to cause bodily injury.” Id. § 922(g)(8)(C)(ii).

As the majority correctly notes, Cole does not dispute that these statutory

requirements are met. There’s an important caveat, though, concerning

paragraph (C). Cole concedes that because the protective order here prohibits

certain uses of force, the order satisfies (C)(ii). Cole emphasizes, however, that

the requirements of (C)(i) have not been separately met. They have not been

separately met because the order included no finding that Cole represented a

threat to anyone’s safety. This fact is central to Cole’s constitutional challenge.

c.

With that background out of the way, I return to the two-part inquiry. The

first part of the inquiry is easy to resolve: There is no doubt that “the Second

Amendment’s plain text covers” the conduct regulated by section 724.26(2)(a).

Bruen, 597 U.S. at 17; see also Heller, 554 U.S. at 592. Section 724.26(2)(a)

prohibited Cole from possessing firearms, conduct that falls squarely within the

Second Amendment’s right to keep and bear arms. So Cole’s conduct is

presumptively protected by the Second Amendment. See Bruen, 597 U.S. at 17.

So now we turn to the second part of the inquiry: Can the State carry its

burden of showing that section 724.26(2)(a) is relevantly similar to founding-era

regulatory traditions? As explained, “relevantly similar” requires the State to

show similarity both in “how” a historical analogue restricted the right and in

“why” it restricted the right—the justification for the restriction. Rahimi, 602 U.S.

at 692.

Here, the State proposes three historical analogues:

1. Founding-era statutes that disarmed whole groups of people who fell

into certain racial, religious, political, or socioeconomic categories. 35

2. Founding-era surety laws, under which persons suspected of future

misbehavior—including domestic abuse—could be required to post a

bond before carrying arms.

3. Founding-era going armed laws, under which individuals who had

menaced others with firearms could be punished.

We can eliminate the first proposed analogue, category-based statutes,

from the outset. The State concedes that they are not adequately relevant

because they disarmed people for different reasons—for a different “why”—than

section 724.26(2)(a). While categorical restrictions disarmed people based on

categories such as race or religious affiliation, section 724.26(2)(a) disarms

people through “a case-by-case” approach that depends on individual

circumstances such as the kind of hearing that was held, the kind of restrictions

that were imposed in the resulting order, and so on.

So now we can consider the State’s last two proposed analogues: surety

laws and going armed laws. Those were the laws that the Rahimi Court relied

upon to justify Mr. Rahimi’s disarmament under § 922(g)(8). Rahimi, 602 U.S. at

695–97 (surety laws); id. at 697–98 (going armed laws). And, as explained, the

criteria for disarmament under § 922(g)(8) are similar to those under Iowa Code

section 724.26(2)(a). And so, the State argues, Cole’s disarmament under Iowa

Code section 724.26(2)(a) is justified by comparison with disarmaments under

the surety and going armed laws.

I disagree. Here again, the “why” for the disarmament is dispositive. As the

Rahimi Court made clear, surety laws and going armed laws allowed

disarmament “to mitigate demonstrated threats of physical violence,” 602 U.S.

at 698, that were verified through “judicial determinations” that a particular

individual posed a threat of danger to another’s physical safety, id. at 699. Those

were the “whys” for disarmament under those historical regimes. And those 36

“whys” were plainly applicable to Rahimi’s case: He was disarmed through an

order that “met the requirements” of paragraph (C)(i) “because it included a

finding that Rahimi represented ‘a credible threat to the physical safety’ of” the

girlfriend and her family. Id. at 689 (emphasis added).

But those “whys” do not apply to Cole. Unlike disarmament under surety

laws and going armed laws, Cole was not disarmed because he posed a

“demonstrated threat[] of physical violence.” Id. at 698 (emphasis added). There

was no evidence—and no stipulation—that Cole posed a threat to anyone’s

physical safety.21 See State v. Kieffer, 17 N.W.3d 651, 664 (Iowa 2025) (“[T]he

surety and going armed laws confirm what common sense suggests: When an

individual poses a clear threat of physical violence to another, the threatening

individual may be disarmed.” (quoting Rahimi, 602 U.S. at 698)).

Moreover—and, again, unlike with surety laws and going armed laws—

Cole was not disarmed because of a “judicial determination[]” that he had

threatened or would threaten anyone. Rahimi, 602 U.S. at 699. The court made

no finding that Cole had been or would be abusive or violent. Although the court

used a form order that included a box for the judge to check if Cole had

committed a domestic abuse assault, the judge left that box unchecked. I see

that as clear confirmation that the court did not find that Cole had engaged in

domestic abuse. This makes sense because, so far as we can tell, there was no

evidence to support such a finding.

21The State sometimes suggests that Cole’s consent to the entry of the order was a kind

of confession by Cole that he was dangerous and, therefore, the order “was necessary.” This idea finds no support in the order or anywhere else in the record. It also overlooks the truth that people can consent to protective orders for any number of personal reasons—including a simple lack of interest in litigating. As Rahimi’s counsel told the Supreme Court at oral argument, “in many cases, people are happy to consent to the orders because they don’t want to be around the [protected] person anymore either.” Transcript of Oral Argument at 70, Rahimi, 602 U.S. 680 (No. 22–915), 2023 WL 9375567, at *70. 37

In short, the justifications for disarmament under the surety and going

armed laws—“the whys”—were demonstrations and judicial findings that the

disarmed individual posed a substantial threat of physical violence. Those

“whys” are wholly absent from Cole’s case. There was no demonstration, and

there was no judicial finding, that Cole posed a threat of violence to anyone. So

the surety and going armed laws are not “relevantly similar,” they cannot justify

Cole’s disarmament, and Cole’s convictions violate the Second Amendment. See

United States v. Van Dyke, No. 4:23–cr–00193, 2024 WL 1514129, at *1, *6–10

(D. Idaho Apr. 8, 2024) (dismissing on Second Amendment grounds an

indictment under § 922(g)(8)(C)(ii) because the underlying no-contact order had

been entered based on a defendant’s consent and without any individualized

“determination of dangerousness”), appeal filed, No. 24–2861 (9th Cir. May 6,

2024);22 George A. Mocsary, In Denial About the Obvious: Upending the Rhetoric

of the Modern Second Amendment, 2024 Cato Sup. Ct. Rev. 201, 211 (arguing

that § 922(g)(8)(C)(ii) is constitutionally unfirm); Eugene Volokh, Implementing

the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and

a Research Agenda, 56 UCLA L. Rev. 1443, 1507 (2009) (questioning whether

the Second Amendment can permit disarmament of “people simply because

they’re subject to a court order that has been entered with no finding of past

violence or future dangerousness,” as § 922(g)(8)(C)(ii) authorizes); Nelson Lund,

The Ends of Second Amendment Jurisprudence: Firearms Disabilities and

Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 189 (1999)

(suggesting that § 922(g)(8)(C)(ii) violates the Second Amendment insofar as it

“impose[s] a firearms disability on citizens who have never been convicted of a

22Van Dyke is set for oral argument before the Ninth Circuit Court of Appeals on July 9,

2025. Oral Argument Dates & Locations, U.S. Ct. of Appeals for the Ninth Cir., https://www.ca9.uscourts.gov/calendar/ (enter “24-2861” for the “Case Number” and click “Search Case Numbers”). 38

crime and who have never been shown to be any more dangerous than anyone

else”); Brief of Amici Curiae Professors of Second Amendment Law, the Second

Amendment Law Center, and the Independence Institute in Support of

Respondent and Affirmance at 29, Rahimi, 602 U.S. 680 (No. 22–915), 2023 WL

6622951, at *29 (arguing that although § 922(g)(8)(C)(i) is permissible under the

Second Amendment because it “requires a judicial finding of dangerousness,”

§ 922(g)(8)(C)(ii) “is an infringement” because it “does not require such a finding,”

and noting that “[j]udicial orders that acrimonious domestic parties not do

something illegal in the future is not equivalent to a judicial finding that there is

‘a credible threat’ of illegal behavior”).

VII. An Implied-Finding Theory Should Not Prevail Here.

I have considered the State’s implied-finding theory. This is the idea that

although the protective order contains no finding that Cole presents a threat to

anyone, and although the record contains no evidence that would have

supported such a finding, we should nonetheless infer such a finding from the

mere fact that a protective order was issued. Respectfully, I do not believe such

reasoning can justify Cole’s disarmament.

I recognize that some courts have used implied-finding rationales to

uphold disarmament under § 922(g)(8)(C)(ii). Since Rahimi, three federal circuit

courts of appeals—the Fifth, the Sixth, and the Tenth—have done so. And

although we are not bound by federal circuit courts’ interpretations of federal

law, we should give these circuit court decisions respectful consideration. Top of

Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 460 (Iowa 2000) (en banc).

All three courts started with a correct assumption: under Rahimi, a

protective order cannot serve as a constitutional basis for disarmament unless

the issuing court has made a judicial determination that the person “poses a

clear threat of physical violence to another.” Rahimi, 602 U.S. at 698; see United 39

States v. Gordon, 137 F.4th 1153, 1156 (10th Cir. 2025); United States v. Perez-

Gallan, 125 F.4th 204, 215 (5th Cir. 2024); United States v. Combs, No. 23–5121,

2024 WL 4512533, at *3 (6th Cir. Oct. 17, 2024). The real question, then, was

whether that judicial-determination requirement could be fulfilled when the

protective order did not mention such a judicial determination. The circuit courts

believed that it could be. They believed that in the states where the relevant

orders had been issued, an order should not have been issued unless a judge

found that the respondent posed a risk of physical harm to the protected party.

Therefore, the courts reasoned, the very issuance of the order could imply an

unspoken finding that the respondent posed such a threat. Gordon, 137 F.4th

at 1157–58; Perez-Gallan, 125 F.4th at 215–16; Combs, 2024 WL 4512533,

at *2–3.

Respectfully, I do not believe these opinions should lead us to reject Cole’s

as-applied challenge. To begin with, it is important that in all three cases, the

courts rejected only facial challenges to § 922(g)(8)(C)(ii). Gordon, 137 F.4th

at 1154; Perez-Gallan, 125 F.4th at 209; Combs, 2024 WL 4512533, at *1. None

of the courts foreclosed the possibility of successful as-applied challenges to

§ 922(g)(8)(C)(ii) or, in Cole’s case, a state analogue. Indeed, two of the courts—

the Tenth and Fifth Circuit Courts—hinted that as-applied challenges could be

successful. Although skeptical, the Tenth Circuit acknowledged that “[p]erhaps

there could be a domestic-violence protective order in Utah that satisfied (C)(ii)

but was not based on implicit findings” that the respondent threatened physical

violence to the protected party. Gordon, 137 F.4th at 1158. An order of that sort

wouldn’t satisfy Rahimi. Cf. Van Dyke, 2024 WL 1514129, at *9–10 (rejecting an

implied-finding theory based on Idaho state law and dismissing as

unconstitutional a § 922(g)(8)(C)(ii) indictment). 40

The Fifth Circuit went much further. The court acknowledged that “some

potential applications of § 922(g)-(8)(C)(ii) appear problematic.” Perez-Gallan, 125

F.4th at 216. And the court specifically declined to hold “that the statute is (or

even likely to be) constitutional in all its applications.” Id. As an illustration, the

court noted that sometimes judges issue “mutual” protective orders—protective

orders against both parties—for the (wholly understandable) purpose of assuring

that the parties stay apart from each other. Id.; see United States v. Rahimi,

61 F.4th 443, 466–67 (5th Cir. 2023) (Ho, J., concurring), rev’d, 602 U.S. 680

(2024). These mutual protective orders may be issued even when only one party

is the abuser and “even if there are no indications that the [victim] is dangerous.”

Perez-Gallan, 125 F.4th at 216. This could lead to a “profoundly perverse”

outcome where a nondangerous victim is deprived of her right to keep and bear

arms because of a protective order against her. Id. (quoting Rahimi, 61 F.4th at

466 (Ho, J., concurring)). Indeed, as Judge Ho has emphasized, that victim could

be sent to prison simply because she armed herself. United States v. Rahimi, 117

F.4th 331, 335 (5th Cir. 2024) (per curiam) (Ho, J., concurring); Rahimi, 61 F.4th

at 466–67 (Ho, J., concurring).

In any event, there are at least three reasons why an implied-finding theory

should not foreclose Cole’s as-applied challenge. First, as a general matter, we

can take judicial notice that when parties are willing to consent to a protective

order, Iowa judges will often enter the order without further inquiry into whether

actual abuse has occurred. This practice is now codified in Iowa Code

section 236.5(2), which states that “[t]he court may approve a consent agreement

which may contain” all of the provisions that are otherwise available in protective

orders “without a finding the defendant has engaged in domestic abuse.” Iowa

Code § 236.5(2) (2025) (emphasis added). This approach is, of course, plainly 41

contrary to the notion that entry of a protective order implies a finding that the

restrained party has engaged in domestic abuse.

I acknowledge that the “without a finding” language was added to the Code

in 2022 and became effective July 1, 2022, just months after Cole’s order was

entered. 2022 Iowa Acts ch. 1042, § 2 (codified at Iowa Code § 236.5(2) (2023)).

Again, though, we can take judicial notice that this amendment really just

conformed the Code’s text to preexisting practice among our judges. See, e.g.,

Hardy-Wilson v. Hadaway, No. 21–0336, 2021 WL 5475585, at *1 (Iowa Ct. App.

Nov. 23, 2021) (“Following an unreported hearing, the district court filed a

protective order by consent agreement without a finding of domestic abuse.”);

Hobbs v. Iowa Dist. Ct., Nos. 06–0182, 7–058, 2007 WL 601765, at *2 (Iowa Ct.

App. Feb. 28, 2007) (interpreting Iowa Code section 236.5 (2005) to “provide[]

that a court may (1) grant a protection order upon a finding that the defendant

has engaged in domestic abuse or (2) grant a consent order based upon a

consent agreement between the parties”); In re Marriage of Stark, Nos. 0–095,

99–614, 2000 WL 328079, at *1 (Iowa Ct. App. Mar. 29, 2000) (“The court

entered a protective order by consent agreement, conditioned on no finding of

domestic abuse against [the respondent].”). But see, e.g., Wendt v. Mead, No. 16-

0928, 2017 WL 510972, at *2 (Iowa Ct. App. Feb. 8, 2017) (noting that a

protective order was defective because it was not predicated on a finding of

domestic abuse).

Indeed, we have sometimes encouraged this practice through our own

“New Judges School.” We have trained new judges that near the beginning of a

protective order hearing, the judge should give the defendant three choices:

(1) continue the hearing so they can obtain an attorney (assuming they didn’t

show up with one); (2) go straight to an evidentiary hearing, during which both

sides will testify and then the court will decide whether the defendant committed 42

abuse; or (3) agree to a consent order, which does not require a finding of abuse.

Many people choose the third option—as did Cole and “Julie,” the pseudonym

we are using for the petitioner/protected party in the protective order case. And

because they made that choice, the court had no reason to make a finding as to

whether abuse had occurred.

This brings me to the second reason to reject an implied-finding-of-abuse

theory: the protective order itself, which illustrates the practice that I just

described. Because Julie and Cole consented to the entry of an order, the judge

did not make a finding about whether domestic abuse had occurred. This is

made clear through the empty check box discussed before. Here’s a reproduction

of the order, including the unchecked box, “(3)”:

Again, if the judge had found that Cole “committed a domestic abuse

assault” against Julie, the box next to “(3)” would have been checked. But that

box was not checked. This makes it plain that the judge did not find that Cole

committed domestic abuse. We should not ignore this plain reality. We should

not infer that there was a finding when it’s plain that there was not a finding.

Finally, consider the empty record. Our only record from the protective

order proceeding is the order itself. We have no transcript or other evidence. And

we have no other reason to think that the court heard any testimony or received

any exhibits. Certainly, we have no reason to think that the court heard evidence

that Cole posed a credible threat to anyone’s physical safety. And I can’t assume

an Iowa judge would find such a threat without supporting evidence. 43

In short, based on all we know—including the empty record, the

unchecked box on the order, and the known traditions of our courts—an implied-

finding theory simply does not fit the situation before us. We should reject that

theory, at least for purposes of Cole’s case.23

VIII. The Majority’s Points About the Record.

The majority suggests that the record may be broader than I’ve explained.

In particular, the majority mentions the petition that Julie filed to commence the

chapter 236 action. And the majority invites us to imagine the petition’s

contents—that it “had to have” included an “alleg[ation]” of assault by Cole.

But I think we should keep two other things in mind. First, although this

probably goes without saying, no matter what allegations were contained in the

petition, mere allegations could never fulfill Rahimi’s requirement of a judicial

finding that Cole presented a credible threat to Julie’s person. If mere allegations

were enough to justify the disarmament of a citizen, Rahimi’s requirements

would be largely meaningless, as would the Second Amendment.

Second, we should remember that the petition is not in our record. So we

do not know what it actually said. Nor should we make assumptions about a

petition that we have not seen. Of course, we know that many protective order

actions are filed for good and sufficient reasons, including terrible acts of

domestic violence. But we know that some are not. Some actions are initiated for

23The State’s brief sometimes suggests that the protective order’s prohibition of “further”

acts of abuse should be read to imply the existence of prior acts of abuse. For the reasons explained above, I do not think that such prior acts were proven or found as to Cole. Also, the “further” acts language appears to be an artifact of our process in Iowa. We require our judges to use branch-mandated templates when entering protective orders under Iowa Code chapter 236. Iowa Ct. R. 4.200. The “further” acts of violence language is built into some of those templates. See Iowa Ct. R. Form 4.3: Protective Order by Consent Agreement (Section 236.3 Petition) (2021). It appears that the language was built into the template that was used by the judge here. It does not appear that the language was something that the judge could have added or erased. 44

insufficient reasons, such as ordinary disagreements that don’t involve actual or

threatened violence. And sometimes an abuser will pursue a protective order

action against a victim for abusive reasons, such as “to further isolate,

intimidate, and control” the victim,24 and for tactical reasons, such as

“confus[ing] the court as to who the perpetrator is and who the victim is.”25

Bottom line: Just because one person has requested a protective order

against a second person, we cannot just assume that the second person is a

violent abuser. Rather, we must demand a finding of violent abuse made by a

judge who has heard evidence of violent abuse. Here, there was neither evidence

nor a finding.

The majority opinion also repeatedly mentions the unproven,

now-dismissed theft charge against Cole. These repeated mentions, especially

24King Cnty. Coal. Against Domestic Violence, When Survivors Are Served: An FAQ for Advocates Working with Survivors Who Have Been Served with a Domestic Violence Protection Order in King County 2, 10 (2015), https://endgv.org/wp-content/uploads/2016/04/When- Survivors-Are-Served-FAQ-.pdf [https://perma.cc/R8AD-GVL3] (“Unfortunately, abusive people sometimes file for a domestic violence protection order in an attempt to further isolate, intimidate, and control their intimate partner.”); see, e.g., Ellen R. Gutowski & Lisa A. Goodman, Coercive Control in the Courtroom: The Legal Abuse Scale (LAS), 38 J. Fam. Violence 527, 527, 539 (2023) (listing potential items of legal abuse after consulting with “23 experts, qualitative interviews, and existing literature” and including on the list whether the abusive parent threatened to (or actually did) take out a restraining order against the victim of abuse); David H. Taylor et al., Ex Parte Domestic Violence Orders of Protection: How Easing Access to Judicial Process Has Eased the Possibility for Abuse of the Process, 18 Kan. J. L. & Pub. Pol’y 83, 87 (2008) (“The abuser can use an order of protection as another means of abuse.”); Mass. L. Reform Inst., What If the Person Who Abused Me Files a Restraining Order or Criminal Case Against Me?, Mass Legal Help (Feb. 2025), https://www.masslegalhelp.org/domestic-abuse-crime- victims/209a-restraining-orders/what-if-person-who-abused-me-files-restraining [https://perma.cc/FJ7S-YP7U] (“Sometimes abusive people try to use the police and the courts against the people they abuse. They might try to get a restraining order or press criminal charges against the people they abuse.”). 25Patricia Fersch, Domestic Violence in the Courtroom: The Legal System as a Weapon in

Domestic Violence Cases, Forbes (Sept. 1, 2022), https://www.forbes.com /sites/patriciafersch/2022/09/01/domestic-violence-in-the-courtroom-the-legal-system-as-a- weapon-in-domestic-violence-cases/ [https://perma.cc/A4VN-XCYP]. 45

those at the very start of the opinion, seem to imply that the charge is very

important to the issues before us. But the majority does not explain why.

In any event, we should not permit the theft charge to distract us or cause

us to slide into faulty thinking. We should not entertain the faulty notion that

because Cole was charged with the crime of theft, he is now a constitutional

nobody whose rights aren’t worthy of consideration. Instead, we should embrace

the bedrock principle of justice that people are presumed innocent until proven

guilty beyond a reasonable doubt. And Cole was never proven guilty of the theft

charge, which has now been dismissed. So that charge should carry no weight

in our analysis of his fundamental constitutional rights.

Because the record does not establish—and because a judge did not find—

that Cole presented a threat of violence to anyone, the Second Amendment

precluded Cole’s disarmament. Cole’s possession of firearms should not have

been grounds for felony convictions. We should vacate those convictions and

reverse for dismissal.

IX. The Very Important Issue of Safety.

Before concluding, I must discuss the state’s very legitimate interest in

disarming violent abusers. I applaud the concurrence for highlighting this very

important issue.

Even so, our court’s analysis of Second Amendment issues is dictated by

the Supreme Court’s precedents. We must follow those precedents “whether we

agree with them or not,” Rahimi, 117 F.4th at 334 (Ho, J., concurring), and

whether they conflict with important policy interests or not.

Here, though, I see no conflict. Under Rahimi, the state may disarm

“individual[s] found by a court to pose a credible threat to the physical safety of 46

another.” 602 U.S. at 702. This lines up well with the state’s legitimate safety

interest in disarming violent abusers. It also lines up well with the proper result

in this case: because Cole has not been “found by a court to pose a credible

threat to the physical safety of another,” there is no public-safety basis for his

disarmament. Id.

One last thought on the safety issue. Although civil protective orders can

play an important role in disarming violent abusers, they are not the only

answer. Judge Ho has written about this topic at least twice now. Rahimi, 117

F.4th at 335 (Ho, J., concurring); Rahimi, 61 F.4th at 463–64 (Ho, J.,

concurring). As he properly notes, the criminal justice system provides the

traditional mechanism through which “[v]iolent criminals” can be “disarmed,

detained, prosecuted, convicted, and incarcerated.” Rahimi, 117 F.4th at 335

(Ho, J., concurring); see Rahimi, 61 F.4th at 463–64 (Ho, J., concurring). Indeed,

within Iowa Code chapter 236 itself, our legislature specifically reminds the state

that “in addition to the provisions contained in this chapter,” there are additional

provisions “pertaining to domestic abuse assaults,” including criminal sanctions

for those who are proven guilty of such assaults. Iowa Code § 236.18. Those

criminal statutes provide the state with powerful tools to pursue its legitimate

interests in disarming violent abusers.

But because the State didn’t charge Cole with violating any of those

domestic abuse statutes—or, indeed, with committing any crime of violence—we

need not discuss those matters further.

X. Conclusion.

For the reasons explained above, I would reverse and remand for dismissal

of Cole’s convictions. I respectfully dissent.

Oxley and McDermott, JJ., join this dissent.