The Second Amendment Foundation has announced the launch of a project aimed at challenging so-called “Red Flag” laws (RFL), which have raised alarms among gun rights advocates over concerns about due process.
SAF is calling this initiative “Capture the Flag,” and the organization, which has become a legal powerhouse in firearms rights litigation, is initially focusing attention on laws in six states: California, Florida, Maryland, Massachusetts, New Jersey, or Washington. They are among 21 states and the District of Columbia where such laws—called “Extreme Risk Protection Orders” (ERPO)—have been adopted.
The announcement came 48 hours after SAF filed what may be the first of several federal lawsuits challenging such laws. Earlier in the week, the foundation and one of its members, Donald S. Willey, a 64-year-old Marine Corps veteran, filed a federal lawsuit challenging the Maryland law, which was adopted five years ago.
That complaint was filed in U.S District Court for the District of Maryland, Northern Division. Named as defendants are Maryland Attorney General Anthony G. Brown, Dorchester County, Dorchester County Planning and Zoning Director Susan E. Webb, and Dorchester County Sheriff James W. Phillips. All three are sued in their official capacities, and Webb is also being sued personally.
SAF and Willey are represented by attorneys Edward Andrew Paltzik and Serge Krimnus of the Bochner PLLC law firm in New York City.
As explained by SAF Executive Director Adam Kraut, a practicing civil rights attorney, “SAF’s ‘Capture the Flag’ initiative looks to challenge these laws that deprive individuals of their right to keep and bear arms, where appropriate, based on evidentiary standards that are constitutionally impermissible.”
He said the “fundamental flaw” in all of these laws is that they essentially consider people guilty until they prove themselves innocent. According to Kraut, this concept is “diametrically opposed to the way our criminal justice system is supposed to work, where the burden of proof is on the state, not the individual.”
This real-life scenario is eerily reminiscent of a science fiction movie called “Minority Report.” As noted by Wikipedia, the film—released in 2002 and starring Tom Cruise—is about a “specialized police department (that) apprehends criminals by use of foreknowledge provided by three psychics called ‘precogs.’” Simply put, people are arrested because of crimes they might commit at some future date.
“When any citizen is unjustly deprived of his or her rights, it is an affront to all of us,” Kraut observed, “and we must do whatever we can to prevent it, including challenges of such laws in federal court. ‘Capture the Flag’ provides the means for us to seek out such cases and take appropriate action.”
“SAF has been concerned about these statutes since they first started showing up,” noted SAF founder and Executive Vice President Alan M. Gottlieb in a statement to the media. “We have already taken legal action against officials in Maryland for what is an egregious abuse of the law against a citizen in Dorchester County. But all of these laws should raise alarms because they prioritize citizen disarmament ahead of due process, and that can easily lead to deprivation of rights under color of law.”
What about the federal lawsuit in Maryland? According to the 40-page lawsuit, for nearly two decades, authorities in Dorchester County have “relentlessly pursued Willey for de minimis nuisance and zoning infractions.” (De minimis is defined by the Merriam-Webster dictionary as “lacking significance or importance: so minor as to merit disregard.”) In plain language, Willey was being hounded for minor infractions.
The dispute came to a head earlier this year when Webb allegedly filed an ERPO complaint against Willey.
Essentially, the lawsuit asserts the “Red Flag” law in Maryland has been weaponized against Willey. According to the document, “Webb’s false RFL petition against Willey—a decorated combat veteran who selflessly served the United States of America as a Marine with distinction and honor for over twenty-five years across multiple tours of duty—was ultimately dismissed, but the damage had already been done: as a result of Webb’s false petition, a state District Court judge issued an ERPO against Willey based on the vague ‘reasonable grounds’ standard. Next, Phillips’s deputies served the ERPO on Willey at his home, leaving Willey with no realistic choice except to surrender to the state’s show of authority by handing over his firearms and ammunition, on pain of arrest and criminal penalties. The deputies, invoking a related provision of the RFL, then forced Willey to endure an involuntary, torturous, and traumatizing mental health evaluation at a local hospital.
“During this Kafkaesque ordeal,” the lawsuit alleges, “Willey experienced deprivation of his fundamental constitutional rights and basic human dignity; the ordeal also demonstrated that the Maryland RFL unquestionably infringes upon the fundamental constitutional rights of all individuals who own or otherwise possess firearms in Maryland, by authorizing seizure of their firearms and ammunition on less than ‘probable cause’ and by denying them their right to keep and bear arms in a manner that is without historical analogue.”
While Willey’s case will be sorted out in federal court, SAF is now looking at “Red Flag” laws in the other states. In announcing its “Capture the Flag” project, SAF is encouraging people who live in California, Florida, Maryland, Massachusetts, New Jersey, or Washington that have been subject to a “baseless, groundless and unsubstantiated” ERPO to contact the organization by sending an email to email@example.com with information regarding the circumstances surrounding the petition, order, and outcome.
About Dave Workman
Dave Workman is a senior editor at TheGunMag.com and Liberty Park Press, author of multiple books on the Right to Keep & Bear Arms, and formerly an NRA-certified firearms instructor.