64-Year-Old Marine Corps Vet Sues Maryland Over Red Flag Law Allegation

If what Donald S. Willey claims in his federal lawsuit is true, the fear that people would use red flag laws to punish and harass someone out of spite, seem warranted. Willey and the Second Amendment Foundation (SAF), of which Willey is a member, filed a federal lawsuit against the State of Maryland over a red flag complaint filed against him.

Currently, 21 states have laws that allow law enforcement to remove firearms from individuals based on a third party accusation. The specifics of each state's law vary, but the opposition to these, Red Flag laws, or Extreme Risk Protection Orders is quite clear. The laws violate the individual's right to due process and are apt for abuse by the government and individuals alike, and that is what Willey and SAF allege in this lawsuit.

Willey & SAF Claims Against Maryland State Officials:

Here is the story as stated by the Second Amendment Foundation and confirmed in the court filing here.

Dorchester County authorities have “relentlessly pursued Willey for de minimis nuisance and zoning infractions.” More than two years ago, Webb allegedly stepped up the effort by accusing Willey of operating an illegal business on his property, leaving his yard in poor condition and for an “unpermitted disturbance to a 100-foot tidewater buffer.” These complaints were ultimately withdrawn, resulting in a consent order regarding the alleged condition of Willey’s yard.

Earlier this year, one of Webb’s inspectors entered Willey’s property to conduct a compliance inspection, culminating with Webb issuing new notices for Willey to make other improvements. Several days later, Webb and one of her inspectors visited Willey’s property without advance notice, as required by the consent order. At that time, Webb allegedly berated Willey before “violently” affixing Notices of Violation to a fiberglass cover on his boat, damaging the boat cover.

Webb subsequently filed for an Extreme Risk Protective Order (“ERPO”) to have Willey’s firearms and ammunition confiscated, alleging threats, which Willey steadfastly denies. The complaint accuses Webb of committing perjury resulting in seizure of Willey’s firearms and ammunition and forcing Willey to endure a humiliating involuntary mental health evaluation. The lawsuit alleges Willey’s constitutional rights were violated for nearly two weeks, after which his firearms were returned.

If Willey's Claims are True:

Again, if what Willey claims is true, Dorchester County authorities used obscure zoning ordinances, claims he was operating an illegal business, and periodic inspections to harass him into improving the appearance of his yard. When that didn't work, they turned the screws on Willey, and performed an improper, unannounced inspection during which one official called Webb, damaged Willey's private property and acted in an unprofessional manner.

Webb claims that during the argument with Willey, he made threats of violence. Instead of arresting Willey for making criminal threats, which would require probable cause that he made the statements, Webb used Marylands red flag law—which requires far less proof—to stick it to Willey.

Using the Law Unlawfully:

As we've seen is often the case, when the government doesn't like an individual's behavior and the law doesn't prohibit it, they used the law anyway, because the process is the punishment. In this case, Dorchester County returned Willey's guns two weeks later, and after subjecting him to an involuntarily mental health evaluation; leaving the 64-year-old defenseless.

This is not how the justice system is supposed to work. Officials sold red flag laws and extreme risk protective orders as a necessary tool that law enforcement lacked, which would enable them to stop violent crime before it happened. Law enforcement in EVERY state has authority to detain people for up to 72 hours when there is a confirmed, credible belief that the person is a threat to themselves or someone else. In these cases, police can even impound the individual's firearms.

What is Really Behind the Push for Red Flag Laws:

The thing that officials like about red flag laws is that the threshold for all of this is much lower, and the firearm seizure can last much longer. This is where it becomes ripe for abuse. The other implications of these laws is that they really can only function fully in conjunction with a firearm registry that lists all the firearms an individual owns. And implementing a registry requires universal background checks. This is one of the reasons the administration is pulling out all the stops to force universal background checks on Americans by law or bureaucratic edict.

• Episode 493: Universal Background Checks and Why They are SUPER Bad
• Leaked ATF Doc Shows Plan To Enact Universal Background Checks by End of Year
• White House: Biden Executive Order Brings U.S. “As Close to Universal Background Checks as Possible”
• Background Checks and Mass Shooters, How Did They Get Their Guns?
• Untold Truths About Background Checks

Red Flag Success Story?

Here is a link to a site called Court Watch Montgomery, which touts the success of Maryland's red flag law. The site states that:

Under the law, guns are seized immediately following the issuance of an interim or temporary Extreme Risk Protective Order (ERPO) by a District Court judge or a Commissioner. Between October 1, 2018 and the middle of February, 2019, 422 extreme risk protective orders were issued state-wide.

In the same time period, the Montgomery County Sheriff’s Department has collected 80 firearms based on 30 extreme risk petitions. Most orders were filed due to serious mental health concerns, usually suicidality. Several petitions were school-related. A number of cases were domestic violence.

Maryland’s red flag law is particularly helpful when an abusive partner has a gun, as it addresses two gaps in Maryland’s protective order law. First, it allows for a gun to be taken immediately, instead of waiting f0r the issuance of a final protective order, which can take weeks. In addition, the fact that the police or a health professional can file for the petition broadens the somewhat narrow restrictions of who can be a petitioner in a regular protective order case.

In one case, after police obtained a temporary ERPO, Sheriffs seized all the guns that they and the victim could locate at the victim’s home because her husband was threatening to kill her. Every respondent is allowed, with a Sheriff’s Department escort, to briefly return to the home to retrieve belongings. In this case the respondent attempted to remove from the home a large black bag in addition to his clothes. When the deputy inquired as to what was in the bag the respondent told them that it was medical supplies, but would not let the deputies see for themselves. Deputies subsequently refused to let him remove the bag from the home.

After the respondent left the home, the man’s child revealed that the bag was full of ammunition, silencers and another gun. The respondent has since been successfully prosecuted for violating the extreme risk protective order.

My Concerns:

I've made bold some of the text to point out areas of concern.

First, we see that the order allows seizure of guns immediately, without any hearing. And the seizure is based on a claim from a third party, and doesn't even have to be criminal in nature.

Secondly, I made bold the paragraph explaining how red flag law is “particularly helpful when the abusive partner has a gun”. Domestic violence is not always a case of one abusive partner and the other abused. Couples who mutually abuse each other often use calls to law enforcement to punish the other party, and even use children to harn, harass or manipulate the other person.

The website points to a specific case where police seized the guns from a man who threatened to kill his wife. Did they not arrest him? If they didn't and just took the guns, wouldn't he still be able to kill her? If they arrested him, and took all the guns in the home, how does she defend herself against him? Could the wife lock up the firearms while the husband is in jail?

Turns out cashless bail is a big problem for the victims of crime.

Back to Universal Background Checks:

The site also mentions that the “Sheriffs seized all the guns that they and the victim could locate at the victim’s home because her husband was threatening to kill her”. During my time as a law enforcement officer in California, I had to retrieve guns from individual's homes because of court orders. Even with a list of registered guns—California has a state firearm registration—it is impossible sometimes to find all the guns registered to an individual. Again, this is the tie in to universal background checks.

By the very nature of trying to predict if someone will carry out a crime or harm themselves with a firearm, it's impossible to say unequivocally that seizing the individual's guns stopped them from harming themselves or others. Of course, everyone would love if law enforcement could stop crime before it happens. Unfortunately, that isn't always possible.

Finally:

I'm not opposed to the idea of court orders that allow law enforcement to seize firearms. But I am against any order that doesn't provide the accused due process, a speedy way of getting their property back, a probable cause, burden of proof before issuing the order, severe criminal and civil penalties for anyone who bears false witness to obtain such order, and an outside oversight that looks at the nature and effectiveness of the orders and addresses abuse. In my estimation, the red flag laws I've seen fall way short of this.