New Jersey’s Red Flag Law Gets Challenged in Federal Court

Michael Hill, NJTV News | November 21, 2019 | Social
Plaintiff with history of anti-Semitism and threats and violence wants the state to give him back his guns, arguing law is unconstitutional

A South Jersey man who police say has a history of making anti-Semitic comments on Facebook is leading a legal challenge to New Jersey’s so-called red flag law, alleging that state and local authorities violated his rights when, invoking the new gun-safety statute, they obtained a court order and seized his weapons.

Last month, an attorney for David Greco of Gloucester Township filed a class-action lawsuit in federal District Court in New Jersey claiming in part that the state’s Extreme Risk Protective Order Act of 2018 violates the U.S. Constitution’s guarantee of due process and its prohibition against unreasonable search and seizure.

The law — allowing courts to issue gun-violence restraining orders against those who have not committed a crime but still pose a risk to themselves or others based on a history of threats or acts of violence — was one of a series of gun-safety measures signed into law last year by Gov. Phil Murphy, who had campaigned on bolstering the state’s already tough gun laws.

Celebrating murder and mass shootings

On Sept. 6, 2019 — just days after the ERPO went into effect — authorities obtained a protective order against Greco under the law from a state judge in Camden County, who noted he had a “history of threats or acts of violence” and that he had “threatened, advocated, and celebrated the killing of Jewish people and has celebrated the mass shooting in Pittsburgh and New Zealand.”

The court issued a warrant allowing authorities to seize a rifle, rifle ammunition and a gun-purchaser’s ID card from Greco’s home, after finding that he “poses an immediate and present danger of bodily injury to self or others by owning or possessing any such firearms or ammunition.”

Authorities said they had been monitoring Greco’s anti-Semitic Facebook posts and say that he had been in contact with the shooter in the Tree of Life Synagogue shooting in Pittsburgh, which Greco denies. Greco does acknowledge that he had written that “force or violence is necessary to realign society.”

His lawyer, Albert Rescinio, said that while he didn’t agree with his client’s anti-Jewish rants, he defends his First Amendment right to speak his mind. Among those named as defendants in the lawsuit are Attorney General Gurbir Grewal, Jared Maples, the state’s director of homeland security, and various prosecutors and law-enforcement personnel in Camden County.

‘Thought crimes’

“This is like right out of a movie — you know, like ‘Minority Report’ with Tom Cruise,” he said. “These are thought crimes and pre-crimes.”

“David didn’t threaten to do anything,” he added, noting that he is also challenging the gun seizure in Camden County court. Otherwise, it stands for a year, at which time a judge can then renew it, he said.

New Jersey is among a third of the nation with a so-called red-flag law allowing the state to take away someone’s guns and temporarily bar them from buying more if they pose an immediate and present danger to themselves or someone else.

Its enactment here was a big victory for organizations like Moms Demand Action, the gun-control advocacy group that formed in the wake of the Sandy Hook school shooting.

“Our hope for it is that it will reduce our suicide rates and also keep us safer from homicide,” said Brett Sabo, of the group’s New Jersey chapter. “Fifty-one percent of mass shooters exhibit dangerous signs before the shooting takes place.”

Rescinio says New Jersey’s red-flag law is flawed because it allows police to act on “good cause” instead of “probable cause” — the state and federal constitutional standard for arrests and stops, searches and seizures in the United States.

In court papers, state lawyers say that the Administrative Office of the Courts and the attorney general have issued “binding directives” establishing probable cause as the standard both for police seeking a warrant and for courts issuing one under the law.

Rescinio maintained that that attempt to alter the law supported his client’s case.

“Here we have the AOC — an administrative body within the court — fixing or rewriting the legislative law,” he said. “They don’t have the power to do that.”

Serious deficiencies in measure

During a hearing Wednesday afternoon in Newark on Rescinio’s bid to block the state from enforcing the law, District Court Judge Brian R. Martinotti, indicated that he saw serious deficiencies in the measure. “Can we agree on its face this law is unconstitutional,” he asked.

State Deputy Attorney General Joseph Fanaroff said “No,” and urged the judge to let a state court handle the case. He also noted that judges have allowed enforcement of laws that have had flaws.

Fanaroff also said that the law could have been challenged between the time the governor signed it last year and when it went into effect, an argument that drew Rescinio’s scorn. “We are — all of us in New Jersey — at fault because we didn’t challenge it?” he asked, facetiously.

The judge did not issue any ruling.

Legal scholars acknowledge that red-flag laws can blur constitutional lines.

“I would be concerned if law enforcement was simply patrolling Facebook and you sought one of these orders simply because someone was engaging in even hateful political speech,” said Ronald Chen, former dean of Rutgers Law School. “But if that’s all they were doing, that’s obviously a protected First Amendment right.”

But Chen also said that the state has bolstered its case by adopting the higher standard.

“In a way, the courts and the attorney general have cut off that argument because they’re saying ‘we’re going to use probable cause,’” he said.