Everyone agrees that Donald S. Willey (photo, left), 65, of Hoopers Island, Maryland, is a “decorated Marine combat veteran.”
His neighbors claim he has mental problems. County zoning officials describe his property as a “junkyard” where fires have broken out. No photo is available, so I’ll use a description from a Rolling Stone article here:
“Multiple commercial flatbed and dump trucks were strewn about, along with passenger vehicles, a late-model Ford pickup, a camper, numerous boat trailers — some with boats ….
“Countless containers and drums … [and] household appliances, scrap metal stored in bins, heaps of piping, and piles of wood and tires. A skid loader and an excavator were in disrepair. The cab of a broken-down backhoe was packed with still more junk.
“Tucked amid the chaos was an unfinished two-story house …. The first level was made of concrete bricks, and held more discarded items that were visible through the windows. The second level had an ornate wooden front door, but there were no stairs leading up to it.”
You get the idea: Code violations. And neighbors complained to the county, so inspectors looked at Willey’s property, then a code enforcement empoloyee named Susan Webb sent him a letter ordering him to clean it up, or the county would do it for him at his expense.
Willey never complied, and a couple years later, Webb heard from community members “that he intended to shoot her if she stepped onto his land again.” At that point, acting on the advice of a county lawyer, she asked a judge to impound Willey’s guns under Maryland’s red-flag law. The judge determined sufficient cause existed to do so, and signed the order.
Now let’s look at how conservative sources tell the story. This source, called “concealedcarry.com,” says county officials have “pursued and harassed” Willey for “de minimis nuisance and zoning infractions,” and when he threatened 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.”
The Bellevue, Washington, based “Second Amendment Foundation” (SAF), which filed a lawsuit on Willey’s behalf to overturn Maryland’s red-flag law, says (here) that Webb filed a vague red-flag petition only alleging that “[o]n three recent occasions myself and staff were warned of threats of violence from Mr. Willey.”
Be that as it may, based on Webb’s petition, the judge impounded Willey’s guns under a “reasonable grounds evidentiary standard (a lesser standard than probable cause),” and ordered sheriff’s deputies to take him into custody for involuntary mental evaluation. According to SAF, Webb dropped her petition 12 days later, and Willey was released and his guns were returned to him.
Raw Story says (here) that SAF “is painting Willey as the victim of a power-drunk public servant manipulating an unconstitutional law … to win her ‘pound of flesh'” from Willey. That probably isn’t true, but if it is, what’s the proper legal remedy?
A story in The Trace (here) says SAF is using the case as a vehicle to “to change the country” by getting conservative judges to throw out red-flag laws altogether. But this is using a sledgehammer to drive a carpet tack.
If the red-flag law was abused in this case, the proper remedy is to reverse the judge’s order (except it’s already moot) and award Willey damages against the county for violating his civil rights.
If the “reasonable grounds” evidentiary standard violates due process, the remedy is to invalidate the law as written, but allow the state to cure the constitutional defect by amending it to require judges to find probable cause.
In other words, nothing that happened in Willey’s case justifies eliminating red-flag laws, and it’s neither necessary nor appropriate for any court to do so. Even the Supreme Court’s gun-friendly conservative justices have accepted limits to the right to keep and bear arms, for example upholding laws barring felons from having guns.
Red-flag laws should be upheld, too, because like felon possession laws, they play a vital role in protecting the public from dangerous persons; and any problems with them in terms of individual rights can be solved with tweaking. The court can provide states with guidelines on how these laws must be written.
But it should not slam the door on allowing states, with proper due process safeguards, to protect their citizens from people who pose an undue risk by having guns.