Point Of Imminent Danger For Gun Seizures Must Be Determined

BY Herschel Smith
1 year, 11 months ago

New Jersey Law Journal.

Last year the Legislature enacted the Extreme Risk Protective Order Act, N.J.S.A. 2C:58-20 et seq. It authorizes the court to issue a temporary protective order, on the ex parte application of a law enforcement officer, family or household member, if the court finds “good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or other by having custody or control of … a firearm.” The temporary order bars the respondent from possessing or receiving a firearm or ammunition until further order of the court. In deciding whether to issue a temporary protective order, the court is directed to consider eight factors, among which are the respondent’s “history of threats or acts of violence.”

In November 2019, the Gloucester Township Municipal Court issued a temporary protective order seizing the firearms of David Greco, 51, a resident of the township. It found good cause because FBI monitoring showed that Greco has posted extensively on social media in favor of violence against Jews, he had allegedly been in contact with the man who shot up a Pittsburgh synagogue, and he had a prior conviction for unlawful possession of a weapon.

Greco didn’t pursue the act’s remedy of a post-seizure plenary hearing within 10 days of a temporary order. Instead, he filed a § 1983 action against Attorney General Grewal and the Camden County prosecutor in federal district court, alleging that the statute i) violates the Fourth Amendment by not requiring proof of probable cause, ii) violates his Second Amendment right to possess weapons, iii) violates his First Amendment right of political expression, and iv) violates his Due Process rights. The suit requests a statewide preliminary injunction against enforcement of the act. The state opposed the motion, primarily on abstention grounds and secondarily on the ground that its interest in preventing an imminent threat to public safety overrides Greco’s Second Amendment right to keep firearms for personal defense in his home. The motion was heard in late November and remains pending. We think it likely that the district court will dismiss under the Younger abstention because Greco can assert his federal constitutional claims as the defendant in the pending state court proceeding. Those claims are significant.

[ … ]

The temporary protective order against Greco does not find as fact that he was imminently about to commit an act of violence against Jews or anyone else. That raises serious concern under Brandenburg v. Ohio, the 1969 U.S. Supreme Court decision that set the First Amendment parameters for when the state could punish political speech. In a case involving a Ku Klux Klan leader, the court held that the state could not punish the advocacy of illegal political violence unless the advocacy i) was directed to incite or produce imminent lawless violence and ii) is likely to incite or produce it. Under Brandenburg the First Amendment allows a speaker to advocate in principle a violent revolution or the expulsion or murder of a racial or religious group someday, as long as it is not coupled with the intended likelihood of immediate action.

As long as Brandenburg remains the law, the “good cause” standard of the act is subject to the requirement that the speaker intend imminent violence and is likely to produce it. Those twin inferences of intent and probability can’t simply be drawn from expressions of hatred or of admiration for those who have already committed illegal violence. Unlike the Prevention of Domestic Violence Act, which requires evidence that the defendant has already committed one act of domestic violence, the ERPO Act is purely predictive. We do not believe that Brandenburg allows the prediction to be made simply based on the expression of opinion that illegal political violence against Jews, unbelievers, homosexuals or any other hated group ought to be committed. That standard is substantially over-inclusive. For every prospective shooter or bomber, there are probably tens of thousands of angry but impotent bigots who sympathize and vent their anger and hatred online but will never muster the courage or discipline to act.

That may be true, but of course, that’s the wrong reason to oppose this statute.  The right reason is that it’s within God’s purview to punish evil-thinkers, not man’s, however evil-thinking is defined.  Evil-thinking is one thing to one man, another thing to another.  Only God’s law is the measure of what’s good and righteous.

What the author’s say about the second amendment is worth reading.

We do not think the Second Amendment is a significant barrier to preemptive action if the predictive evidence is clear enough. Under the Supreme Court’s Heller decision, the only recognized individual Second Amendment right is to possess firearms for last ditch defense in the home. Heller essentially incorporates the common law “castle doctrine” that Lord Coke declared in Semayne’s Case. Semayne’s Case limited the castle doctrine to the home and expressly excluded “the market or elsewhere.” Heller and its progeny have been careful to point out that the Second Amendment does not restrict the state’s power to regulate public order outside the home, including the carrying of arms by individuals. And no federal court has ever held that the Second Amendment confers a right to take or threaten armed political action. If it is proven by sufficient evidence that a defendant presents a clear threat of armed violence in the community, nothing in the Second Amendment, as currently interpreted by the courts, would prevent disarming him.

And thus we continue unabated down the road of appeals courts, lawyers, law reviews and law schools ignoring the strength of Heller and focusing on its weaknesses.  I have forever said that Heller was a weak decision, perhaps because it’s the best Scalia could have hoped for with the makeup of the majority in the decision.  Any further steps might have been a bridge too far.

But the Supreme tyrants have run as fast as possible from any more decisions on second amendment rights, and it remains to be seen whether the SCOTUS decision in Heller itself eventually becomes virtually irrelevant in light of lower court rulings.

No one will protect your God-given rights except you.  Know, however, that the Almighty will be your advocate on judgment day.


Comments

  1. On December 31, 2019 at 8:33 am, melvin polatnick said:

    Millions hate Jews and advocate violence against them and other minorities. But to take away their guns is wrong. If they say they are leaving their home at this minute to shoot a Jew or cop, a visit to their home would be in order.

  2. On December 31, 2019 at 11:04 am, Herschel Smith said:

    @melvin,

    But you’ve missed the point.

    What if a man speaks out against preferential hiring practices tilted towards ethnic minorities and females. With the right people in charge, that becomes a hate crime and thus reason to disarm him.

  3. On December 31, 2019 at 12:17 pm, Eye Of the Tigerstripe said:

    One of the aggregator pages had a story about billboards going up saying Comrade Kommissar Bloomberg and apparatchik Ralphie Northam are going to start confiscating in two weeks.
    It could be some kabuki theater or it could be to wake up the cloud cuckoo dwellers.

  4. On December 31, 2019 at 12:29 pm, dad29 said:

    But the Supreme tyrants have run as fast as possible from any more decisions on second amendment rights

    Doh. They know full well the reason for the 2A–that sometimes, entire Governments must be put down. Suicidal, they ain’t.

  5. On December 31, 2019 at 2:50 pm, Paul Bonneau said:

    It’s wise to not depend on the Supreme Court to do what is right. If they occasionally do right, that is a welcome outcome. But I never expect it. The Court is part of the ruling class, people with a natural aversion to armed peons. Any apparent devotion to the constitution on their part, boils down to self-preservation. They know if things get hot, it will be bad for them.

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You are currently reading "Point Of Imminent Danger For Gun Seizures Must Be Determined", entry #22811 on The Captain's Journal.

This article is filed under the category(s) Gun Control,Second Amendment and was published December 30th, 2019 by Herschel Smith.

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