Attorneys for the Second Amendment Foundation (SAF) and Maryland resident Donald S. Willey have filed an appellants’ brief with the Maryland Supreme Court, challenging the state’s “red flag” law. The case, Willey v. Brown, originated in U.S. District Court for the District of Maryland in August 2023.

Willey, a 64-year-old Marine Corps veteran, has been in conflict with officials in Dorchester County over nuisance and zoning violations. He became the subject of an Extreme Risk Protective Order (ERPO) after allegedly making threats, which Willey denies. The order led to the confiscation of his firearms and ammunition and forced him into an involuntary mental health evaluation. The lawsuit claims Willey’s constitutional rights were violated for nearly two weeks before his firearms were returned.

While the federal lawsuit is still pending, it depends on how Maryland law defines “reasonable grounds” in the state’s ERPO law. The U.S. District Court has asked the Maryland Supreme Court to interpret the term before the federal case continues. The court is being asked to clarify two legal questions: What legal standard does “reasonable grounds” imply in Maryland’s red flag law, and can an ERPO be issued based on a standard less than probable cause?

“This case is about how so-called ‘red flag laws’ can be weaponized against private citizens,” said SAF founder Alan M. Gottlieb. “We’re asking the Maryland high court to define the meaning of ‘reasonable grounds’ in the state ERPO statute to help make our case in federal court.”

SAF Executive Director Adam Kraut echoed the concerns about the law’s implications. “Red flag laws are based on the Orwellian belief that you can take actions against someone for an alleged crime that hasn’t occurred,” Kraut said. “The concept is absurd.”

The case will proceed in federal court once the Maryland Supreme Court issues its decision.

Willey and SAF are represented by attorneys Mark W. Pennak of Maryland Shall Issue, as well as Edward A. Paltzik, Serge Krimnus and Meredith Lloyd of Bochner PLLC in New York.

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21 COMMENTS

  2. “Red flag laws are based on the Orwellian belief that you can take actions against someone for an alleged crime that hasn’t occurred,”

    That’s because at their core red flag laws are based on the concept that the ‘state’ has an inherent right to determine someone is a detriment to the ‘society’ of the ‘state’ thus the ‘state’ any time they decide.

    Its a communist invention. its a principal of Marx- ist Social -ism, that the state can decide who is ‘undesired’. Hitler used the concept against the Jews. It arose in a more ‘official law’ form in the old Soviet Union where a person could be determined by the ‘state’ to be an ‘enemy of the state’ if they did not abide by being a ‘good communist’ for the good of the state, for example, if you refused a request of the local commissar or complained about a rule you were a ‘bad communist’ and the ‘state’ would imprison you or make life harder in other ways, thousands were imprisoned, or called ‘mentally defective’ (because it was considered insanity to act contrary to being a good communist) and confined.

    The concept was used to great effect in China’s Cultural Revolution, formally known as the Great Proletarian Cultural Revolution, as part of Mao Zedong’s version of Marx- ist Social -ism for the sociopolitical movement in the People’s Republic of China. It was launched by Mao Zedong in 1966 and lasted until his death in 1976. Millions were imprisoned or killed.

    And that’s what the democrats are trying to do, a Marx- ist Social -ism sociopolitical movement, thus no due process in Red Flag laws and a standard less than probable cause. Its almost straight out of the communism playbook, a tool open to great abuse by government. The founders recognized that governments always tend towards abusing their citizens with ‘we say so’ thus the 4th Amendment.

    • Even assuming that this is true, we must also consider that red flag laws are an offshoot of the mental health laws, that which in California we call a “5150.” (After the section of the Welfare && Institutions Code.) These laws recognize that sometimes people are just plain crazy and are therefore a danger to themselves or others. They are often employed in attempted or threatened suicide cases, but apply as well to hallucinating schizophrenics. 5150 itself allows for a person to be taken into custody by a physician or police officer if there is probable cause to believe that the individual is an immediate threat to himself or others or gravely disabled. The person is transported to a mental health facility for evaluation and treatment for a period not to exceed 72 hours, after which the individual is released or a hearing before a judge is conducted to permit a longer detention.
      I am reasonably certain that all states have such laws, and that they have been on the books for many decades, unlike the modern “red flag” laws. California’s (which was recently extensively rewritten) dates back to 1939.

      • sure, all 50 states have laws to deal with this in a mental health aspect. but the red flag laws implemented as red flag laws are different and specifically don’t work if there is due process under the 4th applied, that’s why they have a less than probable cause thing…the absence of due process and the less than probable cause to be able to do it because the ‘state’ says so is its foundation in communism…or like the guy said…

        “Red flag laws are based on the Orwellian belief that you can take actions against someone for an alleged crime that hasn’t occurred,”

        which is exactly what the communist did…. accuse and take actions when no crime had been comitted ’cause the state said so.

        • “the Orwellian belief that you can take actions against someone for an alleged crime that hasn’t occurred,”

          Interesting, so the gentleman outside the fence at the golf course was arrested for a crime that hadn’t occurred.

          Seems… Hypocritical.

          • “Interesting, so the gentleman outside the fence at the golf course was arrested for a crime that hadn’t occurred.”

            entirely different circumstances.

            learn what context means MIner49er

            • “Interesting, so the gentleman outside the fence at the golf course was arrested for a crime that hadn’t occurred.”

              and….he had committed a crime that had occurred…its in the criminal complaint

              18 U.S.C. § 922(g) Possession of a firearm by a prohibited person – convicted felon

              18 U.S.C. § 922(k) Possession of a firearm with an obliterated serial number

              The suspicious circumstances of him seemingly laying in wait (with a firearm) for Trump led to a ‘pursuit’ that discovered that under which he has been charged and that under which he has been charged was a crime already committed. And, the fact discovered that he had planned this act and executed his plans, and confessed in his own words in writing that he was going to kill Trump will probably lead to other charges, and they were also a crime already committed.

              So its false that “the gentleman outside the fence at the golf course was arrested for a crime that hadn’t occurred.” for the crimes had occurred, he was just inept at executing his plan.

              • This is a big difference from the ‘state’ just being able to say you did something or will do something ’cause they say so … like is indicated in this article thus…

                “the Orwellian belief that you can take actions against someone for an alleged crime that hasn’t occurred,”

                which is a communist invention. And that is what this ‘Red Flag’ law does.

              • clarification for you Miner49 because I know you don’t know what context means…for: “and they were also a crime already committed.”

                planning then executing the plan to murder, even if the actual act of murder did not take place, is still a crime thus he had already committed that crime as well as the others.

              • Not sure what all the elements of “attempted murder” actually are, but by all appearances there were certainly enough of them in play to warrant some kind of intervention.

                The rest is up to the judge/jury.

              • 18 U.S. Code § 1113 – Attempt to commit murder or manslaughter

                “Except as provided in section 113 of this title, whoever, within the special maritime and territorial jurisdiction of the United States, attempts to commit murder or manslaughter, shall, for an attempt to commit murder be imprisoned not more than twenty years or fined under this title, or both, and for an attempt to commit manslaughter be imprisoned not more than seven years or fined under this title, or both.”

                h ttps://www.law.cornell.edu/uscode/text/18/1113

                The elements in jury instruction (example)…
                16.5 Attempted Murder (18 U.S.C. § 1113)

                “16.5 Attempted Murder (18 U.S.C. § 1113)
                Printer-friendly version
                16.5 Attempted Murder
                (18 U.S.C. § 1113)

                The defendant is charged in [Count ________ of] the indictment with attempted murder in violation of Section 1113 of Title 18 of the United States Code. For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

                First, the defendant did something that was a substantial step toward killing [name of intended victim];

                Second, when the defendant took that substantial step, the defendant intended to kill [name of intended victim]; and

                Third, the attempted killing occurred at [specify place of federal jurisdiction].

                A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime. To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances. Mere preparation is not a substantial step toward committing the crime.

                Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.

                Comment

                “To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.” United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).

                The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

                Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

                See Braxton v. United States, 500 U.S. 344, 351 (1991) (“Although a murder may be committed without an intent to kill, an attempt to commit murder requires a specific intent to kill.” (citations omitted)). Although one acting “recklessly with extreme disregard for human life” can be convicted of murder if a killing results (see Instruction 16.1 (Murder—First Degree) and 16.2 (Murder—Second Degree)), that same recklessness cannot support a conviction of attempted murder if, fortuitously, no one is killed. See United States v. Kwong, 14 F.3d 189, 194-95 (2d Cir. 1994) (holding that under 18 U.S.C. § 1113, attempted murder conviction requires proof of specific intent to kill; recklessness and wanton conduct, grossly deviating from a reasonable standard of care such that defendant was aware of the serious risk of death, would not suffice as proof of an intent to kill).

                “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.” United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003). ”

                h ttps://www.ce9.uscourts.gov/jury-instructions/node/1065

              • “and….he had committed a crime that had occurred…its in the criminal complaint“

                When the Secret Service shot at this citizen they had no way of knowing he was a felon in possession, nor did they know he had a firearm with obliterated serial numbers.

                When the Secret Service shot at the Citizen, he was not on Trump property, but rather outside the fence and had not fired any shots whatsoever.

                Put the secret service Charlotte him for his pre-crime of being 300 yards from Donald Trump, another private citizen.

                So if we see someone sitting in public with a gun, we can assume they’re up to no good and start shooting at them?

                Interesting concept.

                Sadly for you, your own copy paste proves the gentleman outside the fence had not attempted murder:

                “To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.”

                “Mere preparation is not a substantial step toward committing the crime“

                So you are in favor of government agents taking shots at people who have done nothing to warrant the use of deadly force.

              • “When the Secret Service shot at this citizen they had no way of knowing he was a felon in possession, nor did they know he had a firearm with obliterated serial numbers.”

                Learn what context means Miner49er And learn what research means.

          • He have a fishing license? No? Open carry violation. May not agree with the law but it was broken long before any other issues came into play for the commie you simp for.

  3. It would be helpful to know the full clause in which “reasonable grounds” is found. Without that, we can’t evaluate or comment on the Maryland law. Is the ERPO issued on “reasonable grounds,” or is that the standard for detention of the person and confiscation of firearms, similar to the laws pertaining to involuntarily taking a person into custody for a mental health evaluation based on “a reasonable belief”, or more commonly “probable cause to believe” (a higher standard) that as person is a threat to him/herself or others. If the former, it conflicts with the standard in most states for issuance of an order. Those states require “clear and convincing evidence” before issuing an ex parte order or a permanent order. Not only is this a 2A issue, it is a privacy and personal freedom issue.

    I think we can safely assume that this individual was detained, underwent an involuntary mental health evaluation, and was released, and that no court order ever issued (based on the fact his firearms were returned).

    • And I am sure they were returned in good working order.

      No overly polished slide stops, brass in the face, clipped springs, or 1 MOA rifle magically transformed into a 5 MOA, etc, etc, …

      They wouldn’t do that.

    • I’ll bet this turns out to be another Caniglia v. Strom (sort of) type of case. if there was no court order then is their justification going to be ‘community caretaking’ which in Caniglia v. Strom was ruled unconstitutional for that case.

    • That probably isn’t an ad they chose themselves. Ads are usually generated based on your profile/search history.

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