Virginia’s version of the Extreme Risk Protection Order, or “red flag” law that allows for the seizure of firearms from individuals deemed by a judge to be a danger to themselves or others, has its first legal challenge, though it might not go very far.
Joseph Draego lives in Albemarle County, outside of Charlottesville, Virginia, and while he’s not been the subject of a gun seizure order, he’s filed suit in federal court alleging that the law is already chilling his speech because he’s concerned his “controversial” statements could lead to officials red-flagging him.
In addition to arguing that his Second Amendment right to bear arms is being violated by the law, Draego additionally claims that his First, Sixth, Seventh and Fourteenth Amendment rights are violated.
According to Draego’s argument, the red flag law allows for “any relevant evidence” to be considered, including “a person’s speech or expressive activity.”
“Mr. Draego plans to refrain from engaging in lawful expressive activity to avoid losing his ability to possess firearms, a right which is especially important to him,” the complaint reads.
To bolster his First Amendment argument, Draego cites events that led him to file a similar federal lawsuit against the city of Charlottesville in 2016.
The Daily Progress newspaper in Charlottesville reports that in 2016, Draego’s speech before the Charlottesville City Council was abruptly interrupted by the mayor after he called Muslims “monstrous maniacs.” Draego continued trying to speak, and ultimately had to be removed from the city council chambers by police. Several months after filing suit, a judge agreed with Draego that his rights had been violated, and issued a temporary injunction against the city blocking it from imposing its rule against “group defamation” on future speakers.
Draego’s new lawsuit might not be as successful, for the simple fact that he’s not actually been subjected to a “substantial risk order”… yet.
Despite Draego’s cited fears that his speech may lead him to be subject to a substantial risk order, [Commonwealth’s Attorney Joe] Platania confirmed in an email that his office had not sought to obtain any such orders since the law went into effect July 1.
“Having said that, if a community member came to our office concerned about the safety of a loved one in crisis, we would investigate the appropriateness of petitioning a court for a substantial risk order,” Platania said.
Tyler Hawn, a spokesman for the city police, confirmed that the department also had not sought any substantial risk orders and declined to comment further.
Not only has Albemarle County not pursued a red flag order yet, I’m not aware of any jurisdiction in the state that’s done so since the law took effect on July 1st. That may make it difficult for Draego to claim he has standing to challenge the law, since he’s not had his firearms removed, but the gun owner is hoping to overcome that hurdle with the claim that he’s already having to watch his mouth if he wants to keep his guns. It’s an interesting argument, but I’m not sure that it will be enough to convince a judge to toss the state’s temporary gun ban altogether.