Five years after Maryland’s “red flag” law allowing for the seizure of firearms based on a judge’s determination that someone poses a threat to themselves or others was first put into effect, the statute is now facing a federal court challenge. In a new lawsuit filed by Maryland resident Donald Willey and the Second Amendment Foundation, the plaintiffs argue that the state’s Extreme Risk Protection Order violates the Second, Fourth, and Fourteenth Amendments of the U.S. Constitution by compelling judges to adopt a standard less than “probable cause” called “reasonable grounds,” without any comparable analogue in the nation’s history and tradition of keeping and bearing arms.
Willey knows firsthand how damaging the ERPO process can be, given that he was the subject of an ERPO request filed by Dorchester County Director of Planning & Zoning Susan Webb, who is one of the named defendants in the suit. Though Webb’s request was ultimately rejected by a judge, Willey was still subjected to a Kafka-esque journey through the state’s court and mental health systems.
From the complaint:
For nearly two decades, Dorchester County officials have relentlessly pursued Willey for de minimis nuisance and zoning infractions under the County Code, all of which related to the condition of his property. Webb’s predecessors even had Willey jailed for such infractions.
In May 2021, Webb launched a new campaign of harassment by letter from one of her inspectors to Willey advising that he was in violation of the County Code due to rubble, junk, and untagged vehicles in his yard. Webb then issued three “Uniform Civil Citations” (the “Citations”) to Willey requiring him to pay fines: one relating to the condition of his yard, one for allegedly running an illegal business on his property, and one for purported “unpermitted disturbance to 100-foot tidewater buffer.” Webb soon realized that the condition of Willey’s yard was not properly addressed in this manner and withdrew the yard infraction Citation. At a meeting with Willey without his attorney about the two remaining Citations, an incensed Webb attempted to intimidate him by aggressively pushing copies of the Citations toward Willey on a table and threatening to fine him $5,000 a day for the “business” infraction and $5,000 a day for the “tidewater buffer” infraction. Willey has never operated a business on his property.
After this initial meeting, Willey’s attorney confronted Webb with the reality that Willey did not have any “business” on his property and that the “tidewater buffer” infraction was not applicable to Willey. Webb reluctantly withdrew these remaining Citations.
Undeterred, Webb commenced an enforcement proceeding against Willey in Dorchester County Circuit Court in July 2022 relating to the alleged condition of his yard. The parties resolved this proceeding by Consent Order dated November 3, 2022, whereby Willey agreed to remediate any alleged yard infractions no later than May 31, 2023 and that Webb’s inspectors could enter the property to assess compliance, but only after notice to his attorney.
On May 30, 2023, Webb and one of her inspectors, Tyler Bennett (“Bennett”), conducted a compliance inspection of Willey’s property. Although Willey had indeed made substantial and costly efforts to ensure compliance with the Consent Order, and in fact had achieved substantial compliance, Webb was not satisfied.
According to a Notice of Violation issued to Willey on June 1, 2023, “the inspection revealed tall grass/weeds/vegetation 12” or higher, which is in violation of the Dorchester County Nuisance Ordinance,” with correction required by June 7, 2023 on pain of fines.
…
On June 2, 2023, Webb and Bennett drove to Willey’s property in Fishing Creek without notice to his attorney as was required by the Consent Order, in order to serve him with one or more of the aforementioned Notices of Violation. When Webb and Bennett arrived in a marked County vehicle at Willey’s property, he was outside in his yard. Willey respectfully declined to accept in-hand service of the Notices and instead politely asked Webb to communicate with his attorney. Instead, an irate Webb refused to leave, berated Willey, and yelled at him that his fence had to be taken down. In response, Willey told Webb: “you’re stupid.” Webb, apparently not satisfied, lingered and continued to berate Willey even after he said “bye” several times.
Webb, still irate, walked with Bennett over to Willey’s boat, which he was storing in his yard, and caused the Notices of Violation to be violently affixed to the fiberglass covering of the boat using a staple gun or other tool, damaging the cover in the process, before storming off the property. This entire interaction was witnessed by Willey’s neighbors.
Willey promptly filed a complaint against Webb with the Sheriff’s Office, which Phillips ultimately failed to act upon
…
At no time on June 2, nor during multiple prior interactions with Webb and her inspectors, did Willey ever (a) brandish or otherwise display a firearm or any other weapon, (b) have a firearm or any other weapon on his person or immediately accessible, or (c) make any verbal threats or even raise his voice. Willey has never misused or threatened with a firearm.
Webb, unable to inflict what she believed to be sufficient punishment upon Willey for his alleged property infractions and perceived insolence, decided on a different approach to get her pound of flesh. On June 15, 2023, Webb made the short trip from her office at County headquarters to nearby County District Court in order to file her false petition against Willey.
Webb filled out Form DC-ERPO-001. The proceeding was captioned “Susan E. Webb v. Donald S. Willey, Case No. D-021-FM-23-817452, District Court of Maryland for Dorchester County.”
In the first section of DC-ERPO-001, the Webb Petition stated: I, Susan E. Webb, request that this court issue an Extreme Risk Protective Order against Donald S. Willey, as the respondent poses an immediate and present danger of causing personal injury to himself/herself, to me, or to another by possessing a firearm.
As to section two of DC-ERPO-001—the alleged behavior supporting Webb’s request—she stated that Willey had been “making threats of violence by firearms to myself and other departmental employees on numerous occasions.” Although section two specifically asks the petitioner to “[i]nclude a description of the behavior and/or statements made by the respondent, date(s) of occurrences, and any other information,” Webb provided no such description. This statement, made under oath, was categorically false and therefore perjured, as Willey had never threatened violence by firearms against Webb or her subordinates on any occasion, let alone numerous occasions.
Under section three—a listing of firearms and number of firearms—Webb alleged that Willey possessed an unknown number of handguns, shotguns, rifles, and assault weapons, without providing any description. These allegations were nothing more than a guess—Webb had never spoken to Willey about his firearms, and had no other lawful method of determining which firearms Willey possessed. In making this statement, Webb perjured herself. Webb’s inability to describe any of Willey’s firearms was particularly strange since the entire substance of her false Petition was that Willey had threatened her and colleagues with firearms.
Also under another subheading of section three—requiring a description of how “respondent has unlawfully, recklessly, or negligently used, displayed, stored, possessed, or brandished a firearm”—Webb stated only: “June 8, 2023, June 9, 2023, June 12, 2023.” Although this subheading specifically asks the petitioner to “[i]nclude a description of the action(s) and date(s) of occurrence(s),” Webb only included alleged dates without any description whatsoever. This statement, made under oath, was also categorically false and therefore perjured, as Willey had never threatened violence by firearms against Webb or her subordinates on any occasion, let alone three occasions in June 2023. Critically, Willey did not interact with Webb or any of her inspectors on June 8, June 9, or June 12, 2023. These encounters never occurred—their most recent interaction occurred on June 2, 2023.
Under section four of DC-ERPO-001—whether “respondent has committed or threatened violence against himself/herself or others, whether or not the threat of violence involved a firearm”—Webb stated only: “On three recent occasions myself and staff were warned of threats of violence from Mr. Willey.” This statement, made under oath, was also categorically false and therefore perjured, as Willey had never threatened violence of any kind against Webb or her subordinates on any occasion, let alone three occasions.
Even though Webb couldn’t provide any substantive support for her allegations, according to the complaint an ERPO was still issued the very same day she submitted her petition to the court, and Willey was soon greeted by Dorchester County deputies who arrived at his home to not only seize his firearms, but take him into custody for an involuntary mental health evaluation.
Once at Shore Medical Center, Willey was admitted and evaluated without his consent by David Christopher White, M.D. This “evaluation” consisted of multiple nonconsensual tests, including but not limited to a blood-alcohol test, comprehensive metabolic panel, and a urinalysis drug screen. Willey was also forced to remove his clothes and don a hospital gown.
Dr. White’s discharge diagnosis of Willey was “acute stress reaction.” Indeed, the totality of the Kafkaesque experience—having his firearms seized as though he were a criminal, without a hearing or notice of any kind, and then having his person seized and transported to a hospital for involuntary evaluation and unwanted testing—was beyond stressful, even for a retired Marine and combat veteran.
Willey had to wait seven more days before he finally got his day in court, and the lawsuit alleges that when he finally stood before a judge to not only defend himself but to challenge Webb’s version of events, the county pulled their petition and ending the case against him. Twelve days after his firearms were first seized, Willey had his guns returned to him, but as the complaint states:
Willey remains at imminent risk of further unconstitutional harassment and selective enforcement by Webb, Phillips, their subordinates, and other County officials, in various forms and with impunity, including but not limited to additional malicious abuse of the Maryland RFL, absent judicial intervention. Thus, the concrete injuries suffered by Willey, and Defendants’ specific actions causing same, are capable of repetition and likely to reoccur. Moreover, Willey, SAF and its other members, and all other individuals who own or otherwise possess firearms in Maryland, face the certainty that the unconstitutional issuance of Interim and Temporary ERPOs on less than probable cause will be repeated, since the Maryland RFL expressly operates on the “reasonable grounds” standard and the RFL is used far more than almost any other state’s red flag law. Thus, the issuance of these RFL Warrants on less than probable cause in Maryland is not only capable of repetition, but will certainly be repeated with impunity, absent judicial intervention.
Honestly, this sounds like a very strong case, and Willey makes a compelling plaintiff given that the ex parte order was granted, his guns were seized, and he was hauled off for a mental health evaluation based solely on unsubstantiated complaints by a government official who’d been beefing with him for several years.
We’ve already seen a couple of New York judges rule that state’s “red flag” law to be an unconstitutional violation of the rights of gun owners in the state (though their decisions didn’t set a statewide precedent), but to date I’m not aware of any federal lawsuit challenging a state’s Extreme Risk Protection Order statute. Willey v. Brown could turn out to be a hugely important case, not only for the future of Maryland’s “red flag” law, but the similar statutes in place in more than a dozen other states across the country, and it’s one to keep a close watch on going forward.
