Class Action Appeal to 3rd Circuit on ERPOs' Lack of Due Process Filed

(AP Photo/John Locher, File)

The extreme risk protective orders (ERPOs), aka “red flag” laws, becoming more prevalent is part of a growing and troubling trend.  On its face, a law that keeps firearms “out of the hands of domestic abusers and violent people”, is often erroneously quoted as the reason we need laws like these, and considered a good thing.  To nine to five Mr. and Mrs. America, working to keep their heads above water, a second thought is not usually afforded to the passage of such unconstitutional laws.

Always branded as a way to protect people and have arms removed from dangerous persons, what gets left out during these pitch sessions is that the vehicle to remove arms from dangerous people is already in place.  Domestic abusers are already barred from firearm ownership.  What of your run-of-the-mill “bad actor” that might do something horrible with a firearm?  People can do what they have always done, call the police.  The police have and continue to keep our communities safe.  They will act when called upon in such situations.  The introduction of these ERPOs was a bait and switch to the unknowing.  Meanwhile, the passage of such measures has only removed 4th Amendment due process protections from anyone that has one of these orders inflicted upon them.

The subject of ERPOs is so murky, I recently had a conversation with a New Jersey legislator on a condition of anonymity about other freedom limiting bills, and the lawmaker asked me a question about the ERPO law they voted in favor of:

You know, I’ve always done my best to support the 2nd Amendment in how I vote.  What I don’t get is, I got all this negative feedback and hateful commentary from people when I voted ‘yea’ on the ERPO bill.  What am I missing here?  Don’t we want to keep firearms out of the hands of dangerous people like wife beaters?

Well, there you have it, folks, right from a legislator’s mouth.  I explained to the individual how the ERPO bill removes due process and in particular, how above and beyond New Jersey’s brand of ERPO goes in trampling rights.  I also explained all the measures that were in place to allow real victims of abuse to get the relief they need (excluding being able to carry a firearm for protection).  Further, how every state also has an involuntary commitment law on the books to aid in bad circumstances dealing with a mental health emergency.  I did tell this lawmaker about Greco’s case, cited below as an example of abuse of the law, and another one in New Jersey.  It was a constructive conversation and an important one.  When we got done speaking the lawmaker’s response was:

Oh.  Oh boy.  I did not know all that.  I get it now.  That is not how ERPOs were talked about.

One of the most cited concerns the pro-freedom group has with ERPO laws is that they are ripe for abuse.  Not long after the passage of the ERPO law, one such case surfaced concerning said abuse.  I formerly reported on this particular case last year and here are some of the details of it:

On September 5, 2019, days after the new law came into effect, an ERPO was executed on David M. Greco. The complaint came from a police department. The complaint also lacked signatures from any actual complainant. Apparently, the department, not an actual officer (as outlined as an individual that can request an EPRO), was asking for this order. The petition cites an unidentified person at the FBI, and it stated:

“Information was recently obtained through FBI contacts, that David Greco is involved in online anti-Semitism. Greco was found to be in contact with the Pittsburgh synagogue shooter, before the mass shootings in both Ohio and El Paso. Precautions were taken and contact was made with Greco in coordination with the FBI. Officers reached out to Greco in regards to recent posts in the social media site gab.com. All previous social media accounts were blocked due to the nature of content. While talking to Greco, he appeared extremely intelligent to officer and did not mention acting on any violent behavior towards Jes. His behavior was methodical and focused on facts…”

The particulars of Greco’s online statements only have relevance in that none of them incited violence nor were they “illegal”.  Beyond that, it is alleged that the FBI’s statement was erroneous and not factually correct, according to Greco’s representation.  Constitutionally protected language does not have to be nice or pretty language, as much as some of the progressives would like to make us believe.  The First Amendment does not play favorites.  Greco’s words and or view on things have little consequence, as they are his right.  This abuse of the law caused Greco to file a class-action lawsuit.

Gerco has taken to the courts and is suing the State. David M. Greco, individually and on behalf of others similarly situated V. Gubir S. Grewal, New Jersey Attorney General, et al. was filed as Civil Action No. 3:19-cv-19145-BRM-TJB in the United States District Court for the District of New Jersey, Newark Vicinage as a class action suit. According to information from the Attorney General, approximately 1 to 2 ERPOs have been executed in New Jersey per day since the law came into effect. This is a class action for sure. According to Greco’s attorney, the rate of EPROs being issued is approximately 1.5 per day.

The district court denied Greco’s certification for a class action, stating it did not meet the “community requirements”.  On April 12, 2021, an appeal was filed to the Third Circuit Court.  From the appeal summary of argument addressing the denial:

  1. The Third Circuit should adopt and follow the Sixth Circuit’s long recognized Ramirez v. Webb presumption of per se “irreparable harm” for injunction analysis in Fourth Amendment cases and reverse and remand to the District Court for entry of a preliminary injunction.
  2. The District Court improperly denied Appellant’s second motion for “Class Certification” by erring in ruling that Appellant did not satisfy the “commonality” requirements of F.R.Civ.P. 23(b).
  3. The District Court improperly applied the standards of Younger v. Harris, 401 U.S. 37 (1971) as clarified and explained by Sprint Communications, Inc. v. Jacob, 571 U.S. ____ (slip opinion), 134 S.Ct. 584 (2013) and erred by abstaining and dismissing Appellant’s claims.

I reached out to Greco’s attorney, Albert J. Rescinio about the appeal and this is what he had to say:

…it was filed as a potential class action suit because in my opinion every individual that this has been used on has had their fundamental constitutional rights violated by the statute, which in its drafting clearly violates the Fourth Amendment against illegal searches and seizures which since 1790 is required to be based upon probable cause, yet the statute clearly makes the issuance of a search warrant based on good cause which is a lower standard. There are also issues of violations of Fifth and Sixth Amendment rights because you do not get notice of the charges, against you do not get the right to be present, to confront witnesses, or to be represented by counsel.

Mr. Greco has undertaken this case to protect his fundamental constitutional rights but also to attempt to protect everyone else’s fundamental constitutional rights at the same time. To my knowledge he is the only person in the whole state who has done this. He is just an ordinary, average, workingman. Everyone owes him a deep debt of gratitude for undertaking the fight. You might not like what he has to say but as has been pointed out in other cases in the past you have to protect his right to say it without fear of prosecution or persecution.

The far-reaching effects this case can and will have on gun owners knows no bounds.  This case is fighting head-on the unconstitutional provisions of ERPOs.  The fact that the district court did not see anything of merit in Greco’s prayer for relief is mind-boggling.  Given the statistics of 1.5 ERPOs being executed a day, just add that number up and explain how those people do not help meet the “commonality requirement”.  The filing of this appeal is a crucial and important step in thwarting unconstitutional policy.  Rescinio puts in perspective what this is all about:

The only thing I would say is that people need to pay attention, band together, vote, and stand up for their fundamental constitutional rights. The slow erosion (sometimes not so slow) of these fundamental constitutional rights is an erosion of our countries underpinnings. Our founding forefathers I believe would be aghast at what our politicians are doing and how they are acting. The indifference shown by them, and some would argue law enforcement and the courts, is highly egregious and personally offensive to me as I strongly believe in the principles on which this country was founded and which so many of our brave citizens have fought and died for.

To date, Greco has yet to have his firearms returned to him on the grounds of “…no irreparable injury, and without irreparable injury [the judge] would not grant the temporary injunction.”

 

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