Kim Wyatt, a prosecutor, petitioned a judge for a red flag order in King County Superior Court in Seattle last week. Photo / Ruth Fremson, The New York Times
Authorities in the Seattle area came across an alarming photo on social media at the beginning of October. It showed a man holding two AK-47-style rifles. The caption above read: "one ticket for joker please."
With only a couple of days left before the opening of the Joker movie, law enforcement agencies scrambled to assess the threat level of the message. As detectives waded through the man's online history, they encountered additional troubling posts: Charels Donnelly, 23, talked about threatening his mother with a gun and described fantasies about hurting women.
"i will shoot any woman any time for any reason," he posted on Twitter.
Thanks to the state's fledgling "red flag" law meant to help prevent gun violence, police in Redmond won a temporary court order to seize Donnelly's weapons from his home: three handguns and three rifles, including an AK-47-style rifle and its accompanying magazines. But a couple of weeks later, he returned to court with a lawyer, testified that his online posts were jokes meant only for his friends, and asked for his guns back.
A judge agreed.
Facing a spate of calamitous mass shootings, including three in the past week in California, 17 states have adopted "red flag" laws as a vital new tool to seize weapons from people they deem imminently dangerous. But as more authorities rush to take pre emptive action against a rise in gun deaths, they are finding themselves colliding with the Constitution and the limitations of those statutes.
Now local courts are having to grapple with First Amendment and Second Amendment implications while trying to discern whether troubling comments are just crass shenanigans, isolated outbursts, or justifiable reasons to take a person's guns.
Judge Julie Spector, chief civil judge of the King County Superior Court in Seattle, said these types of cases were the kind that could keep a judge up at night. She said that no judge has a crystal ball.
"We're going to be on the front page if we make a mistake," Spector said. "Nobody is taking this stuff lightly."
After a gunman killed 17 people at Marjory Stoneman Douglas High School in February 2018, lawmakers in Florida moved to adopt a version of a red flag law within three weeks.
A week after the law was adopted, authorities turned their attention to a University of Central Florida student, Chris Velasquez, who had praised mass shooters online, according to court records.
Authorities described interviewing Velasquez and listening to him explain how he might carry out an attack with an AR-15-style rifle at one of his former schools. He described having urges to conduct a mass shooting, but said it would take a significant life event to push him over the edge, according to records filed with the court.
Police used the protection law to temporarily block Velasquez from buying guns, and then sought to extend the restriction. He challenged that, with his lawyer noting that Velasquez had no criminal record, had purchased no guns, and had given no indication that he would act on his comments.
"If it's not a true or credible threat, it's constitutionally protected speech," his lawyer, Kendra Parris, said in an interview.
A judge sided with Velasquez, restoring his rights.
Parris said she has handled about a dozen cases in which she was able to successfully challenge red flag protection orders. But she said most people do not have legal representation to fight these cases.
Marisa McKeown, a deputy district attorney in Santa Clara County, California, said the fact that courts have rejected some protection orders is evidence that the courts are scrutinising the cases closely. California was one of the first states to adopt a red flag law, in 2014.
"The judges are very thoughtful in weighing and not rubber-stamping," McKeown said.
In Oregon, for instance, 27 of the 150 red flag petitions filed by the authorities or by individuals were denied.
In Washington, which became one of the first states to adopt a red flag law in 2016 with voter approval, law enforcement officers or other individuals can file a petition for what is called an Extreme Risk Protection Order. The order allows authorities to remove guns from someone who poses a significant near-term danger of harming themselves or others. Officials said it has been used often in situations where people were suicidal.
In September, officials seized weapons from a man thought to be a leader of the neo-Nazi group Atomwaffen, with investigators citing the man's apparent involvement in hate camps where participants chanted anti-Semitic slurs and slogans like "race war now." The man did not appear in court to challenge the order.
Last year, King County officials used the red flag law 71 times, and each request was initially granted by a judge, according to the prosecutor's office. But in about 10 of those cases, the order was not allowed to stand after a follow-up hearing.
In one case, a man who was arrested for driving under the influence made suicidal statements and suggested that he be taken to a mental institution, according to court records. He made reference to school shootings, talked about people he knew selling illegal firearms, and said he did not mix well with people from South Seattle, which is racially diverse, according to records.
The police obtained an order prohibiting the man from having weapons through a red flag filing. But the man later challenged an extension of the protection order. His lawyer said that the man regretted the comments, his other actions did not indicate that he was a risk, he had undergone a mental health evaluation, and the case threatened to disrupt his future.
The judge restored his gun rights.
Second Amendment advocates have long been wary of red flag laws.
Alan Gottlieb, the founder of the Second Amendment Foundation, said the laws are designed to seize guns before due process takes place. He said he would like to see consequences for anyone who lies in such a case, and he wants to see gun owners have an initial opportunity to object and make their case.
"You're guilty until proven innocent," Gottlieb said of the current systems.
However, Gottlieb believes there are cases in which it may be necessary to take people's guns away after due process. He said Donnelly had come to his organisation for help, but Gottlieb said the posts online were so concerning that the foundation decided not to help Donnelly. Still, the organisation is watching for potential cases to challenge misuses of the law.
Donnelly said that while he supported gun rights, he was not an activist. He said he does not necessarily regret his social media postings, but that he was surprised authorities took it seriously, and that he believed the case infringed on his First Amendment rights. He even said he was in favor of some aspects of red flag laws.
"I feel like there are cases where it can be a good thing and cases where it can be a bad thing," Donnelly said.
The red flag strategy appears to be gaining support. There is an effort to push a federal plan through Congress, where Republicans have shown some support. Earlier this year, President Donald Trump endorsed such a proposal, and other states like New Hampshire are considering the measures.
At a court hearing in October, Donnelly stood and testified that many of the posts about violence were just jokes for his friends.
In an interview, Donnelly said the comments were essentially mocking the online "incel" community that frequently promotes misogynistic messages. The Joker post was riffing on a larger "tickets to Joker" meme in which internet users stereotyped the kinds of people who would attend the movie.
The image of him with two AK-47-style rifles was actually a photo taken nearly a year ago, Donnelly said. He testified that one of the guns was his friend's weapon, which Donnelly does not possess.
Donnelly's lawyer, Derek Smith, said Donnelly had no history of criminal or drug issues. He described the seizure of Donnelly's weapons from his home as an intrusion on both his First Amendment and Second Amendment rights.
"It is crystal clear to Mr. Donnelly that the state is looking over his shoulder, watching everything that he posts, and that if they don't follow the joke, then they are going to come after him for a violation of his rights," Smith said.
Kim Wyatt, the prosecutor who leads the department's red flag program, had Donnelly read back some of his online postings at the hearing.
"Kill all women," he read in one.
"Prowling the Seattle streets for women to assault. No luck so far. Hopefully my urges will be satisfied soon," he continued.
Wyatt said the postings illustrated the type of person he was. The post about Joker was just the latest, she told the judge.
"We believe that posting is an implied threat of a mass shooting," she said. "We would ask the court to balance the community safety needs versus the temporary deprivation of Mr. Donnelly's rights to possess firearms."
She suggested he perhaps undergo an evaluation before regaining his guns.
Judge Averil Rothrock said that while there was an implied threat in the Joker post, the state did not meet the burden in showing the threat as being more than a bad joke.
"The statute is not written such that the court can give the benefit of the doubt to law enforcement at the expense of Mr. Donnelly," Rothrock said.
Kristen Ellingboe, a spokeswoman for the Washington Alliance for Gun Responsibility, said that while the organisation disagreed with the judge's decision, she saw it as an example of judges trying to find the right balance.
"That's part of the grind of figuring out the correct and effective implementation of laws," she said.
Written by: Mike Baker
Photographs by: Ruth Fremson
© 2019 THE NEW YORK TIMES
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