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'Red flag' lawsuit against Charlottesville officials dismissed

A federal lawsuit targeting Virginia’s new “red flag” laws and Charlottesville officials was dismissed after a judge determined the plaintiff lacked standing.

Per the lawsuit, Earlysville resident Joseph Draego, who represented himself, took issue with a law that allows authorities to obtain an emergency substantial risk order that prevents a person from obtaining, possessing or transporting a firearm for up to 14 days.

In the suit, filed in July one day after the law went into effect, Draego alleged that his First, Second, Sixth, Seventh and 14th Amendment constitutional rights were infringed upon.

The lawsuit named as defendants Joe Platania, Charlottesville’s commonwealth’s attorney, and RaShall Brackney, the city’s chief of police, and argued that any attorney for the commonwealth or a police officer has the ability to seek such an order.

According to Tyler Hawn, spokesman for the Charlottesville Police Department, no substantial risk orders have been sought or obtained since the law went into effect in July.

Platania confirmed that his office has also not sought any substantial risk orders.

“I remain strongly supportive of the ability to petition a judge for the temporary removal of firearms from individuals posing a danger to themselves or others,” Platania said in a written statement.

Represented by Virginia’s attorney general’s office, Platania and Brackney filed motions to dismiss the lawsuit in August, arguing that Draego did not have standing as neither defendant had sought a substantial risk order against him.

They requested a ruling without a hearing, which was granted, despite a letter from Draego requesting a hearing.

Senior U.S. District Judge Glen E. Conrad granted the motions for dismissal Friday, writing in his memorandum opinion that Draego did not have standing to file the lawsuit.

The 13-page order considered Draego’s argument that the law had a “chilling effect” on his free speech, but noted that “nothing in the complaint suggests that Draego faces a credible threat of being subjected to a substantial risk order if he exercises his First Amendment rights.”

“In short, while Draego alleges that the enactment of the challenged statutes has chilled him from exercising his constitutional rights, he has not alleged facts sufficient to show that any threat of the defendants enforcing the statutes against him is more than a speculative or conjectural possibility,” Conrad wrote. “Without a credible threat of enforcement sufficient to establish an injury in-fact, Draego lacks standing to challenge the constitutionality of the legislation.”

In his complaint, Draego attempted to bolster his First Amendment argument by citing a 2016 federal lawsuit he filed against the city.

That year, Draego attended City Council meetings to speak against the “allegedly unfettered Muslim immigration into his hometown.”

At one meeting, his speech was cut short by a council vote after he referred to Muslims as “monstrous maniacs” who perpetrate “horrible crimes.” In its vote, the council cited its meeting rule forbidding speech that disparages an entire group or race.

When the vote passed unanimously, Draego reasserted his right to speak and laid on the floor of the meeting hall in protest. He was then removed from the meeting by two police officers.

In July 2016, Draego sued the city. A settlement was reached in December of that year. The terms of the settlement were not disclosed.

In the red flag suit, Conrad acknowledged Draego’s free-speech argument but said that, at most, the plaintiff suggested that he has self-censored his speech on the basis of past actions taken by non-party “activists,” who are unable to petition for a substantial risk order.

Following the filing of the suit in July, experts claimed it was unlikely to succeed.

Similar laws already have withstood legal scrutiny in other states, according to The Virginia Mercury, which cites rulings from Indiana, Connecticut and Florida that indicate red flag laws fall within governments’ established powers to regulate firearms.

Of at least 21 red flag cases filed in July and August, roughly half of substantial risk orders were sought in counties and cities that passed pro-gun resolutions after the Democratic takeover of the General Assembly in elections in November 2019, according to The Mercury.

In a news release, state Attorney General Mark R. Herring claimed that Virginians “overwhelmingly” voted for gun prevention in 2019.

“In Virginia, we have already seen how this ‘red flag’ law has been used to save lives by keeping firearms out of the hands of someone who could use it to harm themselves or others,” Herring said. “Too many Virginians have lost loved ones at the end of a gun, and I am proud that my team and I were able to successfully defend this important law that will continue to save lives and keep communities safe.”


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