An Albemarle County man is suing Charlottesville’s commonwealth’s attorney and police chief, alleging a recently implemented state “red flag” law violates his constitutional rights.
Filed earlier this month in federal court in the city by Joseph Draego, the suit targets 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.
The lawsuit names as defendants Joe Platania, commonwealth’s attorney, and RaShall Brackney, chief of police, and argues that any attorney for the commonwealth or a police officer has the ability to seek such an order.
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.
During that year, Draego attended City Council meetings to speak against the “allegedly unfettered Muslim immigration into his hometown.”
During one meeting, then-Mayor Mike Signer sought to cut Draego’s speech short after he referred to Muslims as “monstrous maniacs” who perpetrate “horrible crimes,” citing the council’s 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 year.
In Draego’s latest suit, he cites the response to his “controversial” opinions, which he claims he has become associated with.
“As a result of his full expression, activists posted flyers around the city identifying Mr. Draego as a ‘local Nazi’ and falsely claiming he is known for ‘... spewing anti-Muslim hate speech, is a close associate of Jason Kessler (the controversial organizer of the Charlottesville protests), is a known open and concealed firearm carrier …,’” the complaint read. “Activists have made connections between Mr. Draego’s views and his gun ownership.”
Despite Draego’s cited fears that his speech may lead him to be subject to a substantial risk order, 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.
Rich Schragger, a University of Virginia law professor who focuses on the intersection of constitutional and local government law, said Draego’s First Amendment claims are unlikely to succeed because he has not been “red-flagged” for his speech.
“It is unlikely that a court will entertain a facial challenge to the law, especially under the First Amendment, without any facts supporting his claim that he has been retaliated against for his speech,” Schragger said. “And even if he were subject to a red flag order, unless there is actual evidence that he is being treated differently because of his speech, these challenges are unlikely to succeed.”
Draego’s Second Amendment claim is more plausible, Schragger said, but is still likely to be rejected by a federal court.
“There is nothing in the Supreme Court’s precedents that mandate that dangerous persons be permitted to possess firearms,” he said.
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.
No hearing dates have been set yet in Draego’s case and the defendants have yet to respond.