After a school shooting last year, we wrote that one possible way to limit the danger of these recurrent tragedies would be to enact a so-called "red flag" statute, which allows law enforcement or family members to petition the courts to declare an individual an imminent threat to himself or others, place him under a restraining order, and temporarily seize whatever guns he owns. We noted, however, that there might be First Amendment constraints on the use of political sentiments to invoke such a statute.

Last year the Legislature enacted the Extreme Risk Protective Order Act, N.J.S.A. 2C:58-20 et seq. It authorizes the court to issue a temporary protective order, on the ex parte application of a law enforcement officer, family or household member, if the court finds "good cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or other by having custody or control of … a firearm." The temporary order bars the respondent from possessing or receiving a firearm or ammunition until further order of the court. In deciding whether to issue a temporary protective order, the court is directed to consider eight factors, among which are the respondent's "history of threats or acts of violence."

In November 2019, the Gloucester Township Municipal Court issued a temporary protective order seizing the firearms of David Greco, 51, a resident of the township. It found good cause because FBI monitoring showed that Greco has posted extensively on social media in favor of violence against Jews, he had allegedly been in contact with the man who shot up a Pittsburgh synagogue, and he had a prior conviction for unlawful possession of a weapon.

Greco didn't pursue the act's remedy of a post-seizure plenary hearing within 10 days of a temporary order. Instead, he filed a § 1983 action against Attorney General Grewal and the Camden County prosecutor in federal district court, alleging that the statute i) violates the Fourth Amendment by not requiring proof of probable cause, ii) violates his Second Amendment right to possess weapons, iii) violates his First Amendment right of political expression, and iv) violates his Due Process rights. The suit requests a statewide preliminary injunction against enforcement of the act. The state opposed the motion, primarily on abstention grounds and secondarily on the ground that its interest in preventing an imminent threat to public safety overrides Greco's Second Amendment right to keep firearms for personal defense in his home. The motion was heard in late November and remains pending. We think it likely that the district court will dismiss under the Younger abstention because Greco can assert his federal constitutional claims as the defendant in the pending state court proceeding. Those claims are significant.

One has been resolved administratively. In accord with our Supreme Court's interpretation of the Prevention of Domestic Violence Act in State v. Hemenway, the attorney general and AOC have issued directives requiring that any warrant to search for firearms under the ERPO Act be based on probable cause. We can assume that the sufficiency of the warrant in Greco's case will be reviewed consistently with this administrative guidance. That leaves Greco's Due Process, First and Second Amendment claims.

As far as Due Process is concerned, the act provides for a plenary hearing within 10 days, and the AOC directive allows the defendant to request an immediate de novo hearing before the emergent Superior Court judge. If the substantive standard for judging risk to the public safety is high enough, we believe that the prompt post-seizure hearing on the merits under the ERPO Act sufficiently balances the public safety against the private rights involved.

The temporary protective order against Greco does not find as fact that he was imminently about to commit an act of violence against Jews or anyone else. That raises serious concern under Brandenburg v. Ohio, the 1969 U.S. Supreme Court decision that set the First Amendment parameters for when the state could punish political speech. In a case involving a Ku Klux Klan leader, the court held that the state could not punish the advocacy of illegal political violence unless the advocacy i) was directed to incite or produce imminent lawless violence and ii) is likely to incite or produce it. Under Brandenburg the First Amendment allows a speaker to advocate in principle a violent revolution or the expulsion or murder of a racial or religious group someday, as long as it is not coupled with the intended likelihood of immediate action.

As long as Brandenburg remains the law, the "good cause" standard of the act is subject to the requirement that the speaker intend imminent violence and is likely to produce it. Those twin inferences of intent and probability can't simply be drawn from expressions of hatred or of admiration for those who have already committed illegal violence. Unlike the Prevention of Domestic Violence Act, which requires evidence that the defendant has already committed one act of domestic violence, the ERPO Act is purely predictive. We do not believe that Brandenburg allows the prediction to be made simply based on the expression of opinion that illegal political violence against Jews, unbelievers, homosexuals or any other hated group ought to be committed. That standard is substantially over-inclusive. For every prospective shooter or bomber, there are probably tens of thousands of angry but impotent bigots who sympathize and vent their anger and hatred online but will never muster the courage or discipline to act.

Because an ERPO permanent or temporary order seizes the defendant's property in part on the basis of his expressed opinions, we believe that the government's burden of proof should be clear and convincing evidence, which is customarily used when the risk of error in a civil proceeding infringes on an important individual right. There is a continuum between saying on principle that the Jews should be killed or the school blown up, saying that the speaker wants to do it someday, that the speaker intends to do it, and that the speaker will be taking action next Thursday. The appropriate point of imminent danger lies somewhere along that continuum, and it will have to be determined on a case-by-case basis, taking into account not only the defendant's opinions but his resources and his prior history.

It remains to be seen, though, whether the Brandenburg standard will remain unmodified. The decision is 50 years old. It applies directly to a criminal conviction rather than a civil proceeding. It was decided during the Vietnam War by a court skeptical about the breadth of Cold War red baiting. It was decided long before the internet made everyone his own publisher and allowed fanatics easily to find and encourage one another. It was decided long before the rise of both organized politico-religious terrorism and the kind of lone-wolf terrorism sometimes called "suicide by cop." It was also decided in a time that had a greater acceptance of risk and a greater belief in the deterrent power of punishment than now. Far more than our grandparents, the present day is skeptical that fanatics can be deterred, considers any failure to deter fatal violence unacceptable, and wants prevention through preemption. Repeated bitter experience has made Holmes's "felt necessities of the time" different—less confident and more inclined to err toward prevention than to protect radical opinion about political violence. How the change will refine the standard of proof needed to disarm an advocate of political violence is an open question. Brandenburg is the first word but may not be the last.

We do not think the Second Amendment is a significant barrier to preemptive action if the predictive evidence is clear enough. Under the Supreme Court's Heller decision, the only recognized individual Second Amendment right is to possess firearms for last ditch defense in the home. Heller essentially incorporates the common law "castle doctrine" that Lord Coke declared in Semayne's Case. Semayne's Case limited the castle doctrine to the home and expressly excluded "the market or elsewhere." Heller and its progeny have been careful to point out that the Second Amendment does not restrict the state's power to regulate public order outside the home, including the carrying of arms by individuals. And no federal court has ever held that the Second Amendment confers a right to take or threaten armed political action. If it is proven by sufficient evidence that a defendant presents a clear threat of armed violence in the community, nothing in the Second Amendment, as currently interpreted by the courts, would prevent disarming him.

Editorial Board member John Connell recused from this editorial.