How Red Flag Laws Violate ADA
ABSENT INTENT OR AUTHORITY AS LEGAL ADVICE.
I’d like to demonstrate how red flag laws violate the Americans with Disabilities Act (ADA), and where nuances lie in this from my experience.
I’m going to use the Illinois Firearms Restraining Order Act as an example.
Here are the relevant quotes:
"Firearms restraining order" means an order issued by the court, prohibiting and enjoining a named person from having in his or her custody or control, purchasing, possessing, or receiving any firearms or ammunition, or removing firearm parts that could be assembled to make an operable firearm.
"Petitioner" means:
(1) a family member of the respondent as defined in this Act; or
(2) a law enforcement officer who files a petition alleging that the respondent poses a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm, ammunition, or firearm parts that could be assembled to make an operable firearm or removing firearm parts that could be assembled to make an operable firearm.
"Respondent" means the person alleged in the petition to pose a danger of causing personal injury to himself, herself, or another by having in his or her custody or control, purchasing, possessing, or receiving a firearm, ammunition, or firearm parts that could be assembled to make an operable firearm or removing firearm parts that could be assembled to make an operable firearm. (emphasis added)
Of particular concern is this:
Limited law enforcement liability
Any act of omission or commission by any law enforcement officer acting in good faith in rendering emergency assistance or otherwise enforcing this Act shall not impose civil liability upon the law enforcement officer or his or her supervisor or employer, unless the act is a result of willful or wanton misconduct.
HOW DOES THIS VIOLATE THE ADA?
For this part, we will be looking at Title II of the ADA, which applies to state and local government.
The ADA provides that the definition of disability includes “being regarded as”… “having a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”
Major life activities include, but are not limited to: Caring for oneself and interacting with others.
Major life activities include, but are not limited to The operation of a major bodily function, such as the functions of the neurological, and brain.
I’m pointing out that the red flag laws violate ADA in the following ways.
First, it destroys equal access of someone who is regarded as disabled under this law. If someone alleges that you “pose a danger” (and that term is ambiguous) to yourself or others, then they are also alleging, by inference, that you are regarded as disabled - physically and/or mentally impaired by substantial limitation of your major life activities of caring for yourself and/or interacting with others, or substantially limited in your neurological and/or brain functions - then you are also immediately saddled with the coercive threat of having your right to KEEP and BEAR arms destroyed. Persons who are not alleged as posing a danger (read: those who are NOT regarded as disabled) are able to maintain their right to KEEP and BEAR arms.
Second, the Illinois red flag law, and those like it, create an additional disability, because it creates a physical and mental impairment that substantially limits the major life activities of caring for oneself and interacting with others.
The right to keep and bear arms is the right of self-protection, and a mere allegation is used under this law to strip those rights.
In caring for myself, I have the right of self-protection, including the right to keep and bear arms and use deadly force against another if I deem that my life is in imminent danger, and/or to stop someone from killing or sexually assaulting another. This goes directly to “caring for oneself” and “interacting with others.”
Third, this is discrimination on the basis of disability, because the Illinois red flag law bases its authority upon an allegation that someone “poses a danger” to themselves or others. I would posit that ANYONE who carries a firearm is with the potential to “pose a danger” to themselves or others.
This law seeks (provides an open door for) allegations of someone “posing a danger”, which directly goes to “direct threat” and “regarded as” disabled under the ADA.
It also falsely creates “exigent circumstances” that are based solely upon the allegations of an ex-parte accusation. If this isn’t deprivation of rights under color of law, I don’t know what is.
It is important to understand that police powers are not subject to ADA if exigent (life threatening) circumstances are in play. This law brings in the “allegation” of exigent circumstances, with no facts required to cause the stripping of rights. THAT is why the ADA must be invoked NOW, to defeat and annul this law with court action, before any harms are done. Once the allegations of “posing a danger” are done, the axe is swinging down on rights in existence.
ABOUT THAT IMMUNITY FOR LAW ENFORCEMENT
Title II of the ADA removes immunity from state and local government concerning claims under the ADA. See 42 USC §12202 and 28 CFR §35.178 and Tennessee v. Lane, 541 US 509 (2004).
This is another reason that suing violation of the ADA is of utmost importance. It removes the immunity that they crave while stripping you of your rights.
P.D., JAY V SHORE, as Certified ADA Advocate
