In 2016, Washington became the fourth state to pass what are commonly referred to as red flag laws, which prosecutors use to enforce Extreme Risk Protection Orders (ERPO) and seize firearms from law-abiding citizens.
Kimberly Wyatt is a King County, Washington, senior deputy prosecutor, and part of a regional unit that enforces ERPO.
Using her discretion to enforce Washington’s red flag law, Wyatt seized the firearms of a Seattle man named Chris Donnelly in October.
Donnelly had no prior history of criminal or drug issues. His firearms were all legally owned.
Donnelly’s guns were confiscated by law enforcement officers who raided his home and seized three handguns and three rifles, including an AK-47.
Wyatt’s justification for using the unprecedented ERPO laws to seize Donnelly’s firearms came from jokes he posted on social media.
In one example, Donnelly participated in posting a meme at a time when many were posting “one ticket for joker please” with photos of themselves holding weapons. The corporate media had pushed the idea that a mass shooter would attend a Joker screening and shoot an audience.
Here is Donnelly’s social media post that Wyatt used to have his guns seized:
One similar contemporaneous satirical posting was uploaded by a man holding a samurai sword.
As evidence that Donnelly was a threat, Wyatt also cited jokes that Donnelly posted, which were actually meant to lambaste the ‘incel’ posting of angry men online.
Donnelly wrote posts like, “Kill all women,” “I will shoot any woman any time for any reason,” and “Prowling the Seattle streets for women to assault. No luck so far. Hopefully my urges will be satisfied soon.”
Donnelly’s attorney Derek Smith asserted that the seizure is an infringement on Mr. Donnelly’s First and Second Amendment rights and said, “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.”
Judge Averil Rothrock agreed with Donnelly’s attorney, and said the state did not meet the burden in showing the ‘threat’ as being more than a bad joke. Judge Rothrock ordered the return of the firearms.
“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,” stated Judge Rothrock.
Despite learning that Donnelly’s posts were jokes, prosecutor Kimberly Wyatt suggested to the court that Donnelly should be forced to undergo an evaluation before regaining his guns.
Alan Gottlieb, founder of the Second Amendment Foundation, has argued that red flag laws don’t allow for due process under the law and make those accused “guilty until proven innocent.”
Last year, King County prosecutors used the red flag law 71 times, with judges overturning the ERPO order in ten of those cases.
One concern of many gun rights advocates has consistently been the selective enforcement of prosecutors as to who would have their guns seized.
While a man was raided by law enforcement for jokes about killing women, there has yet to be any reported errors against, for example, the exact opposite sentiment.
The hashtag “#killallmen” was a Twitter meme posted when an editor of HuffPost, Emily Coombs, wrote “Band together to kill all men.”
The hashtag #KillAllWhitePeople also flew around Twitter, with no reported cases of ERPO gun seizures made by law enforcement related to tweets that included the hashtag.