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Greco v Platkin - NJ "red flag" law


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Petition for Certiorari said:


The questions presented are:

  1. Whether the fact that the challenged portions of New Jersey's ERPO Act are "... flagrantly and patently violative ..." of the Fourth Amendment to the United States Constitution bars the Federal Courts, as a matter of fact and law, from abstaining under Younger?
  2. Whether the District Court and Third Circuit incorrectly applied this Court's precedents in Younger and the limited extension of that doctrine to related civil, quasi-criminal and administrative cases pending in state court and wrongfully and inappropriately abstained?
  3. Whether the New Jersey Attorney General's "Memo Fix" is a remedy that violates the rule in United States v Stevens?


To be clear, all parties agree -- and the District Court ... agreed -- that the challenged portion of New Jersey's ERPO Act is per se facially unconstitutional and as written clearly violates the Fourth Amendment.


Fourteen months after the case was filed in federal court ..., the district court ... granted the defendants motion to dismiss the federal case without prejudice on Younger abstention grounds. Petitioner Greco immediately appealed.


On appeal, the Third Circuit ... affirmed the district court. Petitioner Greco now seeks from this court a writ of certiorari to the United States Court of Appeals for the Third Circuit reversing their affirmance of the district courts abstention under Younger.


... In Younger v Harris ... (1971), this court ruled that the United States federal courts were required to abstain from hearing any civil rights tort claims brought by a person currently being criminally prosecuted in state court for a matter arising from the same factual claim. However, Justice Black, the author of the majority opinion in Younger, specifically recognized and held that a state statute that is ... flagrantly and patently violative of express constitutional prohibitions ..." would qualify as an "... extraordinary circumstance ..." that would therefore exempt a given case from the Younger rule of abstention when there is a parallel ongoing state court criminal case.


Originally the Younger abstention rule applied only to when there were ongoing parallel state criminal proceedings. However, eventually over time this Court extended Younger abstention from the criminal only context so as to also apply to certain unique particular state civil proceedings that are akin to criminal prosecutions ... and also later extended the doctrine to also apply to certain unique civil proceedings that implicate a State's interest in enforcing the orders and judgments of its courts ....


Here, none of the three enumerated ... "exceptional" circumstances remotely applies such that the federal abstention is appropriate.



TL;DR: Greco was/is the subject of a "red flag" order. When Greco sued NJ in federal district court regarding the constitutionality of the "red flag" law, the district court ruled that it could not rule, because Greco was the subject of a civil order covered by the challenged law. The appeals court affirmed the district court decision. Greco seeks merely to be able to proceed against NJ in district court. Meanwhile, even the NJ Attorney General apparently thinks the law is unconstitutional.


BTW, the ex parte hearing for the "red flag" order lasted two days and resulted in a no-knock warrant entry into his home to seize one rifle, which was legally owned and registered (because NJ requires registration), and some ammo.

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