On September 25th, the Totowa Police department raided the home of Kyle Arena and seized rifles, pistols, magazines and ammunition and various and sundry items. He was then arrested for the possession of those items.
Was Kyle a suspected mass shooter? A domestic terrorist? A spouse abuser? A drug dealer? No. Kyle was a notorious shitposter. For those unfamiliar with internet slang, that means a person who goes on specific internet forums and makes inflammatory comments with the goal of getting other forum members to argue with him and others. The internet slang term for that is a “flame war.” Putting internet slang aside, Kyle’s crime was being an annoying jackass on the internet.
I do my level best to argue reasonably on internet forums and I try to make valid points and I try to use logic. Sometimes emotions can cloud our reactions and I surely have had some heated exchanges on the interwebs that I probably would not even remember at this point. I would love to think everyone agrees with me but clearly that is not the case. And to those on the other side of those pointless internet arguments, I am probably, to them, an internet jackass. And surely to those on the other side of the political aisle that don’t share my general view on civil liberties, I am most definitely an internet jackass. Does that mean my right to due process is waived? Does that mean my right to be free from warrantless searches and seizures is waived?
The information being reported in the news is scant on important details. There are references to “machine guns” in the article with no specifics. Given the histrionics of the media and the state regarding what constitutes a “machine gun,” I am reserving judgement on this topic until further details emerge. In recent times, law enforcement agencies have claimed all sorts of things are “machine guns” like bump stocks, forced reset triggers, and even a picture of an auto sear. There are references in the media to magazines and of course “assault firearms” (and the articles released so far are quick to highlight pictures of the scary looking long guns), the prohibition of which are currently being litigated in federal courts in this state on Constitutional grounds, with a New Jersey federal district court judge recently ruling that the AR-15 is a class of arms protected under the 2nd Amendment. But in the end, any evidence seized by law enforcement is only admissible to the extent that it was seized properly. And the details in this case raise the strong possibility that important Constitutional safeguards were ignored here. In the legal world, we would call that type of evidence “fruit of the poisonous tree.”
Kyle was a shitposter. And a prolific one at that and many people on many gun forums came across Kyle at one point or another. He clearly angered the wrong person at some point and that Karen decided to ask for the manager.
There are many like it, but this one is mine.
The manager, which in this case is the Totowa Police Department, then conducted a screening of Kyle’s internet profile. That investigation yielded a picture of “a person” holding a Glock pistol in a moving vehicle allegedly pointing said pistol at another vehicle. The Totowa PD then scanned the unconstitutional database of firearms registered to Kyle and determined that Kyle owned three Glock pistols. Since the picture on the internet was of a Glock pistol and Kyle owned several Glock pistols, they decided this was enough information to apply for a Temporary Extreme Risk Protection Order and execute a seizure of all firearms owned by Kyle.
The Glock 19 is the most popular pistol in America. There are millions of them in circulation. If you just enter the word “gun” in an internet search engine, the first picture that pops up is very likely going to be a Glock 19.
The police saw a picture of “a person” holding a “Glock” in an irresponsible way on the internet and concluded that this must be a picture of Kyle because Kyle owned Glocks.
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The Honda Civic is arguably the most popular sedan in America. If I posted a picture of a Honda Civic speeding down the Turnpike, does the fact that I also own a Honda Civic mean that I just confessed to speeding? If I randomly pulled a name out of the phonebook, there is a good statistical likelihood that the random person I selected owns a Honda Civic. Can they be issued a summons for speeding because of my “tip” to law enforcement? (In this case, entering the term “car” into an internet search engine produces a picture of a Honda civic as the second image instead of the first, but you get the point.)
Abusing Red Flag Laws is Just Bad Policy
If the Totowa Police Department wanted to charge Kyle with reckless endangerment and they presented the evidence described in the news to a judge to obtain a search warrant, I find it hard to believe that any judge in America would issue a search warrant based on this alone.
And my suspicion is confirmed by the fact that they didn’t obtain a search warrant at all. Instead, they used the State’s red flag laws to obtain a temporary order. Obtaining a temporary order has almost no lower bar and can be issued on a hunch. These laws are meant to help law enforcement, families, friends, or mental health professionals prevent suicide by giving greater latitude when there is concern that a particular individual is an immediate danger to themselves or others.
The ex parte temporary order is then meant to be followed up by a court proceeding with the subject of the order present giving him or her and his or her attorney an opportunity to defend themselves from the allegation. While not a jury trial, given the “temporary” nature of an Extreme Risk Protection Order, one could at least argue that this process rises to the level of adequate 5th Amendment protections. In Kyle’s case, the police obtained an ex parte order, executed that order, and arrested Kyle for possession of firearms that violate technical aspects of New Jersey’s gun laws. No due process, no warrant. No evidence of an “extreme risk” of suicide or violence by a mentally disturbed individual that could justify the sidestepping of Constitutional rights.
Again, the details of this case upon which we can reach conclusions is limited to the what has been published in local media reports and there could be important details missing. But just based on what has been published, the story raises serious questions surrounding violations of Kyle’s 1st, 2nd, 4th, 5th, and 14th Amendment rights.
A shitposter he may have been. But this story should send a chill down the spine of anyone concerned about the abuse of police power.
If ex parte red flag laws with no 5th Amendment procedural safeguards can be used this way, to essentially completely circumvent the 4th Amendment, this case illustrates that the entire Bill of Rights is now a legal fiction. Empty words that we honor in the breach.
Last term, the Rahimi Court explained that a person could be “temporarily disarmed” in a manner consistent with the 2nd Amendment when that person is determined to be an actual threat to themselves or others AND adequate procedural safeguards are in place.
Without more information, Kyle is the perfect follow up question to Rahimi. Can the State use these same laws with absolutely no procedural safeguards to completely circumvent the 4th Amendment?
Ultimately this goes beyond broader Constitutional questions. The public policy objective for red flag laws is to reduce suicide and violence involving people in need of mental health intervention. Red flag laws should (in theory) allow concerned family members, members of the community at large, and law enforcement to take action to protect someone from themselves, essentially.
Flagrant abuse of these laws makes everyone involved suspicious of them. It lowers public confidence in law enforcement and makes people less likely to use the tools in the preventative manner they are intended to be used in. If someone was in a mental health crisis in my household and that family member owned firearms, I would be very reluctant to use these laws that add to the stigmatization of mental health issues, place them in legal serious jeopardy, and potentially ruin their entire lives.
This is the exact opposite of the policy objective of these laws. A person in these circumstances where intervention is needed is likely to do everything possible to prevent these laws from being used.
Kyle’s story is therefore a massive public policy failure… in addition to what appears to be a massive Constitutional dumpster fire.
Kyle may have flown too close to the sun on the internet, but his case potentially can become a treasure trove of serious Constitutional and public policy questions.
Kyle is my friend, and I am devastated by this event. His constitutional rights were violated and he was taken from his home. All Kyle has ever done is hurt someone’s feelings on the internet. He does not deserve any of this. I see a lot of articles making it sounds like he is a terrorist, and that couldn’t be farther from the truth. He is a man that enjoys a hobby.. guns are a hobby a lot of us have. He just had the misfortune of someone utilizing the disgusting red flag “laws” that our government allows.
I’m curious to know what they are considering “explosives”
No mention of the cocain he was arrested with? Or how the pistol pictured was the exact same setup that he used regularly? Or the explosive devices? Nah, people like him don’t need firearms and leaving out details that show how much of a shit bag he was doesn’t make it better.
I agree with all you say about 2A and the potential abuse of red flag laws and how it sidesteps the bill of rights. Fruit of the poisonous tree yada yada but dude had explosives in his house… guns for hunting and self defense make sense but explosives is another matter. How the government went about it is wrong, but the ends justify the means here, seems they took a deranged potential terrorist off the street.
Nice article, hopefully this case gains some attention. Sad to see it’s come to red flags over silly Facebook posts. And now his dad got roped into it as well when the cops showed up to their house unexpectedly