How firearms could be confiscated under Michigan's new 'red flag' law

Beth LeBlanc
The Detroit News

Royal Oak — Gov. Gretchen Whitmer signed legislation Monday into law that would allow judges to order the temporary confiscation of firearms from individuals in Michigan deemed a risk to themselves or others.

The Extreme Risk Protection Order Act, often referred to as a "red flag" law that's been adopted by 20 other states ahead of Michigan, is the last of a three-part package of gun regulations introduced in the immediate aftermath of the Feb. 13 shooting on Michigan State University's campus that killed three students and wounded five others.

The four-bill package signed by Whitmer would allow medical professionals, family members, guardians, current and former dating partners and police to petition a judge to remove the firearms of an individual who is believed to be at risk of using the weapons.

"With extreme risk protection orders, we have a mechanism to step in and save lives," Whitmer said before signing the bills.

At Monday's bill signing outside of Royal Oak's 44th District Court, Democratic state officials, flanked by survivors of gun violence, thanked survivors, lawmakers and longtime advocates seeking changes to the law for their work. They also warned law enforcement officials who have signaled they won't enforce the law on the premise that it violates the Second Amendment right to bear arms. Livingston County Sheriff Mike Murphy has said he will not enforce the new law.

"For those who are in law enforcement who refuse to enforce these important orders, let me say this loudly and clearly: I will make certain that I will find someone with jurisdiction who will enforce these orders," Attorney General Dana Nessel said.

More:Livingston County's snub of red flag gun bills reflects polarized priorities

Supporters have argued the laws would help family members and professionals aware of a potential risk to flag individuals at risk of suicide or other forms of violence against others. But opponents have countered that they violate due process rights and infringe on the Second Amendment right to bear arms.

Under the new law, a petition for an extreme risk protection order can be made and an order issued with or without notice to the individual; however, judges are required to schedule hearings within certain time periods to ensure compliance or allow an individual to challenge the order.

Gov. Gretchen Whitmer signs into law legislation establishing a red flag law on Monday outside of 44th District Court in Royal Oak. The law allows Michigan judges to authorize police to temporarily confiscate weapons from individuals deemed a threat to themselves and others. With Whitmer is state Sen. Mallory McMorrow, left, and former Arizona congresswoman Gabrielle Giffords.

The bills did not have immediate effect, meaning they won't take effect until spring 2024 or earlier, depending on when the Legislature adjourns for the year. When it does take effect, Whitmer told reporters, law enforcement will be expected to enforce a judge's order.

"Every prosecutor has taken an oath to uphold the laws of the state of Michigan, and that's the expectation," said Whitmer, who did a stint as Ingham County's prosecutor before running for governor in 2018.

Wayne County Prosecutor Kym Worthy added that the law, in her county at least, will be accompanied by education on the application of the law.

"I want to make sure that everybody understands — judges, prosecutors, police officers and sheriffs — what this means and what it can do and what we can do with it," Worthy said.

The legislation, as it moved through both chambers, was met with some concerns from Republicans and Democrats.

The Republican minority largely opposed the bills for what they saw as a lack of due process for individuals at risk of having their guns seized; the absence of psychiatric evidence needed to sustain an order; the ability to "forum shop" by filing the petition in any circuit court in Michigan regardless of the defendant's location; and overall reservations about the law's infringement on the Second Amendment right to bear arms.

Some Democrats also said they were worried about the potential use of the law to target minority communities, prompting lawmakers to add language requiring a demographic study of the law's application.

While police associations have generally been supportive of the law, individual police agencies have expressed reservations about the burden the law placed on officers who would be largely tasked with enforcing orders issued by judges.

Former U.S. Rep. Gabrielle Giffords, D-Arizona, speaks at Monday's bill-signing ceremony alongside Gov. Gretchen Whitmer. Giffords, who survived an assassination attempt while in Congress, and her gun violence prevention organization, Giffords Law Center to Prevent Gun Violence, were instrumental in the passage of gun control legislation this spring.

How the red flag law would work

Under the law signed Monday, a complaint filed by a family member, current or former partner, law enforcement or mental health or medical professional would need to show by a preponderance of evidence that the defendant poses a significant risk. The bar for obtaining a confiscation order would be set higher, having to a clear and convincing evidence standard, in the event of an emergency hearing.

If a judge finds an extreme risk protection order is warranted, the order would need to include a prohibition on purchasing or possessing a firearm and the required surrender of any firearms or unused purchase licenses.

Worthy said Monday that her county has a “laundry list” of incidents where a crime may have been prevented if a red flag law had been in place at the time. She noted the law might have been useful in preventing the May 6 shooting of three individuals at a Detroit gas station.

Samuel McCray, who has been charged in the incident, is alleged to have shot three individuals, killing one, after his card was declined for a $4 purchase and the clerk locked the doors when he attempted to leave with the items.

McCray was on probation for a weapons charge at the time and, according to his attorney, suffered from severe mental illness and paranoid schizophrenia. His attorney said McCray was upset to be locked inside the gas station.

“We don’t know if the family would have taken advantage of it,” Worthy said of the red flag law. “But now they at least have that option because, clearly, there were issues there before."

Lt. Gov. Garlin Gilchrist, Gov. Gretchen Whitmer and Wayne County Prosecutor Kym Worthy speak with press after the signing of the Extreme Risk Protection Order Act in Royal Oak on Monday, May 22, 2023.

Under the law, law enforcement would be responsible for entering the order into the Law Enforcement Information Network and for alerting federal law enforcement so all emergency responders know the individual should not be in possession of a gun. Law enforcement would need to make a "good faith effort" to determine if an individual subject to an extreme risk protection order has firearms that he or she has not surrendered.

The order would need to be accompanied by hearing dates to challenge the order and opportunities for individuals to make requests for an alteration or rescission to show they're no longer a risk.

A violation of the order could result in arrest, misdemeanor and felony charges, a finding of contempt of court or an automatic extension of the order. Violations could also carry felony charges ranging from one to five years in prison.

A person who "knowingly and intentionally makes a false statement to the court" would be guilty of a misdemeanor carrying a 93-day jail term for a first offense.

What's ahead

Other legislation already passed in the wake of the Michigan State shooting requires universal background checks and registration for all firearm purchases and requires the secure storage of firearms in homes where a minor is present, a law inspired by the deadly Nov. 30, 2021, shooting at Oxford High School in Oakland County that killed four students and wounded six students and a teacher.

State officials, who have called the trio of policies a "floor" and not a ceiling, were slow to say which policies would be next for Michigan in terms of gun regulation.

"I don't think the conversation's over," Whitmer said. "There are a lot of survivors of loved ones from Oxford and from MSU here today. I know that they want to continue talking about what, in addition, we might do to keep people safe, and that's a conversation we're always eager to have."

Lt. Gov. Garlin Gilchrist and Gov. Gretchen Whitmer speak with press after the signing of the Extreme Risk Protection Order Act in Royal Oak on Monday, May 22, 2023.

Rep. Kelly Breen, the Novi Democrat who chairs the House Judiciary Committee, said she expects lawmakers will focus on continuing the work of a school safety task force started in response to the shooting at Oxford High School. There could also be another package of gun regulation bills on the horizon, Breen said, such as ghost gun prohibitions or a gun purchase waiting period.

But the second-term lawmaker said she was focused on finding policies proven to work.

"I'm not worried about the guy who is parading around with a gun just to say, 'I can parade around with a gun,'" Breen said. "I'm worried about the kids with easy access. I'm worried about the people who have a mental health crisis. I'm worried about the straw purchases."