MenuIn the wake of the recent mass shooting on the Michigan State University campus in East Lansing, Democratic legislators began pushing for numerous changes to the state’s laws concerning gun ownership. In addition to calling for universal background checks and enacting new penalties for failing to store firearms safely when in the presence of a minor, several lawmakers introduced a bill that would make Michigan the 20th state in the Union to enact a red flag law. Michigan Governor Gretchen Whitmer signed the legislation on May 22, 2023. It is scheduled to take effect in spring 2024 or earlier.
What Is A Red Flag Law?
A red flag law facilitates the state’s ability to implement extreme risk protection orders. An extreme risk protection order allows the state to temporarily suspend an individual’s right to possess firearms if their behavior potentially threatens public safety. The term “red flag law” refers to the idea that if someone’s behavior suggests that they could be dangerous to themselves or others, that behavior should serve as a warning – or “red flag” – that must be acted upon in the interests of both the individual in question and the public at large.
When introducing the bill, one Democratic lawmaker explained that she was inspired to take up this cause because “Extreme risk protection orders save lives by allowing family members and law enforcement to act before warning signs escalate into tragedies… Michigan needs red flag laws on the books to not only help us prevent the next school shooting, but so that we can also help protect our loved ones in their darkest hour.”
Yet, opponents of the bill argue that extreme risk protection orders go too far in stripping citizens of their Second Amendment rights, albeit temporarily. The concern is that there is a slippery slope when law-abiding citizens who have not committed a violent crime are denied their ability to possess a firearm for self-protection, the protection of others, sport, and other law-abiding reasons. The concern is that if everyday citizens have their rights temporarily suspended, that kind of government action constitutes overreach and could be used to justify further mitigation of individual rights by the state.
After signing the legislation. Governor Whitmer tweeted: “We’ve heard too many times how those who knew a mass shooter expressed concern in advance. We have seen situations where local police flagged someone but had no further course of action. With extreme risk protection orders, we have a mechanism to step in and save lives.”
How Does An Extreme Risk Protection Order Work?
When Michigan’s red flag law goes into effect, judges would be empowered to issue an Extreme Risk Protection Order (ERPO) after weighing the evidence in a particular case. ERPO cases often arise when the loved ones of an individual are concerned about their risk for potentially violent behavior. Given that the laws in many states are now cracking down on the complacency of family members – especially the parents of minors or young adults who reside with them – about whether a loved one could pose a risk to others, such cases may arise with relative frequency when the red flag law goes into effect in Michigan. In reporting a concern about a loved one, family members can potentially insulate themselves from liability if that loved one goes on to cause harm to others.
Specifically, if a concern is filed with the court, a judge would consider any evidence presented in support of that request. Such evidence could include – but would not be limited to – the following:
- Whether the subject of concern had previously threatened to harm themselves or others
- Whether the subject of concern had previously inflicted harm on themselves or others
- Any mental health challenges that the subject of the order has been diagnosed with
- Whether the subject of concern is struggling with a substance abuse order
- Concerning evidence related to recent purchases involving weapons
- Any other evidence that could be considered relevant to the situation at hand
If an ERPO is granted, law enforcement will take temporary possession of the firearms owned by the subject of concern. While the temporary order is in effect, the subject of concern will be prohibited from purchasing additional weapons. It is worth noting that the diagnosis of a mental illness alone is not enough to warrant the issuance of an ERPO.
What Happens Next?
In mid-March 2023, the Michigan Senate passed an 11-bill gun safety package that includes the proposal for a red flag law. The bill then headed to the Democrat-led House, where it will be considered and likely passed along party lines as in the Senate. If both chambers adopt the safety package, the governor has confirmed that she will sign these pieces of legislation, including the red flag law.
The governor made good upon her promise and signed the legislation on May 22, 2023 stating, “Extreme risk protection orders have been proven to reduce suicides, save lives, and keep guns out of the hands of domestic abusers and violent criminals.”
Once Michigan red flag law is in effect, gun owners – and the parents of minors who could access the family’s firearms without permission – must be acutely aware of their rights and responsibilities under the law. Missteps could lead to criminal charges, and as the entire nation has witnessed in the wake of another round of high-profile mass shootings – this area of law is changing rapidly. As a result, anyone who has questions about their rights and responsibilities under the law should proactively seek legal guidance to better ensure that they avoid criminal prosecution for any missteps they may unintentionally take.
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Gun ownership is a protected right in the United States. However, the federal and state governments have the authority to restrict certain gun ownership, possession, sale, and transfer practices. As a result, gun owners often struggle to navigate weapons charges due to misunderstandings regarding their rights. If you’re trying to avoid being charged with a crime or you’ve already been cited with weapons-related wrongdoing, it is time to speak with the knowledgeable legal team at George Law.
Our firm is proud to offer confidential, risk-free case evaluations at no cost because we believe everyone deserves to understand how to exercise their rights under the law. Receive personalized legal guidance today by calling (248) 247-7459 or by submitting a contact form on our firm’s website. You can also utilize our firm’s website chat feature at any time to speak with our team. We look forward to meeting with you.