House panel advances red flag laws as concerns emerge over impact on minority communities

Lansing — Michigan House lawmakers on Wednesday pushed through committee a set of four bills that would allow individuals to petition a court to take away the firearms of individuals they argue are a risk to themselves or others.

The package of bills passed largely along party lines but encountered opposition from at least one Democratic lawmaker, who expressed concerns about the potential for the laws to be used disproportionately against minority communities.

There's not enough data from other states regarding the impact of extreme risk protection orders on minority communities or the use of those orders by police, said Rep. Kimberly Edwards, D-Eastpointe. She said she was "on the fence" regarding how she would vote on the bill when it comes to the full House floor, where Democrats hold a slim 56-54 majority.

"There's not enough data to support that and how the outcome is and the impact on minorities," said Edwards, who passed during a panel vote on the main House bill.

Rep. Emily Dievendorf, D-Lansing, also acknowledged Wednesday that there were concerns among lawmakers over how the law would be used in marginalized communities.

"We will be addressing any concerns about inequitable implementation with other legislation," said Dievendorf, without naming what the legislation was. "But it was not appropriate to address it in this bill."

The red flag bills are not expected to be taken up on the House floor Wednesday because a member of the Democratic caucus is absent. They are the last remaining portion of a Democratic three-pronged response to the mass shooting at Michigan State University Feb. 13 that killed three students and wounded five others. The House and Senate already have passed the first two portions of the legislation, approving bills requiring universal background checks and registration for all gun purchases as well as mandating the safe storage of firearms.

The substitute red flag bills passed by the House committee Wednesday included language that would require an annual report on the use of extreme risk protection orders that include information on the demographics of individuals filing and subject to an order in order to address some of the concerns revolving around minority communities.

Rep. Kelly Breen, the Novi Democrat, argued initial results out of Colorado indicate the majority of extreme risk protection orders are entered against white men. But she acknowledged the committee was working to address additional concerns about disproportionate impacts.

"These bills in and of themselves are equitable, but they could be inequitable if they are inserted into a broken system," Breen said. "I'm eager to work across the board with law enforcement, with communities of color in order to make sure the implementation process is as fair and equitable as possible."

Rep. Tyrone Carter, D-Detroit, said the bills are an effort to "error on the side of the caution" where is a risk is proven to exist and have enough safeguards built into them to avoid the law being used to target individuals or communities.

"As a Black man, I don’t see where somebody could arbitrarily use this," said Carter, who is a former Wayne County sheriff's deputy. "Doing nothing has not served the public well.”

House Speaker Joe Tate, a Detroit Democrat and the state's first Black House speaker, is aware of the concerns, his spokeswoman Amber McCann said.

"Speaker Tate has been working with his fellow legislators to address those concerns and will continue to do so and has already spoken to Rep. Edwards following the committee vote," McCann said.

Bills advance with changes

The so-called red flag bills, which would allow a judge to issue an extreme risk protection order to prevent someone from harming himself, herself or others, are expected to differ from those pushed through the Senate last month, with more provisions seeking to protect due process.

Under the language passed through House Judiciary Committee Wednesday, one of the biggest due process changes was to change the standard of proof needed to gain an extreme risk protection. If an emergency hearing is held where the individual targeted isn't notified or present, the requester must show "clear and convincing" proof that the individual is a threat to himself, herself or others. Under previous versions, the bar was lowered to a "preponderance of the evidence."

If the person targeted received a notice about the hearing, the burden of proof would remain at a "preponderance of the evidence." The burden of proof for individuals to show they aren't a risk and have the order removed also would remain at the lower "preponderance of evidence bar."

But some lawmakers remained uncomfortable with a judge's ability, under the proposal, to remove a person's firearms with little to no notice and with the idea that the burden of proof to regain access to guns lay with the defendant.

"Why doesn't the burden remain with the petitioner?" asked Rep. Andrew Fink, R-Hillsdale.

Republicans also have expressed concerns about whether the law would be used to target individuals. Rep. Douglas Wozniak, R-Shelby Township, voiced concerns that the bill would set up wealth tests rewarding the plaintiff or defendant who could afford the best counsel and court fees.

Beyond those changes, additional alterations regarding the duties of officers involved in enforcing an extreme risk protection order gained the support Wednesday of the Michigan Sheriffs Association and the Michigan Fraternal Order of Police. The groups had previously been opposed.

The changes, said Michigan Sheriffs Association Deputy Director Daniel Pfannes, ensure the bill can be "actualized and operationalized."

The details

Under the bills moved through committee Wednesday, an individual eligible to file for an extreme risk protection order includes a family member, a law enforcement officer, a mental health professional, a guardian, a physician, someone who resides in the same household, a former spouse or someone who is in or had a dating relationship with the individual.

The complaint filed by those individuals would need to show by a preponderance of evidence that the defendant poses a significant risk to self or others by possessing a firearm. The burden of proof would increase to clear and convincing evidence of a risk if the request were made in an emergency hearing for which the defendant was not notified.

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, the required surrender of any firearms or unused purchase licenses, language blocking an individual from applying for a concealed pistol license and the suspension of any existing concealed pistol license.

Law enforcement would be responsible for entering the order into the Law Enforcement Information Network and for alerting federal law enforcement so all 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 include notice of a hearing date when a request to rescind the order could be made. If not rescinded, the order would expire a year form issuance but individuals are allow to make repeated requests for an alteration or rescission to show they're no longer a risk.

A violation of the order, under the legislation, could result in arrest, a finding of contempt of court or an automatic extension of the order.

A violation of the order would be punishable as a misdemeanor carrying a 93-day jail term for a first offense; second and third offenses would be treated as a felony punishable by up to four year and five years in prison respectively. The same penalties would apply to a requestor who "knowingly and intentionally makes a false statement to the court."

The order would be served by law enforcement and a compliance hearing scheduled for 10 days after the order. The compliance hearing could be cancelled if an individual provides proof that they surrendered all firearms.

An extreme risk protection order could be issued without notice to the defendant within 24 hours if a judge finds information provided showed an "immediate and irreparable injury " would result from the delay a notice would require. A hearing on the order would need to take place within five to 14 days.

eleblanc@detroitnews.com