House OKs red flag laws allowing confiscation of guns from individuals believed to be risk

Lansing — The Democratic-controlled Michigan House voted 56-51 along party lines Thursday in favor of legislation allowing individuals to ask a judge to confiscate firearms from people believed to be a risk to themselves or others.

The Extreme Risk Protection Order Act, commonly referred to as red flag legislation, would allow medical professionals, family members, guardians, former dating partners and police to petition a judge to remove firearms from an individual whom they believe is at risk of using those weapons against others or himself or herself.

The petition can be made with or without notice to the individual whose firearms are at stake, but judges are required to schedule hearings within certain time periods to ensure compliance or to allow an individual to challenge the order.

The legislation, which needs additional approvals in the state Senate, had full Democratic support despite concerns from some members about the potential use of the law to target minority communities. The House added language requiring a demographic study of the law's use to alleviate those concerns.

Rep. Kelly Breen, the Novi Democrat who chairs the House Judiciary Committee, said the bills address both due process and the need to better protect society against someone clearly intent on harming himself, herself or others. The extreme risk protection orders are needed to start to address a gun violence epidemic, she said.

"We all know someone who should not have a gun," Breen said.

Rep. Julie Brixie, D-Meridian Township, argued the previous Republican-led Legislature had ample opportunity to pass common sense gun laws but didn't do so, even after the Nov. 30, 2021, shooting at Oxford High School that killed four students and wounded seven. After the Feb. 13 shooting at Michigan State University that killed three students and wounded five others, the calls for change grew.

"We’ll never know if extreme risk protection orders would have prevented the MSU shooter," said Brixie, whose district includes the university. "But we do know he was deeply troubled, and there were warning signs."

But Rep. Mike Harris, R-Clarkston, argued that the proposals ignored due process rights and would endanger officers tasked with retrieving firearms from an individual who is subject to an extreme risk protection order.

"Because these orders are based on flimsy evidence, the implementation of these laws can be fraught with danger and generate mistrust," said Harris, a retired Waterford Township police officer.

Rep. Jaime Greene, R-Richmond, criticized the bill as an attempt to show that the Legislature is doing something but said it does not address the root causes of gun violence. She argued the legislation should have included a mental health evaluation.

"When we make guns the scapegoat for society’s mental health crisis, it deflects our attention from real solutions," Greene said.

Republican Reps. Timothy Beson of Bay City, William Bruck of Erie and Curt VanderWall of Ludington were absent from Thursday's vote.

What the legislation does

The red flag law bills are the last of a three-part package of laws introduced after the Feb. 13 shooting at Michigan State University. Gov. Gretchen Whitmer signed two other parts of the package Thursday morning ― provisions that would require background checks and registrations for all firearm purchases and mandate the secure storage of firearms.

Also on Thursday, two Michigan gun rights groups filed suit against the Legislature for failing to provide the groups' representatives enough time to testify in front of the committees that pushed through the gun regulations in recent weeks.

The legislation passed Thursday includes two mirroring bills ― one House and one Senate ― that are largely the same, except that the Senate bill would allow a complaint to be filed in any court in the state, and the House bill would limit the filing location to the county where a plaintiff lives or works. The Senate bill is expected ultimately to be signed into law, raising concerns about the potential for individuals to "forum shop" to find a judge favorable to their cause.

The ability to file in any circuit court was one of many concerns House Republicans voiced as the bills moved through. Other concerns included an overall failure to provide the "markings of due process" needed for the policy to balance the rights of the plaintiff and defendant, including no right to counsel, a relatively low burden of proof to obtain the order and the lack of psychiatric evidence needed to sustain an order, said Rep. Andrew Fink, R-Hillsdale.

"I don't think that this legislation is actually effective at preventing gun violence," Fink said. "Or, at least, not on the kind of scale that you would want to see in order to justify this kind of potential intrusion into a person's life."

Under the bills moved through the House, 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 and 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 — or clear and convincing evidence in an emergency hearing — that the defendant poses a significant risk to self or others by possessing a firearm.

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.

Penalties and enforcement

Law enforcement would be responsible for entering the order into the Law Enforcement Information Network and for alerting federal law enforcement so that 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 under the text of the legislation could result in arrest, misdemeanor and felony charges, a finding of contempt of court or an automatic extension of the order.

A violation of the order would be punishable by increasingly serious felony charges carrying between one and five years in jail. For a requestor who "knowingly and intentionally makes a false statement to the court," the penalty is 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 years and five years in prison, respectively.

The order would be served by law enforcement and a compliance hearing scheduled for five days after the order. The compliance hearing could be canceled if individuals provide proof that they surrendered all firearms.

eleblanc@detroitnews.com