Can a judge sign an order allowing police to seize your guns without you even breaking a single law? In recent years, there has been a nationwide push for “extreme risk protective orders” or “red flag” laws specifically designed to remove firearms from people accused of engaging in conduct or making statements that others may deem “dangerous.” You’ve probably heard about them in the news recently; but what are they? What do you need to know about them, and how could they be used to take away your Second Amendment rights? Let’s look at the history of these laws and how Michigan uniquely falls on this hotly debated area.
The History of Red Flag Laws
Red flag laws entered prominent national discourse in 1999 when Connecticut passed the first one of its kind because of a mass shooting at the Connecticut Lottery headquarters. Lawmakers in Connecticut intended this law to target individuals with specific mental health conditions and prevent them from accessing firearms.
More recently, on February 14, 2018, a 19-year-old former student opened fire at Marjory Stoneman Douglas High School in Parkland, Florida, horrifically killing 17 people and injuring 17 others. There was an immediate national outcry to “do something” to stop what the media has frequently dubbed “gun violence.” When information emerged that the shooter had documented mental health issues, lawmakers across the country began pushing for laws to take away guns from individuals whose behavior raised a “red flag” that they could be a threat to themselves or others.
In theory, the purpose of these laws is to identify an individual who exhibits early warning signs of danger and prevent a criminal act from occurring by preemptively disarming them. However, there’s an obvious irony: with red flag legal proceedings, the person’s firearms are seized, but the individual may be quickly released back into society, free to pursue whatever misdeeds they might choose to do.
Many of the states with red flag laws currently on the books allow for an enforceable court order that prevents the person from owning, purchasing, possessing, or transporting firearms and ammunition for a specified period of time. Several jurisdictions also allow the extension of these orders if the affected individual is still “deemed a threat.”
For example, under California’s red flag law (called a “gun violence restraining order”), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammunition initially for between one and five years, with the potential for the order to be renewed and extended indefinitely. California Penal Code §§ 18170-18197 lays out the process by which any qualifying person may ask to extend the red flag order within three months of its expiration. The order will be extended if the court finds that the person still poses a significant danger of causing personal injury to themselves or another by controlling, owning, purchasing, possessing, or receiving a firearm, ammunition, or magazine, and all other conditions for renewal are satisfied.
A Californian subject to a red flag order may petition the court only once per year and ask for it to be lifted; which could entail another costly and time-consuming legal proceeding.
As of the publish date of this article, 19 states and the District of Columbia have enacted versions of red flag laws. How do things stand for Michigan?
Red Flag Laws in Michigan
There are no red flag laws currently on the books in Michigan. However, there have been multiple attempts to introduce such laws in the State Legislature. Specifically, former Michigan Representative Robert Wittenburg, D-Huntington Woods, attempted several times to pass such legislation. Fortunately, Rep. Wittenburg failed in these attempts and was term-limited from reelection. No such bills were considered in 2020 or early 2021.
In Michigan, the closest current law similar to a red flag law would be found in the Michigan Mental Health Code. MCL 330.1267 allows law enforcement to search incapacitated persons and place them in protective custody. This search allows the officers to seize any dangerous weapons or firearms located on the person in protective custody.
Additionally, there are circumstances where a personal protection order will inhibit your right to obtain a CPL (or “Concealed Pistol License”) (MCL 28.422b(1)(c)) or even obtain or possess a firearm (MCL 600.2950(1)(e)). Further, if a magistrate has probable cause to believe that there was unlawful possession of a firearm, MCL 28.433 grants the ability to issue a warrant to seize said firearm. However, unlike many red flag laws, there is a due process right attached to these severe sanctions.
Potential Future Legislation in Michigan
While there is no current legislation amounting to a red flag law pending in Michigan, it would seem likely to be signed by Governor Whitmer if such a bill were to reach her desk. Thankfully, the Republican-controlled Legislature does not seem to be interested in providing such a bill, particularly while the parties continue to bicker over COVID-19 balance of power issues. Further, the Republicans will not want to give the Governor, who will be running for reelection in roughly 19 months, such a legislative victory. Still, it never hurts to follow the potential legislation that is introduced and contact your State Representative if you feel that your rights are being threatened.
If you have questions about red flag laws or any other gun-related legislation, call U.S. LawShield and ask to speak to your Independent Program Attorney.
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