LANSING, Mich. — The Michigan House voted 56-51 along party lines Thursday to approve a package of bills that would allow individuals to ask a judge to confiscate firearms from a person 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 themselves or others.
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 package, which needs additional approvals in the state Senate, had Democratic support despite some concerns from some members Wednesday 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. It's what's needed to start to address a gun violence epidemic, Breen 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. After the Feb. 13 shooting at Michigan State University, the calls for change grew.
"We'll never know if extreme risk protection orders would have prevented the MSU shooter," Brixie said. "But we do know he was deeply troubled, and there were warning signs."
Rep. Mike Harris, R-Clarkston, argued that the law 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," Harris said.
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.
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 that killed three and injured five. 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.
Republican Reps. Timothy Beson of Bay City, William Bruck of Erie and Curt VanderWall of Ludington were absent from Thursday's vote.
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 to be ultimately signed into law, raising concerns about the potential for individuals to "forum shop" to find a judge favorable to their cause.
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.
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.
