Michigan county set to swear off enforcement of "unconstitutional" gun control laws

(AP Photo/Steven Senne)

And they probably won’t be the last. Thanks to the slim Democratic majorities in the Michigan legislature, new gun control measures are already being signed into law by Gov. Gretchen Whitmer; bills mandating firearm storage and “universal background checks” were adopted last week, and the state legislature appears poised to pass a “red flag” law as well. There are also a number of other gun control bills still making their way through the statehouse, including a ban on so-called assault weapons, but how widely any of these measures will be enforced if they are enacted remains an open question.

In Dickinson County, however, county commissioners and the local sheriff say no unconstitutional provision will be enforced, and other counties could soon follow suit.

A subcommittee of the Livingston County Board of Commissioners has forwarded a resolution reaffirming its stance on Second Amendment protections, encouraging the county sheriff and prosecutor not to enforce gun control laws they deem unconstitutional.

Livingston County has been a so-called Second Amendment “sanctuary” since the county board passed a 2020 resolution. The newly proposed resolution, which the full board is expected to adopt at a future meeting, declares Livingston a “constitutional county” that will not fund any new program that “restricts” rights afforded by the U.S. Constitution and Michigan State Constitution.

… Livingston County Sheriff Mike Murphy took issue last week with a draft of the resolution, which seemed to interfere with his office, but said he disagrees with proposed “red flag” laws himself.

“I’m not going to enforce something that is not constitutional,” Murphy told The Daily on Monday. He told county officials something similar during an April 11 board meeting.

“I’m not going to support, enforce, investigate anything that is unconstitutional when it comes to 2A or any other constitutional matter,” he said. “I’m a constitutional sheriff and I’m not going to do anything that is going to jeopardize that, and if, God forbid, the red flag laws do pass, we won’t be enforcing those or investigating those either.”

Can Murphy actually do that? Absolutely. The sheriff, just like prosecutors and police chiefs, has the discretion to decide whether enforcement of a particular statute is going to be a priority, and if Murphy decides that “red flag” laws aren’t a good fit for Dickinson County then it’s well within his authority to not file any Extreme Risk Protection Orders once the “red flag” law is up and operating.

While the proposed resolution passed unanimously out of the county commission’s subcommittee on Monday, there were some critics on hand testifying in opposition.

Hamburg Township Trustee Cindy Michniewicz told commissioners during the meeting she opposes the resolution.

“People want to feel safe in their community. How can they feel safe if their county sheriff and prosecutor offices pick and choose what laws to enforce?” Michniewicz, who ran for township office as a Democrat, said.

She also said a declaration the board won’t fund new programs they deem unconstitutional should be “worrisome” to county law enforcement and courts.

“On my way over here today, I heard the state is organizing to fund an educational program for the gun safety programs, so you would turn those down if you sign this resolution. This could be detrimental to those departments in the future, so gentlemen, are we talking about defunding the police?” Michniewicz said

Well that’s a supremely dumb argument. First, I doubt that county commissioners or the sheriff would view an educational campaign as unconstitutional, given that it doesn’t tread on the rights of gun owners. But I’m also guessing that Michniewicz doesn’t have a problem with discretion on the part of elected officials when it benefits her own ideology. When it came to enforcing a 1931 statute criminalizing abortion, for instance, one Michigan prosecutor argued last summer that if she did that she’d have to enforce a whole host of “obsolete” laws.

“That’s pure rubbish,” Karen McDonald, a Democratic prosecutor in Oakland County, says of DePerno’s argument, noting the preponderance of obsolete laws that remain on the books. “If that’s true, I’d have to prosecute infidelity.”

So McDonald was prepared to use her discretion to allow abortion clinics to keep operating in Oakland County, and she wasn’t alone. As Politico reported last August, “a majority of prosecutors in counties where there are abortion clinics have said they will not enforce the ban,” and I’m betting that Michniewicz was in full support of that position.

My biggest concern isn’t over whether Murphy has the authority to use disrection in enforcing the laws, but whether he’ll stand by his word. While Murphy sounded adamant about not enforcing or using any “red flag” law while addressing county commissioners earlier this month, more recent comments to the local paper hint at a softening of his hard-line position.

Why does Murphy oppose red flag laws?

“Because it’s ripe for abuse,” he told The Daily. “There’s very little to no due process there. Under red flag laws, it won’t prevent someone from going to police and saying someone is violent, and the next thing, the cops are showing up at your door and taking away your guns.”

He said he would be “hard-pressed” to enforce court orders he deemed unconstitutional.

“I hope the judge would be smart enough to not issue an unconstitutional order. I would have a conversation with them prior to enforcing it. I would not say, 100 percent I would not (enforce an order). If I thought something was unconstitutional, I would be hard-pressed to enforce it.”

He said some gun control measures are less concerning to him, because any enforcement would happen “after the fact.”

“I’m not a big fan of the safe storage and all that stuff, but I don’t think it’s unconstitutional,” he said.

“I’m not going to enforce these laws to the extent that I’m going to go to someone’s house and check their gun registration,” he said. “When I say I’m not going to enforce, it’s starting an investigation before a complaint.”

With all due respect to the sheriff, that’s generally not how registration laws are enforced, even in anti-gun states like California. When someone says they won’t be enforcing a law there’s an expectation that they won’t be making any arrests in regard to that particular statute, not that they’ll only enforce the law after a complaint has been filed. If the sheriff is getting cold feet about standing up for the constitutional rights of Dickenson County residents he should say so and take whatever criticism comes his way rather than offering up platitudes about being “hard-pressed” to enforce a law he previously declared he wouldn’t use or investigate at all.

There are dozens of counties in Michigan that, like Dickinson County, have declared themselves to be Second Amendment sanctuaries over the past few years, and many of them will likely offer up similar resolutions in opposition to the new gun control laws coming out of Lansing. It’s easy to say they won’t enforce these measures, but gun owners and Second Amendment supporters should be on guard for any attempt by county officials to weasel their way out of their promises to protect the rights of residents as well as those who are just paying lip service to their supposed support for the Second Amendment.