Michigan's new "red flag" law already meeting resistance

Now that Michigan Gov. Gretchen Whitmer has put pen to paper and enshrined a “red flag” firearms seizure bill into law, the real question is how many jurisdictions across the state will actually use or enforce the measure. During Monday’s signing ceremony, which featured an appearance by Gabby “No More Guns” Giffords, Attorney General Dana Nessel acknowledged the widespread opposition to the new law, but warned that “those who are in law enforcement who refuse to enforce these important orders, let me say this loudly and clearly: I will make certain that I find someone with jurisdiction who will enforce these orders.”


As we detail on today’s Bearing Arms’ Cam & Co, while county sheriffs and police chiefs who object to the lack of due process and deprivation of an inherent right without a criminal conviction or an adjudication of mental illness have broad discretion in enforcing any particular statute on the books, Michigan’s “red flag” law is written to get around any opponents by allowing broad swathes of the public to file for an Extreme Risk Protection Order; not only police and family members but roommates and former dating partners as well as mental health professionals. Sheriffs might choose not to use the new law at all, but they won’t be able to stop petitions from being filed.

Enforcing the law is another matter altogether, however. Nessel’s comment suggests that she’s going to try to use the Michigan State Police to go and grab guns if county sheriffs or police chiefs refuse to do so, but as we’ve seen in New York, where Gov. Kathy Hochul ordered the state police to use ERPOs whenever and wherever possible, that strategy is at odds with overall public safety.

In the wake of the mass shooting at a Buffalo, New York grocery store last year, Gov. Kathy Hochul demanded the New York State Police begin filing Extreme Risk Protection Orders at every available opportunity. Since then the number of ERPOs filed has increased by more than 1,000%, even though two sitting state Supreme Court justices have ruled that the “red flag” law is unconstitutional.

Now the the union representing rank-and-file state police officers is weighing in as well, criticizing Hochul’s policy for leaving them so focused on seizing guns that they have little time or resources to investigate serious crimes.

Tim Dymond, president of the New York State Police Investigators Association, said their members are “asking for help.” They commended Gov. Kathy Hochul for increasing funding to the agency in the recently approved budget but noted that impact will not be felt for at least six months.

“The spike in ERPOs has created an unmanageable workload that will undoubtedly cause other criminal investigations to suffer,” Dymond said in a statement Thursday. “We recognize the importance of ERPOs and we agree that persons whom are a threat to themselves or others should not have guns. We are also realistic in noticing when our people are overwhelmed. ERPOs are important but so are murder, rape and robbery investigations. We still need to be able to investigate local burglary rings. We still need to track down child predators and drug dealers.”


The same is likely to happen if sheriffs and prosecutors in many of Michigan’s more conservative counties simply refuse to filed “red flag” petitions or engage in any confiscation efforts and leave enforcement up to the state police instead. Whitmer, Nessel, and the anti-gun majority in Lansing have already taken aim at legal gun owners while largely ignoring the perpetrators of violence, so why wouldn’t they follow Hochul’s lead and prove they’re more interested in going after the guns owned by those deemed by a judge (in a one-sided hearing that’s completely lacking in due process, by the way) to be a danger to themselves or others than in pursuing criminal cases and serious consequences for those who’ve been accused of actually carrying out a violent crime?

With more and more counties signaling their own objections to the new ERPO statute, we probably won’t have to wait too long after the new law takes effect next year to see the consequences of this misguided mandate, intended and unintended. That is, if the law takes effect at all. I expect the “red flag” provision to be challenged in court, and hopefully a judge will put a halt to the ERPO law before it can ever be enforced by any law enforcement agency in the state. If that happens, maybe Michigan lawmakers will be forced to truly confront the state’s crisis in mental health services rather than dealing with “dangerous” people by taking their guns away and leaving them access to all kinds of things they can use to harm themselves or others. Michigan’s “red flag” law is both unconstitutional and ineffective, and the resistance to it is just beginning.


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