SHERIFF'S CORNER: New Red Flag law explained

A red flag law facilitates the state's ability to implement Extreme Risk Protection Orders (ERPO). An extreme risk protection order allows the state to temporarily suspend an individual's right to possess firearms if their behavior potentially threatens public safety. Public Act 38 of 2023 created such an act.

An Associated Press article found many U.S. states barely use the red flag laws, this can be attributed to a lack of awareness of the laws and blowback by some authorities to enforce them. Whether you agree or disagree with the new law, it does create certain 'officer safety' issues when seizing firearms from a member of the public. Any law should always include due process on adaptation being that gun ownership is a constitutional right.

So, many considerations have to be addressed before putting any peace officer in a hostile situation or potentially harmful encounter when executing said ERPO. So, I would never say this is "cut-in-dry."

In this edition of the "Sheriff's Corner". I explain the new ERPO law and some of the provisions and requirements of the act. Some of this information was taken from the one the recent MSP legal updates.

In 1999, Connecticut became the first state to enact a red flag law, after a shooting at the Connecticut Lottery. It was followed by Indiana, which adopted its legislation in 2005; called Jake Laird's Law, it was named after an Indianapolis police officer who was fatally shot by a mentally disturbed man. Subsequent red-flag laws were adopted by California (2014), Washington (2016), and Oregon (2017). Now, 21 states have some version of an ERPO.

Fun Fact: Unless it states specifically in the bill, a new law goes into effect 91 days after the Michigan Legislature adjourns for the year. This was the primary reason for the Michigan Legislature to end its legislative session early so the new law would go into effect on Feb. 13, 2024.

ELIGIBLE PETITIONERS OR PEOPLE WHO CAN FILE

The following petitioners are eligible to file a complaint for an ERPO as provided under the new law:

* A spouse of the respondent;

* A former spouse of the respondent;

* An Individual who has a child in common;

* An Individual who has or had a "dating relationship";

* An Individual who resides or has resided in the same household;

* A "Family member" means an individual who is related to the respondent which includes: parent, daughter, son, sibling, grandparent, grandchild, uncle, aunt or first cousin;

* A "Guardian" which means a person who has qualified as a guardian of a minor or a legally incapacitated individual under a parental or spousal nomination or a court appointment and includes a limited guardian;

* A Law enforcement officer;

* A "Health care provider" is defined as a physician, physician's assistant, nurse practitioner, or certified nurse specialist licensed under article 15 of the public health code. (If filing the complaint does not violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA), or physician-patient confidentiality.

COMPLAINT FILING REQUIREMENTS

A Complaint for an ERPO must be filed in the Family Division of the Circuit Court, or as in Lake County filed in the Trail Court and must state facts with particularity which show the issuance of an ERPO is necessary because:

* The respondent can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure themselves or another individual by possessing a firearm; and

* The respondent has engaged in an act or acts or made significant threats that substantially support that expectation.

FACTORS TO BE CONSIDERED BY THE COURT

When considering a request, the Court must consider the following factors:

* Physical Force – History of use, attempted use, or threatened use of physical force, regardless of whether it involved a firearm;

* Serious Mental Illness & Emotional Disturbance - Any evidence of the respondent having a "serious mental illness" or "serious emotional disturbance" as defined means a diagnosable mental, behavioral, or emotional disorder affecting a minor that exists or has existed during the past year for a period of time sufficient to meet diagnostic criteria specified in the most recent Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association and approved by the department and that has resulted in functional impairment that substantially interferes with or limits the minor's role or functioning in family, school, or community activities that makes the respondent dangerous;

* Criminal Offenses - Previous conviction, pending charge, or pending juvenile petition for the commission or attempted commission of any of the following:

* Assault and Battery;

* Stalking / aggravated stalking;

* An offense with an element of assault;

* An offense with an element of threat to person or property;

* An offense that is a crime committed against the person or property of a spouse or intimate partner as defined above;

* An offense involving cruelty or abuse of animals;

* A serious misdemeanor as defined in MCL 780.811;

* Controlled Substances & Alcohol Abuse - Any evidence of recent alcohol abuse or unlawful use of controlled substances;

* Prior ERPO or PPO Violations - Any previous or existing ERPO or PPO violations by respondent. Prior Orders – History of any of the following orders:

* An ERPO;

* A personal protection order (PPO);

* A pretrial release, probation, or parole order;

* Any other injunctive order;

* Deadly Weapons & Ammunition – Any prior unlawful possession, use, display, or brandishing of a deadly weapon by respondent or evidence of an acquisition or attempted acquisition of a deadly weapon or ammunition within the previous 180 days.

ERPO - REQUIREMENTS WITH COMPLAINT AND NOTICE OF HEARING

The court must grant an ERPO if it determines both of the following by the preponderance of the evidence:

* The respondent can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual by possessing a firearm;

* The respondent has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.

Notice of Hearing – The respondent must receive notice of a hearing on the issuance of an ERPO to be held within 14 days of filing and be given an opportunity to be heard at the hearing.

* Service of Complaint and Notice – The petitioner is responsible for serving the respondent with the complaint and notice of hearing;

* Burden of Proof – The petitioner must attend the hearing and carries the burden of proof by a preponderance of the evidence;

* Reasons for Decision / Timing – At the hearing, the court must consider all of the factors listed in MCL 691.1807(1) and must immediately state the specific reasons for issuing or refusing to issue the ERPO on the record.

ERPO – REQUIREMENTS FOR COMPLAINT REQUESTING EX PARTE ERPO WITHOUT NOTICE OF HEARING

First, lets define what "ex parte" means: An ex parte order is a court order issued before the other party gets notice or an opportunity to respond. It is an order a judge signs without having a hearing first. Ex parte orders are for emergency situations only. Basically, this is a hearing without the respondent present.

* To grant an ex parte ERPO, the court must first determine both of the following by the preponderance of the evidence:

* The respondent can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual by possessing a firearm;

* The respondent has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.

* If the above finding is made, the court may issue an ex parte ERPO if it determines either of the following by clear and convincing evidence:

* That immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice;

* That the notice will itself precipitate adverse action before an ERPO can be issued.

* Timing of Decision – The court must rule on a request for an ex parte ERPO within one (1) business day.

* Reasons for Decision – The court must immediately state in writing the specific reasons for issuing or refusing to issue the ERPO. If the court refuses to issue the ERPO, it must advise the petitioner of the right to request a hearing and if no hearing is requested within 21 days, the Order Denying the ERPO is final.

ERPO – REQUIRED PROVISIONS

The required provisions in every ERPO are detailed in MCL 691.1809(1), and include the following:

* Firearms Surrender – The restrained individual must surrender firearms in their "possession or control" within 24 hours, or immediately, as determined by the court;

* "Possession or control" – includes, but is not limited to, actual possession or constructive possession by which the individual has the right to control the firearm, even though the firearm is in a different location than the individual. "Possession or control" does not require the individual own the firearm;

* Purchase or Possession of Firearms – The restrained individual must not purchase or possess a firearm and must surrender any unused License to Purchase (LTP) that is not yet void.

* Concealed Pistol License (CPL) – The restrained individual shall not apply for a CPL and any existing CPL will be suspended or revoked once the ERPO is entered into the Law Enforcement Information Network (LEIN), and they must surrender the CPL.

* Firearm Description – A specific description of the firearms to be surrendered or seized if identified by the petitioner, if known;

* Right to Request Hearing – Ex Parte ERPO - If an ex parte ERPO is issued, a statement that the restrained individual has a right to request a hearing.

SERVICE OF ERPO – NO IMMEDIATE SURRENDER ORDERED

If the court does not order the immediate surrender of the restrained individual's firearms, the petitioner must serve the ERPO as provided in MCR 2.105(A) and file the proof of service with the court within 1 business day.

* Surrender - If ordered by the court, the respondent must surrender any firearms in their possession or control to the designated law enforcement agency within 24- hours;

* If authorized by the court, surrender may occur to a licensed firearms dealer;

* 24-hour surrender of firearms is the presumed option if the petitioner is not a law enforcement officer or health care provider.

SERVICE OF ERPO - IMMEDIATE SURRENDER ORDERED

If the court orders the immediate surrender of the restrained individual's firearms, a law enforcement officer must personally serve the ERPO. If the restrained individual has not been served, a law enforcement officer who knows the order exists may do either the following:

* Serve the restrained individual with a true copy of the order;

* Advise the restrained individual of the existence of the order, the specific conduct enjoined, the penalties for violating the order, and where the restrained individual may obtain a copy of the order.

A law enforcement officer who personally served an ERPO or advises the restrained individual of the existence of the ERPO must file a Proof of Personal Service / Oral Notice with the court within 1 business day.

* Surrender – If ordered by the court, the respondent must immediately surrender any firearms in their possession or control to the law enforcement agency;

* Seizure – If immediate surrender is required, the designated law enforcement agency must seize the restrained individual's firearms after giving the restrained individual an opportunity to surrender them;

* Restrained Individual – Failure to Verify Surrender or Seizure of Firearms within 1 Business Day If the restrained individual fails to verify the surrender, seizure, or non-existence of a CPL or firearms in their possession or control within 1 business day after the ERPO was served or the individual received actual notice of the order, the court shall notify the designated law enforcement agency of that fact;

* Local Law Enforcement Agency – Notification of Failure to Verify Surrender or Seizure of Firearms A local law enforcement agency receiving notification from the court that the restrained individual failed to verify under MCL 691.1810(2) shall make a good-faith effort to determine if there is evidence the restrained individual failed to surrender a firearm or CPL in their possession or control as required;

* A Compliance Hearing to be Held Within 5 Days – A compliance hearing with the court must be scheduled to be held no later than 5 days after the restrained individual is served or has actual notice of the ERPO. The court may cancel the hearing if the restrained individual has satisfied the surrender verification requirements before the hearing. If the restrained individual has failed to satisfy the surrender verification requirements, or fails to appear at the hearing, the court shall issue a bench warrant and issue a search warrant to seize any firearms and may hold the restrained individual in contempt.

MOTIONS TO MODIFY OR TERMINATE ERPO PETITIONER

The petitioner may file a motion to modify or Terminate the ERPO and request a hearing at any time after the ERPO is issued.

* Respondent - A restrained individual may file one (1) motion to modify or terminate an ERPO during the first six months and one motion to modify or terminate during the second six months. If the ERPO is extended, the restrained individual may file two additional motions during each of the respective six (6) month periods;

* Service – The nonmoving party must be served 7 days before the hearing. The petitioner must serve the petitioner's motion. The court clerk must serve the respondent's motion;

* Timing – The court must schedule and hold the hearing within 14 days of filing the motion;

* Burden of Proof – The moving party carries the burden of proving by a preponderance of the evidence that the respondent no longer poses a risk to seriously physically injure another individual or the respondent by possessing a firearm;

* Termination – If terminated, the court order must state that the respondent may reclaim any seized firearms;

* Standard for Extension of ERPO – Duration Upon motion of the petitioner, or on its own motion, the court may extend an ERPO effective for 1 year after the expiration of the preceding order.

The court shall only issue an extended ERPO if both of the following are determined by the preponderance of the evidence:

* The respondent can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual by possessing a firearm;

* The respondent has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.

LAW ENFORCEMENT CONCERNS

In most cases, the hearing to decide whether to confiscate firearms from an individual usually occurs WITHOUT the accused individual present. It is essentially a personal protection order or a no contact order issued against an individual's property–his or her firearms. After the firearms have been seized, the accused party will then have the opportunity to clear his or her name at a hearing where he or she is actually present. In the meantime, the accused cannot possess or purchase firearms.

Furthermore, the process by which firearms are taken away from a gun-owner under an ERPO requires law enforcement to engage in warrantless searches, placing them in potentially dangerous circumstances without the means to conduct proper searches and seizures.

The rushed nature of an ERPO may lead to misunderstandings and confusing confrontations between law enforcement and citizens who will be surprised by the orders. A recent study showed that individuals capable of filing risk protection orders, such as family members or other applicable petitioner, also lacked the knowledge they even had the ability or even understood the ERPO process.

So, there you have it. Quite confusing in some parts with a new law in uncharted territory. I can see many challenges with the new law on enforcement and the need to assure due process. First and foremost, we never want to lose rights unless there is an extreme reason to make this decision. But, by making that decision, can we cause more issues? There are many considerations that need to be considered when dealing with ERPO's when it comes to the respondent, law enforcement, the public and the courts. Time will only tell the impact of the new law whether it makes a difference or not.

— This information is provided to you for clarification on specific laws, and not legal advice. This is not to be construed as a personal opinion, agreement or disagreement of any specific law. Topics covered are for educational and informational purposes only. As needed, excerpts from other articles are used for reference and/or content. If you have any questions on any specific topic, you may always email me your questions to [email protected].