February 28, 2023

Politicians never let a tragedy go to waste and Michigan Democrats are no exception. In the wake of the senseless shooting by a disturbed individual at Michigan State University on February 13, 2023, Democrats in the state legislature have capitalized off the anger and frustration the population feels when these types of situations happen to help introduce their latest slew of gun control measures. Of course, they would have introduced them anyway, as they have done in the past, but with the aid of an emotional impetus such as a high-profile shooting, they garnered added media attention.

The slate of bills introduced on February 16, 2023 will do little to curb mass shootings or help reduce gun violence in Michigan. They vary in scope and focus but in general they threaten infringements of gun rights of citizens while ignoring the real reasons such violence occurs. This dooms us to a cycle of continued incidents and more excuses to push for more ineffective gun control in the future.

McMorrow continued on her “mission” towards gun control and anti-Second Amendment policy by introducing a form of controversial “red flag” law for Michigan. Democrat Senators Bayer, Singh, Cavanagh, Hertel, Shink, Mccann, Irwin, Wojno, Polehanki, Chang, Moss, Geiss, Camilleri, McDonald Rivet, Cherry, Klinefelt, Santana, Brinks, and Anthony joined McMorrow and introduced Senate Bill 83, the “Extreme Risk Protection Order Act.” The bill summary states it is a bill to, “provide for the issuance of restraining orders prohibiting certain individuals from possessing or purchasing firearms and ordering the surrender and seizure of a restrained individual’s firearms; to provide for the powers and duties of certain state and local governmental officers and entities; to prescribe penalties; and to provide remedies.” It has been referred to the Committee on Civil Rights, Judiciary, and Public Safety.

This is not the first time Michigan Democrats have attempted to file this bill. After recent redistricting and the 2022 elections resulting in Democrat control of the House and Senate to go along with their retention of the Governorship however, it is now much more likely to pass and become law this time around.

ERPOs are bad policy

We all wish to stop genuinely dangerous individuals from doing harm, but the problem with this bill is the ideas upon which it is based are unconstitutional. If passed, it will likely be held as such by the relevant courts in due time. How many Michiganders will have their rights violated by the law in the meantime? While 19 states and Washington DC have managed to pass some form of “red flag” law and lower courts have often upheld them, they were primarily basing their decisions on older precedent that has since changed. The Supreme Court has set the precedent necessary to strike down the most extreme versions of such laws with their 2008 D.C. v Heller, 2010 McDonald v Chicago, and most recently their June 2022 New York State Rifle & Pistol Association v Bruen case opinions. Other courts have already begun to issue opinions on gun rights taking this precedent into account (see cases such as G.W. v C.N. 2022 NY Slip Op 22392 and United States v. Rahimi, No. 21-11001 (5th Cir. Jun. 8, 2022) for example). This Michigan proposal is also more extreme than other ERPO laws, which vary from state to state. Why pass a bill that will likely be struck down? Why pass a bill that will only cause more problems than it will solve?

This type of bill will not stop criminals from committing crimes with guns, nor can it stop the random acts of violence in schools and in public places that capture the public’s attention from time to time and generate universal disgust. It must always be remembered, as the Supreme Court has pointed out in the cases mentioned above, that Constitutional rights cannot be infringed simply for the stated purpose of protecting the public safety alone. This means, even if the gun controllers can show evidence that a given gun control law would work to prevent some level of violence, that is not sufficient to justify the law. Of course, evidence these laws actually prevent violence is spotty and inconclusive at best, since most of them have been only recently enacted. One 2019 study looking at the data in states that had early versions of red flag laws (Connecticut, enacted 1999 and Indiana, enacted 2005) did not show they were particularly effective in reducing murder or suicide rates, overall and involving a firearm. Aside from these laws, we must also not forget we have other procedures in place to prohibit firearms from genuinely dangerous individuals that have been deemed so after proper due process and adjudication upon committing a crime, or via the more limited process of the relevant mental health officials deeming someone mentally incompetent. The MSU shooter in the recent case being exploited by the Democrats to sell this law, for example, may have been stopped from owning a firearm under current laws and procedures if he had been given due attention for alleged crimes he had previously committed and/or been given the proper mental health help he obviously needed. We cannot expect new heavy-handed laws to help where current ones were not even properly deployed. Of course, he still may have acted to cause harm in any case. By increasing the possibility of rights violations and abuse via codifying improper procedures, while not adding much practical benefit and discounting the opportunity costs, ERPOs do not make much logical sense as a policy solution to gun violence.

These “red flag” laws, while initially appealing to a more broad audience, including Republicans, have become political in nature and are used by enemies of the Second Amendment (mostly Leftists and Democrats) to attack gun rights and pander to their base to signal that they are “doing something” about violence committed with guns. Movement for the sake of movement is not a proper solution to a problem. If the proposed “solution” is wrong in itself and violates fundamental rights, it is no solution at all (even if it were practical, which these such laws are not). Most Republicans have come to realize the inherent error and danger of these bills, most Democrats have not. In all likelihood this bill will cause confusion, the violation of rights, create unnecessary burdens on citizens and law enforcement, and could result in people needlessly losing their property, freedom or even their lives due to disputes and confrontations over noncompliance or neglecting to seek proper help due to fears of losing rights. A 2018 death in Maryland while police were serving an ERPO highlights what is at stake. While not typical, nor condemning of such laws in itself, if such an act occurs as a result of unjust laws or procedures, moral culpability follows and we must remedy it. More often, the injustice from improper ERPOs is less severe than death, but still warrants fixing.

Unamerican in principle

Aside from the negative outcomes, the bill is even worse in principle. The bill makes a mockery of the concept of due process and unduly infringes, or threatens, First, Second, Fourth, and Fifth Amendment rights. It is unamerican to the core, as it allows for Constitutional rights infringements on a “preponderance of the evidence” basis without proper procedural due process. No crime is necessary to have taken place and no conviction is first necessary for such an order to be issued. Accusations against an individual can be made by a whole slew of individuals with extremely weak, subjective, and arbitrary considerations being admissible as evidence. In this social media-driven, heavily recorded society, a gun owner better be careful what they say or it may be later used against them, out of context, in someone else’s favor at a secret Ex-Parte hearing to determine their gun rights (not referring to threats of violence, which are illegal). This law also sets the expectation for the violated individual to prove their own innocence in order to remedy the violation the law casts upon them in certain cases. That’s right, “guilty until proven innocent” is a standard in this bill upon the issuance of an ERPO. And who gets to decide such guilt and innocence? Possibly an activist judge that already has a bias against gun rights and gun ownership or a judge that simply follows bad precedent/standards or allows the plaintiff too much benefit of the doubt to “error on the side of caution” in the name of “protecting public safety.”

That is not how things are meant to work in this country. Proponents will deny all of this of course, relying on the procedures the bill does put in place (discussed below) as evidence of “due process” and cite the need to act to stop potential negative outcomes in uncertain situations. But the one certainty in these situations is that many people will unjustly be impacted by their actions in the mere hope of stopping some potential harm. Proponents will cite this or that metric from studies to justify their policy on practical grounds, but overall the success of these policies is sketchy at best. Indeed, of the 15,000+ ERPOs issued around the country since 2020, a time frame including most of the states that have enacted these red flag laws, we have not seen significant drops in the murder or suicide rate, suggesting the vast majority of impacted individuals were unnecessarily infringed upon and/or pushed towards violence in other ways, possibly by their experience with these laws themselves. An AP investigation found red flag laws in the 19 states and the District of Columbia during that timeframe were used to remove firearms from people 15,049 times. The AP however, considers that a low number and indicates “experts” lament these laws are not being used enough. But as previously stated, in America, we do not make policy that is wrong in itself and violates the fundamental and Constitutional rights of individuals for the mere hope of stopping some potential harm “for the greater good.” There are high financial costs of dealing with such accusations even if successfully avoided. If they are enacted, the burden of restoring rights, retrieving guns, reinstating Concealed Pistol Licenses, etc. often proves too much to bear for many people, as they just give up. Let’s look at the text of Senate Bill 83 and identify the most problematic language and ideas.

Who can file for an ERPO?

Section 5(1) of the bill states, “An individual described in subsection (2) may file an action with the circuit court requesting the court to enter an extreme risk protection order.” This includes, Any of the following,

(a) The spouse of the defendant.

(b) A former spouse of the defendant.

(c) An individual who has a child in common with the defendant.

(d) An individual who has or has had a dating relationship with the defendant. “Dating relationship” means a relationship that consists of frequent, intimate associations primarily characterized by the expectation of affectional involvement. Dating relationship does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.

(e) An individual who resides or has resided in the same household with the defendant.

(f) A family member. “Family member” means an individual who is related to the defendant as any of the following: a parent, a son or daughter, a sibling, a grandparent, a grandchild, an uncle or aunt, or a first cousin.

(g) A law enforcement officer. “Law enforcement officer” means an individual to whom any of the following apply: The individual is employed by a law enforcement agency to enforce the criminal laws of this state. The individual is a county prosecuting attorney or assistant prosecuting attorney. “Law enforcement agency” means any of the following: a sheriff’s department, the department of state police, a police department of a township, village, or Incorporated city, the public safety department of an institution of higher education created under or described in article VIII of the state 29 constitution of 1963, The public safety department of a community or junior college, or the public safety department or office of a private college.

(h) A mental health professional. “Mental health professional” means that term as defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b. If one looks this up they will find the following definition: “Mental health professional” means an individual who is trained and experienced in the area of mental illness or developmental disabilities and who is 1 of the following:
(a) A physician.
(b) A psychologist.
(c) A registered professional nurse licensed or otherwise authorized to engage in the practice of nursing under part 172 of the public health code, 1978 PA 368, MCL 333.17201 to 333.17242.
(d) A licensed master’s social worker licensed or otherwise authorized to engage in the practice of social work at the master’s level under part 185 of the public health code, 1978 PA 368, MCL 333.18501 to 333.18518.
(e) A licensed professional counselor licensed or otherwise authorized to engage in the practice of counseling under part 181 of the public health code, 1978 PA 368, MCL 333.18101 to 333.18117.
(f) A marriage and family therapist licensed or otherwise authorized to engage in the practice of marriage and family therapy under part 169 of the public health code, 1978 PA 368, MCL 333.16901 to 333.16915.”

Disgruntled spouses, Ex-spouses, “baby mamas,” “baby daddies,” boyfriends, girlfriends, roommates, family members, gung ho prosecutors and cops, campus cops, and potentially biased doctors, nurses, social workers, and counselors. That is a lot of people that can file for an ERPO against someone and a lot of potential for abuse. The bill does include penalties for creating false reports, but proving this would be especially troublesome and burdensome in itself.

“Preponderance of the evidence”

“Preponderance of the evidence” is a relatively weak evidentiary standard, much too weak to use for criminal convictions in America. It is used for the burden of proof standard in a civil trial. It should not be sufficient to deprive a citizen of Constitutional rights, especially if they have not even been accused of committing a crime. Under this standard, a plaintiff only needs to convince a judge or decision-maker there is greater than a 50% chance of the validity of their claims and the defendant is guilty. Coupled with the completely open-ended and subjective criteria for judgment this bill allows for a judge to determine what poses a “significant risk of personal injury to the self or others” by a defendant, it is wholly insufficient to justify deprivation of Constitutional rights, even if “temporarily” (although “temporary” is also questionable under this bill, as we will see).

Section 5(3) of the bill states, “An individual who files an action under this section shall do so by filing a summons and complaint on forms approved by the state court administrative office as directed by the supreme court. The complaint must state facts that show that issuance of an extreme risk protection order is necessary because the defendant poses a significant risk of personal injury to the defendant or others by possessing a firearm.” It continues, “(5) If the plaintiff knows or believes that the defendant owns or possesses firearms, the plaintiff shall state that and identify the firearms in the complaint.” Regarding standards and criteria Section 7(1) reads, “In an action under section 5, the court shall issue an extreme risk protection order if the court determines by the preponderance of the evidence that the defendant poses a significant risk of personal injury to the defendant or others by possessing a firearm. In making its determination under this subsection, the court shall consider all of the following: (a) Any history of use, attempted use, or threatened use of physical force by the defendant against another individual, or against the defendant, regardless of whether the violence or threat of violence involved a firearm.
(b) Any evidence of the defendant being seriously mentally ill.
(c) Any previous or existing extreme risk protection order under this act, or personal protection order under section 2950 or 2950a of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a, issued against the defendant.
(d) Any violation by the defendant of a previous or existing extreme risk protection order issued under this act. (e) Any violation by the defendant of a previous or existing personal protection order issued under section 2950 or 2950a of the revised judicature act of 1961, 1961 PA 236, MCL 600.2950 and 600.2950a. (f) Any previous conviction of the defendant for any of the following: (i) A misdemeanor violation of section 81 of the Michigan penal code, 1931 PA 328, MCL 750.81. (ii) A violation of section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i, or a similar offense in another jurisdiction. (iii) An offense constituting domestic violence. (iv) An offense involving cruelty or abuse of animals. (g) Any evidence of recent unlawful use of controlled substances by the defendant. (h) Any previous unlawful and reckless use, display, or brandishing of a deadly weapon by the defendant. (i) Any evidence of an acquisition or attempted acquisition within the previous 180 days by the defendant of a deadly weapon or ammunition. (j) Any additional information the court finds to be reliable, including a statement by the defendant, or relevant information from family and household members concerning the defendant. (k) Any other facts that the court believes are relevant.”

As is evident by considerations (j) and (k) above, this law basically allows for anything to be used as evidence against a defendant to reach a completely subjective “50 percent” threshold burden of proof. What we may see with such a standard are pockets of abuse around the state where particularly enthusiastic individuals (law enforcement, prosecutors, lawyers, etc) understand the law, know what judges (even particular judges) accept as “relevant” and cases are tailor-made to fit what works. We do not need these red flag laws to remove guns from genuinely dangerous individuals that have made threats (illegal) or are actually exhibiting behavior that would suggest they are mentally ill (beginning a process by mental health professionals).

Possibility of no notice given, “guilty until proven innocent,” and “temporary” orders.

Receiving a notice of an ERPO hearing may be bad enough, but one may be subject to gun confiscation even before the hearing. Section 7(2) of the bill states, “The court in an action under section 5 may issue an extreme risk protection order without written or oral notice to the defendant if the court determines that evidence of specific facts has been submitted under oath or affirmation that clearly establishes that immediate and irreparable injury will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before an extreme risk protection order can be issued. If the plaintiff requests the court to issue an extreme risk protection order under this subsection, the court shall make its determination on the request not later than 24 hours after the request is filed.” Continuing into section 7(3), “If a court issues an extreme risk protection order under subsection (2), the court shall conduct a hearing on the order as follows:
(a) Unless subdivision (b) applies, not later than 14 days after the order is served on the restrained individual or after the restrained individual receives actual notice of the order. (b) If the restrained individual is an individual described in section 5(4), not later than 5 days after the order is served on the restrained individual or after the restrained individual receives actual notice of the order.” Section7(4) of the bill states, “An individual restrained under an extreme risk protection order may file a motion to modify or rescind the order at any time and request a hearing under supreme court rules. The restrained individual may file 1 motion to modify or rescind the order during the time the order is in effect under section 9(1)(i), and 1 motion to modify or rescind an extended order during the time the extended order is in effect under section 17 or 19. If the restrained individual files more than 1 motion during a time described in this subsection, the court shall review the motion before a hearing on the motion is held and may summarily dismiss the motion without a response from the plaintiff and without a hearing. (5) At a hearing on a motion under subsection (4), the individual restrained under the extreme risk protection order must prove by the preponderance of the evidence that the restrained individual does not pose a significant risk of personal injury to the restrained individual or others by possessing a firearm.“

Section 17 of the bill states, “The plaintiff may move the court to issue, or the court on its own motion may issue, 1 or more extended extreme risk protection orders, each effective for 1 year after the expiration of the preceding order. The court shall only issue an extended order under this section if the preponderance of the evidence shows that the restrained individual continues to pose a significant risk of personal injury to the restrained individual or others by possessing a firearm. The plaintiff or the court, as applicable, shall give the restrained individual written notice of a hearing on a motion to extend the order.”

The burden, and making criminals out of otherwise law-abiding citizens

Democrats have been at this in Michigan for a long time. Check out this panel discussion from 2019 regarding ERPOs co-hosted by Senator McMorrow and other Democrats that included four supporters of the Michigan ERPO bill and no opposition. So much for “having a constructive discussion.” This is in itself lamentable but of note is a particularly disturbing comment by one of the panelists, Jon Gold, regarding the need for more police training and resources to execute the gun confiscations under the ERPO law:

“Not only will there be a need for more training, but we also have to remember that the police are going to have to worry about optics here too….the people aren’t criminals… yet. And if you are showing Nightly News videos of police officers storming homes, handcuffing people, putting them on the ground, removing them from their homes, this is going to be a whole different issue.”

These people aren’t criminals…YET. And they say there are no due process concerns. So much for “innocent until proven guilty.” Are they ok with rights violations so long as the “optics”aren’t bad?

We can do better than resorting to such provocative and misguided acts.

Oppose this bill

This law is written to allow for many types of individuals to petition a court to decide on it’s own, with no notice to the defendant, that the defendant will have their guns confiscated and their gun rights removed. It does so on a subjective “preponderance of the evidence” basis, with arbitrary, open-ended criteria, that may be extended indefinitely by the court, possibly leaving the defendant tasked with proving his/her own innocence to get Constitutional rights restored. Anyone that says this is compatible with a proper conception of American justice and “due process” is fooling themselves; relying more on the hopes such scenarios will be exceptions rather than the rule and/or only parts of the above description will apply only some of the time. Hopefully such “ends justifies the means” reasoning is struck down one day by the Supreme Court in accord with Constitutional principles.

For such an important decision, especially during an Ex-Parte emergency hearing, at least a “clear and convincing” standard ought to be used. The criteria ought to be less subjective, and the order, if issued for emergency situations, ought to be mandated temporary, absent some evidence of an actual crime and/or mental health adjudication. This allows for easier remedy of the infringement of rights and affords the defendant the opportunity for proper procedural due process.