Michigan Democrats Exploit MSU Shooting to Push Their Rights-Infringing Red Flag Law and Gun Control Bills

February 28, 2023

Senator Mallory McMorrow (Democrat, Michigan’s 8th Senate District) wasted no time after the MSU shooting making it political and using it to push her unconstitutional, rights-infringing, and practically misguided gun control agenda. She has long regarded it as her “mission” to get red flag laws passed in Michigan.

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

The suspected MSU shooter, 43-year-old Anthony McRae, had a history of mental health issues and had reportedly dangerously discharged firearms contrary to local laws in the past. He needed help and authorities missed opportunities to help him. Would serving an ERPO alone have made much of a difference? People bent on causing harm can always find a way to inflict it.

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.”

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.

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