Red Flag Laws Are Stalled In Michigan As Lawmakers Return To Lansing

Aug 23, 2019

After every mass shooting America picks up the conversation on gun reform.  President Donald Trump, top congressional Republicans and Michigan Governor Gretchen Whitmer have all raised so-called, red flag laws as potentially passable legislation after mass shootings in El Paso, Texas and Dayton, Ohio. But, the legislation that has been introduced in Michigan is stalled. 

  

Currently, 17 states and the District of Columbia have red flag laws. Legislation was re-introduced in Michigan this February after being perennially brought up over the last several sessions.

Representative Robert Wittenberg, D-Huntington Woods, has introduced red flag legislation for all three terms he has served. Since he’s term limited, this is his last time introducing the legislation in the Michigan House of Representatives as the chair of the House Gun Violence Prevention Caucus.

Wittenberg says he’s hopeful that legislation will go somewhere this session.

“I think we need to act now," said Wittenberg. "You know, there’s not one piece of legislation that’s going to end all gun violence, you know, we’re not naïve to think that. But we need to do something."

Current States With Red Flag Laws: CA, CO, CT, DE, FL, IL, IN, MD, MA, NJ, NY, OR, RI, VT, WA & District of Columbia. Effective 2020: HI & NV

And that something is formally known as an Extreme Risk Protection Order. An ERPO more commonly known as a red flag law would allow a family member or law enforcement to report an individual who they think is a threat to themselves or others. Then, if a judge grants an order their firearms could be temporarily removed before a hearing.

After the hearing, where the person of concern can show up and make their case, the judge can grant a protection order seizing their firearms for a year. During that year the person also loses their ability to buys guns.

Democratic State Senator Mallory McMorrow, D-Royal Oak, wrote the accompanying senate bill which was sent to the Government Operations committee chaired by Republican Senate Majority leader Mike Shirkey, R-Clarklake. McMorrow’s bill hasn’t been given a hearing either.

She said she thinks that choice sends a message about her bill’s prospects.

“I know that gov ops [Government Operations] is now referred to as kind of the place where we're bills go to die, unfortunately," said McMorrow. "And it, it was disappointing when it got assigned there, because I know this has been introduced for a number of sessions now. And we just want the bills to have a hearing and just be able to have the conversation. So, it's frustrating to think that the bills might not move.”

Back in the House of Representatives, Republican Representative Graham Filler, R-DeWitt, chairs the House judiciary committee where the House red flag bill is currently stuck. He’s the person with the power to give the bill a hearing.

He said the bill doesn’t have the votes to pass. And, he and other members of his committee are concerned about due process and timing. Part of Filler’s due process concerns are about the first step of a red flag law that involves an ex-parte hearing.

The first part of a red flag law involves an ex-parte hearing. Meaning, the person who family or law enforcement are concerned about isn’t there. And Filler says for him, that’s a problem.

“You always have a right to be at that hearing. So of course, that triggers constitutional issues. The other major issue that has been brought up is the timeliness nature.”

Mike Green is the owner of Not Just Guns in Mason and he said he shares Representative Filler’s concerns about due process.

“You know, none of us want firearms and wrong hands, and none of us want people doing evil things," said Green. "At what point do we look at that that red flag law and say, ‘Well, then that person shouldn't have a driver's license because they could go run people over? We shouldn't have this we shouldn't have that.’ We're really picking on the firearm side of this thing a little bit.”

Mike Green is the owner of Not Just Guns in Mason, MI. He said, if due process can be ensured, red flag laws are something he'd consider.
Credit Alec Gerstenberger, WKAR

Research from the states that have red-flag laws show the laws help prevent suicides. For every 10-20 protective orders granted, one expected suicide is prevented.

April Zeoli is an Associate Professor of Criminal Justice at Michigan State University. She researches gun violence prevention related to domestic violence and red flag laws. She said, having an ex-parte hearing is part of what makes these laws effective.

“And waiting two weeks for a hearing may not prevent the violence that you're seeking to prevent. Right? I mean, wouldn't it be a shame if we went to law enforcement and said, Look, this person has posted on Facebook that they're interested in killing as many people as they can. And then the criminal justice said, ‘Okay, that that hearings going to be two weeks from Thursday, aren't we moving swiftly?’”

The process is civil, not criminal meaning after the order is up the individual of concern can go buy a gun again or get their guns back.

Mike Green said if there’s due process, rights are restored after the order is lifted and anyone who falsely requests an extreme risk protection order faces penalty, red flag laws are something he’d be comfortable considering.

“But that's a big if and a big, a lot to obtain a lot to accomplish,” said Green.

On the other side of the issue are groups like Mom’s Demand Action that lobby for gun reform. They back the bills.

Katie See leads the Lansing Chapter of Mom’s Demand Action. Even with the current resistance, See is hopeful that this will be a moment where things can change.

“You know, it's always what is the tipping point and I wouldn't make predictive, you know, this is going to be at all at all. But we feel like this is a pivotal moment for mobilizing, and things are only going to happen if Americans are mobilized and are paying attention at the state level as well,” she said.

There are currently no Republican co-sponsors of the House or Senate legislation and lawmakers are just returning to Lansing after summer break.

Many of them say they’re open to conversation about the legislation. But for red flag laws to be enacted in Michigan, they have to get out of committee first.

Follow Abigail Censky on Twitter: @AbigailCensky