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County officials take aim at Michigan’s red flag law

A handgun and bullets on a wooden table.
Brett Hondow
The red flag measure is designed to prevent people from hurting themselves or others with a firearm. But the clash between state law and local authority is creating some legal questions.

Some Michigan counties are refusing to comply with a new state gun safety law, saying the legislation is unconstitutional.

The red flag measure is designed to prevent people from hurting themselves or others with a firearm. But the clash between state law and local authority is creating some legal questions.

Governor Gretchen Whitmer signed the red flag legislation last month. Under the measure, judges will be able to issue an extreme risk protection order to temporarily seize firearms from a person if certain people they know suspect they pose a threat to themselves or others. That list of people includes family members, current or former spouses, dating partners, law enforcement officers and health care providers.

 Brian Droscha sits at a desk, hands clasped together.
Eaton County
Brian Droscha represents District 9 on the Eaton County Board of Commissioners.

But Republican Brian Droscha has a problem with the law. He’s a member of the Eaton County Board of Commissioners representing District 9, which includes Eaton and Benton Township.

Droscha takes issue with a part of the law that would allow courts to hold a hearing to evaluate the order after the guns have already been seized. At a meeting of the board last month, he argued that violates the right to the presumption of innocence, claiming the law "is saying that you are guilty until you're proven innocent."

“(The) red flag law says we can go in and confiscate your stuff based on something someone says, no crime committed, just because of something that is said, which means you're violating our due process of law,” Droscha told WKAR.

While Droscha said he didn't have any issues with the background checks and safe storage laws enacted at the state level, he argued the law allowing for extreme risk protection orders undermines the right to bear arms.

"It's not there to protect you, It's about there to take someone else's rights away," Droscha said. "The Second Amendment of our Constitution is there to protect all the other amendments."

He introduced a resolution last month that affirms that the county stands for the Second Amendment. It urges the county sheriff to decline to enforce legislation like the red flag law that they believe runs contrary to the Michigan and U.S. constitutions.

Droscha’s resolution passed along party lines in an 8-7 vote. It declared Eaton County to be what the measure calls a “Constitutional County,” a term it defines as “a place of refuge for the law-abiding citizen” to protect their rights.

Daniel Rosenbaum is an assistant professor at the Michigan State University College of Law. He said it's difficult to answer whether red flag laws are definitively unconstitutional because he called the Second Amendment "an evolving doctrine." He noted some federal courts have upheld the laws but added the legal process could provide further certainty.

Rosenbaum said the "Constitutional County" designation is largely a political statement and that it doesn't have an intrinsic legal impact. He said any local county can exercise discretion in choosing whether to enforce a state law.

"Constitutional to us is fundamental, so calling something constitutional elevates it in the discourse," Rosenbaum said. "To the larger question of, can local officials make it difficult for a state law to run its course? Then the answer is definitely yes. But if the question is, is there some unique way that Constitutional Counties can do that? The answer is no.”

 Jacob Toomey smiles while standing in front of a river.
Jacob Toomey
Jacob Toomey, a Democrat, represents District 10 of Eaton County's Board of Commissioners.

Another Eaton County Commissioner thinks the resolution sets the wrong precedent.

Democrat Jacob Toomey represents District 10 on the board, which includes Windsor Charter Township, Benton Township and Dimondale. He works for a state representative in the Michigan House.

Toomey pushed back against claims that the red flag law violates due process and said courts requires high standards of evidence to issue and uphold an extreme risk protection order.

Toomey said his constituents feel the local action against the red flag law has undermined the lawmakers they voted for at the state level. He said the county shouldn’t be the one to arbitrate whether the statute is legal.

"This is going to significantly hamper and just confuse people because it's not our job (as) the body of the county commission to act as the courts," he said. "If something is, 'unconstitutional,' that will go to the courts eventually, that's not for us to decide."

At 21 years old, Toomey is the youngest member of the Eaton County board. He said his colleagues didn’t grow up with the fear of experiencing a mass shooting in schools and that they don’t understand the impact gun violence has on young people.

He argued the red flag law could have prevented crises like the shootings at Oxford High School or Michigan State University.

"This gives authorities and families enough time to intervene and get somebody help before a tragedy occurs," Toomey said.

Republican officials are skeptical that these new state laws would have made a difference if they were in places prior to the shootings.

Droscha said his resolution was based on oneenacted by the Livingston County Board of Commissioners earlier this year. In a video posted on Facebook, the county’s Sheriff Mike Murphy said laws can only go so far to prevent malicious acts from being committed.

He compared deaths from gun violence to lethal incidents of drunk driving and drug overdoses.

"We have never, ever been able to legislate our way out of a crisis," Murphy said. "That's not how it works. You can make all the laws in the world and people are still going to do evil things, people are still going to do bad things."

Murphy has said he won’t enforce the red flag law. He believes other measures like personal protection orders and conservatorship already exist to protect people from threats of violence.

Rosenbaum said sheriffs do have discretion in choosing how they enforce laws. But he said they could also see legal action if they refuse to comply with a state law like the red flag statute.

"It is different if we have a sheriff who says just flatly, categorically, 'no, I'm not going to be enforcing this state law,' and that's something that could lead to a subsequent legal fight," he said.

At the legislation’s signing last month, Attorney General Dana Nessel said she plans to travel across the state to educate law enforcement and judges about the red flag law. But she also had a message for local officials who don’t want to comply with the statute.

"For 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," Nessel said.

Rosenbaum said there are multiple ways an extreme risk protection court order could be pursued despite local opposition. That could include the Michigan State Police carrying out the order.

But it’s unclear when exactly these legal battles could play out. The red flag law is set to take effect 90 days after the current legislative session ends. Until then, it remains to be determined whether Michigan’s newest gun safety law will be enforced statewide.

Michigan Public Radio Network’s Rick Pluta contributed to this report.

Arjun Thakkar is WKAR's politics and civics reporter.
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