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Police Use Red Flag Law to Confiscate Michigan Guns

At least 114 orders have been issued to remove the firearms of individuals believed to be a risk to themselves or others since the state’s red flag law went into effect in February, according to The Detroit News.

State Rep. Kelly Breen, a Novi Democrat who helped spearhead passage of Michigan's red flag law, acknowledged there are "some kinks that need to be worked out."
Katy Kildee, The Detroit News/TNS
(TNS) - When officers pulled over a Grand Blanc couple in February and found drug paraphernalia and two pistols in the vehicle, it was far from their first contact with the pair.

Police had been called to the couple's home at least seven times over the previous six months for complaints that included unknown entities changing their television channels, claims that a group of 20 year-olds were following them and allegations that someone named "Kyle" had broken into their attic to spy on them. Anytime they peeked into the attic, the couple told police, Kyle would hide. The couple covered some electronics, dismantled others and boarded up the entrance to their attic, police said.

Another time, a neighbor called police to report loud and threatening arguments next door; the woman came to the door with a bruised eye, but neither she nor her partner would speak to officers.

The difference with the Feb. 11 traffic stop — compared with other contacts with the couple — was that it took place two days prior to Michigan's new red flag law going into effect. When the law took hold, it cleared the way for police to use their prior interactions with the couple to convince a judge to remove all firearms from their home.

By Feb. 20, a judge's signed order allowed police officers to confiscate multiple firearms and ammunition, Genesee County court records show.

The couple, Grand Blanc police said in their petition for an Extreme Risk Protection Order, were "experiencing psychotic episodes and contacting our police department. … They own multiple firearms, are beginning to believe responding officers are not real officers and have mentioned possibly using their firearms if they feel threatened."

The Extreme Risk Protection Order issued in that case is one of at least 114 orders used to remove the firearms of individuals believed to be a risk to themselves or others since the state’s red flag law went into effect in February, according to data The Detroit News collected from Michigan’s 83 counties.

Those orders were concentrated in 25 counties — 30 percent of Michigan's counties — and the vast majority were requested by law enforcement, the data shows.

Of the 156 known requests made between Feb. 13 and June 15 , 114 were granted — meaning judges in Michigan have denied roughly one in four requests for the confiscation of firearms. Circuit courts in Kalamazoo and Washtenaw counties said they could not provide exact data on how many orders had been issued, but Michigan State Police provided totals for those counties through July 2.

The highest issuance of extreme risk protection orders occurred in Oakland and Wayne counties, the state's two most populous. Oakland County judges received 37 requests between Feb. 13 and June 15 and granted 34 or 92 percent, while Wayne County's jurists received requests for 25 orders and 20 were granted, or 80 percent. Following them were Macomb, Calhoun and Genesee counties — all of which had fewer than 10 orders each.

The law was passed last year in the wake of the deadly Feb. 13, 2023 , campus shooting at  Michigan State University that killed three students and wounded five others. It moved through the Legislature amid concerns from law enforcement regarding their role in serving the orders on individuals deemed to be a risk. But one of the state’s largest police organizations said its experience so far has been positive.

“I think that a lot of our concerns when this first came up — that we would end up in a standoff situation — thankfully have not come about,” said Bob Stevenson, executive director for the Michigan Association of Chiefs of Police.

How Michigan compares

The majority of police-initiated emergency risk protection orders have related to suicidal individuals, Stevenson said, and there’s been no indication of Michiganians physically resisting those orders.

The data shows the experience so far in Michigan is similar to what other states found at the start of enforcing their red flag laws, said Stephen Oliphant, a research fellow with the University of Michigan's Institute for Firearm Injury Prevention.

“Overall, it’s not surprising that law enforcement are filing the majority of the petitions. In some states, law enforcement are the only authorized petitioners,” Oliphant said.

Still, a gun rights advocate maintained concerns about the use of extreme risk protection orders, even among police. Advocates are watching the implementation of the law closely and awaiting more detailed reports, said Tom Lambert, legislative director for Michigan Open Carry.

"Constitutional rights are primarily meant to protect individuals from government, and when government is the initiator here, to me that increases the necessary burden that should be met," Lambert said.

Counties across the state will soon be required to submit annual reports to the State Court Administrative Office with data on the county’s use of extreme risk protection orders, including the number granted or denied as well as demographic information on the individuals requesting the orders and those subject to them.

Lawmakers who helped push the legislation over the finish line are eagerly awaiting those reports. The anecdotal county-by-county experience with the law so far is encouraging, said Rep. Kelly Breen, a Novi Democrat who helped spearhead the legislation.

“I know there are some kinks that need to be worked out, and we do want to make sure these laws are effective as possible,” Breen said. “But overall, I think this is really good news.”

Police experience

The Democratic-led Legislature passed Michigan’s Extreme Risk Protection Order Act, commonly referred to as a red flag law, in 2023, but the statute didn’t actually take effect until Feb. 13.

The law allows family members, law enforcement officers or mental health providers to petition a circuit court judge for an order to remove weapons from individuals considered to be a threat to themselves or others. Among the indicators a judge must consider in assessing an individual’s risk are threatening behavior; evidence of serious mental illness or emotional disturbance; the brandishing of a weapon; as well as a history of protective orders and recent purchases of firearm.

The basic threshold for proving the risk is a preponderance of evidence, but clear and convincing evidence is required for a court to issue an order without giving notice to the defendant. Law enforcement can request an immediate emergency order over the phone with a judge but must file a written petition within a day of the order being issued.

A judge can require firearms to be surrendered immediately or within 24 hours and the weapons can be turned over either to police or to a federally licensed firearm dealer.

It’s those allowances — expedited law enforcement requests and options regarding how the firearms are surrendered — that police negotiated with the Legislature and, ultimately, what Stevenson credits with the so far successful enforcement of the law.

“I think the way the law was ultimately passed, we were supportive of it because we felt the concerns were addressed,” Stevenson said.

In the 25 counties that reported issuing emergency risk protection orders, nearly all of the requests came from law enforcement. For example, in Oakland County, where 37 requests for ERPOs were entered between Feb. 13 and June 15, 34 were filed by law enforcement. In Wayne County, where 25 requests were filed, 24 were filed by police, records show.

In Livingston County, Sheriff Mike Murphy vowed last year not to enforce the law, but has made use of it in the past few months to confiscate firearms from at least one individual. It was "the last thing I wanted to do," Murphy said, noting he questions the constitutionality of the law when it comes to due process.

"At the end of the day, it’s constitutional until it's not, right?" Murphy said. "And if that’s a tool that we can use, then we’re going to use it."

But not all of the law enforcement requests were granted.

A Detroit News review of denied orders in Genesee and Oakland counties indicated judges rejected requests because of missing information on the form, the lack of timeliness of a filing or a lack of evidence to show such an order was necessary.

For example, in May, Birmingham police asked that an Extreme Risk Protection Order be issued against a man whom police argued suffered from a "delusional state, paranoia and perceived assaults on him by neighbors."

Police officers wrote in their request that in April 2023 they were contacted by neighbors after the man hung a sign outside his door stating he would shoot anyone who entered the home.

Three months later, in summer 2023, the man contacted police to tell them his neighbors were sending radiation into his home, harming himself and his rabbit. At that point, police obtained an order for him to receive a psychiatric evaluation. But in February, the man called police again and said his neighbors were shooting him with a "photon cannon" and sending electrical currents through his water pipes.

But the judge handling the case, Oakland County Circuit Judge Julie McDonald , said police failed to provide proof that the individual in the near future would be a risk to himself or others. The incidents cited, McDonald said, were "too remote in time."

"Further, the allegations do not support a finding that respondent has engaged in acts or made significant threats that are substantially supportive of that expectation," wrote McDonald, who has granted other requests for extreme risk protection orders since the red flag law went on the books.

Need for education

Of the cases reviewed by The News in Ingham, Genesee and Oakland counties, the reasons for filing an extreme risk protection order request included suicidal thoughts or attempted suicide, threats made toward elected officials, pending domestic violence charges, violations of a personal protection order, or paranoia and hallucinations. In some cases, the individual had no firearms to confiscate and, in others, several weapons were seized.

Of the few filed by residents, one was written by a daughter caring for her 93-year-old father who was unable to hear or see and had beginning stage Alzheimer's and paranoia. She requested the court confiscate his pistol after he accidentally fired the gun while showing it to a family member; he also threatened to shoot "anyone walking by his room at night." That order was granted by a judge in Oakland County.

In another case, a woman called police after an argument with her husband over his alcohol use ended with him holing himself up in the basement and threatening to shoot himself. He shot the firearm once but missed and instead hit the basement ceiling, according to the request. He had attempted to shoot himself one other time about 30 years prior, the wife told police. Flint Township police confiscated 12 rifles from the man, who was an avid hunter, according to Genesee County court records.

The absence of any extreme risk protection orders in 58 Michigan counties and the scarcity of citizen-initiated orders in counties where there were orders issued could indicate a lack of knowledge of the law, UM researcher Oliphant said.

“I would expect that those numbers would increase,” Oliphant said. “Although, we have seen in other states that there are county by county differences.

“I think that does speak to the need for greater education of what extreme risk protection orders are and when they might be appropriate to apply for.”

While the push for red flag laws often emerge after a mass shooting, they’re most often used to address the need to remove firearms from suicidal persons, Oliphant said. But the public isn’t always immediately aware of that prevalent use, he said.

Rep. Julie Brixie, a Meridian Township Democrat who helped sponsor the bill package, also saw a need for further education about the use of the law in cases where an individual is struggling.

“I think the numbers probably also indicate that there’s continued need to families and every day Michiganders that if you have a loved one in immediate crisis, that this is available to you to prevent suicides,” Brixie said.

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