Added on August 12, 2019  Sara Swanson

After week of mass shootings, can ‘red-flag’ law gain traction in Michigan?

by  Lindsay VanHulle (Bridge)

State Rep. Robert Wittenberg said he has given maybe 20 media interviews since two gunmen killed more than 30 people in two American cities over the weekend, reviving sporadic debate over how to best curb gun violence.

But what he really wants, he said, is action in Lansing.

It’s been two years since Wittenberg, a Democrat from Huntington Woods, first co-sponsored “red flag” legislation in Michigan that would allow a court to order the temporary seizure of guns from people deemed a risk to themselves or others. 

In February of last year, following the carnage at Marjory Stoneman Douglas High School in Florida, there was some talk of the measure getting a hearing in the GOP-controlled Michigan Legislature, but then … nothing.

Wittenberg is hoping the past week’s mass shootings in California, Texas and Ohio have changed the political calculus surrounding new bills introduced this year. The effort got a further boost when President Trump raised such legislation as a possible bipartisan solution. 

“Every time there’s mass shootings, all of a sudden, my phone’s ringing off the hook,” Wittenberg told Bridge on Monday, Aug. 5.

He said Gov. Gretchen Whitmer, a fellow Democrat, had called, and he’s heard from multiple Democratic and one Republican lawmaker since the weekend.

“It’s creating more awareness, that’s for sure, but our resolve (to curb gun violence) has always been there,” Wittenberg said.

So far, there is little to indicate his renewed effort is gaining traction in Lansing. Neither Republican House Speaker Lee Chatfield nor Senate Majority Leader Mike Shirkey have publicly said they support the legislation, although a spokeswoman for Shirkey told Bridge on Monday that Shirkey likely will discuss the concept with his Republican caucus when the Senate reconvenes this month.

Current bill packages in the House and Senate would allow a family member, law enforcement officer, or someone else close to the person considered to be at risk, such as a spouse or romantic partner, to ask a court to grant an extreme risk protection order. If granted, the subject of the order would be prevented from having or buying guns for a year, and any guns in his or her possession would have to be surrendered to police or otherwise seized.

But some particulars of the legislation have drawn criticism. It would, for instance, allow a judge to order a gun seizure without first notifying the affected person in urgent, emergency situations, which has raised concerns about due process rights. In most cases, a person who is the subject of a red-flag order must be served with a notice and given a chance to appeal. Even in urgent cases, a hearing must be held within 14 days after the person is served with notice. 

The National Rifle Association has opposed similar efforts in other states, although the organization says it could support red-flag proposals if they included specific provisions to protect due process, such as criminal charges for those who file a false claim against a person, and a way for the subject of an order to get his or her firearms back once the order ends.

Seventeen states and Washington, D.C., have extreme risk protection order laws on the books, 12 of which allow family members and police officers to request an order, according to the Giffords Law Center to Prevent Gun Violence, which supports the policy. Wittenberg, who chairs a gun violence prevention caucus consisting solely of Democrats in the state House and Senate, said the California-based Giffords group was consulted in preparing Michigan’s legislation.

The Democratic-backed bills were reintroduced in February in both the House and Senate and have not received testimony in a committee hearing. Rep. Graham Filler, R-DeWitt, who leads the House judiciary committee, could not be reached for comment Monday.

Gideon D’Assandro, a spokesman for Chatfield, didn’t return a request to comment about the speaker’s position on the legislation.

In the Senate, the bills were referred to the government operations committee, led by Shirkey, R-Clarklake. Spokeswoman Amber McCann said Monday that Shirkey has not yet discussed the bills with Senate Republicans. They’re due back in session the week of Aug. 26.

Shirkey is concerned about balancing a policy response to mass shootings with protecting individuals’ constitutional Second Amendment and due process rights, McCann told Bridge.

“In light of the tragedies over the weekend, I think it is likely to be a topic of discussion once they reconvene formally as a group at the end of the month,” she said. “Whether or not he schedules a hearing on that particular bill, it’s too early to say one way or the other.”

Democratic lawmakers who sponsored the bills are hoping support from prominent Republicans can change the tide. They pointed to support this term from Oakland County Sheriff Mike Bouchard, a Republican, who says the bills address the due process concerns of people targeted by such orders that have stymied past efforts.

“The point of this is to interrupt a potentially very deadly situation from occurring until some determination going forward is made about that person or situation,” Bouchard told Bridge last week.

“At the least, they should have a hearing” on the measures, Bouchard said of legislators. “If they don’t like the language, look for language that is more acceptable or more workable.”

Sen. Rosemary Bayer, D-Beverly Hills, and a co-sponsor of red-flag bills in the Senate, said Trump’s comments and increasing support from law enforcement could help tilt sentiment in favor of passage — or, at least, a public hearing.

Democrats say Republican legislators and others concerned about the potential consequences of the bills could use a committee hearing to offer public input and propose revisions.

Aside from mass shootings, supporters contend, the bills also could help stop people who appear at risk of committing domestic violence or suicide.

“When things become this visible, and it’s very clear even from a national perspective that it’s time to change what we’re doing, I think it’s going to be easier for them,” Bayer said of lawmakers. “This has got to be the time.”

Other criminal justice issues have netted bipartisan momentum in Michigan this term, from county jail reforms to civil asset forfeiture laws. Chatfield, a conservative Republican from Levering, and new Democratic Attorney General Dana Nessel have often found themselves unlikely allies on such policies.

Nessel spokeswoman Kelly Rossman-McKinney said Monday she didn’t know whether Nessel has talked to Chatfield about the red-flag bills since the weekend shootings, but added that she is “a very strong, firm yes” on the legislation.

Whitmer tweeted on Monday that she wants to sign extreme risk protection orders into law.

As a candidate for governor last year, the Democrat called the policy “another tool to law enforcement and families to prevent tragedy.”

“No single law can prevent every instance of gun violence, but this is a commonsense step,” Whitmer wrote Monday. “We can’t wait idly by for an act of gun violence to devastate our state to demand action; we must act now.”