Police are using Michigan’s ‘red flag’ law to confiscate guns. Here’s how
Michigan’s new “extreme risk protection order” law allows authorities to seize guns from people deemed to be a threat to themselves or others. Photo credit: Shutterstock.
by Jordyn Hermani (Bridge Michigan)
LANSING — A Battle Creek man diagnosed with bipolar disorder, off medication and threatening his wife in a murder-suicide.
A 27-year-old voicing suicidal ideas in the midst of divorce proceedings, his wife concerned he’d actually follow through.
An elementary school student who had access to his parents’ guns and threatened to shoot a classmate.
Police seized firearms from the individuals or parents in all three scenarios under Michigan’s new “extreme risk protection order” law, otherwise known as a “red flag” statute.
They were among the roughly three dozen extreme risk protection orders granted statewide since the law first took effect mid-February.
The procedure allows police to take guns from individuals deemed at-risk of hurting themselves or others, as determined by a judge. And despite protests from gun rights advocates, officials say the new law is working as intended.
The Democratic-led state Legislature and Gov. Gretchen Whitmer approved the red flag law last year following a mass shooting at Michigan State University, championing it as a way to help prevent firearm deaths.
But Republicans and other critics argued the weapon confiscation procedure could be used vindictively and violate a person’s right to due process. Police officers, tasked with retrieving guns from a possibly volatile situation, could be put in harm’s way, they warned.
So far, at least, none of those worst-case predictions about the law have come true, Bob Stevenson, executive director of the Michigan Association of Chiefs of Police, told Bridge Michigan.
While it’s been less than two months since implementation, he said it’s his understanding that fewer than 40 extreme risk protection orders had been served statewide as of March 22. In each case, police successfully confiscated the weapons without any significant problems, he said.
“I think, in all, it’s probably gone about as well as could be expected,” Stevenson said.
Det. Sgt. Dave Homminga with the Calhoun County Sheriff’s Department said his first time serving a risk protection order “wasn’t anything difficult,” though declined to speak in detail about his experience.
A more definitive count of the number of extreme risk protection orders issued across the state is not yet available, according to a spokesperson for the Supreme Court Administrative Office, which will eventually be required to compile annual data about how the law is used.
What are extreme risk protection orders?
Gun safety advocates have long pushed Michigan to adopt a red flag law like those in Florida, Colorado and more than a dozen other states. The effort gained momentum following the 2021 mass shooting at Oxford High School, which left four students dead.
Actual legislative traction, however, did not occur until after Democrats seized control of both the state House and Senate in the 2022 midterm elections. Less than two months into the Democrats’ first year of power, a gunman opened fire at MSU, killing three students and wounding five others.
In the days that followed, lawmakers implemented a host of gun-related safety laws alongside red flag orders, including universal background checks for all firearm sales and new safe storage requirements. Each took effect Feb. 13.
“Red flag laws create a preventative tool — a stopgap for loved ones, judges, and law enforcement,” sponsoring said Sen. Mallory McMorrow, D-Royal Oak, in a Senate floor speech. “And while it is difficult to measure events that did not happen, evidence shows that these extreme risk protection orders can and do save lives.”
The law specifies who can petition the court for a confiscation order: Someone with either a personal familial or romantic relationship with the gun owner, a roommate or a mandatory reporter, such as a police officer or health care provider.
If granted, the orders last one year, but a person can contest an order during the first six months in effect if they feel it was improperly granted. A judge could also be compelled to either extend, or preemptively end, an order at any point if asked by the initial petitioner.
Police agencies and courts have in recent months issued procedural guidance on the new law, including suggestions for when to issue an order and how to initiate contempt proceedings if an individual violates a protection order.
Rep. Mike Harris, R-Waterford Township, was among those vocally opposed to the effort while it worked its way through the Michigan Legislature. He, like other Republicans, railed against legislation he predicted would strip “law abiding citizens of due process.”
But those fears haven’t come to fruition, said Kalamazoo County Prosecutor Jeff Getting.
Getting, who also serves as president of the Prosecuting Attorneys Association of Michigan, told Bridge that if abuse of the system were to occur, it likely would have been within the first few months of the law taking effect.
That hasn’t happened yet, he said, adding that it would “take us several months before we figure out more definitively if there are ways this can be improved.”
“So far, it seems like the kind of fears that this type of law caused in peoples’ imaginations just hasn’t materialized,” Getting said. There have “been a few growing pains” in terms of administering the law, he said, but on-the-ground implementation has otherwise been fine.
How orders are being used
A Bridge Michigan review of 10 extreme risk protection orders obtained from Wayne and Calhoun counties shows they were mostly sought by law enforcement agencies, and in one case, a medical professional.
Their stated reasons for requesting gun confiscation were wide ranging, though most centered on addressing suicide risks or preventing further domestic violence.
Of the 10 order requests reviewed by Bridge, two were denied: One, because the petitioner failed to properly serve the at-risk individual with the order, as required; the other, an incomplete form that law later finished in a separate petition that was granted.
“We were concerned, at first, that there would be a lot of them issued – but that’s not been the case,” said Stevenson, with the Michigan Association of Chiefs of Police. “Judges have all been good about how they’re issuing them.”
One order reviewed by Bridge was contested — by a Battle Creek man who claimed his wife had filed it vindictively as a form of “character assassination” to justify leaving him after inheriting a large sum of money.
A judge ultimately disagreed, ruling the man had “failed …. to meet the burden of proof to terminate” the order, which will allow police to keep his handgun and rifle until February of 2025.
The woman who filed the order alleged her husband had previously threatened murder-suicide and become “increasingly aggressive and violent” since she inherited money from her father.
At one point, he pulled her out of bed by her ankles hard enough to bruise, and separately attempted to drag her to the basement where a gun was kept, she told the court, saying she was “scared for both his safety and my own.”
(Editor’s note: Bridge Michigan is not naming the individuals associated with extreme risk protection orders to protect their privacy because some petitioners were alleged victims of abuse and the orders were issued separately from any potential criminal proceedings.)
Harris, the Republican lawmaker and a former police police officer, called the incident nauseating when made aware of the risk protection order. But laws already exist to remove mentally unwell individuals from these situations, he maintained, such as a personal protection order, or PPO.
All risk protection orders do is remove guns from the situation, Harris said, arguing they do little to address any underlying mental health issues creating the problem.
But risk protection orders should be seen as complementary to PPOs, said Lynelle Morgan, a supervising attorney with the Michigan Coalition to End Domestic and Sexual Violence’s survivor law clinic.
One is meant to keep an aggressor away from a certain person; the other is meant to keep firearms away from that aggressor. Used together, both could help a person stuck in a potentially deadly domestic violence situation with immediate consequences, Morgan said.
Harris, however, still said he felt the risk protection process outlined in law lacked due process and did not have “the rights of our citizens in mind.”
“I think there’s things in place, or even things we could tweak to make better, that would still afford those same protections that people are looking at with this,” he said.
Even with the limited use and lack of violence associated with the law’s rollout, police and prosecutors say it’s still too early to declare implementation – and use of red flag orders writ large – an all out success in Michigan.
“I think it’s gonna take us several months before we figure out more definitively if there are ways that this can be improved,” said Getting, president of the Prosecuting Attorneys Association of Michigan.
“Right now, it’s just a matter of trying to make sure we can figure out the process.”
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