Gun control groups aim to close ‘loophole’ in Michigan protection orders
Gun violence prevention advocates say it’s time to change Michigan’s restraining order laws to take guns from abusers. Police say that can already happen under a separate new law. Photo credit: Shutterstock.
by Jordyn Hermani (Bridge Michigan)
LANSING — Gun control advocates are pushing for Michigan’s Democratic-led Legislature to close what they say is a loophole in the state’s personal protection order laws: firearm relinquishment.
When issuing a restraining order to stop threats, violence or harassment against an individual — also known as PPOs — judges can choose to bar the subject from buying or possessing firearms throughout their duration.
But Michigan law does not direct judges to order those individuals to relinquish their guns, meaning there is no formal process for police to retrieve firearms from those who are ordered to not possess them.
Michigan is one of 12 states without a relinquishment law to further protect victims of domestic abuse, according to Giffords Law Center to Prevent Gun Violence, a national nonprofit advocating for gun control legislation.
That’s a glaring hole in the eyes of gun violence researchers and prevention advocates, who argue the possession component of protection orders are extremely difficult to enforce until after a tragedy might occur, such as the recent murder of a Saline woman by her ex-boyfriend.
“It may not legally be a loophole, but there’s no way to enforce the prohibition unless someone actively brandishes (a gun) in public and it’s seen by somebody who knows that there’s a PPO,” said Heath Lowry, staff attorney and policy specialist for the Michigan Coalition to End Domestic and Sexual Violence.
“The likelihood of that happening is very slim.”
Some law enforcement officials are questioning whether any change is needed, however, because Michigan already has a way of removing guns from at-risk individuals: extreme risk protection orders. The state’s new “red flag” law allows police, mental health therapists or close relations to petition a court to allow for gun confiscation from someone deemed a threat.
That makes adding a relinquishment component to protective orders redundant, said Bob Stevenson, executive director of the Michigan Association of Chiefs of Police, as “you’ve got a law right now that will address those concerns.”
“A PPO is basically an order to keep somebody away from somebody,” he added, “and an extreme risk protection order is the order that requires someone to relinquish their firearms.”
Advocates, however, note that it can cost money to serve a PPO and argue that forcing a victim of domestic assault to request two separate orders may cause additional trauma.
Protective orders by the numbers
Michigan judges granted just over 17,200 personal protection orders last year, according to data from the State Court Administrative Office. Most were granted “ex parte,” meaning the petitioning individual imminently feared for their safety without a protective order.
But the office “does not collect data regarding how many PPOs issued contain firearm possession prohibitions,” Communications Director John Nevin told Bridge.
It’s not a rare occurrence, said Lowry, with the Michigan Coalition to End Domestic and Sexual Violence.
He’s represented several clients throughout his career where making sure someone “doesn’t have the means to cause great harm, like with a firearm” has been a major point of concern.
PPOs are often issued to protect victims of domestic violence, who are five times more likely to die when their abusers have access to guns, Lowry said, referencing a 2020 study published in the Journal of the American Academy of Psychiatry and the Law.
But if a person wants to harm someone, they’ll just find another way, countered Avi Rachlin, a regional director of Michigan Open Carry. His group advocates for the lawful open carry of a holstered handgun in Michigan.
Rachlin called it a “fool’s errand” to believe that a police sweep of someone’s home for firearms would ultimately deter them from committing a crime, as “the reality is, the ways to get a firearm in this country are absolutely limitless.”
“You have somebody in this emotional rage that wants to do you harm,” he told Bridge. “This three-page piece of paper followed up with a quick sweep of your house is not going to be the solution to that problem.”
Rachlin suggested that if domestic violence survivors fear for their personal safety, they should look into buying a gun: “You want to prevent domestic violence? Allow women to protect themselves.”
In Michigan, a person can apply for a protection order for free at their local county clerk’s office, though they do not have to live in the county where they file. Serving a protection order, however, may cost money depending on whether a person does it themselves.
Once the necessary paperwork is filled out and filed in circuit court, the court will schedule a hearing to decide whether to give out a PPO. A judge can also grant an “ex parte” order without holding a hearing in cases where the requester may face immediate harm.
The final document is a court order that prohibits a person age 10 or older from threatening, harassing or otherwise using violence against the individual who filed the request. As such, a judge can also put in the order certain stipulations — including that the person may not buy or possess guns for the duration of the order.
In most situations, PPOs last anywhere from six months to a year. Violating the terms of a personal protection order could land a person in jail for up to 93 days, a $500 fine or both.
ERPO or PPO?
Extreme risk protection orders, also called ERPOs, are separate court orders that can last up to a year. They can be requested by 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.
Democrats passed the “red flag” law last year over objections from Republicans, who warned the weapon confiscation procedure could be used vindictively, violate due process rights and put police in harm’s way.
Those concerns, however, have yet to bear out as authorities began to enforce the law this year.
Because there’s so much overlap between extreme risk protection orders and personal protection orders, it doesn’t make sense to require a person file for both, said Erin Earp, a state and federal policy attorney with Giffords.
“The idea that a domestic violence victim who petitions for a protective order would then have to go and request an ERPO, it doesn’t really make sense at all,” said Earp, who cautioned looking at extreme risk protection orders as “the panacea for all removals of firearms.”
Lowry agreed, saying that requiring a person file both extreme risk and personal protection orders could be “retraumatizing to survivors to have to reapproach the legal process multiple times.”
Some states, like Indiana and Washington, have extreme risk protection order laws but also have a firearm relinquishment process for protection orders.
If a judge has already determined that a person should not possess a gun through a standard protection order, Earp questioned the wisdom of making someone fill out the same court forms twice to achieve the same end goal.
Stevenson seemed skeptical it would take much longer for people to fill out both an extreme risk protection and personal protection order. He declined to say whether he’d support changing Michigan PPO law, noting he’d have to see some legislation first.
“They’ve invented the wheel,” Stevenson said of the gun relinquishment process for extreme risk protection orders, “to try to go back legislatively and reinvent the wheel … What would be the point?”
An appetite for movement
Democrats, who have narrow majorities in the state House and Senate, are discussing potential changes to Michigan’s personal protection orders but have not yet introduced legislation — and do not appear poised to act any time soon.
It’s crucial to make sure “the right processes are followed” when crafting gun relinquishment legislation, said Rep. Kelly Breen, D-Novi, who chairs the House Judiciary Committee.
She said she’s currently focused on other gun-related legislation, such as cracking down on “ghost guns” — untraceable firearms lacking a serial number— and revisiting recently enacted firearm relinquishment rules for misdemeanor domestic violence convictions.
“I would love to be able to get to it before the end of the term, but I’m not sure if we’re going to be able to,” Breen said of PPO reforms. “It’s definitely something that we’re keeping an eye on.”
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