Michigan Gov. Gretchen Whitmer (D) signed into law Democratic gun-grab bill SB 83 on Monday. This law will enable family members, quacks, cops, roommates, and others to petition to void another citizen's Second Amendment rights if they can halfway persuade a judge it might prevent the targeted citizen from doing future harm either to themselves or to others.
While Whitmer suggested this so-called "Extreme Risk Protection Order Act" will serve as a "mechanism to step in and save lives," some Michiganders reckon it might alternatively serve as a mechanism of control, disarmament, and disenfranchisement.
What does the law entail?
SB 83 allows for immediate and extended family members, health care providers, therapists, members of law enforcement, school safety administrators, and others to request that an individual be barred from buying, using, or owning firearms until that time the targeted citizens can prove to a court that they should have their constitutional rights restored.
Petitioners familiar with the targeted citizen are asked to provide as much details as possible in their complaint, including the location of the targeted firearms "and any additional information that would help a law enforcement officer to find the firearms."
In some cases, the citizen targeted in the gun-grab will be given notice of a hearing and an opportunity to be heard at the hearing. However, if the court finds persuasive evidence that "immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before an extreme risk protection order can be issued," then the gun-grab order will be imposed without notice or a hearing.
The likelihood of a petition being granted is greatly increased if the target has a criminal history, has abused alcohol or drugs, or has previously uttered threats, although the law leaves it open to the court to determine what other factors might be relevant.
Judges have 24 hours to decide on whether to grant a request after the petition is first filed.
WOOD-TV reported that upon granting the petition, the judge then has 14 days to set a hearing where the targeted citizen has to prove that he or she does not pose a significant risk. Failing that, the order would remain in effect for one year.
When a gun-grab order goes into affect, the targeted citizen cannot purchase or possess a firearm or apply for a concealed pistol license or carry a concealed pistol. Furthermore, the citizen must surrender all firearms to either law enforcement or, if allowed by the court, to a licensed firearm dealer.
The new law is expected to go into effect in the spring of 2024.
What is the concern?
When Democratic lawmakers were first pushing the gun-grab law in the state legislature, Brenden Boudreau, executive director for Great Lakes Gun Rights, said, "Red Flag gun confiscation orders allow an old roommate, ex-spouse, ex-girlfriend, or ex-boyfriend to file for an order against someone with very little evidence, and strip someone of their rights without due process."
The NRA suggested that the law "relegates the Second Amendment to a second class right and lacks sufficient due process protections."
The Associated Press indicated that some local sheriffs have vowed not to enforce this particular law. Livingston County Sheriff Michael Murphy is one of them.
Murphy suggested in an April 24 video statement that the new law is redundant insofar as there are already "mechanisms in place should somebody need protection. There's already mechanisms in place for folks to remove weapons from a home."
"All's it does is take away guns," said Murphy.
Murphy also noted various flaws in the law's reasoning.
For instance, if citizens targeted by the ERPO have other family members living with them, such as elderly parents, or have access to a family member's residence, those not targeted by the order might nevertheless be impacted. After all, the seizure or surrender of the targeted citizen's guns would extend to firearms they do not own but otherwise have access to.
"Not only are we taking an individual's property that's subject of the ERPO, but this says that we need to take possession of property that doesn't even belong to that individual," said Murphy. "I'm not sure how that makes sense."
Murphy also seized on the language of the law's suggestion that the judge need only feel swayed by the "preponderance" of the evidence raised against the targeted citizen.
"The threshold is the 'preponderance of the evidence.' In legal terms, that means 51%. It's not probable cause. It's not beyond a reasonable doubt. It's not any of those higher standards. It's preponderance of the evidence. So 51%, if the judge believes the petitioner, then the next thing I know, I've got a ERPO being served at me," said Murphy.
The Livingston County Sheriff stressed to the Livingston Daily, "I’m not going to enforce something that is not constitutional."
"I’m not going to support, enforce, investigate anything that is unconstitutional when it comes to 2A or any other constitutional matter," he added. "I’m a constitutional sheriff and I’m not going to do anything that is going to jeopardize that, and if, God forbid, the red flag laws do pass, we won’t be enforcing those or investigating those either."
Van Buren County Sheriff Daniel Abbott is of a similar mind, reported the Los Angeles Times.
"At the end of the day, the utmost responsibility for a sheriff is to uphold the Constitution," said Abbott.
In April, the Michigan State Attorney General's Office said, "Every sheriff throughout our state is a duly elected law enforcement authority within their community, chosen by the voters of their county. As such, they have the right to discretion in that role as to what laws they will enforce, and which they choose not to, with the resources available to their department."
However, upon the gun-grab bill's ratification, Michigan Attorney General Dana Nessel said, "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 and Whitmer do not only have obstinate constitutionalists in sheriffs' offices to contend with.
The Holland Sentinel reported that last month, county boards in over 50 of Michigan's 83 counties adopted resolutions declaring themselves Second Amendment "sanctuary" counties or reaffirming their support for constitutional rights.