So Let's Talk About Michigan Dem's Horrendous Yet Likely To Be Pushed Through Red Flag Law

If you search for the proposed Red Flag Law on Michigan's Legislature site, you won't find it.

That's because its cutely known as the "Extreme Risk Protection Order Act".

Here's the proposed law for your reading enjoyment.  It's tied to a lot of other bills that themselves change other areas of Michigan law to harmonize them with the ERPO.

In short it is bad.  How bad?  Read on.

We're gonna call the person who is the subject of the ERPO the Subject for the sake of brevity. The law provides that a whole lot of people can apply for an order to take a Subject's firearms if they allege the Subject may be a harm to the Subject or others.

This includes: 

(i) A parent.

(ii) A son or daughter.

(iii) A sibling.

(iv) A grandparent.

(v) A grandchild.

(vi) An uncle or aunt.

(vii) A first cousin.

(viii) A police officer/Sheriff/Corrections officer/Federal LEO

(ix) A Mental health professional 

Oh, and for absolutely no chance of false claims being made it also includes:

(a) The spouse of the defendant.

(b) A former spouse of the defendant.

(c) An individual who has a child in common with the defendant.

(d) An individual who has or has had a dating relationship with the defendant.

(e) An individual who resides or has resided in the same household with the defendant.

In short, your former roomate, your ex-roomate. or your ex, no matter how long ago it was that they became your ex doesn't like you, they can mess up your life by filling for one of the ERPOs.  If you had a dating relationship 20 years ago and haven;t seen them since, this law qualifies that person to file such a petition.

The order is issued under the very low civil evidentiary standard of a preponderance of the evidence, not the standard of beyond a reasonable doubt as is the case in a criminal prosecution.

Amazingly, one of the elements a court can  use to consider in deciding to enter the ERPO is if the Subject has purchased a firearm or ammunition within 180 days before the filing.  Since the ERPO is about removing firearms that's a tad tautological and it's ridiculous that simply buying a firearm can be considered a factor in whether the Subject has to surrender their firearms.  Michigan anti-gunners rejoice.

Even better, the order can and indeed will be issued without notice to the Subject of the order.

The Subject gets all of 24 hours after being served with the order to surrender all their firearms. No chance to contest it at this stage.

Within 10 days of being served with the ERPO the court would hold a compliance hearing where the Subject of the ERPO has to affirm they have surrendered any firearms they own. This again isn't an opportunity to contest the ERPO.

To contest it, the Subject, on their own, and they better hire an attorney at their own expense, gets to file a motion that the order should be rescinded. The burden of proof is on the Subject, not the state nor the person making the accusation that led to the ERPO.  The Subject of the order has to prove, again by a preponderance of the evidence that they are not a threat.

Nicely reversing the standard that the prosecution must prove the subject is a  threat and instead it is on the subject to prove they are not. Kafka would be proud.

As Yoda might say: Turning American jurisprudence on its head this law does, hmmm.

Why would the Subject need an attorney?  

Because under this law you get One, yes just ONE chance at overturning the ERPO (you also get 1 additional shot at overturning it if/when the ERPO is extended). 

If you lose the first one, all subsequent motions the Subject may file the court can summarily dismiss without a hearing. So you better do a perfect job the first time, and likely means you better come to court with an attorney and already have paid for and been evaluated and cleared by a mental health professional.

Again, the burden is on the Subject, not the state.

That's pretty damn nuts right there. Actual due process went right out the window. Oh, and there's no provision for anyone to pay the Subject's attorney's fees if they win and the order is found to be without basis. The process damn well can be the punishment here.

Oh, and even better, the ERPO doesn't have to be filed in the County where the Subject resides. It can be filed where the person making the allegation resides, so the Subject may potentially have to travel across the state to contest it.

Violation of an ERPO by not divesting of all firearms by a Subject starts off as contempt of court and on a further or ongoing violation turns into a 5-year felony.

Oh, and what if you live with a Subject who gets one of these ERPO's? Well, under the law, you would be ordered under penalty of contempt of court to make sure the Subject cannot gain access to any of your firearms.

There is at least a penalty for filing a false ERPO, but it has a higher standard of proof than preponderance of the evidence.  Instead it has to be shown that the petitioner "knowingly and intentionally" filed a false petition.  I don't expect a lot of prosecutions under that standard. Even if that is shown, it is a criminal conviction and the Subject does not personally get recompensed for the ordeal. Plus the first time they make a false filling, it's only a misdemeanor and a $500 fine - which is rather light for falsely putting someone through this process - an may be worth it to people with a grudge. Only if you keep filling false petitions does it become a felony.

I will note that if there really was an extreme risk there are already multiple ways the person can be interdicted with due process - involuntary mental health holds; Personal Protection Orders; or even - dare I suggest - prosecution for actual crimes the person may be doing.   This law instead kicks it up to 11 and dumps due process by the roadside, while leaving multiple opportunities for mischief.

Again, an ERPO law would not have stopped the MSU killings. No one tried to stop the killer in question from having firearms even as they knew he had paranoid schizophrenia.  He was never involuntarily committed., never charged for discharging a firearm inside cituy limits, and there's no record of anyone actually seeking to have him dealt with and being unable to do so. Now, had the Ingham County prosecutor not dropped the felony charge against him that may have done it. but she likely did not do so for woke reasons, so here we area.

This law flips the burden of proof on its head, creates a huge list of people who can file it who may have their own axes to grind in the matter, and really messes with the concept of due process.

This is a bad law, and it's going to go through.