Michigan about to enact red flag laws: Here’s how they work

Michigan gov to sign legislation into law Monday

FILE - Michigan state Rep. Brenda Carter, D-Pontiac, left, and state Sen. Rosemary Bayer, D-Keego Harbor, join hands during a news conference to call for gun reform, Feb. 20, 2023, in Lansing, Mich. (AP Photo/Al Goldis, File) (Al Goldis, Copyright 2023 The Associated Press. All rights reserved)

Michigan Gov. Gretchen Whitmer is poised to sign red flag legislation into law on Monday, adding it to other gun safety measures recently enacted in the wake of the Michigan State University shootings.

Last month, Michigan lawmakers passed a bill that establishes red flag laws in the state in an effort to help reduce gun violence. Red flag laws, also known as extreme risk protection order laws, are becoming a more popular tool in states’ arsenals against firearm misuse.

Red flag laws establish certain steps that can help keep guns out of the hands of people who are in crisis, and who pose a danger to themselves or others.

The newly-Democrat-led Michigan Legislature passed the red flag bill just two months after three students were shot and killed, and more were injured, on Michigan State’s campus. Lawmakers have recently been taking steps to address gun violence, particularly after the state faced two high-profile mass school shootings in under two years.

As of Monday, May 22, Michigan will be one of 20 states that have some sort of red flag law in place. The laws are enforced differently in each state, but experts say they may be a promising tool in the push to end gun violence.

How do red flag laws work?

Red flag laws are designed to help prevent a person in distress or crisis from using a firearm to inflict damage on themself or others. The laws don’t seek to take firearms away from gun owners who aren’t dangerous or in distress.

The situations in which red flag laws may be enforced are somewhat rare, but the laws can have a significant impact if a gun owner is dangerous and in a poor frame of mind.

Actually enforcing this law requires court intervention. Here’s how it works:

  • A dating partner, current or former spouse, family member, law enforcement member, or mental health professional can petition a court to have a person’s firearms temporarily removed if that person is deemed a risk.
  • A judge may enter an emergency, short-term order after receiving evidence that the person in question poses an immediate risk.
  • A hearing must be held to review the evidence for and against issuing a temporary firearm removal order.
  • The person in question will be responsible for proving in court that they are not a risk and should regain access to their weapon(s), while those behind the petition are to prove why the person might be a risk.

If a judge does issue a removal order, that order typically has a limited duration. In most cases around the country, a removal order can only be extended if another hearing is held.

Either way, in order for one or more firearms to be removed from someone’s possession under an extreme risk protection order, the court must validate the concern that was initially petitioned. Meaning, in these cases: a judge is always behind the decision to remove the firearms from an at-risk person.

Many who oppose red flag laws argue that the laws violate due process protections, but the laws actually “provide due process protections that meet the standards set by the Supreme Court,” according to gun violence prevention nonprofit Everytown for Gun Safety.

Why do red flag laws matter?

Experts are in the process of researching the causes of America’s ongoing gun violence problem, in addition to potential solutions.

As solutions are being researched, experts say the red flag law is becoming an increasingly frequent tool used by lawmakers as gun reform policies are enacted around the country, most commonly in Democrat-led states. The conservative-led Florida, however, did adopt a red flag law following the Parkland high school shooting in 2018.

Contrary to some rhetoric, red flag laws don’t seek to take away guns from responsible gun owners. In fact, experts say the solution to gun violence isn’t taking guns away from responsible owners at all.

“It’s about preventing people who have access who should not,” said Dr. Patrick Carter, co-director of the Firearm Injury Prevention Center at the University of Michigan.

Red flag laws can add a layer of protection and de-escalate potentially dangerous situations.

Extreme risk protection orders are meant to protect a gun owner or others around them if that owner is considered dangerous. Whether the gun violence looks like a mass shooting, interpersonal violence, or suicide, red flag laws have the potential to keep a person in distress from accessing a deadly weapon.

More research is needed to better understand the impact red flag laws have on overall gun violence, according to Dr. Carter. The laws are promising, but researchers are still working to better understand how effective they are.

Existing research has shown that in 32% of mass shootings, the shooter “exhibited dangerous warning signs before the shooting,” according to Everytown. In more specific cases: Indiana reportedly saw a 7.5% reduction in firearm suicides after establishing a red flag law; while in Connecticut, a suicide is reportedly averted every one in 10 gun removal cases brought under their red flag law.

Following mass shootings in the U.S., lawmakers around the country argue that red flag laws are important to have in place -- particularly after mass shooters in Uvalde, Texas, and Buffalo, New York, “indicated very strong signs” that they were dangerous, said Connecticut Sen. Richard Blumenthal.

But though mass killings are the most public representation of gun violence, suicide is actually the most common form of gun violence in the country.

Because federal gun laws only prohibit certain people from purchasing or possessing a firearm, extreme risk protection orders on the state level can intervene when a person outside that criteria falls into crisis.

“Under current federal law, a person is barred from having guns only if they fall into one of several categories of prohibited persons. A person who displays warning signs that they’re considering suicide or engaging in a violent act, but who is not prohibited under federal law, would still be legally able to buy and possess guns. Extreme Risk laws help to fill this gap, protecting public safety and allowing people in crisis the chance to obtain the help they need,” Everytown states.

You can see which states have red flag laws here.

What did the Legislature pass?

On Wednesday, April 19, the Michigan Senate gave final approval for Senate Bill 83, which establishes extreme risk protection order laws.

The legislation was introduced in the Senate in February, days after the mass shooting at Michigan State University, and was approved in mid-April. The bill was presented to Gov. Whitmer on May 9, and she is expected to sign it on May 22.

There are other pieces of legislation on red flag laws, though. Four House bills related to extreme risk protection orders were introduced on Feb. 28.

Three of those bills -- House bills 4146, 4147, and 4148 -- have been passed by the state House and Senate, and were presented to the governor on May 11.

However, one of the four House bills -- 4145 -- has passed in the House, but has not yet passed in the state Senate. On April 19, the bill was referred to the Committee on Civil Rights, Judiciary, and Public Safety. It’s unknown when the committee will complete their review.

On April 13, the Michigan Legislature passed two other parts of their three-pronged gun reform plan, including legislation that establishes universal background checks for all firearm purchases, and gun storage requirements in certain circumstances.

---> Read more: Michigan gun reform bills now law: What that means

Michigan Attorney General Dana Nessel said that if the newly-enacted gun safety laws are challenged in court, she will defend them.

“This law will save lives,” Nessel said after the passage of SB 83 on Wednesday. “What is clear, after years of witnessing horrific gun violence across school campuses, places of worship, and elsewhere, is that some people simply should not have firearms. And often, whether the need to remove a person’s access to a firearm is acute or enduring, there are egregious and abundant warning signs. This law will allow concerned friends, family, and law enforcement to act in a way that prevents senseless gun violence and deaths in our state.

“If these recent gun safety laws should be challenged in court, I want the people of Michigan to know it will be my duty and honor to defend them. When these laws are enacted, I will use every tool of my office to ensure Michigan residents are informed of these laws and that they will be vigorously enforced.”

---> Related: ‘Missing key laws’: Michigan ranks 24th in US for gun safety

Michigan voters want red flag laws

In a survey of Michigan voters taken after the February mass shooting at Michigan State University, voters overwhelmingly said they support proposed gun reform policies.

Nearly 75% of Michigan voters said they support implementing red flag laws, according to the March survey. About 80% of Michigan voters support passage of safe storage gun laws, and nearly 88% support universal background checks.

All three of those policies have since been passed by the state Legislature. Universal background checks and safe gun storage have already been signed into law.

You can see the full survey here.

About the Author:

Cassidy Johncox is a senior digital news editor covering stories across the spectrum, with a special focus on politics and community issues.