As a law firm dedicated to keeping our clients and community informed, we are always on top of the latest developments in law and policy. One recent change in Michigan's legal landscape that has garnered a great deal of attention is the newly enacted Red Flag Law. The law, officially named the "Extreme Risk Protection Order Act," provides a framework to temporarily restrict an individual's access to firearms if they are deemed to pose a significant risk of harm to themselves or others.
In this blog post, we aim to provide an overview of this new legislation, outline its implications, and explain how it may affect you or your loved ones.
What is the Red Flag Law?
At its core, Michigan's Red Flag Law is designed to mitigate the risk of gun violence by allowing certain individuals to petition the court for what is known as an "Extreme Risk Protection Order" (ERPO). If a judge is persuaded that the individual in question poses a significant risk, an ERPO can be issued, temporarily preventing that person from purchasing, possessing, or accessing firearms.
How does it work?
The process starts with a petition to the Circuit Court. The petition may be filed in any Circuit Court in the State of Michigan if the individual is an adult. It must be filed in the individual's county of residence if the individual is a minor, and it must be filed in the petitioner's county of residence if the individual does not reside in Michigan. The petitioner must provide evidence that the individual “can reasonably be expected within the near future to intentionally or unintentionally seriously physically injure himself, herself, or another individual by possessing a firearm, and has engaged in an act or acts or made significant threats that are substantially supportive of the expectation.” The petitioner must detail specific behaviors, threats, or actions that have led them to this belief.
If the judge agrees that the evidence shows a significant risk, they will issue an ERPO. If the restricted individual requests a hearing regarding the ERPO, the court must conduct a hearing no later than 14 days after the order is served on the restrained individual or after the restrained individual receives actual notice of the order. If the restrained individual is a law enforcement officer, that period is shortened to five days.
How does this affect gun rights?
An ERPO is a civil order, not a criminal one. This means that being subject to an ERPO does not result in a criminal record or conviction. However, while an ERPO is in effect, the respondent is required to surrender all firearms and will be prohibited from purchasing or receiving any new firearms.
Once an ERPO has expired or has been lifted by a judge, the respondent's right to possess or purchase firearms is typically restored. However, it's important to note that Michigan's Red Flag Law does not supersede federal laws or other state laws that might independently restrict a person's ability to possess a firearm.
Implications of the Red Flag Law
This new law aims to strike a balance between preserving an individual's Second Amendment rights and ensuring public safety. Critics argue that the law could be abused and infringe upon individuals' rights without due process. Supporters, on the other hand, view it as a valuable tool in preventing gun violence, especially in cases of domestic violence, suicide risk, and threats of mass shootings.
How can a lawyer help?
If you or a loved one are involved in an ERPO case, whether as a petitioner or a respondent, it is essential to have competent legal representation. The laws surrounding firearm possession are complex, and an experienced attorney can ensure your rights are protected throughout the process.
Michigan's new Red Flag Law represents a significant shift in our state's approach to gun control and violence prevention. As with any new legislation, its full impact will only become clear over time. Meanwhile, we are committed to providing our clients with the most accurate and up-to-date information to navigate these changes. If you have any further questions, don't hesitate to contact our law firm. We're here to help.