Courts expect 'learning curve,' cops have misgivings as new gun laws take effect in Mich.
Beth LeBlancLansing — Three laws meant to keep guns from minors and those considered a risk to themselves or others will take effect in Michigan Tuesday, but their actual implementation is expected to take time as police, prosecutors and the courts become familiar with the new rules.
The three laws, including the so-called red flag law that allows some guns to be temporarily confiscated, become law on the one-year mark of a shooting that claimed the lives of three students and seriously wounded five others on Michigan State University’s campus.
The laws moved swiftly through the House and Senate and onto Gov. Gretchen Whitmer’s desk in the weeks following the shooting, but their implementation date was delayed when Democrats failed to secure enough Republican votes in the Senate to get immediate effect. As a result, they are taking effect 90 days after the end of the 2023 session, which fell on the first anniversary of the MSU shooting.
"There is relief in knowing that these (new laws) will save some lives," said Rep. Kelly Breen, a Novi Democrat who helped spearhead the legislation.
"There’s accidents. There’s murders. There’s suicides. Each one of these laws is tailored to address one of those in some, way, shape or form.”
On Tuesday, the following gun regulations go into effect:
Extreme Risk Protection Order Act: A law allowing individuals to petition a court to remove firearms from individuals deemed to be a risk to themselves or others.
Safe Storage of Firearms: A law requiring gun owners with a minor in the home to store firearms in a locked container or with a trigger lock.
Licensing of firearms: A law, commonly referred to as a "universal background check" mandate, that requires a criminal background check and registration for any firearm purchase. The law essentially expands a requirement currently limited to handgun sales to include rifles and shotguns.
Also going into effect Tuesday, but passed several months after the MSU shooting, are laws that would block domestic violence offenders from owning or possessing a firearm for eight years after completing their sentence, a change that partially mirrors federal prohibitions on gun ownership after a domestic violence misdemeanor. Those new laws, originally billed as a mechanism to bridge a gap between state and federal law, also made a definitional change that meant more than 190 high court misdemeanors and felonies — many unrelated to domestic violence — would merit a three-year to five-year gun rights suspension.
'I worry about it'
Law enforcement and court officials said there will be a learning curve in the first few weeks of the laws' taking effect, in part because the early adjournment of session last year meant the state court system had a shorter period of time to develop rules for one of the largest pieces of the legislation. Final court rules regarding the Extreme Risk Protection Order Act, sometimes referred to as a red flag law, were issued Feb. 6, a week before the law was set to take effect.
"Changes like this often have implementation periods, and this one just doesn’t," State Court Administrator Tom Boyd said.
Boyd said he's confident the courts and law enforcement would pick up the procedure quickly, in part because it is similar to the procedure for obtaining a personal protection order.
"Do courts know how to do the PPOs that they’ve been doing for 30 years? They sure do," he said.
Law enforcement officials expressed some misgivings about the red flag law, specifically related to its potential misuse against officers who have to carry firearms as a condition of employment and the law's dependence on law enforcement to carry out the confiscation of guns.
"I worry about it," said Jim Tignanelli, president for the Police Officers Association of Michigan. "I don’t want anybody to get killed. ... This is a pretty broad brush in my opinion and I don’t think it's going to get enforced all that well.”
Genesee County Prosecutor David Leyton said police, prosecutors and judges are working to get up to speed in time for implementation of the new law on Tuesday.
"I don’t think that any of us are experts on this by any stretch of the imagination," Leyton told The Detroit News. "But we’ll start with it, and we’ll muscle on through until we get it right.”
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Red flag law
Versions of the Extreme Risk Protection Order Act had been adopted by about 20 other states prior to Gov. Gretchen Whitmer signing Michigan's into law in May.
Broadly, the bill allows medical professionals, family members, guardians, current and former dating partners and police to petition a judge to remove the firearms of an individual who is believed to be at risk of using the weapons. That petition would need to show by a preponderance of the evidence that the subject of the order poses a significant risk.
A petition for an extreme risk protection order can be made and an order issued with or without notice to the individual, but a higher standard for the emergency order is required — that of clear and convincing evidence of risk. In addition, judges are required to schedule hearings within certain time periods after an emergency order to ensure compliance and allow an individual to challenge the order.
If a judge finds an extreme risk protection order is warranted, the order would need to include a prohibition on purchasing or possessing a firearm and the required surrender of any firearms or unused purchase licenses.
Under the law, law enforcement would be responsible for entering the order into the Law Enforcement Information Network and alerting federal law enforcement so all emergency responders know the individual should not possess a gun. Law enforcement would need to make a "good faith effort" to determine if an individual subject to an extreme risk protection order has firearms that he or she has not surrendered.
Both Tignanelli and Michigan Sheriffs' Association Executive Director Matt Saxton expressed some concern about how that process will play out, but Saxton also noted officers are familiar with similar risks when they serve a warrant.
"A lot of what we do in law enforcement is dangerous, and we tried to convey that" as the legislation moved through the Legislature, Saxton said. " ... Oftentimes we have to assume guns are involved with any search warrant we do.”
The order would need to be accompanied by hearing dates to challenge the order and opportunities for individuals to request an alteration or rescission to show they're no longer a risk.
A violation of the order could result in an arrest, misdemeanor and felony charges, a finding of contempt of court or an automatic extension of the order. Violations could also carry felony charges ranging from one to five years in prison upon conviction.
A person who "knowingly and intentionally makes a false statement to the court" to obtain an order would be guilty of a misdemeanor carrying a 93-day jail term for a first offense.
Practical rules for the implementation of the law were issued last Tuesday by the Michigan Supreme Court, though they were preceded by briefing memos from the State Court Administrative Office as early as Jan. 5, Boyd said. A webinar was held with judges last Wednesday to better explain the process.
The Michigan Sheriff Association held a webinar on the law with sheriffs last month and has been instructing sheriffs to communicate with the courts and prosecutors about how to implement the law. But the additional rules from the Supreme Court have caused a press for time.
"Law enforcement has been waiting to see what the court process is going to be so they’re able to set their policies and procedures on serving any potential ERPOs issued by the court," Saxton said, referring to the new acronym for an extreme risk protection order.
It remains to be seen how quickly Michigan residents and police will begin petitioning for extreme risk protection orders. States such as Florida and Maryland were better prepared when their laws went into effect and had a relatively swift uptake, while states such as California, Colorado and Oregon saw a slower growth in use, said April Zeoli, policy core director for the Institute for Firearm Prevention at the University of Michigan.
"For people to really know about it and know how to do it — that includes the public and law enforcement officers — there’s a learning curve," Zeoli said.
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Secure storage of guns
The secure storage law reflects a long-sought change to Michigan's gun laws, one that gained momentum after the Oxford High School shooting in November 2021. In that instance, 15-year-old Ethan Crumbley took a handgun from his parents' home to school and killed four students and injured seven others.
But urban prosecutors testified last year that they're dealing with an increasing number of accidental or suicidal youth deaths where an unsecured gun was left on a night stand, on a bunkbed or in any other location in the home.
"I have had too many cases of young people, very young people, getting their hands on firearms and shooting themselves, shooting their siblings," Genesee County's Leyton said. "We’re hoping that parents wake up, pay attention and safely store their weapons away from their young children."
The law requires people who have a minor in their home or the reasonable expectation of having a minor in their home to store their firearms safely. The firearms, under the law, would need to be unloaded and locked with a trigger-locking mechanism or stored within a locked storage container.
If a minor obtains the firearm and the individual is found to have not complied with the safe storage law, the gun owner could face a misdemeanor charge of up to 93 days in fail or a $500 fine.
The penalties increase based on how the firearm is used. If the minor injures an individual with an illegally stored firearm, the penalty increases to a felony punishable by up to 5 years in prison or a fine up to $5,000. The penalty increases to 10 years in prison and a $7,500 fine if the minor seriously impairs someone with an improperly stored device and increases again to 15 years in prison and a $10,000 fine if the weapon is used to kill someone.
There are exemptions for minors who obtain a gun with a parent or guardian's permission and use it under the the supervision of someone over the age 18 for ranching, farming, hunting or target practice.
The law appears to be "common sense," Saxton said, but law enforcement likely won't be able to enforce it until or unless a tragedy occurs.
"Unfortunately, with these cases, the prosecution will be because someone’s been hurt. It’s reactive," Saxton said.
Universal background check
The changes to the background check rules would largely expand a background check requirement currently in place for handguns and extend both the background check and registration requirements to rifles and shotguns that are sold outside of federally licensed dealers, such as at gun shows or in private transfers of firearms. The legislation exempts firearms used for hunting if the user is under the age of 21.
Michigan State Police said it has been working to develop procedures to implement the law.
"Our Criminal Justice Information Center has procedures in place to comply with both the universal background check law and the extreme risk protection act and has done outreach to stakeholders on the process," said Shanon Banner, a spokeswoman for the Michigan State Police.
The law exempts from background checks any long guns and rifles currently in possession, "grandfathering" those firearms in, and exempts long guns and rifles obtained through a transfer among family members.
The bill shifts the responsibility to perform the background check and register the firearm with police to the seller, except in the case of a private transfer or sale with individuals who are not family members. In that case, the onus to register the gun falls on the recipient.